Jus Cogens

-also known as the peremptory norm, is a fundamental and overriding

principle of international law.

- It is a Latin phrase that translates to ‘compelling law’.

- It is body of fundamental principles of international law which binds all

states and does not allow any exceptions.

- It is basically a compilation of norms that lays down the international

obligations which are essential for the protection of the fundamental interest
of the international community and any violation of these norms is thereby
recognized as a crime against the community as a whole.

- It is binding upon all the members of the international community in all

circumstances. Jus cogens imply absolute restrictions on genocide, slavery or
slave trade, torture or other inhuman treatment, prolonged arbitrary
detention, and racial discrimination.

- Art. 53 of the Vienna Convention is the origin of the principle of jus cogens.
It states that a treaty is void if, at the time of its conclusion, it conflicts with
the peremptory norm of general international law.

- Art. 64 of the Vienna Convention deals with the emergence of a new

peremptory norm of international law. It states that if a new peremptory
norm of the international law emerges, any existing treaty which is in conflict
with that norm becomes void and is terminated.

- Jus Cogens is criticised for

I) putting limitations on the ability of states to change or introduce an

international law.

II) The second point of criticism being about the consent and obligation of
states to follow the norm. The states which are a part of the international
community have to mandatorily comply with the norms, regardless of their
consent and their individual opinion to be bound.

Pacta Sunt Servanda

- It is a Latin term that means agreements must be kept.
- In international law, it means that every treaty is binding upon the
parties and they must be executed in good faith.
- The principles of Pacta Sunt Servanda are also embodied in the
Permanent Court of Justice and The International Court of Justice.
- Art. 26 of the the Vienna Convention establishes the principle of ‘Pacta
Sunt Servanda’ is established. The Article states “Every treaty in force
 is binding upon the parties to it and must be performed by them in
good faith.”
- The court in the Nuclear Test Court (Australia v.France [3]) based
on the doctrine of Pacta Sunt Servanda (i.e., must keep promises)
held that trust is inherent in international cooperation, especially at
a time when cooperation in many fields is becoming more and more
essential.
Robus Sic Stantibus
- The phrase ‘rebus sic stantibus’ (things thus standing) is a Latin phrase
that refers to a situation where a contract cannot be withdrawn from or
terminated as long as the conditions and circumstances surrounding
the contract have not fundamentally changed.
- This doctrine is a part of customary international law but a provision
for this doctrine has been provided in Article 62 of the Vienna
Convention
- It helps to escape the principle of ‘pacta sunt servanda’, which
stipulates that all states must abide by the agreements formed
between them in good faith.
- To invoke Robus Sic Stantibus, certain conditions need to be
fulfilled:

- There must be a fundamental change in the circumstances prevailing

at the point where the treaty was concluded to the present prevailing
circumstances. Such fundamental change must not have been foreseen
by the parties.
- Those circumstances must have constituted an essential basis of the
consent of the parties by which they entered and agreed to be bound
by the treaty.
- The change has the effect of substantially and radically transforming
the extent of obligations of a party under the treaty.
- If the fundamental change has occurred because of a breach by a
party invoking the said change, this doctrine cannot be used to escape
the obligations under the treaty.
- Objective of Robus Sic Stantibus
- At the time of the conclusion of the treaty, the state thinks the terms
of the treaty to be beneficial but later might realise it to be
unbeneficial. There might be some internal situation in a state where
the treaty is found to be detrimental or harmful to the state. In such
situations, the state may look to withdraw, terminate, suspend
operations or render the treaty invalid.
- State sovereignty and policy might dictate that the state not always
follow the terms of the treaty therefore the state might choose to
withdraw from a treaty. If the state deems a treaty detrimental to its
security or security of its subjects, it may choose this option.
- The most important case of the use of rebus sic stantibus in recent
times is that of the Fisheries Jurisdiction case (United Kingdom of
Great Britain & Northern Ireland v. Iceland [I.C.J. Reports 1973, p.
3.) In this case, the International Court of Justice judged a dispute
wherein Iceland sought to extend its fisheries jurisdiction from 12 to
50 miles.
- In 1961, the United Kingdom reached a settlement with Iceland that
there would be a 12-mile fishery zone around Iceland and in return,
any dispute regarding the Icelandic fishing zones shall be referred to
the International Court of Justice.
- However, in 1971, Iceland decided to extend the fishing zone to 50
miles and also decided that the 1961 settlement was no longer in
effect. The United Kingdom thus approached the International Court of
Justice.
- Iceland contended that there had been a change in the circumstances
since the 12-mile limit was now recognized by both parties through the
1961 settlement and this change necessitated the extension of the
zone.
- The main issue to be dealt with here by the Court was whether it was
necessary that there be a transformation of the extent of the obligation
to be performed by the party so that a change in circumstances may
give rise to the termination of a treaty.
- The Court thus held that the 1978 Icelandic Regulations were a
unilateral extension exercised by only Iceland and that it could not
unilaterally exclude the United Kingdom from fishing in the areas
agreed under the 1961 settlement. It was further held that in order to
effect a change in circumstances for termination of a treaty, it is
necessary that there has been a transformation of the extent of
obligations yet to be performed. The change in the circumstances did
not transform the extent of the jurisdictional obligation of Iceland to
limit the fishery zone to 12 miles under the 1961 settlement.
 Qualification of a state as a person of International Law and 2
theories of State recognition

Recognition of state means acknowledgement as an international political entity by

another state. Recognition simply is a declaration of existence. Even though a state or
government already exists before recognition, recognition brings more power and unity.

Recognition of state means acknowledgement as an international political entity by another state.

Simple announcements cannot do it.

According to the Montevideo convention, four qualifications must be gained for a state to be
recognised in international law:

1. A permanent population.
2. A defined territory.
3. Government to rule.
4. Ability to make new relations with other states.

Legal Effects of Recognition

Several legal effects can be gained by the recognition of a state.

1. The power to prosecute in a court was made for recognised states.

2. The power to possess the community and its property.
3. The power to possess the land of the community and properties under the state.
4. Chances of de jure recognition.
5. When a state is recognised, its past actions and approvals are also recognised (if it is relevant
and came into action after recognition starts).

Constructive Theory of Recognition

- This theory is coined by Hegel and Oppenheim.
- According to this theory, the State is considered as an international
person. This theory views that after the recognition a State gets its
status of an International person and becomes a subject to
International Law.
- In this theory State gets the exclusive rights and obligations and
becomes a subject to International Law after its recognition by other
existing States.
 - Criticism- That except the State which is recognised by other existing
States, rights, duties, and obligations of Statehood community under
International Law is not applicable to this theory.
- It also comes into confusion when a new State is recognised by some
of the existing States and not recognised by other States.

Declarative Theory of Recognition

 Declarative Theory is coined by Hall Wagner and Fisher.
 This was developed in the 20th Century to address shortcomings of
constitutive theory.
 Before the recognition of the State, a new State has the right to
defend its integrity and independence under International Law.
 This theory is laid down under Article 3 of Montevideo Conference of
1933
 Followers of this theory consider this process of recognition as
merely a formal existence of Statehood by other States

Means of Peaceful settlement

- Peaceful settlement of international disputes is an essential principle of

international law that was developed in Art 2 of the UN Charter
- According to Article 2(3) of the UN Charter, parties involved in such
disputes must seek peaceful resolutions.
- Negotiation: Negotiation is the primary method of resolving
international disputes. It involves direct discussions between parties
to reach a mutually acceptable solution. Negotiations can take place
at bilateral or multilateral levels, with the involvement of mediators
or facilitators if necessary.
- India and Sri Lanka had settled their boundary dispute in the year
1974 by the negotiation method.
- Mediation: Mediation involves the intervention of a third party to
assist disputing parties in settling. The mediator acts as a neutral
facilitator, helping parties identify common ground and explore
potential solutions. Mediation is voluntary, and the mediator does
not impose decisions on the parties.
- A famous example of mediation is when the Soviet Premier Kosygin
settled the dispute between India and Pakistan by signing the Tashkent
Agreement in 1966.
- Good Office: Good offices is basically the act through which the third
party either arranges for a meeting between the disputant parties or
he acts, in ways through which a peaceful settlement can be reached. t
 is important to note here that the third party is not directly involved in
this process.
- The Prime Minister of the United Kingdom, James Harold Wilson, had
lent his good offices to India and Pakistan to reach an agreement in
reference to the Kutch issue.
- Conciliation: Conciliation is similar to mediation but typically
involves a more formalized process. It may involve the
establishment of a conciliation commission composed of impartial
individuals or representatives from neutral states who facilitate
discussions and propose solutions. Conciliation aims to encourage
compromise and reconciliation between the parties.
- Among the various treaties that have been signed through the
Conciliation Commission the most important ones are:
i) Pacific Settlement (1948)
ii) Pact of Bogota (1948)
iii) The Vienna Convention on Protection of the Ozone layer

- Arbitration: Arbitration is a binding method of dispute settlement

where parties submit their dispute to an impartial tribunal or
arbitrator. The arbitrator(s) hear the arguments and evidence
presented by both sides and renders a legally binding decision,
known as an arbitral award. Arbitration provides a more formalized
and structured approach to dispute resolution than negotiation or
mediation.
- Judicial Settlement: Judicial settlement is resolving disputes through
international courts and tribunals. The International Court of Justice
(ICJ), the principal judicial organ of the United Nations, is
responsible for settling legal disputes between states. Its judgments
are binding and provide clarity on matters of international law.
- The International Court of Justice has recently decided the Kulbhushan
Jadav case. India and Pakistan were the parties to the dispute in this
case. Jadhav was a retired Indian Navy Officer and was sentenced to
death by the Pakistani Military Court. The charges that were pressed
against him were of terrorism and espionage. In a major win for India,
after a 4 year long battle from being arrested on 3rd March, 2016, he
finally sought relief after the suspension orders of his hanging were
delivered by ICJ in 2019.