1

10M

Unit 1 (1 to 12)

Q1. Discuss the various sources of lnternational Law with special reference to custom as
a source. Analyse the various sources of International Law according to the statutes of
ICJ.

Let’s delve into the sources of International Law, with an analysis based on the Statute of the
International Court of Justice (ICJ).

1. International Conventions (Treaties):

○ These are formal agreements between states, whether bilateral or multilateral.
Treaties establish rules that are expressly recognized by the parties involved.
○ They play a crucial role in shaping international law by codifying norms and
obligations.
2. Customary International Law:
○ Custom arises from the general practice of states, which is followed out of a
sense of legal obligation.
○ Two elements constitute customary law:
■ State practice: Consistent actions by states over time.
■ Opinio juris: The belief that such practice is legally obligatory.
○ Customary law is a vital source, especially when no specific treaty exists on a
particular matter.
3. General Principles of Law Recognized by Civilized Nations:
○ These principles are derived from legal systems worldwide and are considered
fundamental.
○ They serve as supplementary sources when treaties and custom are insufficient
to resolve a dispute.
4. Judicial Decisions:
○ Decisions of international courts and tribunals contribute to the development of
law.
○ Precedents set by these bodies guide subsequent cases and shape legal norms.
5. Teachings of Highly Qualified Publicists (Juristic Works):
○ Scholarly writings by legal experts provide valuable insights.
○ While not binding, they influence legal reasoning and interpretation.

Now, let’s explore how the ICJ’s Statute addresses these sources:

● Organization of the Court (Articles 2 - 33):

○ The ICJ consists of independent judges elected regardless of nationality.
○ Fifteen members serve, with no two from the same state.
○ Nomination processes involve national groups and consultations with legal
institutions.
● Competence of the Court (Articles 34 - 38):
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○ The ICJ decides disputes submitted to it based on the sources mentioned above.
● Procedure (Articles 39 - 64):
○ The Court follows established procedures, including reliance on relevant sources.
● Advisory Opinions (Articles 65 - 68):
○ The ICJ provides non-binding opinions on legal questions referred to it.
● Amendment (Articles 69 & 70):
○ The Statute can be amended through specified procedures.

In summary, the ICJ’s Statute recognizes these sources, ensuring a comprehensive approach to
resolving international legal disputes.

Various sources of International Law in detail -

1. Introduction

There is no “Code of International Law”. International law has no Parliament and nothing that
can really be described as legislation. While there is an International Court of Justice and a
range of specialised international courts and tribunals, their jurisdiction is critically dependent
upon the consent of States and they lack what can properly be described as a compulsory
jurisdiction of the kind possessed by national courts.

The result is that international law is made largely on a decentralised basis by the actions of the
192 States which make up the international community. The Statute of the ICJ, Art. 38 identifies
five sources:-
(a) Treaties between States;
(b) Customary international law derived from the practice of States;
(c) General principles of law recognized by civilised nations; and, as subsidiary means for the
determination of rules of international law:
(d) Judicial decisions and
(e) the writings of “the most highly qualified publicists”.

2. Customary International Law

It is convenient to start with customary law as this is both the oldest source and the one which
generates rules binding on all States. Customary law is not a written source. A rule of customary
law, e.g., requiring States to grant immunity to a visiting Head of State, is said to have two
elements. First, there must be widespread and consistent State practice – ie States must, in
general, have a practice of according immunity to a visiting Head of State. Secondly, there has
to be what is called “opinio juris”, usually translated as “a belief in legal obligation; ie States
must accord immunity because they believe they have a legal duty to do so.

A new rule of customary international law cannot be created unless both of these elements are
present.
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But these elements require closer examination. So far as practice is concerned, this includes
not just the practice of the government of a State but also of its courts and parliament. It
includes what States say as well as what they do. Also practice needs to be carefully examined
for what it actually says about law. The fact that some (perhaps many) States practise torture
does not mean that there is not a sufficient practice outlawing it.

Regarding opinio juris, the normal definition of a belief in obligation (see, e.g., the North Sea
Continental Shelf cases (1969) above) is not entirely satisfactory. First, it ignores the fact that
many rules are permissive (eg regarding sovereignty over the continental shelf), for which the
real opinio juris is a belief not in obligation but in right. Secondly, and more fundamentally, there
is something artificial in talking of the beliefs of a State. It might be better to consider opinio juris
as the assertion of a legal right or the acknowledgment of a legal obligation.

Once there is sufficient practice together with opinio juris, a new rule of custom will emerge.
Subject only to what is known as the “persistent objector” principle the new rule binds all States.
The persistent objector principle allows a State which has persistently rejected a new rule even
before it emerged as such to avoid its application.

3. Treaties

Treaties (sometimes called agreements, conventions, exchanges of notes or protocols) between

States – or sometimes between States and international organizations – are the other main
source of law. Strictly speaking a treaty is not a source of law so much as a source of obligation
under law. Treaties are binding only on States which become parties to them and the choice of
whether or not to become party to a treaty is entirely one for the State – there is no requirement
to sign up to a treaty.

Why is a treaty binding on those States which have become parties to it ?

The answer is that there is a rule of customary international law – pacta sunt servanda – which
requires all States to honour their treaties. That is why treaties are more accurately described as
sources of obligation under law. But many treaties are also important as authoritative
statements of customary law. A treaty which is freely negotiated between a large number of
States is often regarded as writing down what were previously unwritten rules of customary law.
That is obviously the case where a treaty provision is intended to be codificatory of the existing
law.

A good example is the Vienna Convention on the Law of Treaties, 1969. Less than half the
States in the world are parties to it but every court which has considered the matter has treated
its main provisions as codifying customary law and has therefore treated them as applying to all
States whether they are parties to the Convention or not. In theory, where a treaty provision
codifies a rule of customary law the source of law is the original practice and opinio juris – the
treaty provision is merely evidence.
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But that overlooks the fact that writing down a rule which was previously unwritten changes that
rule. From that time on, it is the written provision to which everyone will look and debates about
the extent of the rule will largely revolve around the interpretation of the text rather than an
analysis of the underlying practice. Moreover, even where a treaty provision is not intended to
be codificatory but rather is an innovation designed to change the rule, it can become part of
customary law if it is accepted in practice.

In reality the fact of a large number of States agreeing upon a treaty provision is itself an
important piece of State practice. If those and other States subsequently apply the treaty
provision – especially where they are not parties to the treaty – then it can quickly become part
of customary international law. All treaties are contractual as between their parties.

But some also have an effect on the general law. In practice, it has been through the adoption of
numerous treaties on different areas of international law (war, terrorism, diplomacy,
treaty-making) that international law has undergone its most important changes in the years
since 1945.

4. General Principles

While treaties and custom are the most important sources of international law, the others
mentioned in Article 38 of the ICJ Statute of the ICJ should not be ignored. General principles of
law recognized by civilised nations – the third source – are seldom mentioned in judgments.
They are most often employed where the ICJ or another international tribunal wants to adopt a
concept such as the legal personality of corporations (eg in the Barcelona Traction Co. case
(1970)) which is widely accepted in national legal systems. But international law seldom adopts
in its entirety a legal concept from a particular national legal system; instead the search is for a
principle which in one form or another is recognized in a wide range of national legal systems.

5. Judicial Decisions

Article 38(1)(d) refers to judicial decisions as a subsidiary means for the determination of rules
of law. In contrast to the position in common law countries, there is no doctrine of binding
precedent in international law. Indeed, the Statute of the ICJ expressly provides that a decision
of the Court is not binding on anyone except the partiers to the case in which that decision is
given and even then only in respect of that particular case (Article 59).

Nevertheless, the ICJ refers frequently to its own past decisions and most international
tribunals make use of past cases as a guide to the content of international law, so it would be a
mistake to assume that “subsidiary” indicated a lack of importance. Article 38(1)(d) does not
distinguish between decisions of international and national courts. But decisions of a State’s
courts are a part of the practice of that State and can therefore contribute directly to the
formation of customary international law.

6. Writings
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The writings of international lawyers may also be a persuasive guide to the content of
international law but they are not themselves creative of law and there is a danger in taking an
isolated passage from a book or article and assuming without more that it accurately reflects the
content of international law.

7. Other Sources

The list of sources in Article 38 of the Statute is frequently criticised for being incomplete. In
particular, it makes no mention of the acts of the different organs of the United Nations. Today
there can be no doubting the importance of those acts in shaping international law, although
they perhaps fit within the system of Article 38 better than is sometimes imagined. The United
Nations General Assembly has no power to legislate for the international community; its
resolutions are not legally binding.

Q2. Explain the theories relating to relationship between International Law and Municipal
Law.

Certainly! Let’s explore the theories that describe the relationship between International Law
and Municipal Law:

1. Monistic Theory:
○ According to the monistic theory, International Law and Municipal Law are
complementary aspects of a single legal system.
○ Key points:
■ There is no fundamental difference between the two.
■ International Law and National Law form branches of a single legal body.
■ International Law is superior to Municipal Law.
■ Legal matters, whether national or international, fall under the purview of
International Law.
○ Lauterpacht’s View:
■ Lauterpacht believed that nations exist independently, and individuals are
the fundamental components of society.
■ Rights and obligations from the Municipal legal system can be transferred
to the International legal system.
■ For example, Human Rights exist in both national and international legal
systems, serving the same purpose of promoting people’s interests1.
2. Dualistic Theory:
○ The dualistic theory asserts that International Law and Municipal Law are
distinct and separate legal systems.
○ Key points:
■ Conflicts between the two systems may arise.
■ Domestic courts apply Municipal Law in case of conflict with International
Law.
■ International Law does not automatically become part of Municipal Law.
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○H. Triepel’s Opinion:

■ Triepel emphasized the autonomy of both legal orders.
■ Each system has its own rules and principles.
○ Criticism:
■ Critics argue that dualism may hinder effective implementation of
international obligations within domestic legal systems.
3. Consent Theory (Common Theory):
○ This theory emphasizes that states voluntarily consent to be bound by
international rules.
○ Treaties and agreements are valid because states willingly participate.
○ Consent is crucial for the application of International Law within Municipal Law.
4. Incorporation Theory:
○ The incorporation theory holds that customary international rules are
automatically part of Municipal Law.
○ Customary norms are considered part of the common law.
○ Treaties, however, require specific domestic legislation for incorporation.

Theories On The Relationship Between International Law And Municipal Law

The relationship between International Law and Municipal Law can be mainly explained by two
principal theories namely Monism and Dualism. The former theory states that International Law and
Municipal Law are two components but complementary to one single system. While the later states
that, both the laws are entirely different, distinct and independent legal system. The dualist theory
believes that state law involves the rules of a single state whereas the international law involves the
legal system of a multiple states and hence this theory is sometimes known as the pluralistic theory.

Monistic Theory
Monist theory was developed by German scholars namely Moser, Hegel, Bergbohm, Zorn, Wenzel in
the late 18th century and in the 19th century by Wright, Kelsen and Duguit. It is believed that
international law and municipal law are the aspects of one legal system and are not different to each
other.

They are in the view that both international laws and municipal law originate from the source,
branch, are facets of the same phenomenon and belongs to the unitary order comprised by the
conception of law.4 But it has not clarified that about the concept of one legal system that whether it
is municipal law or international law. According to the scholars both the laws in one way or the other
regulate the conduct of individuals.5

● Delegation Theory:
Monist support delegation theory which states that every state constitution has been
delegated the authority in which manner the international law will apply to them. According to
this theory international law will apply to municipal law without any specific delegation and
this gives birth to single legal system. The theory, thus provide primacy of international law
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over municipal law, as it is applied immediately without any transformation.6

● Criticism:
Monism is very sound theory and it is really difficult to disapprove with Kelsen view that the
man is root of all laws. But in actual practice implementation of this theory is difficult because
every state is a sovereign body and is not bound by international law. States obey
international law only when they consent for the same or on some other account.7

Dualist Theory
The chief exponents of this theory are Anzilloti, Hersch Lauterpacht and Triepel. Dualist hold the
view unlike monist, international law and municipal law are two distinct legal systems.8 To prove that
both the laws are entirely different dualist gave three concepts:

1. Origin:
municipal is at will of the state itself whereas international law is the common will of different
nation states.

2. Subjects:
Individuals are the subject of municipal law whereas states are the subject of international
law.

3. Substance of their law:

municipal law is sovereign over individuals whereas in international law no one is supreme,
it's simply the sovereignty between states.

Criticism:

The view that international law are transformed or adopted by the municipal law is not true in
absolute sense because there are some norms that are linked with the state at the will of
international law

6M

Q3 lndividual as subject of lnternational Law - Explain.

Individuals in International Law

Individual, in a legal sense, is a broader term and in international law, individuals

include human beings, foundations, and legal commercial enterprises. Though not
all individuals have the same rights, it is considered in a broader sense. Before
1945, international law could recognize individuals as a subject but still didn’t
provide rights and duties as a direct individual. In an overview, International law
did not consider Individuals other than in an abstract sense for centuries and the
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reason was that international laws are laws between states, and individuals are the
citizens of states, therefore, individuals were seen as objects rather than subjects.
They were not considered competent to have rights and duties under international
law. However, after the first and second World wars, the international community
contemplated the need and possibility of recognizing an individual’s legal
responsibility under international law and to make them subjects of international
law in some respect. Even today, individuals are seen as only partial subjects of
international law as states still remain the dominant subject of international law.

Legal Positivism and Individuals

Legal positivism has been the dominant theory in understanding international law
for a long time. According to positivism, international law consists of rules that
apply to states, while municipal law applies to individuals within a single state.

Before positivism, there wasn't a strong insistence that international law only
applied to states. Figures in the 18th century saw both individuals and states as
subjects of international law. They didn't make a clear distinction between public
(concerning states) and private (concerning individuals) international law like we do
today.

In the early 19th century, positivists argued that international law only applied to
states, not individuals. They created the distinction between public and private
international law, with public international law regulating state affairs and private
international law dealing with matters between individuals.

Legal positivism transformed the understanding of international law into a

framework where it primarily applies to states, not individuals. This has had a
significant impact on modern views of international law, largely rejecting the idea
that individuals are proper subjects of public international law.

Role of Individuals

The development of international law regarding individual responsibility has been significant,
especially after World War II. Traditionally, international law focused mainly on states, with
limited recognition of individuals except in cases like piracy. However, this changed over time.
The UN Charter set a precedent by urging member states to respect human rights. Over time,
international human rights and humanitarian laws developed, recognizing the rights and
responsibilities of individuals. Cases such as Reparation for Injuries Suffered in the Service of
the United Nations affirmed the international status of organizations like the UN.
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In summary, individuals now have legal recognition under international law, with rights and
duties. This evolution reflects the merging of humanitarian, human rights, and traditional
international laws, extending the application of international law beyond states to individuals and
their actions of global significance.

Q4. Monism and Dualism.

Monism and Dualism in International Law

1. Monism:
○ Monism posits that the internal legal system and international legal system
form a unity.
○ In monist states, international law is automatically incorporated into national
law upon ratification of treaties or acceptance of international rules.
○ Key features of monism include:
■ Direct Application: International law can be directly applied by national
judges and invoked by citizens.
■ Priority of International Rules: In some monist states, international rules
take precedence over conflicting national legislation.
■ Human Rights Implications: Monism allows individuals to invoke human
rights treaties directly in national courts, even if national laws contradict
them1.
2. Dualism:
○ Dualists emphasize the difference between national and international law.
○ They require the transposition of international law into national law through a
specific legal process.
○ Key features of dualism include:
■ Separate Legal Systems: National and international law are distinct
systems.
■ Transposition Requirement: International law must be translated into
national law to be effective domestically.
■ Sovereignty Emphasis: Dualism prioritizes individual self-determination
and state sovereignty1.

In summary, monism emphasizes unity, while dualism underscores the distinction between
national and international law. Both theories contribute to the complex interplay of legal norms in
our globalized world.

Monism
Monism is a legal concept that says both national and international laws are unified. In "monist"
states, both types of laws, like treaties and customary international laws, determine what actions
are legal or illegal.
In a pure monist state, international laws automatically become part of national laws once the
state agrees to them. This means treaties are immediately incorporated into national laws, and
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international law can be directly applied by national judges. Citizens can also use international
law in national courts.
Monism believes that if a national law conflicts with international law, the national law is invalid,
even if it's newer or constitutional. This can be beneficial for human rights because individuals
can use international treaties in their defense without waiting for them to be incorporated into
national laws. For example, someone can challenge a national law limiting freedom of the press
by citing an international human rights treaty in a national court.
Dualism

Dualism is a legal concept that sees a clear separation between national and international law.
According to dualists, international law must be turned into national law for it to be valid. This means
if a country agrees to an international treaty but doesn't make its own laws to match, it's breaking
international law.

In dualist systems, international law isn't directly used by judges. Instead, it has to be turned into
national law first. If national laws conflict with international ones, the national laws stay in place until
they're changed to match the international ones.

From a human rights perspective, if a country only agrees to a human rights treaty for political
reasons but doesn't plan to make it part of national law, it's unclear if the treaty will actually be
followed.

Q5. Subjects of International Law.

Certainly! Let’s explore the subjects of International Law and their significance:

1. States:
○ States are the primary subjects of international law.
○ They have legal personality and participate in international relations.
○ States negotiate treaties, engage in diplomatic relations, and assert their rights
and obligations under international law.
2. International Organizations:
○ International organizations (such as the United Nations, World Health
Organization, etc.) play a crucial role.
○ They have legal personality and participate in global governance.
○ These organizations create norms, facilitate cooperation, and address global
challenges.
3. Non-State Entities:
○ Non-state entities include private corporations, NGOs, and other
non-governmental actors.
○ They increasingly influence international affairs.
○ For example, NGOs advocate for human rights and environmental protection.
4. Individuals:
○ Individuals are partial subjects of international law.
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○ They enjoy certain rights, especially in the realm of human rights.

○ For instance, individuals can seek remedies before international courts.
5. Minorities and Indigenous People:
○ Minorities and indigenous people have gained recognition.
○ Their rights are protected under international law.
○ For example, the UN Declaration on the Rights of Indigenous Peoples
safeguards their cultural and land rights.
6. Special Case Entities:
○ These include entities like the Holy See (Vatican) and the Order of Malta.
○ They possess unique legal status due to historical or religious reasons.

What are Subjects of International Law

Subjects of international law can be described as those persons or entities who possess
international personality. Throughout the 19th century, only states qualified as subjects of public
international law, but this scenario completely changed after the conclusion of the Second World
War with more and more new actors joining the international legal arena. Intergovernmental
organizations created by the states; non-governmental organizations (NGOs) created by
individuals; and even natural persons like individuals emerged as new actors. A subject of
international law is a body or entity recognized or accepted as being capable, or as in fact being
capable, of possessing and exercising international law rights and duties[5]. The possession of
international legal personality means that an entity is a subject of international law, and is
capable of possessing international rights and duties, and has the capacity to maintain its rights
by bringing international claims. The subjects of international law can be categorized into:

States:- The moment an entity becomes a state, it becomes an international legal person and
acquires an international legal personality. State as a subject of International Law is the original
subject of international law, and the branch of international law was originally established to
regulate relations between the states.

Non-State Actors:- There are certain Non-State actors with international legal personalities that
include, individuals, armed group involved in conflicts and international organizations like the
EU, UN and African union who are deemed to be subjects of international law.

International organizations:- an international organization is also an important subject of

international law, it is defined as an organization established by a treaty or other instrument
governed by international law and possessing its own legal personality.[6] The United Nations
and World Trade Organizations are examples of international organizations.

It can be said that states have original personality and non-state actors have derived
personality. This is attributed to the fact that states are considered to be international
personalities the moment they are identified as a sovereign state, on the other hand, non-state
actors like international organizations derived their personality through other means. For
example, the rights and duties and its extent maybe described in their constitutions, charters,
and treaties that establish such organizations.
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Rights and Duties of Subjects of International Law

The rights, powers, and duties of different subjects change according to their status and
functions. For example, an individual has the right of freedom from torture under international
law. States have a duty under international law not to torture individuals or to send them to a
country where there is a likelihood of that person being tortured.

Legal personality also includes the capacity to enforce one’s own rights and to compel other
subjects to perform their duties under international law. For example, this means that a subject
of international law may be able to:
● bring claims before international and national courts and tribunals to enforce their rights.
● have the ability or power to come into agreements that are binding under international
law (for example, treaties).
● enjoy immunity from the jurisdiction of foreign courts (for example, diplomatic immunity).
● be subject to obligations under international law (for example, obligations under
international humanitarian law).
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Unit 2 (13 to 24)

Q1. Discuss de jure and de facto recognition' ls there-any difference between the two ?
Explain with the help of decided cases. + What is recognition ? Discuss different types of
recognition.

Certainly! Let’s delve into the concepts of de jure and de facto recognition in the context of
Public International Law, along with their differences and various types of recognition.

Recognition in Public International Law

1. Definition:
○ Recognition refers to the formal acknowledgment or acceptance of a new entity
as an international personality by existing states in the international
community.
○ It is a crucial step for an entity to enjoy the rights, duties, and obligations of
international law and become a member of the global community.
2. Essentials for Recognition as a State:
○ According to the Montevideo Conference (1933), an entity must possess the
following essentials to acquire recognition as a state:
■ Permanent population
■ Definite territory under its control
■ Government governing that territory
■ Capacity to enter into relations with other states
3. De Jure Recognition:
○ De jure recognition signifies full and final recognition.
○ When a state is accorded de jure recognition, all preconditions under
international law for complete recognition have been fulfilled.
○ It is binding and unconditional.
○ Example: When India recognized Bangladesh as a sovereign state in 1971 after
its war of independence.
4. De Facto Recognition:
○ De facto recognition is provisional and less binding.
○ It acknowledges the effective existence of a state without necessarily fulfilling all
legal requirements.
○ Example: When the United States recognized the Soviet Union in 1933, despite
ideological differences.
5. Withdrawal of Recognition:
○ Recognition can be revoked if circumstances change (e.g., regime change,
territorial alterations).
○ Example: The recognition of the Taliban-led government in Afghanistan was
withdrawn by several countries after the 9/11 attacks.

In summary, recognition plays a pivotal role in shaping international relations. De jure

recognition is final and unconditional, while de facto recognition is provisional but essential for
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the establishment of diplomatic relations. Different theories and types of recognition contribute
to the dynamic landscape of international law.

INTRODUCTION:

In International Law, “recognition” is the formal acknowledgement by one state that another
state exists as a separate and independent government. As per Black’s Law Dictionary,
recognition means: “Official action by a country acknowledging, expressly or by implication, de
jure or de facto, the existence of a government or a country, or a situation such as a change of
territorial sovereignty.” Article 1 of the Montevideo Convention, 1933 states: “The state as a
person of international law should possess the following qualifications:

● a permanent population;
● a defined territory;
● government; and
● capacity to enter into relations with the other states.”

These four qualifications are often termed as essentials of recognition of a state.

Recognition of a state leads to the state being recognized to become a member of the
international community and thus, it becomes vital for a state to be recognized as a member of
the international community to enjoy various rights, duties and obligations of international law. It
is the acknowledgement by the existing state or states that a political entity has the
characteristics of statehood.

The question or need of recognition arises mainly when a State disintegrates into several States
or when two or more states merge to form a new state or a former colonial territory acquired
statehood.

Legal Effects of Such Recognition

The act of recognition is a political or discretionary act but it should be granted keeping in view
various legal consequences that follow such recognition. Main legal effects are:

● The recognized state gets an entitlement to sue in the courts of the recognized state.
● The recognized state may enter into diplomatic and treaty relations with the
recognizing state.
● The recognized state becomes entitled to its sovereign immunity as well as its property
in the courts of recognizing state.
● The act of recognition also leads to the retroactivity of recognition i.e. the recognizing
state can give effect to past legislative and executive acts of the recognized state.
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De Jure and De Facto Recognition

These are the two modes of recognition of a state which are explained below:

De jure recognition: When the state who is giving recognition to the new state is of the view
that the new state is capable of possessing and has all the essential attributes of the statehood
along with stability and permanency, then such recognition is de jure recognition of that state. It
results from an expressed declaration or a positive act which indicates the clear intent to grant
the recognition. It is final and cannot be revoked or withdrawn once it is given. It can be granted
immediately or directly when any nation comes into existence through a peaceful and
constitutional mode and there is no need for prior de facto recognition.

De facto recognition: Such recognition is given when the new state has not acquired sufficient
stability in the opinion of the existing state. Then, in such a scenario, the recognition is given
provisionally and is called de facto recognition. This situation arises when the existing state is of
the view that though the new state has a legitimate government., its effectiveness and
continuance to govern is uncertain. Thus, de facto recognition means that the state which is
recognized possesses all the essentials of statehood and is able to be a subject of international
law but it is doubted whether such a country seeking recognition is willing or capable of fulfilling
its obligations under international law.

CONCLUSION

Thus, it is clear from the above discussion that the recognition of a state is vital for it to enjoy all
the rights and privileges in the international domain and under international law. The two modes
of recognition do hold a political outcome on the international stage as the degrees of both kinds
of recognition have a significant impact on relations between various nations. It is often noticed
that stronger or powerful nations try to impede in recognition of new states. Sometimes,
recognizing state withdraws such recognition in case the conditions are not fulfilled.

Indian practice of recognition is in conformity with the international law as India accords
recognition as soon as the prerequisites of the statehood are conformed to. Indian policy is
certainly influenced by various political, economic, national interest, expediency and strategic
considerations. As a matter of general policy, India has attached primacy to the de facto mode
of recognition. And India has always maintained its strong commitment to the principle of
self-determination and national liberation movements. Thus, India has always been hostile
towards oppressive regimes and this certainly has affected India’s policy of recognition under
the International Law as recognition is more of a matter of policy than law.
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Q2. Discuss different modes of acquisition of territorial sovereignty. + loss of territory.

Certainly! Let’s explore the modes of acquisition of territorial sovereignty and discuss the
concept of loss of territory in the context of Public International Law.

Modes of Acquisition of Territorial Sovereignty

1. Cession:
○ Cession refers to the voluntary transfer of territory from one state to another.
○ It usually occurs through treaties or agreements.
○ Example: The Louisiana Purchase, where France ceded a vast territory to the
United States in 1803.
2. Effective Occupation (Effectiveness):
○ Effective occupation involves actual physical control and administration of a
territory.
○ A state establishes its sovereignty by effectively governing the land.
○ Example: European colonial powers claiming African territories during the
Scramble for Africa.
3. Accretion:
○ Accretion occurs when land gradually accumulates due to natural processes
(such as sediment deposition or river shifts).
○ The state gains sovereignty over newly formed land.
○ Example: River deltas expanding over time.
4. Conquest or Subjugation:
○ Conquest involves the use of force to acquire territory from another state.
○ The victorious state asserts sovereignty over the conquered land.
○ Example: The annexation of Crimea by Russia in 2014.
5. Prescription:
○ Prescription refers to long-term continuous and peaceful possession of territory.
○ If a state maintains control over a disputed area for an extended period, it can
acquire sovereignty.
○ Example: The India-Bangladesh border dispute resolved through prescription.

Loss of Territory

● Cession:
○ Loss of territory through voluntary transfer to another state.
○ Example: The Treaty of Paris (1783) resulted in Britain ceding land to the newly
independent United States.
● Dereliction (Abandonment):
○ When a state intentionally relinquishes control over a territory.
○ Example: A state withdrawing from an uninhabited island.
● Operation of Nature:
○ Loss due to natural processes (e.g., erosion, sea-level rise).
 17

○ Example: Coastal land gradually submerged by rising sea levels.

● Subjugation:
○ Loss through military defeat and occupation by another state.
○ Example: Germany losing territory after World War II.
● Revolt:
○ Rare mode of loss where there is no corresponding mode of acquisition.
○ Occurs when a region successfully breaks away from a state.
○ Example: Bangladesh’s independence from Pakistan in 1971.

In summary, the acquisition and loss of territory involve complex legal and historical processes,
shaping the geopolitical landscape.

General Characteristics Of Territorial sovereignty

Irrespective of the varied theories on the legal function of territory there’s widespread agreement
that consistent with the principle of territorial sovereignty a State exercises full and exclusive
authority over its territory. Consistent with the International Court of Justice between
independent States, respect for territorial sovereignty is a crucial foundation of diplomacy.

Territorial sovereignty (or: ‘full and exclusive authority) therefore implies that subject to
applicable customary or conventional rules of law of countries, the respective State alone is
entitled to exercise jurisdiction, mostly by subjecting the objects and the persons within its
territory to domestic legislation and to enforce these rules. Moreover, the State is entitled to
manage access to and egress from its territory. The latter right seems to also apply to all or any
or any kind of communication. Territorial sovereignty protects a State against any kind of
interference by other States. While such interference may imply the use of force, that aspect
isn’t addressed here.

The Legal Relationship between State and Territory: the Theories on Territorial
Sovereignty

The contemporary international legal order is built on two key principles: sovereignty and
territoriality. These principles have roots dating back to the twelfth century and are based on the
international system of units. Sovereignty is essentially about a state's independence, while
territoriality refers to a state's control over its own territory. Sovereignty means that a state has
the right to govern itself without interference from other states. Territoriality means that a state
has the right to control what happens within its borders and exclude other states from
interfering. In simpler terms, sovereignty is like a state's right to be in charge of itself, while
territoriality is its right to control what happens within its own borders. These principles are
important for understanding how states interact with each other in the modern world.
 18

The link between sovereign and territory – meaning the territorial sovereignty

At the start of 1970, the International Court of Justice, upon the overall Assembly request,
rendered an Advisory Opinion on the legal situation within Western Sahara (former Spanish
colony). In that occasion, the Court couldn’t use an equivalent legal construction adopted within
the Palmas’ Island Case so as to completely understand things at hand. This was because
things concerned a case where the territory wasn’t only undefined but it varied consistently with
the wander of nomad population residing thereon. The latter element, though, prevented a legal
crystallization of the territory and thus a definition of territorial sovereignty.

It was displaced in that case by the personal relationship (‘lien d’allégeance personnel’)
between the sovereign and the abovementioned populations. Consequently, the sovereign
exercised only one of the two competencies composing the notion of sovereignty, namely the
ratione personae one, whereas the territorial competence was absent precisely because of lack
of territory. From the foregoing, it seems that the concept of territorial sovereignty adequately
refers only to an order of an exclusive territorial character, as it is the case of the international
one.

6M

Q3. Different types of States.

Certainly! Let’s explore the various types of states in the context of International Law:

Based on Status:

1. Sovereign States:
○ These entities possess full and complete independence.
○ They are not controlled by foreign powers and have the authority to make and
enforce their own laws within their territories.
○ Sovereign states enjoy the highest degree of autonomy and are considered equal
entities in the eyes of International Law.
2. Not-Fully Sovereign States:
○ This category includes entities that, while recognized as states, may not possess
full sovereignty.
○ They might have limitations on their independence due to historical, political, or
legal factors.
○ Some territories with limited self-governance fall into this category.
3. Non-Typical States:
○ Non-typical states refer to entities that do not fit the conventional criteria of a
sovereign state.
 19

○ Examples include the Holy See (Vatican City) or international organizations with
a degree of sovereignty.
○ These entities often have specific roles and functions that distinguish them from
standard sovereign states.

General Classification:

1. Recognized States:
○ These entities are widely acknowledged by the international community as
sovereign actors.
○ Recognition is a political act symbolizing acceptance of a state’s legal
personality.
2. De Facto States:
○ De facto states exist in reality, even if their sovereignty is not universally
recognized.
○ They control territory and function as independent entities, but their status
remains contested.
3. Microstates:
○ Microstates are tiny sovereign entities with small populations and limited
territorial size.
○ Examples include Monaco, San Marino, and Nauru.
4. Failed States:
○ Failed states experience significant internal instability and struggle to provide
basic governance.
○ They may lose control over parts of their territory.
5. Emerging States:
○ Emerging states are newly independent entities that recently gained sovereignty.
○ Examples include South Sudan (2011) and Timor-Leste (2002).
6. Member States:
○ Member states are part of international organizations such as the United
Nations.
○ They actively participate in global governance.
7. Non-Member States:
○ Non-member states are entities that are not part of certain international
organizations.
○ For example, Palestine is a non-member observer state at the UN.

In summary, the diverse types of states contribute to the complex realm of global governance,
each with its unique characteristics and legal statuses.

Q4. Monroe's doctrine.

The Monroe Doctrine, first articulated by US President James Monroe in his 1823 State of
the Union Address, holds significant importance in the realm of Public International Law.
Let’s delve into its definition, purpose, and significance:
 20

1. Background and Context:

○ In December 1823, President Monroe addressed Congress, outlining the Monroe
Doctrine.
○ The doctrine emerged during a period of significant geopolitical changes,
including the decline of European colonialism and the emergence of newly
independent Latin American states.
2. Essence of the Monroe Doctrine:
○ The doctrine conveyed several key points:
■ The Old World (Europe) and the New World (the Americas) had distinct
systems and should remain separate spheres.
■ The United States would not interfere in the internal affairs or conflicts of
European powers.
■ Existing European colonies and dependencies in the Western
Hemisphere would be respected.
■ The Western Hemisphere was closed to future colonization by
European powers.
■ Any attempt by a European nation to oppress or control a nation in the
Western Hemisphere would be viewed as a potentially hostile act against
the United States.
3. Significance:
○ The Monroe Doctrine became a cornerstone of American foreign policy.
○ It asserted the United States’ role as a protector of the Western Hemisphere
against European intervention.
○ The doctrine aimed to prevent further colonization and maintain the
independence of newly formed Latin American states.
4. Legacy:
○ The Monroe Doctrine influenced American grand strategy throughout the 20th
century.
○ It shaped US relations with Latin American countries and set a precedent for
asserting regional dominance.

In summary, the Monroe Doctrine symbolized the United States’ commitment to safeguarding its
interests in the Western Hemisphere and remains a pivotal concept in the study of international
relations.

Q5. State “H” claims the island on the ground of continuous exercise of sovereignty with
wilful intention to rule. But state “N” claims the island on the basis of treaty with state
“A” to which island was the colony. Decide.

Certainly! Let’s analyze the situation based on Public International Law and the competing
claims of State “H” and State “N” regarding the island. We’ll consider the relevant legal
principles and modes of acquisition of territorial sovereignty.

Competing Claims:
 21

1. State “H”:
○ Claims the island based on continuous exercise of sovereignty.
○ Asserts that it has intentionally ruled over the island, demonstrating effective
control.
2. State “N”:
○ Claims the island based on a treaty with State “A”.
○ Argues that the island was originally a colony of State “A,” and the treaty
transferred sovereignty to State “N.”

Legal Analysis:

1. Continuous Exercise of Sovereignty:

○ State “H” must provide evidence of its continuous administration, governance,
and control over the island.
○ If it can demonstrate effective occupation and rule, it strengthens its claim.
2. Treaty with State “A”:
○ State “N” relies on the treaty with State “A” as the basis for its claim.
○ The validity and terms of this treaty are crucial in determining State “N’s” rights.
3. Modes of Acquisition:
○ Cession: If the treaty explicitly transferred sovereignty from State “A” to State
“N,” it supports State “N’s” claim.
○ Effective Occupation: If State “H” has effectively occupied the island, it
strengthens its position.

Decision:

● If the Treaty Exists:

○ If the treaty between State “A” and State “N” explicitly transferred sovereignty
over the island, State “N” likely has a stronger legal claim.
○ State “H” would need to demonstrate continuous exercise of sovereignty to
challenge this.
● If No Clear Treaty:
○ If there is no clear treaty or if the terms are ambiguous, the case becomes more
complex.
○ The International Court of Justice (ICJ) or other relevant international bodies may
need to adjudicate the dispute.

In summary, the resolution depends on the specific facts, historical context, and legal evidence
presented by both states. The principles of continuous sovereignty and treaty obligations will
guide the decision.

Renowned Case:
● Islands of Palmas Case:
 22

○ In this case, the Permanent Court of Arbitration (PCA) decided the

sovereignty dispute between the United States and the Netherlands over
the Palmas (or Miangas) Island in the Pacific.
○ The PCA considered factors such as effective occupation, historical
claims, and treaties.
○ The decision emphasized the importance of continuous and peaceful
exercise of sovereignty.

Q6. Temple of Preahvihar case.

The Temple of Preah Vihear case was a significant legal dispute between Cambodia and
Thailand concerning the sovereignty over the Temple of Preah Vihear, a historical and
religious site. Let’s explore the details of this case:

Background:

1. The Temple of Preah Vihear:

○ The Temple of Preah Vihear is an ancient Hindu temple located on the border
between Cambodia and Thailand.
○ It is perched on a cliff in the Dangrek Mountains and holds immense cultural and
religious significance for Cambodians.
2. Dispute:
○ Cambodia claimed that Thailand had occupied a piece of its territory
surrounding the temple.
○ Cambodia sought a declaration from the International Court of Justice (ICJ)
that territorial sovereignty over the temple belonged to Cambodia.
○ Additionally, Cambodia requested that Thailand withdraw the armed detachment
stationed at the temple since 1954.

Legal Proceedings:

1. Preliminary Objections (Judgment of 26 May 1961):

○ Thailand filed preliminary objections to the ICJ’s jurisdiction, which were rejected
in a judgment given on 26 May 1961.
○ The ICJ confirmed its competence to hear the case.
2. Judgment on the Merits (15 June 1962):
○ The ICJ considered historical evidence, maps, and legal arguments.
○ It noted that a Franco-Siamese Treaty of 1904 provided that the frontier in the
area should follow the watershed line.
○ A map based on the work of a Mixed Delimitation Commission showed the
temple on the Cambodian side of the boundary.
 23

○ Thailand argued that the map had no binding character, but the ICJ found that
Thailand had indeed accepted the map.
○ The ICJ concluded that the Temple of Preah Vihear was situated on Cambodian
territory.
○ Thailand was under an obligation to withdraw any military or police force
stationed there and restore any objects removed from the ruins since 1954.

Significance:

● The Temple of Preah Vihear case highlighted the importance of historical evidence,
maps, and treaty obligations in determining territorial sovereignty.
● It emphasized the role of the ICJ in resolving disputes between states.

Renowned Case:

● The Islands of Palmas Case is another relevant case where the Permanent Court of
Arbitration (PCA) decided a sovereignty dispute between the United States and the
Netherlands over the Palmas (or Miangas) Island in the Pacific.

In summary, the Temple of Preah Vihear case exemplifies how international law addresses
territorial disputes involving historical sites and conflicting claims.

Significance In PIL

The Temple of Preah Vihear case holds immense significance in the sphere of Public
International Law. Let’s explore its importance:

1. Territorial Sovereignty and Cultural Heritage:

○ The case centered around the Temple of Preah Vihear, an ancient Hindu temple
located on the border between Cambodia and Thailand.
○ The temple is not only a historical and architectural marvel but also a place of
pilgrimage and worship for Cambodians.
○ The dispute highlighted the intersection of territorial sovereignty and cultural
heritage.
2. Legal Principles:
○ The case demonstrated the application of legal principles in resolving complex
disputes.
○ The International Court of Justice (ICJ) considered historical evidence, maps,
and treaty obligations to determine sovereignty.
3. Franco-Siamese Treaty of 1904:
○ The ICJ emphasized the importance of the 1904 treaty, which provided that the
frontier in the area should follow the watershed line.
○ A map based on the work of a Mixed Delimitation Commission showed the
temple on the Cambodian side of the boundary.
4. Binding Character of Maps:
 24

○The case underscored that maps accepted by states can have binding legal
implications.
○ Thailand’s contention that the map had no binding character was rejected by the
ICJ.
5. Withdrawal of Armed Detachment:
○ The ICJ held that the Temple of Preah Vihear was situated on Cambodian
territory.
○ Thailand was under an obligation to withdraw any military or police force
stationed there since 1954.
6. Precedent and Influence:
○ The judgment set a standard involving the influence of subsequent acts, silence,
or acquiescence.
○ The case remains a reference point for similar disputes involving historical and
cultural landmarks.

In summary, the Temple of Preah Vihear case exemplifies how international law addresses
territorial and cultural conflicts, emphasizing the role of historical evidence, treaties, and maps.
 25

Unit 4 (25 to 30)

10M

Q1 Define treaty and discuss the various steps in the formation of treaty and termination
of treaty.

Introduction

The world is now global and states share resources. International trade connects the world, and
trade economics helps states become a part of the development processes. In the process,
there are possibilities of conflict in interests. Treaties help in regulating behaviour and ensure
mutual benefits. Through treaties, countries decide the negotiation points and terms of the
agreements.

Definition(s) of Treaties:

Treaty is a kind of agreement between countries or states, mutually agreed upon. The document
provides rights to the parties and decides obligations. It is sometimes known as a pact or
convention. Treaty must be a written document mutually agreed upon and signed by the parties.
International Laws are regulating the treaty. “The Vienna Convention on the Law of Treaties
(1969) (‘VCLT’)., is defined the word ‘treaty’ as:

‘An international agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or two or more related instruments
and whatever its particular designation’ (Article 2 (1) (a)).

Features of Treaties:

Main features of treaties derived from the definition-

1. Treaties are written documents which means the verbal agreements are not liable.
Negotiation points or agreements should be clearly described and signed by the
states/nations involved.
2. Treaties are regulated by international laws and regulations and bound states with legal
obligations.
 26

3. It might be composed of one or two legal instruments to describe the terms of

agreements in an unambiguous manner.

Types of treaties

International treaties are of two types, Bilateral and Multilateral.

● Bilateral treaties- when only two states are involved in a treaty agreement with the legal
instrument of written law, are called bilateral treaties. For example, India signed Bilateral
Investment treaties (BIT) with the United Kingdom in 1994 to promote financially viable
activities between the states.
● Multilateral treaties: When three or more three states are involved in a treaty agreement
through legal instruments, it is called multilateral treaties and such as UNCLOS (united
nation convention on the law of sea, 1982), related to the sea territories, and Kyoto
Protocol 2005, associated with the reduction of Green-House gases.

Process of Treaty Formation

The treaty formation has the following steps:

Drafting and Negotiation

It is the first step of the treaty formation. The representatives of the state present their
points/terms for the agreement. Representatives of the state can be government officials or
diplomats; they hold the power of negotiation on behalf of the state. The parties of the treaty
agreement find the common areas for negotiation. It is a complex process and takes many
rounds of discussion before reaching the common negotiable terms.

Expressing consent

Taking the consent on the drafted negotiation document is an important step. It obligated states
to follow the rule commonly decided by the states. VCLT gave two kinds of consent processes
under article 9 and article 11.
 27

● Article 9 – Article 9 deals with the consent of the majority. This process is more suitable
for multilateral treaties or global conventions. In this process, the treaty is adopted when
two-thirds or a majority of the state representative vote agrees on it.
● Article 11- The treaty applies to the exchange of signatures between parties. It includes
the exchange of signature, treaty, or instrument of exchange.

Ratification

When the states accept the treaty, ratification comes into the picture. Ratification means the
treaty is effective in the concerned states and states need to create some legal rights and
obligations. Article 14 of VCLT deals with the ratification of the treaty.

Reservation

Term reservation refers to the exclusion of some areas of the treaty. According to the VCLT, the
reservation is defined as:

“Reservation is a unilateral statement, however, phrased or named, made by a State when

signing, ratifying, or acceding to a treaty, whereby it purports to exclude or to modify the legal
effect of specific provisions of the treaty in their application to that state.

Reservation gives liberty to the states to demand some exclusion for the benefit of their states.
The reservation can only be asked before the signing or ratification.

Conclusion

In the global world, human communities are bound together. States exchange various capital
and want to flourish. In this context, a unified legal framework is needed. The Vienna
Convention on the Law of Treaties (1969) (‘VCLT’) delivers an inclusive legal framework for
international treaties. The codified structure and legitimacy of VCLT secure the parties’ rights
and bind them with the obligations decided by the involved states.

Q2 Explain the concept of extradition with the help of non- extraditable crimes.

1. What is Extradition?
 28

○ Extradition is the legal process through which an accused or convicted individual

is returned from one country to another. It occurs when a person flees to evade
trial or punishment in the country where the offense was committed.
○ The requesting state (where the crime occurred) seeks the return of the accused
or convict from the territorial state (where they fled to).
2. Principles of Extradition:
○ Principle of Reciprocity: Extradition is based on mutual cooperation between
states. If one country extradites individuals to another, it expects the same
cooperation in return.
○ Principle of Double Criminality: Extradition requires that the alleged offense be
a crime in both the requesting and territorial states.
○ Principle of Double Jeopardy: A person already tried and punished cannot be
extradited for the same offense1.
○ Principle of Speciality: The extradited person can only be prosecuted for the
specific offense mentioned in the extradition request.
3. Non-Extraditable Crimes:
○ Certain crimes are considered non-extraditable:
■ Political Offenses: Extradition is typically denied for individuals accused
of political crimes. This practice began after the French Revolution of
17892.
■ Military Offenses: Military criminals charged with war crimes are
generally not extradited.
■ Expired Punishment: A person who has already been tried and
convicted for an offense cannot be extradited for the same crime, except
for the expired period of punishment1.

In summary, extradition ensures that individuals face justice in the country where the offense
occurred, but exceptions exist for specific types of crimes and situations3.

6M

Q3 Nottebohm's case.

Certainly! The Nottebohm Case is a significant legal precedent related to nationality and
diplomatic protection. Here are the key points:

1. Background:
○ Fritz Nottebohm, a German national, had lived in Guatemala for many years.
○ In 1939, he applied for naturalization in Liechtenstein, a small European country.
○ Liechtenstein granted him citizenship without any substantial connection to the
country.
2. The Dispute:
○ In 1955, Nottebohm was arrested by the authorities in Guatemala during the
Guatemalan Revolution.
 29

○ Liechtenstein sought diplomatic protection for Nottebohm, claiming that he was a

Liechtenstein citizen.
○ Guatemala contested this claim, arguing that Nottebohm’s naturalization was
merely a formality and lacked genuine ties to Liechtenstein.
3. The Legal Proceedings:
○ The case reached the International Court of Justice (ICJ).
○ The central question was whether Nottebohm’s Liechtenstein citizenship was
valid and whether Liechtenstein could assert diplomatic protection on his behalf.
4. ICJ’s Decision:
○ The ICJ ruled in favor of Guatemala.
○ It held that Nottebohm’s naturalization in Liechtenstein was not genuine and did
not create a substantial link between him and the country.
○ The Court emphasized that nationality should be based on a real and effective
link between the individual and the state.
○ Nottebohm’s connection to Liechtenstein was insufficient, and therefore, he
remained a German national for legal purposes.
5. Significance:
○ The Nottebohm Case established the principle that mere formal naturalization
does not automatically confer diplomatic protection.
○ It highlighted the importance of a genuine link between an individual and their
claimed state of nationality.
○ The case continues to influence discussions on nationality and diplomatic
protection in international law.

In summary, the Nottebohm Case underscores the need for a meaningful connection between
an individual and their claimed nationality for diplomatic protection to be valid.

Q4 Columbia V. Peru.

The Asylum Case (Colombia v. Peru) was a significant dispute brought before the
International Court of Justice (ICJ) in 1948. Let’s explore the details:

1. Background:
○ Víctor Raúl Haya de la Torre, a prominent political figure in Peru, faced an
arrest warrant issued by the Peruvian government.
○ The charges against him were related to his alleged involvement in instigating a
military rebellion within Peru.
○ Seeking refuge, Haya de la Torre fled to the Colombian embassy in Lima,
Peru.
2. The Dispute:
○ Colombia granted diplomatic asylum to Haya de la Torre within its embassy.
○ Peru contested this action, leading to a legal dispute between the two countries.
○ The central issue was whether Colombia had the unilateral right to “qualify” the
offense committed by the refugee (Haya de la Torre) as either a political offense
or a common crime.
 30

○ Additionally, the Court was asked to determine whether Peru was obligated to
ensure the safe departure of the refugee from its territory.
3. ICJ’s Judgment:
○ On November 20, 1950, the ICJ rendered its judgment.
○ It ruled that Colombia did not have the authority to unilaterally qualify the offense
committed by Haya de la Torre.
○ The Court also held that Peru was not required to provide guarantees for the safe
exit of the refugee.
○ Importantly, the ICJ clarified that Peru had not proven that Haya de la Torre was
a common criminal.
○ Furthermore, the Court found in favor of a counter-claim submitted by Peru,
stating that Haya de la Torre had been granted asylum in violation of the Havana
Convention on Asylum1.

In summary, the Asylum Case (Colombia v. Peru) highlighted the complexities of diplomatic
asylum, the role of embassies, and the delicate balance between political offenses and common
crimes in international law2.
 31

Unit 5 (31 to 36)

10M

Q1 Examine the purposes and principle of United Nations Organisation.

Certainly! Let’s delve into the purposes and principles of the United Nations Organization
(UNO), as outlined in its charter. The UNO was established after World War II with the aim of
promoting international peace, cooperation, and stability. Here’s a comprehensive overview:

1. History of the United Nations:

○ The UNO was founded in 1945, following the devastation caused by World War
II.
○ Representatives from 51 countries gathered in San Francisco to sign the United
Nations Charter, which serves as the organization’s foundational document.
○ Presently, the UNO has 193 member states.
2. Purposes of the United Nations (Article 1 of the UN Charter):
○ Maintaining International Peace and Security: The primary objective is to
prevent armed conflicts and maintain global peace.
○ Developing Friendly Relations Among Nations: The UN fosters cooperation,
understanding, and diplomacy among countries.
3. Principles of the United Nations (Article 2 of the UN Charter):
○ Sovereign Equality: All member states are equal in terms of sovereignty and
rights.
○ Peaceful Dispute Resolution: Disputes should be settled through peaceful
means, avoiding the use of force.
○ Non-Threat or Use of Force: Members must refrain from threatening or using
force against other states.
○ Assistance in Enforcement Actions: Every member must assist the UN in
enforcing its decisions.
○ Non-Members’ Obligations: Even non-member states must adhere to these
principles to maintain global peace and security12.

In summary, the UNO strives to prevent conflicts, promote friendly relations, and uphold
fundamental principles for the betterment of humanity. Its enduring mission remains rooted in
fostering cooperation and maintaining peace on a global scale.

Q2 Discuss the formation, powers and functions of the Security Council.

Certainly! Let’s explore the formation, powers, and functions of the United Nations Security
Council (UNSC):

1. Formation:
○ The UNSC was established in 1945 as one of the principal organs of the United
Nations.
 32

○
It consists of 15 members, including 5 permanent members (China, France,
Russia, the United Kingdom, and the United States) and 10 non-permanent
members elected for 2-year terms.
○ The permanent members hold veto power, which means any substantive
resolution requires their unanimous approval.
2. Powers and Functions (as outlined in the United Nations Charter):
○ Maintaining International Peace and Security:
■ The primary purpose of the UNSC is to maintain global peace and
security in accordance with the UN’s principles and purposes.
■ It responds to threats to peace, armed conflicts, and aggression.
○ Investigating Disputes and Situations:
■ The UNSC investigates any dispute or situation that might lead to
international tension or conflict.
■ It aims to prevent escalation and find peaceful solutions.
○ Recommendations for Dispute Resolution:
■ The Council recommends methods to resolve disputes or settle terms
between conflicting parties.
○ Arms Regulation:
■ It formulates plans for establishing a system to regulate armaments
worldwide.
○ Identifying Threats and Recommending Action:
■ The UNSC determines the existence of threats to peace or acts of
aggression.
■ It recommends appropriate actions to address these threats.
○ Economic Sanctions and Non-Force Measures:
■ The Council can call on member states to apply economic sanctions and
other non-force measures to prevent or stop aggression.
○ Military Action:
■ In extreme cases, the UNSC can authorize military action against an
aggressor.
○ Admission of New Members:
■ It recommends the admission of new UN member states.
○ Trusteeship Functions:
■ The UNSC exercises trusteeship functions in “strategic areas.”
○ Appointments and Elections:
■ It recommends the appointment of the Secretary-General and, jointly with
the General Assembly, elects the Judges of the International Court of
Justice123.

In summary, the UNSC plays a crucial role in maintaining global peace, resolving disputes, and
ensuring adherence to international law. Its decisions significantly impact the course of world
events, making it a vital institution within the United Nations.
 33

Q3 Discuss the structure and function of general assembly.

Certainly! Let’s delve into the structure and functions of the United Nations General
Assembly (UNGA):

1. Structure:
○ The UNGA is one of the principal organs of the United Nations.
○ It comprises all 193 member states of the UN, making it a truly global forum.
○ The UNGA meets annually at the UN Headquarters in New York.
○ The President of the UNGA is elected for a one-year term and presides over its
sessions.
2. Functions and Powers:
○ Deliberative and Policymaking Role:
■ The UNGA serves as the chief deliberative and policymaking
■ of the UN.
■ It provides a unique platform for multilateral discussions on a wide range
of international issues.
○ Standard-Setting and Codification of International Law:
■ The UNGA plays a central role in developing and codifying international
law.
■ It adopts resolutions and declarations that guide member states’ actions.
○ Sustainable Development Goals (SDGs):
■ In 2015, the UNGA agreed on the 17 SDGs as part of the 2030 Agenda
for Sustainable Development.
■ These goals aim to address global challenges, including poverty,
inequality, climate change, and more.
○ Budget Approval and Financial Assessments:
■ The UNGA considers and approves the UN budget.
■ It establishes the financial contributions of member states.
○ Electing Non-Permanent Members of the Security Council:
■ The UNGA elects non-permanent members of the UN Security Council.
○ Appointing the Secretary-General:
■ Based on the Security Council’s recommendation, the UNGA appoints the
UN Secretary-General.
○ Peace and Security Discussions:
■ The UNGA discusses questions related to international peace and
security.
■ It makes recommendations on these matters, except when the Security
Council is actively addressing a dispute.
○ General Principles of Cooperation:
■ The UNGA considers and recommends principles for maintaining
international peace and security, including disarmament.
○ Admission of New Members:
■ It recommends the admission of new UN member states.
○ Thematic Debates and Informal Consultations:
 34

■ The UNGA conducts high-level thematic debates on current issues.

■ It engages in informal consultations to adopt new resolutions.

In summary, the UNGA serves as a vital platform for global dialogue, decision-making, and
cooperation. Its actions impact international relations, development, and the pursuit of peace
and justice worldwide123.

6M

Q5 Jurisdiction of lnternational Court of Justice.

The International Court of Justice (ICJ), often referred to as the World Court, has a dual
jurisdiction, encompassing both contentious cases and advisory opinions:

1. Contentious Cases:
○ The ICJ decides disputes of a legal nature submitted by states.
○ These cases involve disagreements between countries regarding their rights,
obligations, or interpretation of international law.
○ The jurisdiction in contentious cases is based on the consent of the states
involved.
○ States voluntarily agree to submit their disputes to the ICJ, either through a
special agreement or by accepting the court’s compulsory jurisdiction.
○ The court’s rulings in contentious cases are binding on the parties involved.
2. Advisory Jurisdiction:
○ The ICJ provides advisory opinions on legal questions at the request of specific
entities:
■ Organs of the United Nations: When the UN General Assembly,
Security Council, or other UN bodies seek legal guidance.
■ Specialized Agencies: Entities like UNESCO or WHO can request
advisory opinions.
■ Related Organizations: Other international organizations authorized to
seek advice.
○ Advisory opinions are non-binding, meaning they do not create legal obligations.
○ The court examines complex legal issues and provides reasoned opinions to
assist the requesting entities.

In summary, the ICJ acts as a global court, addressing disputes between states and offering
legal guidance through advisory opinions. Its authority rests on consent and its commitment to
upholding international law123.

Q6 World Trade Organisation's formation. + WTO short note.

The World Trade Organization (WTO) is an intergovernmental organization headquartered in

Geneva, Switzerland. Let’s explore its main features and the circumstances of its formation:

1. Formation and History:

 35

○The WTO officially commenced operations on January 1, 1995, replacing the

General Agreement on Tariffs and Trade (GATT).
○ The Marrakesh Agreement, signed by 123 nations on April 15, 1994,
established the WTO.
○ GATT, established in 1948, served as a precursor to the WTO.
○ The WTO emerged in the wake of World War II, alongside other institutions like
the World Bank and the International Monetary Fund.
○ Its primary goal is to regulate and facilitate international trade, working in
cooperation with the United Nations System.
2. Key Features and Functions:
○ Global Reach: The WTO encompasses 164 member states, representing over
98% of global trade and global GDP.
○ Trade Facilitation: The WTO promotes trade in goods, services, and intellectual
property.
○ Negotiating Framework: It provides a framework for negotiating trade
agreements, aiming to reduce or eliminate tariffs, quotas, and other restrictions.
○ Dispute Resolution: The WTO administers independent dispute resolution
mechanisms to enforce adherence to trade agreements.
○ Non-Discrimination: The organization prohibits discrimination between trading
partners, with exceptions for environmental protection and national security.
○ Decision-Making Bodies:
■ Ministerial Conference: The top decision-making body, composed of all
member states, meets biennially.
■ General Council: Handles day-to-day functions and includes
representatives from all members.
■ Secretariat: Over 600 personnel provide administrative, professional, and
technical services.
○ Budget and Impact: The WTO’s annual budget is approximately 220 million
USD, contributed by members based on their proportion of international trade.
○ Positive Influence: Studies show that the WTO has increased trade and
reduced barriers. It has also significantly influenced trade agreements globally.

In summary, the WTO plays a critical role in shaping international trade rules, fostering
cooperation, and ensuring fair economic practices among nations123.

Q7 Veto

Certainly! Let’s explore the concept of a veto:

A veto is an official power or right granted to certain authorities to refuse to accept or allow
something. Here are the key points:

1. Definition:
○ A decision by a person in authority to not allow or approve something (such
as a new law).
 36

○ It can be exercised by various individuals, including presidents, monarchs, or

other chief executives.
○ The veto power allows them to cancel or postpone decisions, enactments, or
proposals made by other branches of government or legislative bodies.
2. Contentious Cases:
○ In the context of international relations, the United Nations Security Council
(UNSC) provides a notable example.
○ The permanent members of the UNSC (China, France, Russia, the United
Kingdom, and the United States) possess veto powers.
○ Any substantive resolution requires their unanimous approval.
○ If a permanent member exercises their veto, the proposed action is effectively
blocked.
3. Usage Examples:
○ The president has promised a veto if Congress passes a particular bill.
○ The mayor may have no veto over zoning decisions.
○ The UNSC’s permanent members can wield their veto to influence global affairs.

In summary, a veto represents a powerful tool for decision-makers, allowing them to prevent
specific actions or legislation from taking effect12345.
 37

UNIT 3 (37 to 43)

10M

Q1 Explain the responsibility of a State for international delinquencies.

Certainly! The responsibility of a state for international delinquencies is a fundamental

principle in international law. Let’s delve into the details:

1. State Responsibility: When one state commits an internationally wrongful act

against another, it incurs state responsibility. This means that a state is held accountable
for its actions that breach international obligations. These obligations can include
treaties, customary international law, and general principles.
2. Basis and Nature of State Responsibility:
○ Imputability: The breach must be attributable to the state itself. It can be either
direct (when the state directly violates an obligation) or indirect (when the state
is responsible for the actions of non-state actors).
○ Examples:
■ In the Nicaragua v. United States case, the United States supported
rebel groups against Nicaragua, breaching its obligations not to use force
or intervene in another state’s affairs.
■ In United Kingdom v. Albania (The Corfu Channel Case), Albania was
held responsible for mine explosions in its territorial waters that damaged
British warships. Although Albania didn’t lay the mines itself, it was
responsible for their presence1.
3. Legal Consequences of State Responsibility:
○ Cessation of the Wrongful Act: The state must stop the wrongful act.
○ Reparation: The injured state is entitled to compensation.
○ Diplomatic Protection and Nationality of Claims: States can seek redress on
behalf of their nationals.
○ Exhaustion of Local Remedies: The injured state must explore local legal
remedies before seeking international remedies.
○ Countermeasures: States can take proportionate actions in response to the
breach.
4. Conclusion: State responsibility ensures that states uphold their obligations and
maintain stability in the international system123.

Q2 Discuss different types of jurisdiction available to the States. Discuss the limitations
of territoria; jurisdiction.

Certainly! Let’s delve into the concept of jurisdiction and explore its various facets.

Types of Jurisdiction Available to States

1. Territorial Jurisdiction:
 38

○ Derived from state sovereignty, territorial jurisdiction encompasses several

features. It grants a state authority over persons, property, and events primarily
within its territories.
○ The territorial jurisdiction of a state extends to:
■ Land
■ National airspace
■ Internal waters
■ Territorial sea
■ National aircraft
■ National vessels
○ It not only covers crimes committed within its territory but also those with effects
within its borders.
○ Case Law Example:
■ In the Liechtenstein v. Guatemala case, the court held that granting
citizenship is solely the concern of the granting nation. There was no
relationship between Liechtenstein and the individual in question1.
2. Cross-Frontier Jurisdiction:
○ This type of jurisdiction arises when actions or events span multiple states’
territories.
○ It allows more than one state to exercise jurisdiction over the same person or
matter.
○ Even if a state has territorial jurisdiction, it cannot claim authority over states that
have custody over the accused.
3. Nationality Jurisdiction:
○ Active Nationality: A state can exercise jurisdiction over its nationals even if the
offense occurs abroad.
○ Passive Nationality: A state can prosecute foreign nationals for offenses
committed against its own citizens abroad.
○ Universality Jurisdiction: States can prosecute certain crimes regardless of the
location of the offense. Examples include piracy and crimes against humanity.
4. Protective Principle:
○ A state can assert jurisdiction over acts that threaten its security or interests,
even if the offense occurred outside its territory.
○ Example: Article 51 of the UN Charter allows states to take necessary measures
for self-defense.
5. Multiple Jurisdictional Grounds:
○ Various treaties and conventions provide grounds for jurisdiction, such as the
Tokyo Convention (1963) and the Montreal Convention (for suppressing unlawful
seizure of aircraft).

Limitations of Territorial Jurisdiction

1. Conflicts in Jurisdiction:
○ When multiple states claim jurisdiction over the same matter, conflicts can arise.
 39

○ Balancing competing interests becomes challenging.

2. Immunities from Jurisdiction:
○ Sovereign Immunity: States are immune from the jurisdiction of other states’
courts.
○ Diplomatic Immunity: Diplomats and consular officers enjoy immunity from local
jurisdiction.
○ Consular Immunity: Similar to diplomatic immunity but applies to consular
officials.
○ These immunities protect state sovereignty and diplomatic relations.

In summary, jurisdiction plays a crucial role in international law, and its various forms allow
states to assert authority over matters within their boundaries or beyond. However, balancing
competing interests and respecting immunities are essential considerations in the exercise of
jurisdiction123.

Q3 Analyse the rights of coastal states on their continental shelf.

Certainly! Let’s explore the rights of coastal states concerning their continental shelf:

1. Rights of Coastal States:

○ Coastal states have exclusive sovereign rights over the resources of the
continental shelf. These rights are primarily for the purpose of exploring and
exploiting its natural resources.
○ However, it’s essential to note that coastal states do not have full sovereignty
over the entire shelf. Other states also enjoy certain rights in the continental shelf
of a coastal state.
○ The functional sovereign rights of a coastal state in its shelf do not affect the
legal status of the waters or the airspace above the continental shelf, where the
freedoms of the high seas apply.
○ Key features of the continental shelf include:
■ The continental margin, which comprises the submerged prolongation of
the coastal state’s land mass. It includes the seabed, subsoil, slope, and
rise.
■ Exclusion of the deep ocean floor and its oceanic ridges.
○ Coastal states’ rights in the continental shelf are exclusive. If a coastal state
does not explore its shelf or exploit its natural resources, no one else may
undertake these activities without the coastal state’s express consent.
○ These rights do not depend on occupation (effective or notional) or any express
agreement.
○ The natural resources belonging to coastal states on the continental shelf include
minerals and other non-living resources of the seabed and subsoil, along with
sedentary species (organisms that are immobile on or under the seabed).
○ Importantly, the rights of a coastal state over its continental shelf do not affect the
legal status of the superjacent waters or the airspace above those waters.
 40

○ The exercise of these rights must not infringe upon navigation and other rights
and freedoms of other states as provided for in the 1982 Convention1.
2. Rights of Other States:
○ Other states also have certain rights in the continental shelf of a coastal state.
○ For example, they are entitled to lay submarine cables and pipelines on the
shelf.
○ These rights coexist with the functional sovereign rights of the coastal state and
do not impact the legal status of the waters or airspace above them123.

In summary, while coastal states enjoy exclusive rights over their continental shelf, these rights
are balanced with the interests of other states and international law considerations123.

6M

Q4 Continental shelf.

Certainly! Let’s delve into a notable case related to the continental shelf under Public
International Law:

North Sea Continental Shelf Cases (Federal Republic of Germany v. Denmark; Federal
Republic of Germany v. Netherlands)

In this landmark case, the International Court of Justice (ICJ) addressed the delimitation of
the continental shelf in the North Sea between three adjacent states: Denmark, the Federal
Republic of Germany (West Germany), and the Netherlands12.

Brief Facts:

● The dispute centered around the boundaries of areas located on the continental shelf
between these countries and Germany.
● Denmark and the Netherlands contended that customary rules of international law
determined these boundaries1.

Legal Issues:

1. Equidistance Principle:
○ Denmark and the Netherlands argued that the boundaries should be determined
by applying the principle of equidistance as set forth in Article 6 of the Geneva
Convention of 1958 on the Continental Shelf.
○ Germany had not ratified or acceded to this convention by January 1, 1969.
○ They contended that Germany was bound to accept the delimitation based on
equidistance, even without specific assent1.
2. Customary International Law:
○ The central issue was whether the equidistance principle was part of customary
international law.
 41

○ Customary rules must amount to a settled practice and be rendered obligatory

by a rule requiring it to become binding as international law1.

ICJ’s Decision:

● The ICJ held that delimitation of the continental shelf must be the object of an equitable
agreement between the involved states.
● The equidistance principle was not part of customary international law.
● Article 6 of the Geneva Convention made equidistance a secondary obligation,
applicable only when agreements between parties were absent.
● Equitable considerations played a crucial role in determining the delimitation1.

Dissenting Opinion (Judge Lachs):

● Judge Lachs disagreed, emphasizing that many states had accepted the equidistance
rule through conventions, legislation, or acquiescence.
● He saw this widespread practice as evidence of a general rule of law1.

In summary, the North Sea Continental Shelf Cases underscore the importance of equitable
agreements in delimiting continental shelf boundaries, even when specific conventions do not
apply12.

Q5 Anglo Norwegian Fisheries case.

Certainly! Let’s delve into the Anglo-Norwegian Fisheries Case, a landmark case in the history
of international law that dealt with fishing rights in the North Sea. The case was brought before
the International Court of Justice (ICJ) in 1951 by the United Kingdom, challenging
Norway’s jurisdiction over fisheries in the area12.

Facts of the Anglo-Norwegian Fisheries Case:

● British fishing ships had been operating in waters that Norway claimed as her own.
● Norway asserted jurisdiction over all waters within four nautical miles from its baseline.
● While Britain agreed that this was appropriate, a unique situation arose due to Norway’s
coastal geography.
● Norway counted a series of rocky outcrops (similar to little islands) just off its coast as
part of its mainland territory.
● These rocky outcrops were connected to the mainland but extended beyond the
low-watermark shoreline.
● Norway considered the outer line of these rocky outcrops as its baseline for territorial
claims.
● For centuries, Britain respected this customary rule, avoiding entry within 10 miles from
Norway’s coastal line.
● However, in 1911, a British traveler ship crossed this line, and Norway seized the ship.
 42

● In 1948, another British fishing vessel entered the same area, leading to the Norwegian
government capturing the ship and arresting everyone on board.
● Subsequently, the United Kingdom approached the ICJ1.

Issue in the Case:

The main issue in the Anglo-Norwegian Fisheries Case revolved around conflicting claims of
jurisdiction over fisheries in the North Sea between the United Kingdom and Norway:

1. Baseline Delimitation:
○ The dispute centered on whether Norway’s baseline, which extended beyond the
low-tide shoreline due to the rocky outcrops, was valid.
○ Britain questioned the legitimacy of this extended baseline.
2. Arrests and Compensation:
○ The case also addressed whether Norway was responsible for arresting British
individuals and whether compensation should be awarded1.

Rule of Law:

The Anglo-Norwegian Fisheries Case was decided based on several principles of international
law:

● Natural Prolongation of the Continental Shelf:

○ Coastal states have the right to exercise jurisdiction over the resources on their
continental shelves.
○ This principle allowed Norway to claim exclusive jurisdiction over fisheries in the
disputed area.
○ However, it did not affect the legal status of the superjacent waters or airspace
above the continental shelf1.

In conclusion, the Anglo-Norwegian Fisheries Case clarified the rights of coastal states
regarding fishing rights and the delimitation of their territorial waters in the North Sea12.

Q6 Youman’s Case

Certainly! Let’s delve into the Youmans Case, a significant case in the realm of Public
International Law:

Youmans (U.S.A.) v. United Mexican States

Facts:
 43

● The case involves a claim for damages in the amount of $50,000.00 made by the United
States of America against the United Mexican States on behalf of Thomas H.
Youmans.
● Thomas H. Youmans was the son of Henry Youmans, an American citizen.
● Tragically, Thomas H. Youmans, along with two other Americans—John A. Connelly
and George Arnold—was killed at the hands of a mob on March 14, 1880, in
Angangueo, State of Michoacán, Mexico12.

Key Legal Issues:

1. Responsibility for Acts of Forces:

○ The Mexican military forces, under the command of an officer, failed to protect
American citizens who were attacked by a mob.
○ Instead of safeguarding them, the military forces opened fire on the Americans,
resulting in their deaths.
2. Denial of Justice:
○ Despite the heinous crime, no one appeared to have been punished.
○ Although some prosecutions were initiated, justice remained elusive.

Decision:

● The claim was allowed, emphasizing the direct responsibility of the Mexican forces for
the tragic events.
● The failure to apprehend or punish those responsible was a grave violation.
● The case highlights the importance of protecting foreign nationals within a state’s
territory and ensuring justice for crimes committed against them1.

Cross-references:

● American Journal of International Law, Vol. 21, 1927, p. 571

● Annual Digest, 1925-1926, p. 223
● British Yearbook, Vol. 8, 1927, p. 184

Comments:

● Edwin M. Borchard’s article, “Important Decisions of the Mixed Claims Commission,

United States and Mexico,” sheds further light on this case1.

In summary, the Youmans Case underscores the principles of state responsibility, denial of
justice, and the duty to protect foreign nationals within a state’s borders12.