PUBLIC INTERNATIONAL LAW END TERM

Answer 1)
a) As per Article 1 of the Montevideo Convention of 1933 a State exists as a subject of
International Law if it has a permanent population, a defined territory, a government
and a capacity to enter into relations with the other states. In an interview on ABC the
God Emperor stated that the KRMG has a defined territory, a permanent population, a
government and the capacity to enter into relations with other states. If we hold the
God Emperors statement to be true we clearly see that the KRMG meets the
requirements of statehood under the Montevideo Convention. Taking a closer look,
we can clearly see that the KRMG has a defined territory as stated by Mr. Amit Shah
himself when he stated, “that the Kushan people had been allowed to establish the
Central Kushan Administration (also known as Kushan Government-in-exile) in
McLeod Ganj in 1959. The administration has since governed the affairs of the
Kushan people and enjoyed autonomy. It consists of a judicial, executive and
legislative branch. There are periodic elections to select members of the Kushan
Parliament who then enter into agreements with various states (Australia, Canada,
US, etc.) about resettlement of the people of Kushan.” This statement also confirms
the claim made by the God Emperor that the KRMG has a government and the
capacity to enter into relations with other states. As for the point of permanent
population, Mr. Godi Goswami himself notes that 30% of the population of in
McLeod Ganj remains Indian and a good number of people within the territory of the
KRMG contest the government because of fears of their ability to freely pursue their
livelihood and economic development in a new state during the Covid-19 pandemic. “
However It should also be noted that the requirement of a permanent population does
not relate to the nationality of a population: it merely requires that States have a
permanent population.(…), Neither does international law set any requirements about
the nature of the population: the population may largely consist of nomads (such as in
Somalia), it may be ethnically (relatively) homogeneous (such as in Iceland) or very
diverse (such as in the former Soviet Union), it may be very poor (such as in Sierra
Leone, where in 2000 nearly 70 percent of the population lived below the poverty
line) or it may be very rich(as in many western countries)” (Zadeh, n.d.) From this we
can clearly see that neither the nationality nor the inclination of the population matters
as long as the country in question has a permanent population, and since the KRMG
has a permanent population it meets the requirements. After taking a closer look I can
clearly say that the KRMG meets the requirements of statehood under the
Montevideo convention.
b) There are two theories when it comes to recognition of states on the international
scale. They are the Constitutive Theory and the Declaratory/Evidentiary Theory.
According to the Constitutive Theory, “an entity does not become a State by
possessing essential attributes of Statehood; it becomes so, when other States
recognizes it. It implies that other States constitute the personality of a State by
granting recognition”. (Aslam, n.d.)
I believe that a state which believes in the Constitutive Theory holds probative values
as they believe that a state is only recognised as a state by the actions of other states
around it. According to the Declaratory/Evidentiary Theory, “Statehood or the
authority of the new government exists as such prior to and independently of
recognition. Recognition is merely a formal acknowledgement through which
established facts are accepted.” (Aslam, n.d.) I believe a state that believes in the
Declaratory theory holds Normative values as they believe that a state does not need
 recognition by other states to exist and as long as it meets the previously set norms of
constituting as a state they are a state. As per the facts of the case India strongly
objected to the declaration of the KRMG as an independent state while upon the
request of the KRMG to join the United Nations Russia formally recognised the
KRMG as a State expressing unfettered support to the KRMG in helping them being
included in the security council. While China, Algeria, Egypt, Guinea, Somalia,
Morocco and Sudan expressed their reservations and condemned the actions of the
KRMG. In this situation we can come to the conclusion that the states which object to
the KRMG’s formation and induction into the Security Council object to it being
recognized as a state even after it meets all the necessary requirements of a state,
hence it can be said that they believe that a state can be considered a state only upon
recognition by other states hence they hold probative values. Hence it can be said that
India, China, Algeria, Egypt, Guinea, Somalia, Morocco and Sudan hold probative
values, while Russia in recognizing the KRMG as a state believes that a state is
considered a state irrespective of recognition by other states or not and hence can be
said to hold normative values.

Answer 4) As per the facts India strongly opposed KRMG’s succession from itself and stated
that the act of unilaterally declaring McLeod Ganj as an independent state is against the
territorial integrity of the sovereign and independent state of India. On top of this in response
to the KRMG’s succession, the Indian parliament passed the Anti-Secession Act, authorizing
the “unrestricted use of military force by the Indian Armed Forces in order to prevent the
unilateral secession of any part of the territory of the Indian Union. The Indian Constitution
had no mention of the right to self-determination prior to the constitutional amendment made
on January 16 2021 so to view India’s stance on self-determination prior to the constitutional
amendment we have look at the view expressed by India in the international forum, when
trying to determine the views expressed by India in the international stage we have to look at
the declaration made by India when it became a party to the two human rights covenants in
1979, India made a declaration to Article 1 of both the covenant as stated by Mr. Amit Shah
where India made the declaration that, “the words the right of self-determination appearing in
[this article] apply only to the peoples under foreign domination and that these words do not
apply to sovereign independent States or to a section of a people or nation--which is the
essence of national integrity.” As no explanation can be found in the Indian Constitution
pertaining to the issue of self-determination and India having voiced similar views prior to
this declaration during the drafting of the Friendly Relations Declaration of 1970 where they
stated, “that this right did not apply to sovereign and independent states or to integral parts of
their territory, or to a section of people or nation.” We can see that the view point of India on
the issue of self-determination has been consistent on the international stage. Moreover it
must be noted that even Bangladesh which was borne out of a struggle for self-determination
from a post-colonial state in the form of Pakistan with the help of India itself took a similar
stance in the 1979 human rights covenants. On top of that the Indian Supreme Court also held
similar views prior to the declarations even before the had been made, where in the cases of
Re Berubari Union (1960) and Maganbhai Ishwarbhai Patel vs Union Of India (1969) they
held The principle of self-determination, even if applicable, cannot override the
Constitutional commitments. Hence taking all the factors into consideration I believe I can
safely say that India has not expressed any Dualism in the matter of self-determination so
much so that the state whose case has been used to discredit them in the case of self-
determination in the form of Bangladesh agrees with their stance on self-determination.
Moreover India has consistently shown to have expressed the same view point on both the
international forums as well as in its domestic forums and courts on the issue of self-
determination.

Answer 6) Under the given circumstance the KRMG which is trying to succeed from India
has been formally recognised as a state by the Russian Federation and Russia has expressed
their unfettered support to the admission of the KRMG to the United Nations. On top of this
Russia has also provided the KRMG army modern defence systems through a contract, on top
of this the Russian military officers are providing advice to the KRMG army, training, and
instruction booklets. All of this was done to help the KRMG army fight against India.
However it must be noted that any military assistance was given to the KRMG by the
Russians after the suspension of the Treaty of Amity and Cooperation with Russia which was
done by India immediately after Russia formally recognized the KRMG as a state. India can
legally justify the suspension of the Treaty by invoking the doctrine of rebus sinc stantibus.
“Clausula rebus sic stantibus is a doctrine that allows for the contract or treaty to be
withdrawn from or terminated when there is a fundamental change in the circumstances of
the contract or treaty. 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.”
(Plaiwala, 2020) Article 62 of the Vienna Convention on the Law of Treaties 1969 talks
about the fundamental change in circumstance under which the doctrine can be applied.
“. 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.” (Plaiwala, 2020)
Hence it can be argued that since Russia had started supporting a state which had just
succeeded from India whose succession was being challenged by India, they were acting in a
way detrimental to the security of India and that of its citizens and as result of that the
doctrine of rebus sic stantibus can be applied justifying India’s termination of the Treaty with
Russia. The ILC has defined Force majeure in Article 23 of the State Responsibilities Draft
Treaty which states, “The wrongfulness of an act of a State not in conformity with an
international obligation of that State is precluded if the act is due to force majeure, that is the
occurrence of an irresistible force or of an unforeseen event, beyond the control of the State,
making it materially impossible in the circumstances to perform the obligation.” As we can
clearly see from the facts of the case, India is at war with the KRMG and is engaged in
Military conflicts with the State of Nepal. In such circumstances the doctrine of Force
majeure can be applied as the state of war that India finds itself in is an unforeseeable event
beyond the control of the state making it impossible for the state to perform its normal
commercial obligations. Hence India can refer to the doctrine of Force majeure as legal
justification for non-performance of its commercial obligations.

Bibliography
Zadeh, A. Z. (n.d.). INTERNATIONAL LAW AND THE CRITERIA FOR STATEHOOD. (m.
S. Jansen, Editor, & Tilburg University Faculty of Law Department of International
and European Law ) Retrieved from The Sustainability of the Declaratory and
Constitutive Theories as the Method for Assessing the Creation and Continued
Existence of States: https://arno.uvt.nl/show.cgi?fid=121942
Aslam, M. A. (n.d.). Recognition Of States And Governments An Analysis. Retrieved from
Legal Service India: http://www.legalserviceindia.com/legal/article-2203-recognition-
of-states-and-governments-an-analysis.html
Plaiwala, M. (2020, February 12). The Doctrine of Rebus Sic Stantibus under International
Law. Retrieved from I Pleaders: https://blog.ipleaders.in/doctrine-rebus-sic-stantibus-
international-law/