Unit 1

What is international law?

● “law of nations” was coined by Jeremy Bentham in 1789.
● Body of rules and regulations which govern the relation of states and other entities,
legally binding on legally recognised states and entities
● Many argue about whether international law is a law.
○ According to the positive school of law, the law is a command of the sovereign
enforced by a superior political authority.
○ Thus Austin and Hobbes only consider it as a positive Int Morality, not a law.
● Why is it a law?
○ Primarily derived from customs and precedent of law
● Hugo Grotius is considered the father of international law
○ Said law can be divided into law of nations or civil or municipal law.
Oppenheim defines international law as
○ body of customary and conventional rules, considered binding by civilized states
in their conduct with each other.
○ Criticism: limits on application to civilised states, does not recognise individuals
or international institutions such as UN, ICRC etc.
● Functional definitional: a body of legal rules which apply between sovereign states and
such other entities as having been granted international legal personality.
● Nevertheless, IL is a law. There are various international conventions and treaties that
have binding value.
○ Not as effective as municipal law
○ Consent of the state if necessary for it to be binding on them
○ Absence of real power to enforce such laws at the international level.

Functions of Int. law

1. Regulate and govern the relationship between a state vis a vis another state and the
international community
2. A common body of law
3. Achieve and maintain international peace
4. Maintenance of the relationship between states
5. Solidarity
6. Uniformity of human rights and their observance
7. Establishment of int. organisations

Basis of International law

1. Natural Theory
● Int law was the derivation from or extension of natural law.
● Natural law being the law of the god, or the divine, is universally applicable.
● Rules ought to be formulated through ethical principles understood by reason
● Inherent human rights
2. Positivist theory
● the law of nations is the aggregate of positive rules by which States have
consented to be bound, exclusive of any concepts of natural law such as
"reason" and "justice."
● positivist doctrines maintain that the will of the State is absolutely sovereign
○ Thus forming the source of law.
○ Criticism: consent does not form the source of IL, or else states would've
easily renounced and not be bound by it
● According to Austin and his definition of law, IL is illegitimate.
● Positive law is made by humans, and so is IL
● According to Jeremy Bentham
○ It is an agreement between sovereign states and can be divided into two
categories; public and private.
3. Consent Theory
● According to the consent doctrine, it is the sovereign and supreme will of the
State that commands obedience.
● Common consent of States voluntarily entering the international community
constitutes the basis of the validity of international law.
● May be either explicit as indicated in a treaty or implied in the acceptance of a
customary rule.
● When States exercise their wills to explicitly or implicitly accept and consent to be
bound by certain rules of law, those rules become positive rules of international
law and acquire legally binding validity.
Criticism: pure consent theory imposes various questions, such as
● if the consent, once given, is subsequently withdrawn, will the State still be bound
by the treaty?
● After the withdrawal of consent, can the State, by its unilateral act, enforce its
unconditional right to relieve itself from any obligation to which it was bound
under the treaty?

4. Auto-limitation theory
● A modified version of consent theory by positivist school
● Also called voluntarism or self-limitation doctrine
● That there can be no limitation imposed by states through external forces
● If any limitation can be imposed, it can only be done so by the states themselves
through their will and volunteerism
● will of the State by consenting to be bound by customary and conventional rules
of international law places limitations on its sovereignty.
● Therefore, the binding force of int law comes from the self-limitation of the
sovereign will of states through consent.
5. Fundamental rights theory
○ Man is entitled to all basic rights of life, dignity, etc and thus must be accepted
universally.
 6. Pacta Sunt Survanda
○ This means treaties shall be complied with.
○ Is considered the absolute postulate of the int legal system
○ Regards int law as either those arising out of customary rules or treaties and
agreements
○ The states are bound to be obliged by reason of a pact

Public and Private International law

Public Int. Private Int.

1. Governs relationship between states between individuals
2. Law of nations law of conflict
3. Not limited to int. Organisations; affects all limits to the interest of individuals
4. In form of treaty, conventions, etc mostly contracts between ind.
5. Applies to all states only to the parties
6. For peace for business
7. No predetermined court predetermined court

Erga Omnes
● (Latin: ‘in relation to everyone)
● Refers to the obligations that states have towards the international community as a
whole.
● Barcelona Traction case
○ ICJ enumerated the principle of Erga omnes. A distinction was drawn between
the obligation of the state towards the int community(where there is a legal
interest of all) and the obligation of the state vis a vis another state.
○ 4 erga omnes were identified:
■ outlawing acts of aggression;
■ outlawing genocide;
■ protection from slavery;
■ protection from racial discrimination.
Jus Cogens
● peremptory norm of general international law
● “a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of
general international law
● Art 53 of VCLT
● Jus Cogens are the pre-emptive norms which cannot be derogated either by a treaty or
by customary law.

Relationship between Jus cogens and Erga Omnes

● Jus Cogens are the pre-emptive norms which cannot be derogated either by a treaty or
by a customary law
 ● Erga Omnes are basically the obligation or the duty which a state has against rest of all
the nations
● Jus cogens creates norms and erga omnes deals with the obligation.
● The Barcelona Traction decision of the ICJ provides authority for the conclusion that jus
cogens obligations would have erga omnes effect.
● Breach of an erga omnes norm in theory makes the party which has breached obliged to
all.
● when an obligation is recognized as one from which no derogation is permitted due to its
fundamental nature, all states (and other subjects of international law) have a legal
interest in its protection.

Sources of Int. law

● 2 sources-
○ Formal- from which legal rules derive their legal validity, conventions, customs
and GPL
○ Material sources- denote the derivation of the substantive content of the rule,
judicial decisions and writings of publicists.
● A distinction can be made in between formal and material sources, the former it is
claimed, conferred upon the rules an obligatory character, while the latter comprises the
actual content of the rules.

Art 38(1) of the ICJ statute lays down the sources of international law: in the order
● Int Conventions
● Int Customs
● General principle of law recognised by civilised nations
● Judicial decisions and juristic works
● Lastly, according to right and good; similar to equity and good conscience.

● Additionally (secondary sources) not exhaustive :

○ Decisions of int organs
○ Resolutions of int conferences
○ Decisions of municipal court on international matters

1. Conventions
○ Art 38 defines conventions as any “convention, treaty, protocol,etc”
○ Broad term
○ Convention is a special type of treaty
○ A protocol is a method to alter a treaty

2. Customs
○ Evidence of a general practice accepted as law
■ Continuous,
■ long duration
■ Uniform and consistent
 ■ Uniform state practice
● North Sea Continental Shelf Case
● The jurisprudence of the North Sea Continental Shelf Cases sets
out the dual requirement for the formation of customary
international law: (1) State practice (the objective element) and (2)
opinio Juris (the subjective element)
● Extending the boundaries based on the equidistant rule
It highlighted that the practices of those States whose interests
were especially affected by the custom were especially relevant in
the formation of customary law. It also held that uniform and
consistent practice was necessary to demonstrate Opinio Juris
Court held not custom
○ Columbia v. peru (Asylum case)
○ the Peru issued an arrest warrant against Torre, who took asylum
in Columbian embassy in Peru. Columbia subsequently qualified
Torre as a political refugee in accordance with Article 2
Montevideo Convention on Political Asylum of 1933 (note the term
refugee is not the same as the Refugee Convention of 1951). Peru
refused to accept the unilateral qualification and refused to grant
safe passage.
○ The court had to decide if such a decision was binding on Peru
either because of treaty law or other principles of international law
or by way of regional or local custom
○ Court held that it amounts to legal obligation
● India v. portugal (Right to passage)
● Portugal relies on the Treaty of Poona of 1779 and on sanads
(decrees), issued by the Maratha ruler in 1783 and 1785, as
having conferred sovereignty on Portugal over the enclaves with
the right of passage to them.
● This local practice, thus, prevailed over any general rules. The
court held that the Portugal has right of passage but it is restricted
only to civilians and diplomats.
● Such practice is obligatory (opnio juris)
○ Case law: SS lOTUS Case
○ A collision occurred on the high seas between a French vessel – Lotus –
and a Turkish vessel – Boz-Kourt. In Turkey, the officer on watch of the
Lotus (Demons), and the captain of the Turkish ship were charged with
manslaughter. Demons, a French national, were sentenced to 80 days of
imprisonment and a fine.French government protested, demanding the
release. Mateer was referred to PCIJ
○ Decision: Turkey, by instituting criminal proceedings against Demons, did
not violate international law. There is concurrent jurisdiction.
○ Two principles evolved from this case:
■ Outside its territory – 1st Lotus Principle
 ■ Within its territory – 2nd Lotus Principle
■ CURRENT SCENARIO: In the event of a collision at the high
seas, no penal or disciplinary proceedings may be instituted
against the master or any service person of the ship other than the
flag state of the ship or the nationality of the person.

● Usage of such practice has taken a form of law not just int habit
3. General principle
○ Principles soo general that they are applied within all systems of law
○ Examples: pacta sut survanda, Right to self defence, res judicata, etc.
○ Chorzow factory case
○ seizure of a nitrate factory in Upper Silesia, Poland, when a bilateral agreement
was entered into between Poland and Germany, whereby Poland has agreed not
to confiscate any german properties
○ the common principle that is followed by the nations is to claim for
○ damages or compensation. The ICJ accepted this principle and applied it in
international law.
○ Full reparation principle
● THE CORFU CHANNEL CASE
● British warships passed through the Channel without the approval of the Albanian
government and were shot at, later while passing theough the corfu channel,
previously swept for mines, was struct by mines and heavily damaged. This
incident resulted also in many deaths
○ The Court, therefore, reached the conclusion that Albania is responsible
under international law for the explosions which occurred on October
22nd, 1946, in Albanian waters, and for the damage and loss of human
life which resulted from them, and that there is a duty upon Albania to pay
reparation to the United Kingdom.
○ The Court also held that UK had right to innocent passage and there was
no need to seek prior permission from Albania.

4. Judicial decision and juristic works

○ Subject to section 59
■ Binding force of the decision only on the parties to the matter
■ No precedent or binding value; the doctrine of stare decisis not adopted
by ICJ
○ Judicial decisions of municipal courts
○ Juristic works of highly qualified jurists
Law of treaties
Treaties
● Contact between two or more states or actors
● Formal written agreement
● In the form of conventions, pacts, protocols, etc.
● Creates rights and obligations of a state
 ● The law regulating treaties: Vienna Convention on the Law of Treaties (VCLT)
○ Came into force in 1980
○ Preamble, 8 parts and 85 articles
● Treaty as per VCLT:
○ Should be in writing
○ Should be between States
○ There is no prescribed format
○ Prospective in nature

Types of Treaties:
1. Create future rights and duties
2. Codifies customs - Vienna Convention on Diplomatic Relations, 1964
3. Law-making treaties – lay down rules of universal application.
4. Treaty contracts – Between two or few nations.

● How is it formed:
○ After appointment, negotiations and adoptions by ⅔ majority, they must be
○ Signed by the representative (comes into force if no ratificationed required by
interenal laws)
○ Ratified
○ Incase a state party wants to be a party after the adoption of such a treaty may
do it by: Accession or adhesion
● Ratification
○ consent to be bound by a treaty.
○ Comes into force on date of ratification, not signature
○ Matter of internal rules
○ No retrospective effects
○ In India: done by the president on the advice of COM
○ States are not bound to ratify it, although where the treaty concerns international
peace, UN may exert pressure on states to do so.
○ Various purposes for ratification
■ A State ratifies a treaty on the basis of sovereignty
■ A State may require amending its own laws in order to give an
effect to the provisions of a treaty
● Modes of Ratification
○ is an internal procedure, determined by internal laws
○ Although, ratification is not necessary for all treaties, depending on the
treaty.
● Refusal to ratify
○ States are not bound to ratify a treaty.
○ concept of State sovereignty
○ International law does not impose any duty upon the States to ratify those
treaties which have been signed by their representatives
○ Explanation or reason for not ratifying is not necessary
 ● Contents:
○ Preamble, articles, statement of period, reservations if any, signature and
ratifcation
● Parties may make Reservations; should not be against the treaty.

What are Reservations?

● When a state accepts a treaty, but excludes legal effect of certain provisions of the
treaty, it is said that a State has accepted a treaty with reservation
● Vienna conventions defines it as: “a unilateral statement made by a State when signing,
ratifying, accepting, approving or acceding to a treaty, whereby, it purports to exclude or
modify the legal effect of certain provisions of the treaty in their application to the State”
● By virtue of having sovereignty, they are free to do so.
effects
● A reservation may be entertained in a treaty (silent about the reservation and multilateral
in nature) if it is not in contravention to the object to the treaty.
● Party objecting to the reservation may consider the reserving state as not a party to the
treaty and party accepting the reservation, may consider them as a party to the treaty.
● Acceptance of resrvantion is not necessary, unless specified,
○ then it must be by all parties, where the no. of parties is limited and
○ atleast by one party, where it is unlimited.
● A reservation maybe withdrawn at any time
● Reservations will be deemed to be accepted if no objection is made within 12 months.

Exceptions to Reservations State may formulate a reservation unless:

(a) Reservation is prohibited by the treaty
(b) Treaty provides that only specified reservations may be made
(c) Reservation is incompatible with the object and purpose of the treaty

Amendment & Modification

● When few parties try to change the terms of the treaties and such changes is effecting
only those parties, then it is termed as a modification.
○ such modification does not affect the rest of the parties.
● When all the parties to a treaty or convention agree to change the terms of the treaty, it
is considered as an amendment.
○ An amendment is applicable to all the states

● Pacta Sunt Servanda

○ Treaties derive their obligatory force from this principle
○ The principle of sanctity of contracts is an essential condition of life of any social
community. No economic relations between States and foreign corporations can
exist without this principle.
○ States are bound in good faith to fulfil the obligations assumed thereunder (Art
26).
 ○ Internal laws or municipal laws are no excuse to justify failure of
performance (Art 27)
○ exception :
■ When such a treaty is in violation of a fundamental law of the nation;
treaty will be invalid.
■ Formation of a new state by way of cession/ merger/ revolt, with a state
■ Rebus sic stantibus, is an implied clause in every treaty, unless there is
material change in the circumstances, treaty will be binding.
■ Wide ambit; may be misused; depends on case to case
■ Such a circumstance must make the performance of treamby
impracticable
■ Radical tranformatition to the extent that it makes obligation
impossible
■ Case law: UK V. Iceland (Fisheries Juridiction)
Iceland claimed a 12 miles jurisdiction, UK agreed to it. Later due to
circumstances Iceland claimed 60 miles around its shores saying the
shored had moved up and thus prosed to extend its exclusive fisheries
jurisdiction
ICJ held not a fundamental change and this was not granted.

● Invalidity of Treaty
○ Lack of proper authority
○ Error or mistake in treaty
○ Fraud committed by another party
○ Coercion of a representative or the state (not economical or political)
○ Along with the above metioned pacta sunt servanda exceptions.
.
● Termination of a treaty
○ Consent of parties
○ Denunciation or withdrawal
○ Another treaty to replace it
○ Material breach
○ Impossibility of performance
○ Outbreak of war
○ Jus cogence
○ Rebus sic statibus
○ Fulfilment of treaty provisions

Treaty v. Custom – with relation to consent:

1. Treaty- express consent.
2. Custom – Tacit consent
- Pacta Sunt Servanda – promises are to be kept.
- Treaties are binding and are to be honoured.
 - Contrast to customs, treaties are more modern and deliberate.
Persistent and subsequent objector
case : ANGLO-NORWEGIAN FISHERIES CASE – PERSISTENT OBJECTOR
The 10 mile rule, even though customary in nature, because they objected since the beginning
and in a continued and sustained manner. The court held in their favour and held the rule is not
applicable to them, the rule they followed was applicable to them.
.

UNIT 3
PIL and Municipal Law

Municipal law is the law of a sovereign state

Interrelationship
application of international law and its adaptation in national law.

2 broad theories
1. Monoism
● International law need not be translated into national law
● Based on Grundnorm theory of Hans Kelsen
● due to the Grundnorm factor, the authority and law-making
○ powers vest in international law which forms the basis for States to exists
and survive in comity with other States
○ He lays down that law is a hierarchical system whereby each legal norm
derives its authority and validity from a higher norm.
● Thus, international and national law for one single legal order
● International law and national law form a single system of norms because they
received their validity from the same source.
● Ultimate subjects of int law are individuals and thus, states must obey
● Can be directly invoked by the courts, and citizens as if it were national law
● Act of ratification is enough to invoke the laws
● No need for separate legislation
● International law > national law in conflict
● Followed in US, Germany and France
2. Dualism
● There is a difference between int and national law
● Not on the same footing; have distinct identity and area of operation along with
the subjects of such laws; states and individuals respectively.
● Ratification is not enough
● Must be specifically incorporated to be the law of the land
○ Or else cannot be invoked by courts
● Thus dualism; policy of law-making twice
● The theory of dualism rests upon the principles of sovereignty of State and its
powers to make law pertaining to the domestic matters as well as international.
 ● Creates and fixes a limit on int law and its application

Theory of application
● Delegation theory
○ Usually in democracies, the constitution delegated the power to its organs
to enact, implement and actually enforce
● Transformative theory
○ international law must undergo a transformation without transformation,
○ a rule of international law does not become a domestic rule to follow.
○ What is transformation is not specified anywhere
● Specific adoption theory
○ It must be specifically adopted within the state
○ Due to large no. of treaties etc, this theory is gaining recognition
○ Not all treaties will be applicable, only thse specifically adopted into the
municipal law
○ will of the State, supported by choice as to which international Convention
should be adopted, is the driving force behind this theory.
○ Usually, the Acts of Parliament, signature by the head of the State on
international instruments or treaties, etc can be taken as the ways in
which adoption can be affected.

● Harmonisation theory
○ Must be applied, neither int. nor national is superior, must be read
together to solve the problems of humans
■ Human rights, environmental law, commercial laws
■ Although on int level but they directly impact individuals
○ Remove all contradictions by harmonising them
○ More practical

Application of Int law in Municipal law

● Every State has the duty to carry out in good faith its obligations arising from treaties and
other
● sources of international law, and it may not invoke provisions in its constitution or its laws
as an
● excuse for failure to perform this duty – Art 13 Draft Declaration on Rights and Duties of
States,
● 1949
● Similar provisions in Art 27 and Art 46 of VCLT
● Case law: Cameroon v Nigeria
● Nigeria did not incorporate the treaty stating not valid as it was not incorporated a per
consti. Requirements. Court answered in negative since the head of state signed it and it
was enough according to Art 7 VCLT
US application
● La Grand Case
The Court rejected USA’s Contention that there was no domestic law in their country
which provides for consular relations and held that USA had violated Article 36(1) of
Vienna Convention on Consular relations by not informing the accused of their consular
help. The Court also held that US cannot argue that lack domestic law as a reason to
violate International Law. USA being a monist country, a treaty that is duly ratified will
become there law of the land as they follow the doctrine of monism/incorporation.

India Application
● Article 253 of the Indian Constitution empowers Parliament to make laws for
implementing any treaty, agreement or convention
● West Bengal v. Kesoram Industries Ltd. And Ors , Appeal (civil) 1532 of 1993
It is true that the doctrine of 'Monism' as prevailing in the European countries does not
prevail in India. The doctrine of 'Dualism' is applicable. But, where the municipal law
does not limit the extent of the statute, even if India is not a signatory to the relevant
International Treaty or Covenant, the Supreme Court in a large number of cases,
interpreted the statutes keeping in view the same.
● Jolly George Verghese v. Bank of Cochin
Whether it is justified to imprison a person merely for failure to perform a contractual
obligation (Article 11 of International Covenant on Civil and Political Rights)?
Article 11 of the Covenant on Civil and Political Rights - “No one shall be imprisoned
merely on the ground of inability to fulfil a contractual obligation.”

UNIT 5
Statehood and Recognition

● What is a state?
○ Original subject of Int law
○ Refers to a country as a whole
● Article 1 of the Montevideo Convention on Rights and Duties of States, 1933:
○ Capacity to enter into relations; also sovereignty
○ A permanent population: Must be stable, not depended on quantity
○ Defined territory: geographical area with air and waterways
○ Government: functional political body for governance

● Recognitions means acknowledging the political entity of another state

○ express , implied, conditional or premature
○ Declaration of existence of another state
○ Recognistion of a state is not necessary.
○ political act, and there is no legal duty for a state to recognise.
● state hood
 ○ becomes an international legal person
○ Acquires international personality
○ Capable of entering into relations with other states

● Effects of recognition
○ Right to sue
○ Sovereign immunity
○ Enter into diplomatic relations
○ Retroactive effect from past legislative acts (past acts will be valid)
○ Entitled to property

De jure and De facto recognition

● De Jure
○ De Jure Recognition is given to a new State when a new State fulfils all the
essential
○ characteristics of a State.
○ Beyond doubt recognition
○ More permanent and legal in nature, cannot be withdrawn

● De facto
○ Mostly grated to govts.
○ Temporary in nature; can be revoked
○ With or without conditions
○ Mostly to countries without a stable situation
○ The UK first recognized Soviet Government as de-facto recognition in 1921 and
later recognised as de-jure in 1924.

Functions of formal recognition: (need of recognition)

1. Acceptance as a state
2. Establishment of legal relations

Modes of recognition

1. Implied/tacit recognition
● Exchange of diplomats
● Entering into treaty
● When an existing State identifies a new State through any implied act, then it is
considered as implied recognition.
● There is no formal statement or declaration issued.
● The recognition through implied means may vary from case to case. The actions
required for implied recognition must not be ambiguous, and there shouldn’t be any
doubt in the intention of the State who recognises a new State.
 2. Express recognition

● When an existing State identifies a new State expressly by official declaration or

notification, then it is considered to be an expressed form of recognition.
● Express recognition can be expressed through formal means such as sending or
publishing a declaration or statement to the opposite party.
● It can also be expressed through personal messages from the head of State or from the
minister of foreign affairs.

UNIT 6 State territory and state succession

● Geographical attribute of the state

● A state can exercise its authority only over their own territory
● Thus, a property of the state
● Includes land territory, national waters, subsoil under earth, air space, and territorial sea.
●
Modes of Acquisition
1. Occupation
○ Establishing authority under such state which at the time is not under the
authority or sovereignty of any other state
○ Both:
■ May have never belonged to any other state
■ May have been abandoned by previous sovereign state

Mere discovery of such territory by a state is not enough to confer title.

Two requirements:
● Territory subject to a claim must not be under any sovereign state (terra nullis)
● There must be an effective occupation of the territory
○ Intention to and will to act as a sovereign
○ Peaceful and continuous display of state authority

2. Prescription
● Continued occupation of a state over a long period of state territory actually and
originally belonging to another state
● No time limit
● Requirements:
○ Must be peaceful and for a long duration
○ Actual exercise of sovereign authority on the possession
○ Continuous

3. Annexation
● Acquisition of territory by force
● Requirements
 ○ International to make it permanent possession should be expressed
○ Establish possession
○ Recognition by other states
● The charter to UN does not permit any state to acquire territory by force or annexation of
another state
● Ex: Russia and Ukraine

4. Accretion
● physical expansion of an existing territory through the geographical process
● increase of land due to some new formations.
● Hence, accretion is a direct mode of acquisition of territory.

5. Cession
● the transfer of sovereignty over state territory by the owner state to another state.
● By an agreement or treaty (generally bilateral)
● The cession of territory maybe voluntary(of a gift, sale, exchange or lease) or maybe
under compulsion as a result of war
● Ceding state (one giving it) and acquiring state (one receiving it)
● Ex: In 1867, Russia sold Alaskan territory in America to the US for 7,200,000 dollars

6. Subjugation/ conquest
● When one state conquered another state
● Displays effective authority over such state
● Conquest cannot be by use of force
● Art 2(4) UN Charter prohibits it
● Ex: Invasion of Kuwait, 2 day operation by Iraq (Saddam Hussain) leading to 7 months
long iraqi occupation. UNSecurity council said it was not legally valid and thus, null and
void

7. Plebiscite
● Direct vote of all the members belonging to the state
● No specific rules in international law
● But UN suggested it for INDIA PAK Kashmir issue
○ Never happened
West Irian Case: Netherlands and Indonesia dispute, residents chose Indonesia and thus west
irian is a part of Indonesia.
8. Lease
● India bangaldesh Tin bidha corridor
9. Pledge
● For money, without force
10. Self-determination
● Rule of customary international law
● All people have to right to freely determine
Modes of Loss
Only cession, subjugation and prescription fall under both acquisition and loss of territory.
1. Cession
2. Natural calamity
3. Prescription
4. Defeat in war
5. Revolution
When a state revolts and gains independence, the former state which had control over
the state would lose its state territory.
Ex: Pakistan and Bangladesh, 1971
6. Derelicion/ renunciation
when a state renounces its sovereignty over the territory
A territory can be occupied when the state has renounced its sovereignty.
There is a close relation with dereliction and occupation

State Succession

● Art 2 of the Vienna Convention, 1983, on Succession of States

○ the replacement of one State by another in the responsibility for the international
relations of territory.
● One state substitute anither state
● Ex: india and Pak in 1947 (pak succeeded that territory of india which went on to
become pakistan)
● complete or partial changes of sovereignty takes place over portions of territory.
● Like normal succession in property, after the death, the rights libiality and duties trnsfer
to another person legally.
Types
1. Total or Universal :
● the entire identity of the parent State is destroyed and the old territory takes up the
identity of the Successor State
● Incases of
○ Merger
○ Annexation
○ Subjugation
○ decoloniasation

2. Partial
● Only a part of the territory is surrendered, and the rest is still under the control of the
parent state
○ EX: India and Pak and
○ pak and Bangladesh
● The existing States continued with their legal obligations and duties while the new States
got their own recognition and carried no rights or duties of the parent States.
Consequences
1. treaties: not binding on the successor state, except for Human rights and territorial
treaties.
2. Membership of international organisations and the obligations incidental do not pass to
successor state
3. The successor succeeds to all the public property of the extinct state, including funds,
moveable and immovable property, etc.
4. Private property: remains the same with the individuals, no change
5. Private laws and contracts remain same, unless abrogated
6. Nationality changes to the successor state
7. Contractual liability exists but no liability can be attached for torts

Unit 7 State Jurisdiction and State responsibility

State Jurisdiction
● It is the capacity of the state under International law, to make laws, to enforce them and
lastly, to adjudicate on them
○ Executive Jurisdiction
○ Legislative jurisdiction
○ Judicidial jurisdiction
Principles
1. Territorial principle
● state has the primary jurisdiction over all events taking place in its territory
regardless of the nationality of the person responsible
○ On everything falling under its territory
○ On all living within its territory
Two principles under this
● Subjective territorial principle
○ Crimes that are committed within its territorial borders
● Objective territorial principle
● Any crime committed from outside the territory but having effects over
subjects within the state’s territory
○ perpetrator performs the act outside of its borders.
● Extra tetteriorial principle
○ Jurisdiction over state owned properties abroad
■ Embassies, ships, planes, etc.
Case law: SS Lotus Case
Collision of two ships, France and turkey, who has jurisdiction to try the matter?

2. Nationality Principle
● Based on the nationality of the criminals or the victim
● Basis for extradition laws
● The state will have a crime over jurisdiction even if the crime is committed
outside of the territory of the state
● There is a claim, although there will not be a right.
 3. Universal principle
● Jurisdiction of state over certain crimes irrespective of nationality of perso of nature of
crime
● Anywhere in the world, whithout any link to territority, nationality, etc.
○ Genocide
○ Torture
○ Slavery
○ War
○ piracy
4. Protective principle
● Juridiction over an alien, who threatnes the sovereignity of the state
● No link to the criminals, victims, or any effect in the state
● In this case, jurisdiction is asserted on the basis that the security or the interests of the
State is affected by an act committed abroad
○ Espionage
○ Fake currency
○ Economic crimes

Limitation on jurisdiction
Immunity is a legal term whereby an entity cannot be hed liable foe violation of law
1. Sovereign immunity
Immunity that states enjoy
Absolute immunity: Sovereign are immuned from being sued in other state’s municipal
courts, can only be sued in international level
Restrctive immunity: in conditions where a state may sue another sovereign state in its
municipal court
For commercial activities, where teh states are directly involved
Where states voluntarily waives their immunity
Employment contracts, where employee sues employer for breach of contract,
dismissal, etc
Immoveable property
2. Diplomatic and consular Immunity
● Political concept to maintakn relations with oteher counties, through sending
ambassadors, diplomats, convoys, ministers.
● Happenes through mutual consent
Vienna Conventions on diplomatic relations, 1961
Art 3: functions of a diplomat
● Represntation
● Reporting
● Maintaining frednly relations
● Negotiating with the govt.
● Protecting the interest of their state
Immunities
● Arrest
 ● Bag checks (with tags)
● Involibility of premises
● Freedom of movement
● Freedom of communication with their own state; maintaining secrecy
● Inviolabity from civil, criminal, and administrative actions of receving state
● Not obliged to give evdence as witness
● Exemption from taxes
● Same immunitues for family members and staff (not belonging from the receiving
state)
The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt
him from the jurisdiction of the sending State.

Waiver of immunity
● Maybe waived against the diplomate by the sending state
● Must be express
● Declaring as “Persona non grata” by the sending state
○ Prohibition of such person by the state
○ Upon such declaration, the sending state may either ecall them or their authority
○ If the sending state does not then receiving state may reuse to recignise them as
diplomats
The severance of diplomatic relations shall not ipso facto involve the severance of consular
relations by Art 2 of VIENNA CONVENTION ON CONSULAR RELATIONS, 1963

State Responsibility

● The concept which establishes an obligation on a state to make full reparation for any
violation or harm or injury done to another state.
● If such an obligation is not fulfilled, the state will have the legal right to impose sanctions,
as necessary.
● States are legal entities in international law, have rights and duties

Case laws: Corfu channel case

Albanians liability to Great Britain for failure to notify British Ships about mines in the Albanian
waters of the Corfu channel which exploded and damaged the ships on what the court refers to
as, “Certain General and Well recognized principles” including “every states obligation not to
allow knowingly its territory to be used for acts contrary to the rights of other states.
Chorzow Factory case
The Permanent Court of International Justice (PCIJ) observed that any breach of an
engagement involves an obligation to make reparation. Reparation is the indispensable
complement of a failure to apply a Convention, and there is no necessity for this to be stated in
the Convention itself.
Direct responsibility
● When the govt. Of the state is directly involved in the breach of internation obligation
Indirect responsibility
● When the organs of the state have failed to prevent the offence
● Failed to take due care in preventing
● Mob violence, violence in insurrection, acts of corporation

Draft Article on the Responsibility of States for Internationally Wrongful Act, 2001
Adopted by ILC
Objectives
● To codify the basic rules of state resposnibiloty for their internationally wrongful acts
● Legal consequences of the actions or omissions

The 4 parts of the Draft Articles

1. Requirements for an internationally wrongful acts
○ Conduct of persons or entities exercising elements of governmental authority
○ conduct of an organ placed at the disposal of a State
○ state or of a person or entity empowered to exercise elements of the
governmental authority
○ Conduct directed or controlled by a State
2. Contents for international resposnibility
IL makes no distinction between tortious and contractual liability
The breach of a treaty or customary obligation will give rise to the same
remedy usually an award of damages or a declaration.
Fault on the part of the state or any of its organs is all that is required
3. Legal consequences of teh action regarding cessation or reparation
4. General provisions

Circumstances excluding state responsibility

1. Consent to carry out activities that would otherwise be prohibited by IL
2. Self defence Art 51 of UN Charter
3. Counter measures- A counter measure is an illegal act that is rendered lawful as a
response to a prior illegal act, with conditions and in good faith
○ first call upon the responsible state to discontinue wrongful action or to make
reparation.
○ Must not involve threat or use of force and disregard human rights.
○ Necessity
○ Distress
○ Force majure

Consequences of State responibility

Art 36 provides for restitution ,reparations and satisfaction
Case law: Nicaragua Case
India pak issue: following the 26/11, proof of pak’s involvement. No immediate countermeasures
were taken fom india’s side, but due to continuous attacks, pulwama attack, india imposed
duties on pakistani imports, talks about repudiating indus waters treaty, etc.
The lawfulness of any such countermeasure (if taken) deserves careful analysis for it must be
proportionate (Draft Article 51).

UNIT 8 law of Seas

● Governed by the UNCLOS 1982 (Convention)

● Need?
○ a legal power that could bring about international governance over the oceanic
floor and bed.
○ By 1960s there was enough technology to use the resources available in the sea
and thus, could lead to varius disputes
○ Thus, laid down a mechanism for settlement of disputes
○ Paved the pway or nautical laws
○ For equitable distribution of ocean resources
■ Transition from freedom of high seas to common heritage of mankind in
UNCLOS III (conference)
● UNCLOS as the currently prevailing law of the sea is binding completely.
● provides for full money rights to nations for a 200-mile zone by their shoreline
○ sea and oceanic bed extending this area is regarded to be Exclusive Economic
Zone (EEZ) and any country can use these waters for their economic utilization.

Different zones
1. Territorial sea
● Starts from the baseline to 12 nm
● Base lines is that area which covers the high tide line as well as the low tide line,
considered same as land territory, beasue of its shifting nature
● Right to fish
● Right over resources
● Right to innocent passage
○ Of foreign ships
○ Limitation on sovereignty of state on territorial sea
○ refers to a continuous navigation without stopping through the territorial
sea and it must not be prejudicial to the peace, good order or security of
the costal state
○ Cutomary international law practice, not applicable to airspace
○ Not on internal waters
○ does not distinguish between merchant, public or warships.
○ Case law: The Corfu Channel Case decided that warships have the right
to passage through international straits. 1982 Sea Convention accorded
warships the ‘transit passage’ in straights, and makes them subject to the
 local laws and regulations of the coastal state. with no need of obtaining
an authorisation of the coastal State concerned.
● A strait is that part of the territoial sea which connects of navigates from one high
sea to another.

2. Contiguous Zone
● May not extend beyond 24 nm, start after territorial sea
● The coastal State does not enjoy sovereignty over the contiguous zone in the
same way as it does in the territorial waters.
● Power to prevent infringement of customs, taxation, immigration and pollution
related laws and regulations within the zone, only.
3. Exclusive Economic Zones
● Spreads over 200 mils from sthe baseline , also includes the territorial sea and
the contiguous zone
● The costal state has vesy less powers here, subject to harm
● Foreign ships are allowed to trade and lay cables
● Sea state rights to exploration, usage, conservation, management and
exploitation of resources over the seabed and subsoil for this EEZ
● Preservation and utilisation of live resources, may lay down regulations such as a
permitted volume of captures (fishing), certain conditions, licence concessions
quotas, fees, season rules, etc.

4. Continental shelf
Background
○ US President Harry Truman declared their right over all natural resources the soil
and subsoil of the continental shelf under the high seas, adjacent to the coasts of
the US
○ Stating that the coastal State has an historic and original right over the
continental shelf situated in front of its coasts
○ And various other states followed the same
○ Reasons:
■ Various security reasons attached to it
■ Shelf is an extension of the land mass
■ Only those states which a coast have access to such resources.
● Enforcement of geneva convention on the continental shelf 1958
○ Provided that it starts from the area of territorial water and goes beyond to any
limit where exploration is possible
○ No outer limit was set, very exploitative, no equitable distribution
● Later it was set to 200 nm minimum for each state,
● Extended continental shelf max 350 nm based on the continental margin
● Costal state shave sovereignty over such shelf, for the purpose of exploration and
exploitation of natural resources
○ Exclusive right
○ If they don’t use it, other states may not exploit them, without consent
Delimitation: when the coast of a State is in front of the coast of another State, it is necessary to
delimitate their respective continental shelf.
○ No standard or straightjacket formula to resolve such disputes, case by case
determination based on relevant circumstances such as the physical
characteristics of the coasts and the existence of islands, along with Pricnple of
equidistance and doctrine of equitable share
○ Case laws: North Sea Continental Shelf case (1969)
○ ICJ held, these shelf belongs to those countries with a coast. They have an
original right, as the land under the water is also a part of their land. Delimitation
will be applied according to principle of equidistant and relevant circumstances by
a agreement, in such a way it it does not encroach upon the natural land territory
of another state.
High Seas
● Cannot be appropriated to any state
● Open to all states with or without a coast
● Regulations on Right of fishing and preservation of species of shishies that swims
between different sones, by the coastal zone (only parts of HIgh seas near to EEZ)
● Freedom of navigation of all states
● Ships sailing through high seas enjoy the exclusive jurisdiction of their flag
○ It is forbidden for other States to exercise rights over those ships, including
arresting a person on board.
● In case of collision between two ships, the judicial process can only be initiated by states
where the persons involved are of their state or the flag state
○ This principle was however not applied in SS Lotus Case.
● Cases where interference is allowed
1. Piracy
2. Hot pursuit or immediate persecution
3. Visit and registry
4. Authorisation given by a treaty

UNIT 9 Nationality, Asylum and Extradition

Nationality
● Legal relationship bwteeen individuals and state which affords
○ Jurisdiction to the state over the person
○ Rights, duties and protection
● Bond which unites the person to a given state which provides them a membership and
thereby given him certain rights and protection and also subjects him to obligations
created by law of the state.
● Every state has a right to determine who its nationals are
● Difference between nationality and citizenship
○ Citizenship has no value or importance under international law.
○ It bestows a political status upon an individual whereby a citizen enjoys civil and
political rights under municipal law.
 ● Nationality has been declared by UN has a basic right, which cannot be denied to any
person, including children, and irrespective of race, colour, or national or ethnic origin
Acquisition of nationality
1. Birth
● Jus soli
by being born in the territory of a State
UK, USA, India
● Jus Sanguinis
By being born to parents who are its nationals, thus by decent
germany , france, UK, USA, India
2. Naturalisation
By living in its territory fir a long time
Or otherwise, by
Adoption of child
Getting married to a foreign national
By acquiring a domicile
Getting appointed as a govt. Official
3. Resumption
To resume
When a person loses their nationality dur to certain circumstances, they may adhere to
certain conditions and resume their nationality
4. Subjugation
Acquiring the nationality of conquering state, after defeat
5. Cession
When a state gets ceded all its nationals gets the nationality of teh acquiring state
6. Option
When the territory gets divided into two parts, the nationals have an option to chose from
any of the successor states
7. By registration, may differ depending on country

Loss of nationality
1. Release
2. Deprivation
if the national of that state obtains employment in another State without the prior
permission of the government, he will be deprived of his nationality.
3. Renunciation
When the person acquires more than one nationality, they have option to chose and
renounce the other one
4. by residing abroad; after certain time period
5. Substitution
6. Involuntray loss of nationality
Compulsory expatriation of individuals from their country leads to loss of nationality, and
in most of the cases, in statelessness.
Case law: Stoeck Vs Public trustee held that if a person is not a citizen of nay state, he shall be
called stateless.
Oppenhiemer Vs Cattermole in this case it incorporated Hague Convention of 1930 Article 2
provides that any question as to whether a person possesses the nationality of a particular state
shall be determined in accordance with the law of that State.
Nottebohm Case
Born in germany, german citizen, lived in guatemala, but never became citizen of guatemala.
World war two, he applied to become citizen of Liechtenstein, brother lived there, used to visit
frequently. Paid tax for a year and later through naturalisation, became citizen. Nevertheless,
guatemala confiscated his property and did not allow him to enter guatemala.
Issues
Whether Guatemala is under obligation to honour the citizenship granted by Liechtenstein?
Whether Guatemala should pay reparation to Liechtenstein and Nottebohm?
It was held that citizenship is a matter of municipal law and PIL does not interfere generally, but
in this case where two nationals recognise his nationality/ citizenship PIL will be applicable.
Here, The Court upheld the principle of meaningful nationality and held that citizenship needs to
be honored when the intention is to reside and settle, in this case it was not.

Asylum
● Means shelter and active protection
● extended to a political refugee from another State by a State which admits him on his
request
● UDHR Art 14(1) everyone has the right to seek and enjoy in other countries asylum from
prosecution.
Two main elements
● A shelter which is more than a temporary refugee
● Active protection by the authorities of the said territory
Types of asylum
1. Territorial asylum
Territory of the state , not given to criminals
2. Extra territorial asylum
Outside the physical territory
Under imminet danger of life
Like in embassies, vessles, warships, etc expect merchant vessles
Case law: Columbia v peru

Extradition
● delivery of an accused or a convicted individual to the state on whose territory he is
alleged to have committed or to have been convicted of a crime
● by the State on whose territory the alleged criminal happens to be the time being
● Extradition treaty is not a pre requisite, in the absence, the executive authorities may
decide upon it.
● General rule w.r.t. Political offences are those, where extradition is not allowed, such as
sedition, uprising , etc
Pricnples of Extradition
1. Influence of nationality on extradition
Governed by maxim, stated, either extradite or prosecute.
If a national of one country commits a crime in another country and flies back to his
country, his native country should either try him or extradite to the other country where
he has committed crime
2. Principle of extraditable offences – The extradition treaty should mention the list of
offences to which extradition is allowed.
3. Principle of dual criminality
The crime for which request is made by the country for extradition that must also be a
crime in the country from where the accused is being extradited.
4. Rule of speciality
The person maybe tried only for the offences for which extradition has been done
cannot be punished for any other offence but can only be punished for the offence for
which he is being extradited.
5. Proportional punishment
Maybe refused if the territorial state believes that punishment is excessive, such as
capital punishment.
6. Principle of fair hearing
Extradition is made on the condition that the accused would be given fair trial in the
requesting state

Unit 10 Settlement of Disputes

International Dispute
● Involves disagreement on point of law, fact, conflict of legal views or interests
● Does not necessarily mean only states but also disputes involving other entities,
including international organizations, ‘de facto regimes, and ethnic communities enjoying
a particular kind of status under international law.
Paceific means of settlement
1. Negotiations
One important feature is flexibility: negotiations can be applied to conflicts of a political,
legal, or technical nature
empowers the parties themselves to steer the process and shape its outcome to deliver
a mutually accepted settlement.
2. Inquiry
ommission of inquiry or fact-finding to establish the basic information about the
case
Whether the calimed actions were committed and if yes to what degree and
related things
Also to suggest remedies of said violation
Not legally binding, parties ultimately decide
Useful not in isolation but while using other modes of Dispute resolution
3. Good offices/ mediation
 ● The third party mediator may be an individual, a state or group of states, or an
international or regional organization
● These good offices may be offered by the mediator, or solicited by one or both conflicting
parties. A fundamental prerequisite is that all parties accept the mediator
4. Conciliation
● conciliation commission
● combines fact-finding and mediation
● Such commissions may be permanent, or temporarily established by parties to a
particular dispute
5. Arbitration
● Established through Hauge peace conference 1899, PCA
● Parties agree to submit disputes to arbitration, and thereby commit to respect in good
faith the outcome, which is binding
6. Adjudication
● ICJ and other courts with international jurisdiction
● Normally, the decisions of an international tribunal are definitive and cannot be appealed.

Role of ICJ
● Eastabkished in 1945
● Principle judicial organ of the UN
● Purpose is to resolve legal disputes between sovereign states.
● The ICJ has a dual role: to settle in accordance with international law the legal disputes
submitted to it by States, and to give advisory opinions on legal questions submitted to it
by the UN General Assembly and the Security Council and other duly authorized organs
and agencies

Jurisdiction
● Special agreement
● Matters provided for in treaties and conventions
● Compulsory jurisdiction in legal disputes
○ the interpretation of a treaty;
○ any question of international law;
○ the existence of any fact which, if established, would constitute a breach of an
international obligation;
○ The nature or extent of the reparation to be made for the breach of an
international obligation
● Advisory opinion
Article 65 (1) of the Statute of the ICJ to provide an advisory opinion, when it is
requested by a “competent organ of the United Nations”.

Case law: Legality of use of nuclear weapons advisory jurisdiction case

Advisory opinion asked by GA. could held it was vaild for them to ask, they were
competent to ask such questions and the court has the juridiction to give an opinion.
Upholding the SS lotus case, court held there are no prohibitions under customary law or
any treaty and therfore, it can be used, buy only one condition, self defence.