Public International Law

3rd July, 2023

Domestic law – used interchangeably with municipal law.

International law – set of rules and regulations that govern relations between sovereign states
and their obligations to each other.

Public International Law – set of rules and regulations that govern the relations between states.
● Normative structure of international law – Article 38(1) of ICC
● Hard law – binding on sovereign states – attracts sanctions
● Soft law – UN recommendations and guidelines – not binding – friendly relations
declaration – though this is also only a declaration this has the status of customary law
which becomes binding
Treaty – covenant/convention etc.
Customs are essentially state practices – two ingredients – opinio juris and state practice.
● Opinio juris is the psychological aspect – the feeling that you are bound by the treaty
and it will create international obligations on you
● State practice is the physical aspect of following customs.

General principles of law used by civilised nations

● “Civilised nations” is now an obsolete term.
● UNGA tasks Intl. Law Commission to make – 34 member countries so far – present
Indian delegate to ILC is Bimal Patel.
● ILC has members from both civil law countries as well as common law countries
● VCLT is also a product of the ILC itself
● 2022 – ILC finished codification of Crimes Against Humanity

Relationship between Domestic Law and Intl. Law

Monism – intl legal system and domestic legal system are both part of the same legal system
● Obligations arising out of a treaty signed become the law of the land automatically.
● There is no need for separate legislations for giving effect to the treaty obligations
Dualism – both are separate legal systems
● Ratifying a treaty is one thing but making it part of the law of the land is a separate
thing
● Treaty becomes effective law of land only through transformation – this
transformation takes place through the legislative organ of the state.
 ● India follows dualism according to the Constitution.
● Treaty signing is an executive act in India but making laws is done by the legislature.
● Treaty obligations have to be inserted into legislations through amendments for it to be
effective law of the land – till transformation takes place, international law does not
become municipal law.
● But this does not hold true today. Why?
○ Vishakha v. State of Rajasthan – workplace sexual harassment – we relied on
FRs to create the guidelines.
○ India was part of CEDAW – CEDAW provisions were used as the tool of
interpretation to interpret the constitutional provisions to provide relief.
○ It was based on these provisions that the Vishakha guidelines were arrived at.
Thus, international treaties are used as both, tools of interpretation and sources of law
○ DK Basu v. State of West Bengal – the SC asked for compensation to be paid
to the person who was arrested and detained
○ India is a party to ICCPR (Intl. Covenant on Civil and Political Rights) – Art.
9(5) – India has ratified ICCPR but put a reservation on this particular
provision –
“5. Anyone who has been the victim of unlawful arrest or detention shall have
an enforceable right to compensation.”
○ The SC deviated from this reservation and provided for compensation to be
provided to the detained person.
○ Here, ICCPR acted as a source of law for providing compensation.
● Art. 51(c), 73(1), 246, 253

Reservation
● Intl. law is a consent based regime – making consensus ad idem for states is next to
impossible so a state will come up with different best practices for the implementation
of the treaty in their country.
● When other states do not agree to these terms and conditions, states have the option to
apply reservations to certain terms of the treaty for easier implementation of the treaty
in their nation – this does not apply to the entirety of the treaty but only for those
particular terms.

Signing and ratifying

● Ratifying creates legal obligations
● After a document is signed, it has to be taken back to their legal representatives and
then get it signed by them for it to be ratified.

Use of force
 ● Yes it is allowed in intl. law
● Can be used for self defence
● If a country fails to protect itself, then other countries are free to intervene to protect
the country – involving the infringement of the sovereignty of the countries by others
in the name of humanitarian efforts.

Different approaches to intl. law

● Eurocentric approach
● Feminist view
● Critical legal studies
● New Haven approach to intl. Law

4th July, 2023

Jurisprudential Basis of International Law

Natural Law School

● Law had a divine origin. Man is a social animal and wants to live in a society.
● This is why they follow certain rules with moral and religious underpinnings to live
comfortably in a society
● Principle of Justice – how do you interpret justice?
○ Justice is interpreted on the basis of righteousness, morality, religion etc.
○ However, religious and moral bases are abstract and vague – this makes the
natural law school inconsistent and unscientific – there is no scientific criteria to
judge justice.
○ Since man is a reasonable being, he wants to live in a civilised society and hence
he follows certain rules – this understanding is based on reasonableness.
● Natural law suffered from several defects – differences of opinions, inconsistency in
application of justice etc.
● As society developed, we wanted to move from an inconsistent approach to law to a
uniform and consistent society.

Positive Law School

1. Hobbes (Leviathan)
● Transition of society from a state of anarchy to a lawful society.
● Everyone submitted their will to a superior sovereign – the scope and limits of our
rights was to be governed by the sovereign.
 ● Now we knew for sure where the law came from – this knowledge was absent in
the natural law school because justice differed from person to person.
● This same transition cannot be applied to international society because:
i. There is no such sovereign in international society.
ii. There was no state of anarchy in the international context – states
started entering into relations with other states only after entering a
lawful state.
2. John Austin
● Law is the command of the sovereign backed by sanction.
● Austin refers to international law only as law improper – it is only positive
morality – this is because if states deviate from international law, it is only a blow
to their reputation and respect in the international society and cannot attract any
real sanctions.
● States follow international rules only as a fashion or as a metaphor to uphold their
repute
● International law is nothing but the actual behaviour of the state – this means that
international law is nothing but state practice (customs)
3. Hans Kelsen
● Pacta sunt servanda (agreements must be kept) – this is the grundnorm in
international law.
4. HLA Hart
● Thought of law as a system of primary rules and secondary rules
● Self defence is an example of a primary rule – R v. Dudley and Stephens – this is
one of the earliest examples of self defence in criminal law – self defence is an
extension of self preservation.
● Use of force is prohibited in international law subject to certain exceptions, one of
them being self defence.
● What are the secondary rules to the primary rule of self defence?
● Hart says that there were no secondary rules back then, only primary rules existed.
● Treaties and their implementation are an example of secondary rules.

Montevideo Convention – laid down four features of statehood:

1. Population
2. Fixed territory
3. Government
4. Ability to conduct international relations
Constitutive Theory – One theory says that an entity with population, territory, government
and the capacity to conduct international relations will attain the status of a state only when
another state recognizes it.
Declarative Theory – this says that there is no need for recognition, but an entity with the
four requirements will automatically be a state when they declare themselves to be one.

Westphalia Treaty of 1648 – created the framework for modern international relations. Gave
the foundation of the concepts of state sovereignty, mediation between nations and diplomacy.

Read: Kelsen and Grotius – after that read anthony someone

5th July, 2023

Journals to read:
EJIL Talk
Opinio juris
Just security
Lawfare

International law used to be ruled by natural law – one positive outcome of this was that
natural law tried to censure the brutality with which nations fought wars – you can only fight
for a just cause (eg: religion) – this was one of the limited ways in which natural law helped
international law.

However, natural law cannot be called to aid international law in the present day – you cannot
provide space for ambiguity as it will lead to widespread chaos.

This is what led to the need for a sovereign – there is no single sovereign in international law –
the nature of sovereign also changes from state to state.

No state is a supra state in intl law – no state can make laws for other states – every state makes
laws for itself.

Kelsen – thinks of law as a hierarchy of norms.

● Applying this concept of norms in intl law,
● For Kelsen, intl law is customary law – customs are basically the actual behaviour of the
states (state practice)
● State practice is reflective of the consent of the states.
● Pacta sunt servanda is the grundnorm in intl law – this is widely regarded today as one
of the treaty rules – Kelsen says that this is also one of the customary intl rules.
 ● Kelsen knew that his grundnorm was not free from defects – Kelsen then said that
pacta sunt servanda is not a grundnorm but one of the most important rules of
customary law.

6th July, 2023

Definitions of International Law and its Evolution Through the

Years
L. Oppenheim
Law of Nations or International Law is the name for the body of customary and conventional
rules which are considered legally binding by the civilised states in their relationship with
each other.
● “Civilised states” – refers to European states – all other states were considered to be
barbaric states and their capture was considered to be legal.

J.G.Starke
International Law may be defined as that body of law which is composed for its greater part of
the principles and rules of conduct which states feel themselves bound to observe, and
therefore, do commonly observe in their relations with each.
● “States”
● “Principles and rules of conduct”
● “Bound to observe”
● Physical act and psychological act is present in this definition – same as that in
customary international law (state practice and opinio juris)

Schwarzenberger
International law is the body of legal rules which apply between sovereign States and such
other entities as have been granted international personality.
● Widened the scope and ambit of the application of international law.
● “States and such other entities” – non-state actors are also subjects of international
law (eg: MNCs, NGOs, civil society organisations)

The definitions over the years change the ambit of who are the subjects of international law.

“Outlawing war” – The Internationalists and their Plan to Outlaw War – Oona A. Hathaway
and Scott J. Shapiro
● In the earlier ages, war was completely legal to enforce rights.
 ● But after the World War, nations came together to outlaw war altogether as a method
of national policy.
● 1928 – Kellogg-Briand Pact – had only 4 articles – nations will completely outlaw war
as a method of their national policy

Read: RP Anand –Development of Modern International Law and India – Chapter 1 and 7

Chapter 1
● Terra nullius – “nobody’s land” – It was a principle sometimes used in international
● law to justify claims that territory may be acquired by a state's occupation of it.
● At one point Grotius said that international law is completely European – but how can
it be European if international law is based on the state practices of all other states as
well?

7th July, 2023

Revision
● Meaning of intl law – creates rights and obligations for states.
● Natural law theory and positive law theory – to know how the legal society has
developed
● States had to follow natural law in their relations with each other
● Drawbacks of natural law – not concrete, had abstract values, used vague concepts like
religion
● This made us move towards positivism – here we wanted to remove the drawbacks of
the natural law theory – wanted to fix the sources from which we derive law – wanted
concrete and not abstract sources for these.
● In order to remove inconsistencies in law, we wanted to make a source of law one
defined source – we developed the concept of sovereign authority and envisioned the
transition of society
● Hobbes – two types of society:
○ Law of nature – barbaric society
○ Civil society – rule of law and order.
■ In the civil state, man submitted all his rights to a sovereign and the
sovereign was the one who granted rights to its subjects – the sovereign
was not bound by any other superior law.
■ The sovereign would determine the rights and obligations (in natural
law, rights and obligations were left to be determined by nature)
● The sovereign was of paramount importance in the Austinian definition of law as well
(law is the command of the sovereign backed by sanction)
 ● Intl law applies these attributes of law to intl law – Austin referred to intl law as law
improper or positive morality (because there is no real sanction attracted in intl law
and there is no single sovereign in international law)
● Austin said that international law is only a matter of moral obligations – one state has
no actual obligation to other states to adhere to the rules and regulations laid down.
● Natural law is important even in the contemporary understanding of intl law. (tbd
later)
● Hart envisions law as a union of primary and secondary rules – intl law is a system of
primitive primary rules – there is no one to decide the scope and ambit of rights and
obligations, what recourse states have in the case of infringement of rights and
obligations
○ Hart said that intl law is an incomplete legal system.
● Kelsen – law is a hierarchy of norms – grundnorm is located in pacta sunt servanda –
drawbacks of this idea as well.

Realist School of Thought

● Thought that intl law is not a real thing – states are only motivated by their national
interest.
● USA, Russia, China are examples of realists.
● Hans Morgenthau and Henry Kissinger
● “International law has no primary or decisive influence on the conduct and policies of
states, which are primarily guided by their own national interest and influenced by
considerations of power more than by anything else.”

A few scholars (from Political Science background) have contended that state conduct is
regulated more by their own interest than by international law.
● Some states like Russia and China have already violated norms of international law
● Who Killed Article 2(4)?
● China’s abrogation of international norms is only an indication of its realist tendencies.
● National concern plays a very important role in the formation of intl policies.

Characteristics of Intl Law

1. Consent
○ State consent plays a very important in intl law
○ Unequal treaty – Treaty of Nanking
 ○ Foreign states cannot dictate any terms and conditions or impose their rule on
other states – the states have to give their consent to be bound by any treaty or
convention.
○ This role of consent is why Austin refers to intl law as law improper – law is not
posited on any state in intl law
○ It is with this consent that states create mutual relations, mutual rights and
mutual obligations.
2. Reciprocity
○ Terms and conditions in intl law are based on the idea of reciprocity – eg:
extradition treaties.
○ Extradition happens only when the crime committed in the first country is a
crime in the country where the offender is taking refuge as well.

There are a few rules in intl law which are beyond consent – peremptory norms of intl law,
genocide, crimes against humanity – these are justified using natural law theory.
● These crimes go against the legal imagination of people – for these crimes, we have to go
back to the principles of natural justice – it is so unnatural and inhuman for one human
being or group to try to erase one entire community from the face of the earth.
● There are no treaties for crimes against humanity – but multiple definitions have been
evolved for what crimes against humanity are (different definitions in Rwanda,
Yugoslavia etc.) – in Yugoslavia, CAH refers to armed conflict but somewhere else it
includes conflicts in peaceful times as well.
● Genocide Convention, 1948
● Crimes against humanity are committed by one sovereign state against its own citizens.
● Jean Bodin's concept of sovereignty – The absolute and perpetual power of a Republic –
as supreme as one wishes, but is also limited by natural and divine law.
● PCIJ in Lotus Case, 1927
“International law governs relations between independent states. The rules of law
binding upon states therefore emanate from their own free will as expressed in
conventions, or by usages generally accepted as expressing principles of law and
established in order to regulate the relationship between these coexisting independent
communities or with a view to the achievement of common aims. Restrictions upon the
independence of states cannot therefore be presumed.”
10th July, 2023

Read:
Third world approach to international law
Intl law and the Developing World – Weeramantry
TL&D – two articles

International Law from Global South

The Evolution of International Law: Colonial and Postcolonial Realities, Anthony
Anghie
● Traditional scholarship – european and western in nature
● Imperialism is a feature that has shaped the current understanding of international law
– eg: the loans given by the WTO, mandate system of the League of Nations etc.
● The problems of third world countries are peripheral to the understanding of
international law proper – Anghie says that the concept of sovereignty itself is
doubtful.
● Verzijl says that international law is the product of the European mind – it is this
statement that Anghie tries to rebut.
○ The reason Verzijl says so is because non-European states were excluded from
the domain of international law proper – early intl law developed as a way for
European states to have relations with other sovereign states.
● Expansion of International Society – Westohalian sovereignty was extended to non-
European states as well
● There are different doctrines and theories that emerged in Europe – it is these doctrines
that have dominated the realm of international law and have excluded third world
countries from the concept of sovereignty – one such doctrine is the Doctrine of
Sovereignty – the earlier international community only regarded European states to be
sovereign.
● Decolonisation – this was used to give sovereignty to non-European states – this is how
the realm of international law was completed.
● Terra nullius – land that belonged to no one – used to justify colonisation
● The Doctrine of SOvereignty, which was created by the European states, later came to
bite them in the ass – the doctrine used to colonise non-european states was later used
against them.
● “Dynamic of difference” – difference between cultures – non-european states had
heterogeneous cultures unlike that of western states – Anghie says that this dynamic of
difference is to be accommodated in international law.
 ○ The role of international law is to bridge the gap between civilised and
uncivilised societies.
Read: Vitoria – wrote against the Spanish colonisation of American Indians – they invaded
their territory on the pretext of commerce

● Decolonisation and postcolonial state – mandate of LoN – ‘advanced’ states were

expected to take care of the ‘backward’ states
○ It created a set of techniques to convert backward non-european states into
modern, advanced states
○ Importance of LoN in international law – devised techniques to grant
sovereignty to non-European states
● Human rights law and justification of intervention of international law in the internal
affairs of a state

Read: Doctrine of War on Terror – diluted many of the sacrosanct principles of

international law

Weeramantry
● P. 280 – Multicultural approach to international law

11th July, 2023

International Law and the Developing World, Weeramantry

● Says that international law needs to be reviewed – it was first done by Latin American
jurists – because they were the first group of countries to emerge from colonisation and
had to live together and so had to formulate certain rules to live together.
● Judge Alvarez of Chile –
● The UN is supposed to be an ‘international club’ – but it is still ruled by western
hegemonic powers and is not truly international
● The SC needs to review its working and its membership – this reflects the psyche of
TWAIL.
● Third world scholars are not denying the importance of intl law – they are looking at
intl law as a tool to remove the domination in intl law – ICJ, UNSC etc. all need reform
● He suggests that we need to apply the rules from different non-European traditions to
bring in reform in intl law
● For this, he says we need to focus on the multicultural approach to intl law – other
societies, other traditions, rules and law should also be incorporated into the realm of
intl law – gives the example of Arab jurists
● Intl law is not purely a cultural product of the West.
 ● How to go about a multicultural approach? Where can you locate the content of intl
law? Weeramantry located the content of intl law in the traditions of different
traditions – these different traditions need to be applied by the courts and tribunals
● Concept of sustainable development – Brundtland Commission Report – gave the
concept of sustainable development
● Cultural barriers prevent access to the sources of traditions of other countries – since
people do not have access to it, it becomes difficult for them to implement those
traditions in their international law.
● People in third world countries suffer from environmental injustices also – land
grabbing in the name of food sovereignty but the concentration of wealth in the hands
of a few neo-liberal MNCs is taking place (they have the tacit backing of the sovereign
states as well)

Now within the third world also there is a first world.

12th July, 2023

So far we looked at how international law need not be a tool of subjugation but is now being
used as a tool of empowerment – this is to be achieved through a multicultural approach and
integrating aspects of different traditions and cultures in international law.
Eg: sustainable development was adopted as a goal through the Brundtland Commission
Report but it does not mean that sustainable development did not exist as a goal prior to that
(Sri Lanka had already adopted sustainable development in their policy-making)

Third World countries did not want to align with the Communist states or the First World
states – sovereign status was made applicable to Third World states post-decolonisation (Latin
America, Africa and Asia) – in this context, NAM was a political movement that they started to
avoid pledging allegiance to the First World countries and to the Soviet Bloc.

Non-Aligned Movement (NAM)

● Group of 27 nations formed during UNCTAD – they were not united by a common
ideology or form of governance – they were all heterogeneous societies.
● The thing they had in common was that they were all liberated from colonial rule and
were fighting different injustices – Third World was of the view that economic
subjugation was still prevalent from the IMF, World Bank and the GATT as a result of
the Bretton Woods Agreement –in this sense, the third world countries had a common
economic interest.
● These states were still not truly dependent as they were still dependent on the western
nations.
● They formed the New International Economic Order – platforms like UNCTAD and
UNGA provided platforms for these countries to press their demands forward.
● Western states were anxious not to drive the third world nations into the hands of the
Soviet – this is why the western nations reluctantly agreed to factor in the interests of
the third world countries, especially in international trade law.

TWAIL: A Brief History of its Origins, its Decentralised Network, and a Tentative
Bibliography, James Thuo Gathi

What is TWAIL?, Makau Mutua

● Bandung – the symbolic birthplace of TWAIL – the place where the first meeting of
NAM took place (Bandung Conference 1955)
● TWAIL wants to present an alternative approach to international law.
● It also aims to eradicate conditions of underdevelopment in TW countries
● The foundation of TWAIL rests on the Bandung Conference and the Group of 77.
 ● Reason for adopting NIEO Resolution:
The sudden and unanticipated rise of developing countries’ economic and political
power. Now the bargaining capacity of these countries had increased, Eg; the Middle
East oil embargo of 1972-73 resulted in an increase in the price of oil and created an
energy crisis global. This event showed that even the developed countries and the
western world were not self-sufficient – they were dependent on certain third world
countries for some things – these third world nations wanted to bargain for their
economic power through platforms like UNCTAD and UNGA and this is why they
pressed for the NIEO resolution to be passed (this became easy since a majority of the
votes came from these third world countries itself)

UN Declaration on the Establishment of a New International Economic Order

● Goals of NIEO – sovereign equality of states,non-interference in internal affairs of
other states, cooperation between states on the basis of equity etc. (refer point 4 in the
Resolution)

Mohamed Bedjaoui – judge from Algeria – pioneer jurists supporting TWAIL

Friendly Relations Declaration 1970

● Has the role of customary international law now
● This declaration was used to arrive at the UN Declaration on NIEO.
● Rules of multilateral relations were developed on the basis of this Declaration.

Read: relation between UN Charter and Friendly Relations Declaration

Summary so far:
● Meaning of international law
● Definition of international law
● Evolution of international law
○ Natural law – Vitoria, Grotius (they also justified occupation and imperialism)
○ Positive law – Austin, Kelsen, Hart – main focus on Austin because of his
concept of law as command
○ Criticisms of natural law and positive law – Anghie 9the concept of sovereign
itself is a European concept which further subjugates the people in colonies)
○ Does this mean we should negate the concept of international law altogether?
No, it does hold value – Weeramantry (international law is not imperial, it is
universal)
○ 1970s – examples of G77 and UNCTAD and how they came up with NIEO.
 ○ TWAIL – UNGA Resolution of 1974 reflected one of the earliest philosophies
of TWAIL.
Read: Populism and International Law (is India moving in a certain direction? Difference
between nationalism and populism)

July 13, 2023

Landmark events in international law:

Invasion of Kuwait by Iraq
Disintegration of USSR
Establishing of WTO

Treaties-
1. Multilateral- multi state treaty WTO relaxed international markets.
2. Bilateral- 2 states
3. General
There was a trend of multilateralism (post est of WTO) in the early developments of
international law now the trend is shifting towards bilateralism.

In 2001, 9/11 had a huge impact on international law as it dismantled many principles of IL .
The UN did not interfere in Rwanda’s matters due to non-interference policy in domestic
matters. This dampened the importance of the UN. The UN was considered defunct.
Through ICTY and ICTR the UN tried to regain its importance. Then due to the demands of
a permanent judiciary ICJ was Established.

ICTY and ICTR –

● They were ad hoc tribunals – for crimes such as genocide, war crimes, command
responsibility.
● They were international in character. This led to protests as there was no national
representation. This led to establishment of hybrid tribunals – such as in East Timor,
Sierra Leone.
● Now we have an international permanent court for this – the ICC, which also has its
own issues.

Multilateralism was looked down upon due to mass displacement of resources and
opportunities to “outsiders” who could easily avail the resources of another country through
multilateral relations (E.g., US- Make America great again). This is why there was a shift from
multilateralism to bilateralism.
Article:
Populism and International Law – is India moving in a certain direction?
Populist Governments and International Law – article

Populism
● Populism is consensus based
● Pure population is suffering now because of an elitist government.
● Populism is a political stance that emphasises the idea of "the people" and often
juxtapose this group against "the elite". It is frequently associated with anti-
establishment and anti-political sentiment.
● Populists derive their ideology from our ethnicity and race. Populist governments
encash these feelings.

Use of Force in India

● Surgical strike
● Nonmilitary preemptive strike – Pakistan. Indians claimed that Pakistan was unwilling
and unable to control non-state actors that were attacking India. The unwilling or
unable doctrine either entails that the right to self-defence can be triggered without any
attribution of non-State actor conduct to a State, or that non-State actors' conduct can
be attributed without effective control of a State.
● In conclusion, the Indian govt. is not a populist state but has populist tendencies.
● https://www.ejiltalk.org/narendra-modis-nationalist-populism-in-india-and-
international-law/

● Article 38 ICJ
● Material sources and subsidiary sources
● Material and formal sources of law:
○ Customs and treaties form the corpus of international law and these are material
sources and subsidiary sources substantiate
○ Material sources are the actual content of the rules that are applicable
○ Formal sources of law are those that provide an obligatory nature to rules.

Refer to this link- https://legal.un.org/ilc/reports/2016/english/chp5.pdf

You can refer to the general commentary section from pg 3 – first 2 pages can be skipped.
Pg 2 – conclusion 2
Conclusion 2
 ● Two constituent elements – to determine the existence and content of a rule of
customary international law, it is necessary to ascertain whether there is a general
practice that is accepted as law (opinio juris).
● If a head of the government makes a statement informally then that won’t be
considered opinio juris as there was no intent to be bound by it. However if the
statement was made formally then the

14th July, 2023

REVISION BY JANANI
● Definition of intl law
● Assess whether international law is a law at all
● Two schools of thought
○ Natural law – certain basic principles of the basis of which nature operates –
religion, morality and ethics
○ Positivist school of thought – Austin (sovereignty)
● Three broad definitions of intl law – because the two schools of thought were not
adequate for understanding international law.
● Characteristics of international law – consent and reciprocity
● TWAIL
○ Anthony Anghie – talks about the concept of sovereignty – european concept –
excluded non european states from the amit of intl law
○ Weeramantry – talked from the pov of third world countries – criticised why
the european view of international law is wrong in terms of excluding the non-
european states
○ Macau mutua – what is TWAIL
○ Evolution of third world countries – G77 and NIEO
● Populism – how it affects intl law
○ European journal of intl law – whether the Indian government is populist or
not.

Non civilised societies lacked a sovereign authority who could make rules for them – this lack
of sovereign enabled the civilised states to occupy this territory – this justified their imperialism
– their primary motive lay in commercial reasons – it was this search for economic
development that led them to expand the search for raw materials.

PSNR – Permanent Sovereignty over Natural Resources (1962)

The right of peoples and nations to permanent sovereignty over their natural wealth and
resources must be exercised in the interest of their national development and of the well-being
of the people of the State concerned.

Post WWII, with the establishment of the UN, decolonisation took place – but this did not
take place overnight – there were still remnants of dependence left behind in the newly
independent states – one of these was economic dependency – these states had to rely on the
technological and scientific knowledge of the western nations
There were different rules of international law developing post-decolonisation (eg: NIEO) –
another such rule was the right to self determination
Another rule was pacta sunt servanda – if the colonists had entered into any contracts with any
organisations to conduct commerce in the colonies, it was argued that they should still uphold
this agreement – they were using pacta sunt servanda to prevent the colonies from having
economic independency
The newly independent states were very possessive of their territory – they did not want to
depend on the western states – they wanted to nationalise the property owned by the
colonisers – this is how PSNR came into being

This was a precursor to NIEO.

Charter on Economic Rights and Duties of States, PSNR and NIEO to be read together.

In the 1970s, democratic governments started turning into authoritarian governments

(Cambodia, Sri Lanka, East Pakistan)
In the 2000s, the 9/11 situation attacked many of the principles of international law
Populist governments are cherry-picking the principles that go along with their national
interest and reject those that do not go along with their national agenda (India is not a populist
regime)
 Sources of International Law
(actual portions start from here)

Austin said that international law is not law proper – international law has no law-making
authority. So how can there be certainty in international law
Why we need certainty in international law:
● So that states’ behaviour can be predicted
● This prediction is based on the past practices of the state.
● Natural law suffers from abstractness – this is why it was rejected in international law
● There needs to be a sovereign who can make rules for everyone in international law –
there is no vertical system of hierarchy in international law – it is a horizontal system
instead.

Introduction
● There can be states objecting to the rules of customs (persistent objectors), states
following customs etc. – there is ambiguity here also.
● This is why the whole system of treaties was introduced.
● General principles of law – ones that are the same across the major legal systems in the
world – res judicata, innocent until proven guilty, audi alteram partem etc.
● International law developed out of domestic law itself.
● Article 38(1) of ICJ Statute
● International Law Commission’s Draft Conclusion on the Identification of Customary
International Law
https://legal.un.org/ilc/texts/instruments/english/draft_articles/1_13_2018.pdf

15th July, 2023

Topics to be covered under sources:

1. Article 38(1) ICJ Statute
2. Customs
● Two aspects:
○ State practice
○ Opinio juris
● There is a need to differentiate courtesy from custom – not all state practices
become custom.
 ● General custom (regional customs – Right to Passage case between India and
Portugal, jus cogens, peremptory norm of international law (VCLT)
● Right to Innocent Passage – India said it would not give the right to passage to
Portugal – Portugal rebutted this saying that they had this right flowing from
the Mughal period itself – it was held that the right to innocent passage did not
include passing the military through the strait, it only applied to civilians.
3. Treaties – mainly VCLT
4. General Principles of Law recognised by civilised nations
5. Subsidiary Sources – UNGA resolutions, writings etc.

Article 38(1) ICJ Statute

● The primary difference between international law and domestic law is the fact that
domestic legal systems have a specified hierarchy of norms where the highest norm is
located in the Constitution – this system is absent in the international legal system.
● International law has a horizontal system – there is no vertical hierarchy – this is
because the international legal system operates based on the consent of the subjects of
the law, the states. In domestic law, there is no aspect of the consent of the subjects – all
the subjects are equally bound by domestic law.
● No single state is treated as sovereign for the other state – no state can make laws for
another state.
● It is impossible to locate law in international law – the vagueness from the natural law
school of thought is still prevalent in the present international law.
● Article 38(1) of ICJ Statute is considered to be the most authoritative course of
international law – but this does not equally apply to all judicial systems.
○ There are different forums for the pacific settlement of disputes – ICC, ICJ,
ICSTD, ECHR, DSB, ITLOS – they all apply their own sources of law – they
apply treaties, customs and general principles of law.
● Article 38(1)(d) – referred to as the subsidiary source of international law. Scholars, like
Schwarzenberger, have divided these into:
○ Law-creating process – 38(1) (a), (b) and (c)
○ Law -determining agency – 38(1)(d)
● 38 (a)-(c) – these form international law – the fourth one helps in determining the
above three sources by providing evidentiary value to the existence of these obligations.
Eg:
○ Writings of Grotius emphasise on the freedom of the seas; high seas are
considered to be the common heritage of mankind and no single state can
exercise their sovereignty over this zone – this freedom of the high seas also finds
 place in UNCLOS – if there are any disputes, the ICJ may take the help of
Grotius’ writings in arriving at its decision.
○ Principle of non refoulement – this basically says that you should not put the
person back in the bad situation they escaped from – applies to refugees fleeing
persecution from their home country – an asylum country cannot send these
refugees back to their home country – this principle has attained the status of
customary international law – states follow this in practice and also think that
they are bound legally to follow this principle – through this custom, law has
been created – customs and treaties are law creating sources but this same
principle is used in multiple treaties – here the treaties are not making law, they
are only giving legal status to the principle.
(Kelsen and other positivists located law only in the actual behaviour of the
states)
● Law creating process and law determining process overlap to a great extent.
● ICJ judges may also create law the way municipal judges create law.
● Another basis of classification is : formal sources and material sources. First three are
formal sources and the fourth one is the material source
○ (a)-(c) create the rule of law while (d) provides evidence or describes the process
of the creation of those rules.
● ICJ is the primary adjudicatory body of the UN – all the members of the UN are also
members of the ICJ.

Read summaries from customary international law perspective:

1. Asylum Case – Columbia v. Peru
2. North Sea Continental shelf case
3. Anglo Norwegian case
4. SS Lotus case
17th July, 2023

● Custom is defined in article 38(1)(b)

“international custom, as evidence of a general practice accepted as law”
● General practice – state practice – physical aspect
● Accepted as law – opinio juris – psychological aspect
○ Opinio juris was first used by a French scholar, Francois Geny – to make a
distinction between those state practices that are followed merely as a matter of
morality/courtesy from those that have the legal status of custom.
○ Opinio juris means legal obligation – states have to feel like they have the legal
obligation to follow that particular custom.
● Work of ILC is also accepted as part of customary international law.
● Usages – following a particular practice as a matter of convenience and not obligation.
● Non-state actors can also influence the decision-making of a nation – eg: Narmada
Bachao Andolan in India – we have a new Land Acquisition Act which places emphasis
on rehabilitation, Visakha case

18th July, 2023

1. Article 38(1) ICJ Statute – formal sources, material sources, subsidiary sources, law
creating process, law determining agencies
2. Article 38(1)(b) – custom as evidence of general practice accepted as law
3. State practice – whose practice?
4. Practice – consistent, general, uniform, extensive.

Charles de Visscher – gives the example of the path being created in the field (p.316 of
Accelerated Formation of Customary International Law)

Manifestations of state practice – speeches, national

P.313 – custom pioneers –

P. 312 – Judge RIchard Baxter – easy to establish verbal acts, but not

The concept of being followed since time immemorial is not there in international law – there
is only the requirement of being followed for a sufficient period of time.
However, there can also be instant customs in international law:
● Bincheng – supported the rise of customary international law in space law.
● EEZ – developed fairly quickly as compared to other topics in international law
 ● Use of force – this was customary international law but it is still faced with multiple
objections and challenges.

Columbia v. Peru – Asylum case

● Customary rule must be in accordance with a constant and uniform usage practised by
the state in question. However the court had also made it clear that perfect consistency
is not required – depends on the facts and circumstances of each case.
UK v. Norway – Fisheries case
● Too much importance need not be attached to the few uncertainties or contradictions
in State practice.

Read: Nicaragua case

P. 79 MN Shaw book

19th July, 2023

Nicaragua case 1986

State practice and opinio juris are both constituting elements of IL. The objective element is
state practice and the subjective element is opinio juris.

To understand state practice, we look into draft articles and we apply the concept of
attribution. We come to the conclusion that whatever the organs of the state do amounts to
state practice.

Draft conclusions-

State practice:
Conclusion 5- conduct of the state as state practice:
Commentary:
(5) practice must be known to other states.
There is no set hierarchy between the various forms of state practice.

Conclusion 6-

Conclusion 15 talks about persistent objector. The other states need to object from the very
beginning from when the practice was forming. There is no such thing as subsequent objector
in international law. The state has to have objected to the practice from its inception itself and
cannot come out later and object it.

Conclusion 8- state practice must be general. Extensive state practice- pioneer states- it is not
necessary that the rule of pioneer states would culminate into customary international law.
Commentary:
(3) there is no formula for what constitutes general practice. It all varies from case to case.
(4) ‘specially affected states’ has been introduced.
(5) Also, the practice must be consistent.

UNGA resolutions have also contributed to the concept of customary international law. One
such resolution- friendly relations declaration is a customary international law.

The practice of the most affected state will be considered as extensive state practice.

Opinio juris:
It differentiates between normal practices or courtesies with customs. The difference is the legal
obligation to follow the practice. It is a subjective element so it is very difficult to provide
evidence of the same. We need to provide evidence of the belief of state that they believed there
was a legal obligation.

Conclusion 9:
The practice must be undertaken with a sense of legal right or obligation.

Conclusion 15: persistent objector.

20th July, 2023

Role of civil societies in forming state practice – though the text says that state practice does
not constitute the actions of such NGOs and civil societies, there have been practical examples
to the contrary – thus, non-state actors and civil societies also contribute to forming customary
international law.

Comparison between conclusion 6 and conclusion 10

Why is opinio juris required?

● Makes a distinction between a usage and a custom.
● Without legal obligation, a practice will remain a habit, not law
 ● The motive of the state in following a particular practice is the reason for having opinio
juris

SS Lotus case
● It emerged from the collision of two ships at high seas – one owned by the French and
the other by Turkey.
● A few people were killed during this collision – Turkey alleged that this occurred due to
the negligence of the captain of the French ship.
● When the French ship reached the coastal waters of Istanbul, the Turkish government
arrested this French official and charged him with manslaughter.
● The French contested that there has been no such rule of customary international law
that a person of one nationality shall be prosecuted by another nation.
○ They said that not prosecuting a person in such a manner was a rule of
customary international law.
● However, the court said that this was not a matter of CIL – even if the other states did
not prosecute persons of other nationalities, it was just a matter of practice, it was not
followed as law.
● Thus, both aspects of CIL, state practice and opinio juris need to be present.

Read:
1. North Sea Continental Shelf case
2. Nicaragua case

How to establish opinio juris? → Conclusion 10

It is difficult to establish the rules of local customs – it has a much higher threshold

Gulf of Maine case – defined “acquiescence”

Acquiescence is equivalent to tacit recognition manifested by unilateral conduct which the
other party may interpret as consent and as founded upon the principles of good faith and
equity. States are seen to acquiesce to the behaviour of other states without protesting against
them. Acquiescence can amount to consent to a customary rule, absence of protest implies
agreement.

Customary international law can also be identified through treaties – Conclusion 11

● eg: principle of humanity in ROme Statute, Principle of non refoulement reiterated in
refugee law etc.
Theory of Persistent Objectors
● Those states who do not agree to the rules formed by the rest of the states
● They would say that their consent was not taken and it is their prerogative to follow
that rule or not since they are sovereign states.
● A leeway is given for them in international law – this is the theory of persistent
objector.
● The theory essentially allows these states to object to the formation of a particular rule
– this objection should arise at the inception of the rule, not after it has been
implemented.
● The state also has to consistently object to the rule – it cannot simply follow the rule for
2 years and then refuse to follow it for the next 20 years – there is no concept of
subsequent objector.
● States cannot object to peremptory norms of international law.

21st July, 2023

CA1- Intro and customary international law

Theoretical questions from the 1st module but there may be application based questions from
customary international law.
Exceptions- local customs and persistent objector.
Two constituent elements need to be established separately.
Forms of state practice and opinio juris.
There are limited ways of establishing state practice which are given in conclusion 6- 1st
point(verbal and physical) and in that wide range of forms, inaction or silence is also one.
There is rule of persistent objector but not subsequent objector.
Subsequent acceptance is valid but not subsequent objectors.
Local/regional/particular custom- Regional and local custom
What is the significance of these ILC draft conclusions? There is no one answer to this.
Sometimes they can be used to establish opinio juris and sometimes they serve as subsidiary
source of international law. They are not formal source(talks about rights and obligations, etc)
but they are material source(talks about material evidence needed to establish customs). But
when that draft article is converted into convention or treaty, then it will become formal
source. The resolutions of IOs can also be used to establish state practice and hence they can
also be reflective of IL. They are just material sources of customs and not actual sources of
customary international law. They can be used to substantiate or prove the existence of the
constituent elements of customary international law.
ILC under article 13(1)(a) of UN charter- it is a subsidiary of UNGA- delegated the task of
progressive development of codification of law to the ILC. Codification is making unwritten
laws into written. It also takes steps and does research to develop the law. It also talks about
how customary international law can be identified. Customary international law is not defined
properly but only partially.
Pg-122- what is customary international law- Customary international law is unwritten law
deriving from practice accepted as law.
Conclusion 3- point 1- there is no fixed parameters for the threshold of the elements- it differs
for each case.
Point 2 says each element needs to be ascertained separately- vvv imp.
Conduct of non-state actors- Their conduct is not customary international law but their
conduct can be used to establish state practice of states or IOs.
The practice must be general and widespread- is not defined- the practice of 193 states can be
held to be general- or even that of 3 states.
Specially affected states
One state puts forth a claim- this is the pioneer state- if this claim is repudiated by other states
then it wont become customary international law but if it is accepted or there is inaction, then
it becomes rule of customary international law.
Apart from these rules, customary international law can also be established with the help of
treaties, IOs resolutions, decisions of tribunals or courts- these are all sources of law but they
can also be used to establish other sources of law.
So there is no such clear distinction between formal and material source- a formal source can
also serve as material source to establish existence of any other source like customary
international law. They are formal sources but also serve as material sources in another case.
Persistent objector- point 2- the objection must be made known to other states and not
internally- see point 8 of commentary also. It cannot be made to jus cogens.
Obligation of states towards role of mankind- erga omnes- see other material
Jus cogens norms are those for which there is an obligation- they are higher international law-
sit at the top of the hierarchy.
See point 5 of commentary of persistent objector.
Point 6- if a state establishes itself as persistent objector and then the rule is not opposable to it
as long as it maintains its stance.
See point 7, 8, 9…
Particular customary international law- binding on only a limited number of states and not all
the states. Even though these are difficult to come across(can be seen in Latin America and
Africa), they are an important source of law.
They only bind a limited number of states.
A general customary international law creates rights and obligations for all sttaes but particular
customary international law does not bind third states.
Point 5 of commentary- whenever we talk of regional custom, we think of them in relation to
some region. But it is not so, there is no reason as to why a rule of particular customary
international law would not develop among states lined by a common cause or interest rather
than their geographical position in the world.
Asylum case- a person was a political offender according to Colombia and hence they should
get asylum in Colombia itself. He was in Peru and wanted to get the person in their custody.
Peru dis not do that. Colombia took Peru to court and said that this was particular customary
law.
Indian case: Right to passage case- Portugal vs India.
Malcom Shaw and ILC draft conclusions.
From Monday, we will start VCLT.
CA1- introduction- readings or chapter 1 and 2 on Akehurst, sources of international law(intro
to module 2) and customs in module 2.
24th July, 2023

Criteria for the applicability of theory of persistent objector

1. Time limit – objection has to arise as soon as the rule comes into existence or during the
process of formation of the rule.
2. There is no particular format, but the objection has to be in clear, unambiguous terms.
3. The objection needs to be internationally communicated – cannot just circulate the
objection within domestic territory.
Exception
1. Conclusion 15
2. Conclusion 16
3. Jus cogens (peremptory norm)

There is no single definition of jus cogens.

Article 53 of VCLT, 1969
Jus cogens is a norm accepted and recognised by the international community of states as a
whole as a norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character.

Vaughan Lowe
This leaves the judgement in the hands of the international community of the state as a whole, a
concept that is not defined although the disputes over the question of jus cogens on treaties
may ultimately be referred to the International Court of Justice.

Erga omnes

CIL
● What is state practice – legislature, executive and judiciary – international organisations
maybe but not non-state actors (they can only influence)
● State practice – forms – verbal and physical
● Opinio juris – forms (inaction, silence, acquiescence)
● Exceptions to CIL – persistent objector, particular customs
● Jus cogens
● Paradox – when ordinary CIL is made, consent plays an important role and states can
object, but when general rule of international law concretised, it is called jus cogens and
no derogation – when i have been objecting to it from the beginning, how can i be
bound by such a law?
 Treaties
● CIL is open to interpretation – they are unwritten rules – there is always scope for
misinterpretation and it becomes difficult to locate the source of law.
● Obligations come from two sources
a. Treaty or agreement
b. Commandment
● Only states can enter into treaties – treaties can also be entered into between states and
international organisations – VCLT is an example of a treaty between states.

Readings for CA 1:
1. RP anand ch 1 & 7 (7 imp)
2. Anthony Anghie
3. Weeramantry
4. Macau Mutua
5. PSNR
6. NIEO
7. Populism not needed for CA1
8. Akehurst - ch 1 and 2
25th July, 2023

Law-making Treaty
● UN Charter [says that it applies to all peace-loving states], WTO, VCLT

Contractual Treaties
● ASEAN, BRICS – rights and obligations only for the states who are parties to the
treaties.

VCLT

Article 2(1)(a) of VCLT

“Treaty” means an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation.

Lex lata – law as it exists – in international law it is found in treaties – customary international
law
Lex ferenda – law as it ought to be – UNGA resolutions, draft articles etc. – this can become
lex lata in due course of time.

Signature and ratification – Article 12 VCLT

● Ratification – accepting a treaty into the domestic law and implementing it
● Signatory –

Qatar v. Bahrain 1994

● The minutes [Doha Minutes] enumerate the commitments to which parties have
consented – they create rights and obligations in international law for parties. They are
international agreements – the contents and substance of an instrument must be
prioritised over its form.

Article 7 – Full powers

● The one entering into a treaty must have full powers.
● Mentions who are the persons having full powers.

Article 14 – Consent to be bound by a treaty expressed by ratification, acceptance or approval

 ● Some contend that signature does not create an obligation on the state party unless it is
ratified by the state.
● In India, it has to be incorporated and transformed.
● One way for treaties to become part of municipal law is through ratification.
● Treaties are registered with the UN Secretary General Office.

Negotiating state – in the Rome Statute, India would be a negotiating state

Contracting state

High contracting party –

State parties

29th July, 2023

VCLT is a treaty that governs treaties among states

Part I
Article 2(1)(a) – definition of ‘treaty’
Arrangements of interdependence are known as treaties.

Treaties have clarified where you have to look for rights and obligations.

“Treaty” means an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation;

Treaties may come with MoAs or declarations attached to it.

Consent is important in treaty-making – consent to be bound by the rights and duties arising
out of the treaties – only a person with full power can give consent.

Article 1(b) – consent can be given in the form of ratification, acceptance, approval and
accession

India has objected to Article 16 in CEDAW talking about marriage rights for women – it is
impossible to enforce this provision in India in full letter and spirit due to the existence of
personal laws - even though they have put a reservation on this provision, India is a party to
CEDAW.
Reservation should not be such that the objective and purpose of the treaty is derogated or
defeated.
● ICJ Advisory opinion on the reservation to the genocide convention – https://www.icj-
cij.org/case/12#:~:text=The%20Court%20considered%2C%20in%20its,must%20be
%20taken%20into%20account. \

Rome Statute – established the ICC – has jurisdiction over 4 types of crimes – there are a few
states that have resisted the terms of the Rome Statute and placed themselves outside the
purview of the ICC – India is not a signatory to the Rome Statute but is a negotiating state – it
took part in drawing up and drafting the statute – India had objections like restricting the role
of the UNSC in referring a matter to the court, making the use of nuclear weapons a crime etc.
– this is why India did not sign the treaty

Contracting state is one that drew up the treaty and signed and ratified it.

Party to treaty – states who join the treaty at a point after its formation

Third party – party not a part of the treaty.

[Article 2 of VCLT]

★ The term genocide was coined in 1949 by Raphael Lemkin.

Articles 1, 2 and 4 are important from Part I of VCLT

Part II
Article 6 – capacity of states to conclude treaties

Article 11 – means of expressing consent.

● Article 12 – consent to be bound by treaty expressed by signature
● Signature and ratification are the two most powerful ways of being bound by a treaty.

Article 18 - obligation not to defeat the object and purpose of the treaty before entering into
the treaty

Refer: Malcolm Shaw ch 12 – also read ICJ advisory opinion doc

1st August, 2023
[madhumitha notes]

Reservation
Earlier the obligations used to come out in the form of commandments but in international
legal society there is no authority to give command and no state can command another. We also
don't live in a unipolar society. Since ancient times, states have been in relationships with the
other bodies(church, tribal societies, etc). When legal societies developed, the states are
interdependent. How to fix the obligation on the state to share the resources? For this, states
decided the concept of agreement which gives rise to rights and obligations amongst
themselves. These agreements were entered into for different fields of the society like trade or
sharing of water and such. The self sufficient state would supply the thing to other states. In
contemporary society, there are agreements or treaties and conventions for everything under
the sun. Bilateral treaties operate between two states. General treaties are observed generally by
the states- UN treaties, genocide convention, human rights convention- these create law for
states in general- these are law making treaties. Few of the rules of customary international law
has also been codified into treaties. If there is treaty law and customary law for the same topic,
then the treaty law would prevail. The law making treaties prevail- they reflect the rules of
customary international law only- they are generally applicable on all states. Jus cogens norms
of peremptory international law must be respected when making law. If not they will be void.

Treaties are to be respected in good faith. To justify this we go back to natural law, without
respecting treaties and agreements, society would go into chaos. This is very important in the
case of bilateral or regional treaties. If they are not respected, then what was the need to enter
into that in the first place.

States have capacity to enter into treaties. State is a legal person. Can anyone and everyone go
and represent the state to negotiate treaties? Article 7 says that a person who has full power can
negotiate treaties. That can be seen from the full power document.
This document is issued by the state. It can also be ascertained from the practice and intention
of the state.
There is another class of individuals who can represent the state even without a full power
document. See art 7 for this.

UNTC Glossary on treaties- refer

Will the state be bound by the statements of that person?

No. There are chances that this representative will exceed his power. Also the person may not
be in a full position to give consent.

Does every treaty need to be ratified? No

If a treaty is already in force and another state wants to enter into it, so the states that are
already part of it have to ascend that state into that treaty. This is the process of ascension.

Reservation:
An example of a treaty. There will be 3 situations- when a treaty is being negotiated:
State would agree to all- utopian
State would not agree to anything- Rome statute
Reservation.

Article 2(d)- reservations means a unilateral statement…where it purports to modify the legal…
It is a unilateral statement.
Can be phrased or named in any manner.
Has to be expressed when the state is notifying its consent maybe when ratifying or signing, etc.
The result is that it purports to exclude or modify the legal effect.

Earlier, states had to take consent from all other states party to the treaty to give its reservation.
But this changed in 1951, ICJ advisory opinion on genocide convention.

2nd August, 2023

Article 2(1)(d) VCLT – reservation

● It is a unilateral statement made by the state who proposes for a reservation.
● There is no fixed form – can be however phrased and however termed – the only
condition is that it should have some effect on the application of that treaty rule.
● It is not the form but the content of the statement that matters.,
● The purpose is to exclude or modify the legal effects of that particular rule.
● It affects the application of that rule in the domestic territory of the state that
places the reservation to that rule.
● Eg: Article 16 of CEDAW has been reserved by India – because of the existence of
personal laws in India.
● Two approaches before 1950:
a. Approach of opposability – if a state opposes then the treaty will not be
applicable in the domestic territory of that state – consent is the key factor in
this approach.
 b. Approach of permissibility – look at the objective behind which the treaty is
entered into — the treaty itself is more important than the consent of the states.
● In 1951, ICJ Advisory Opinion on Genocide Convention – if there are 8 states and
one has made a reservation, then does it need to take the consent of all other states?
Thus, the advisory opinion combined both the approaches – consent is important but it
is also important to ensure the object behind the convention is followed through – laid
down the object and purpose test
★ The problem created by this clubbed approach was this:
The reservation put forth by one state to a treaty creates lex specialis – if 6 out
of the 8 states accept the reservation and 2 states do not accept the reservation,
then for the 2 states who objected to the reservation, the objecting party will not
be a party to the treaty.
● In 1969, through VCLT, a new approach was created.

Thus, the traditional rule was that the state could not make a reservation to a treaty unless the
reservation was accepted by all states which had signed the treaty. The ICJ said, in Genocide
case of 1951, that the traditional theory was of undisputed value but was not applicable to
treaties like the Genocide Convention, which embodied objective obligations and sought to
protect individuals instead of conferring reciprocal rights on the contracting parties (this
applies to all human rights treaties).

The court therefore advised that a state which has made a reservation which has been objected
to by one or more of the parties to the Genocide Convention but not by others can be regarded
as a party to the Convention if the reservation is compatible with the object and purpose of the
Convention (this is the clubbed approach proposed by the ICJ).

Article 21 and 22 of VCLT – reflects the approach of opposability.

Article 19(3) of VCLT – gives the object and purpose test.

Paradox of lex specialis

Since different states may reach different conclusions about the compatibility of the
reservation, the practical effect of the court’s opinion is that a state making a reservation is
likely to be regarded as a party to the treaty by some states but not others (the states which did
not give consent to the reservation). In that respect, the outcome the court reached
contradicted its findings as to the objective and non-reciprocal obligation under the Genocide
Convention.

The current approach is embodied in Article 19 of the 1969 VCLT.

The state may when giving consent formulate a reservation unless:
1. The reservation is prohibited by the treaty (eg: Article 309 of UNCLOS)
2. The treaty provides that specified reservations which do not include the reservation in
question may be made. (Eg: Article 42(1) of Refugee Convention – enlists the clauses
upon which no reservation can be put)
At the time of signature, ratification or accession, any State may make reservations
to articles of the Convention other than to articles 1, 3, 4, 16(1), 33, 36-46 inclusive.
3. The reservation defeats the object and purpose of the treaty.

Articles 20, 21 and 22 – methods of objections to reservations.

Vienna Convention on the Law of Treaties (1969)

Areas to be covered
1. Application of treaties
2. Rules of interpretation of treaties
3. Legal history
4. Object

3rd August, 2023

The purpose of reservation is to exclude or modify the legal effect of that particular treaty in
that territory.

The changed circumstances of reservations have been reflected in Article 19, 20, 21 and 22 of
VCLT.

Revocation of reservation – Article 22

● When the reservation can be withdrawn depends on the specifications of the treaty
itself.

Article 23 – reservation needs to be duly communicated in writing

Application of Treaties
Article 24 – entry into force
● When is a treaty said to come into force? Some treaties enter into force on the date of
signature of all consenting parties, some wait for the ratification of the consenting
 parties, some say that the treaty will be enforced on the 30th day after 100 ratifications,
some say that it will be enforced by UNGA resolution etc.
● Eg: Article 84 – the present Convention shall enter into force on the thirtieth day
following the date of deposit of the thirty-fifth instrument of ratification or accession
(took a good 20 years for this to happen)
● Thus, there can be specific ways of enforcing a treaty.

Article 26 – basic rule of treaty

● It codifies the customary law of pacta sunt servanda
● “Every treaty is binding upon the parties” – does not talk about third parties

Does VCLT apply retroactively?

● Article 4 – says that it does not apply retroactively
● But it does say that previously existing customary laws like pacta sunt servanda will
continue to apply.

The ICJ in Bosnia v. FRY decided to apply the Genocide Convention to relations between
Bosnia and FRY and stated that the Convention does not contain any clause, the object or
effect of which is to limit in such manner the scope of its jurisdiction. This was to logically
admit the possibility that the Convention and the jurisdiction of the court established thereby
(ICTY) could have operated retroactively. The Convention applied to the relevant facts which
have occurred since the beginning of the conflict which took place in Bosnia and Herzegovina.

Treaties do not create rights and obligations for third states – exceptions are contained in
Articles 35, 36 and 37 of VCLT.

Interpretation of Treaties
In a domestic legal system, the law is to be interpreted:
1. Looking at the literal text
2. Look at the context in which it was made
3. Has to be interpreted in light of the object and purpose of the statute.
The above also apply to international law as well and are contained in Article 31 of the VCLT.

Article 31(3)(b) – the subsequent practice in application of a treaty.

● Subsequent practice is not just unilateral declaration by a country and expecting others
to follow it.
● Whaling case
 ○ Japan made a unilateral statement as to some lethal means in the practice of
whaling when whaling is actually prohibited internationally – Japan claimed
this to be a subsequent practice.
○ The ICJ stated that the resolution of an international organisation dealing with
the use of lethal means in whaling yet adopted without the concurrence of Japan
could not be indicative of subsequent practice in relation to Japan. Resolutions
adopted by the consensus would aid the interpretation of the International
Convention for the Regulation of Whaling.
● It is difficult to establish subsequent conduct before the court – the threshold is very
high – states rarely succeed in putting forth any subsequent conduct argument.
● The words contained in the treaty have to be understood in the context. The context is
to be defined narrowly and it includes only elements agreed to between parties to a
treaty. The context does not include unilateral statements.
● The International Law Commission in 1996 said that when a treaty is open to two
interpretations one of which does and the other does not enable the treaty to have
appropriate effects, good faith, and the object and purpose of the treaty demand that
the former interpretation should be adopted (Principle of Effectiveness).

Article 31(3)(c) – talks about relevant rules of international law.

● Terms like “necessity” and “proportionality” are not defined in the treaty – IHL text or
Nicaragua case are referred to in order to interpret treaty provisions.

Article 32 – you can also look at preparatory text in the interpretation of treaties
● If the interpretation has been done according to Article 31, then you can rely on
supplementary means of interpretation including preparatory works of the treaty and
the circumstances of its conclusion
● Eg: The Genocide Convention was formulated in the backdrop of the two World Wars
– this context can also lend to the interpretation of the Convention.

Invalidation of treaties
● Treaties become invalid if they are entered into with any fraud, coercion, corruption, in
conflict with jus cogens norms etc.

Treaties need to be deposited and registered with the UN (Articles 76 and 77)

Article 80 – Treaties are to be transmitted to the Secretariat of the UN – if there is a dispute,

you can rely on the treaty only if it has been registered with the UN.
● Hierarchy of sources in ICJ Statute:
4th August, 2023

Revision for Treaties

● Defined in Article 38(1)(a) ICJ Statute – “international conventions, whether general
or particular, establishing rules expressly recognized by the contesting states”
● History of treaties
○ Concept of commandments – they were the statements where an obligation was
created – located in religious texts.
○ For the international society, there is no single commandment-giving authority
– but this does not mean that there is no concept of commandments in the
international society because we have never lived in a unipolar world.
○ Then came the concept of sovereignty – every state, being sovereign, decided
what the follow and what to reject – they also realised that they are dependent
on each other for various resources – in order to procure these resources, they
entered into treaties with each other to share these resources.
○ A basic rule of treaties is that they are to be respected in good faith – pacta sunt
servanda
○ Treaties are to be interpreted in light of local customary laws – this led to
confusion in interpretation – the countries wanted to resolve this confusion
with the creation of the UN.
○ ILC, one of the subsidiaries of UNGA, was entrusted with the matter of
codification of the law of treaties.
○ Started codification of law of treaties in 1949.
○ 1969 – VCLT was adopted.
● VCLT
○ Article 2(1)(a) – defines a treaty – international agreement between two states.
○ Article 6 – who can enter into a treaty? – every state – representative of a state
is required to have full powers before he can enter into a binding treaty (Article
7)
○ The state need not accept whatever has been negotiated by the state
representative during the treaty drafting – the state needs to give its consent
separately – the consent to be bound by the rights and obligations arising out of
the text of the treaty – the consent can be manifested in many forms.
● Reservations
○ ICJ Advisory Opinion – you will not be a party of the treaty to those other
states who have not accepted your reservation – they said this in the context of
the Genocide COnvention and also said that this Convention is a general treaty
– you cannot put a reservation which defeats the object and purpose of the
convention.
 ○ Thai creates a paradox – by allowing this, you are creating a reciprocal
arrangement between the reserving party and the party rejecting the reservation
– how can this be allowed in a general treaty – this led to contradictions.
○ Article 19, 20, 21 – gave a few circumstances where reservations cannot be
given.

[take some para she dictated in the other class]

● Once the text is prepared, it needs to be enforced.

● Article 26 – pacta sunt servanda
● If a state fails to implement the treaty then it cannot give the justification of its internal
laws becoming a barrier to its implementation – you should have thought of this at the
time of creating the treaty itself
○ Exception to this rule – Article 46 – if the treaty is in conflict with the
fundamental internal laws of the country.
● Article 31 – general rule of interpretation of treaties
○ Object and purpose test – teleological interpretation
○ Context test – systematic interpretation
○ Plain meaning – grammatical or literal interpretation
● The context for the purpose of interpretation shall constitute the preamble also in
addition to the actual text.
○ Preamble enlists all the aims and goals of that text.

Supplementary means of interpretation – Article 32

● Supplementary means of interpretation can be found in the drafting history – travaux
préparatoires.

Rebus sic stantibus – maxim allowing for a contract not to be followed due to frustrating
circumstances.

● Article 53 – circumstances when treaty can be invalidated

● Article 61 – suspension of treaty
● What happens when a state violates a treaty? It would amount to an internationally
wrongful act – you can claim damages from them in the form of restitutions and
reparations.

Readings for treaties:

● VCLT
● Ch 12 Akehurst
 ● Ch 16 Malcolm Shaw
● Additional readings sent

8th August, 2023 – gave attendance, no class

9th August, 2023

Termination of Treaties
Three methods:
1. Extinction
2. Withdrawal
3. Denunciation

Termination can either be by consent of the parties or by reasons beyond the contest of
parties.
● In case of a bilateral treaty, if one of the parties withdraw, then the treaty may become
extinct since no one is left in the treaty.
● Treaty can also be terminated when the objective or purpose of the treaty is complete –
eg: when the contract for supply of 200 aircrafts is complete.
● ICTY Statute – established the tribunal for the purpose of looking into the
humanitarian violations in the Yugoslavian war – after the purpose of the tribunal is
fulfilled, there is no need for it to continue – this was an ad hoc tribunal – this is why
we now have a permanent ICC instead of the ad hoc tribunals like ICTY and ICTR
● Denunciation
It is a unilateral declaration that a state no longer wishes to be part of the treaty

Grounds to release a state from treaty obligations

1. Jus cogens norms (Article 53 r/w Article 64)
● If a jus cogens norm comes into existence, then an existing treaty may become void and
the states will be released from
● Aloeboetoe case – Inter American Court of Human Rights
In 1993 the Inter-American Court of Human Rights indicated that it would strike
down a treaty between the Netherlands and the Saramaka tribe of Suriname. Under this
the Saramakas agreed to capture and return escaped slaves to the Netherlands.
2. The supervening impossibility of performance of a treaty (Article 61 of Vienna
Convention)
 ● Like the drying up of the waterbody indispensable to the execution of the treaty for the
construction of a hydroelectric project – no other option but to terminate the treaty.

By consent/will of the parties

1. Consent to terminate outside the treaty [Article 54(b) VCLT]
○ Parties are the master of the treaty
○ Any kind of consent, express or implied, will suffice
○ Express consent – there is express consent when the parties consider the issue
and agree on termination
○ Eg:
○ Express consent
i. Dissolution of LoN – by the resolution of the last assembly of the
League in 1946, the resolution was legally in agreement to terminate the
covenant as from the next day – this consent has been expressed outside
the treaty – it is outside the treaty because it is through the resolution in
the LoN
ii. The termination of a series of Bilateral Trade Agreements in view of the
entry into force of GATT
○ Tacit consent
i. There was a commercial treaty between Russia and Japan which was
abandoned by non-application after the revolution of 1917.
○ These three examples reflect the consent of the state parties, whether express or
implied.
○ The tribunal generally rejects the plea of termination if the will to terminate and
agreement of the parties thereto are not expressed in sufficiently clear terms.
Because the tribunal always gives precedence to the principle of stability of
treaty relations.
○ Article 59 VCLT – a treaty on the same subject matter is concluded by the same
state parties – the earlier treaty is terminated
○ Consent by acquiescence – Eg: absence of protest – if one state
violates/terminates the treaty and the other does not protest, then it means that
the other state has also agreed to the termination.
2. Resolutory clauses [Article 54(a) VCLT]
○ Sometimes, the termination of a treaty can also take place in conformity with
the provision of the treaty
○ Eg: the treaty clauses may provide for certain facts whose effect will be to bring
the treaty to and end or to suspend its application.
 ○ Few such clauses are based on temporal criteria (the time limit will be given that
the treaty shall be extinguished on a certain date) – Article 2 of Panama Canal
Treaty 1977 provided that it would terminate on 31st December 1999.
○ Similarly some can also be based on factual criteria (if certain events occur) –
Article 11 of Warsaw Pact, 1955 provided that it shall cease to apply at a day a
treaty on global collective security should enter into force for the European
continent.
3. Subsequent abrogatory treaty with identical parties [Article 59 VCLT]
○ The conclusion of a latter treaty on the same subject matter can evidence
express or implied consent that the earlier treaty shall cease to apply – because
the latter treaty contains the same rights and obligations as the former treaty.

Whether the complete execution of a treaty is possible?

It is possible but sometimes a treaty is not executed or abandoned by the state parties (text only,
not followed in practice) – these treaties are in a dormant state. There used to be many treaties
before 1846 in India that different Indian rulers had entered into – all these treaties became
forgotten but it does not mean they are not in place – it is just that there is no one to invoke the
treaty obligation between two erstwhile rulers.

“It is to some extent a secondary matter to know whether the treaty continues to exist or not.
What is clear is that there remains no concrete duty of performance. The better opinion is that
the treaty remains in force even if dormant as long as it is not abrogated. The execution of the
treaty rights and obligations has no effect on the existence of the treaty itself. This seems to have
been the position of the ILC and the reason for which a provision on this issue was not inserted
into the section on termination of treaties in the VCLT. but it must be confessed that in some
cases the treaty will completely fade into oblivion as in the case of a fully performed agreement
on some exchange of prisoners of war.”

Denunciation/ Withdrawal
● These are unilateral acts
● Denunciation is publicly rejecting a treaty – it is not exactly the same as withdrawal –
denunciation and withdrawal are taken to be synonyms in this context.
● The state seeks to be released from the treaty obligation by a unilateral act whereby it
declares it in its intentions to no longer be a party to the treaty. The fact that one or
more than one state party withdraws from a treaty may either terminate the treaty or
restrict its personal scope of application.
● Eg: if a treaty is bilateral and denunciation brings the treaty to an end, then the
obligations are terminated for both parties.
 ● When the treaty contains a quorum clause or the parties become less than two –
Article 15 of Genocide Convention stipulates that if on account of withdrawal of the
number of parties to the convention below 16, the convention will cease to apply as
from the date at which the last denunciation takes effect.

10th August, 2023 – get notes

14th August, 2023

By reasons beyond the contest of parties

● Article 62 VCLT – eg: if the water body dries up in a treaty for sharing of water –
beyond control of the parties – this is a fundamental change of circumstances (rebus sic
stantibus)
● Article 60 – material breach of treaty
○ Simple breach is one where the state has options under state responsibility
clauses – can ask the breaching state to pay reparations or the state can take
countermeasures against the breaching states – in a simple breach, the contract
is not terminated.
○ But in a material breach of contract, the treaty becomes terminated.
● 4 situations for termination of a treaty through fundamental change of circumstances.
1. Circumstances at stake must have existed at the time of conclusion of
the treaty since only then could they be considered essential for giving
the consent to be bound.
2. These circumstances must have constituted an essential basis of the
consent of the parties to be bound by the treaty which is a matter for the
preparatory work and reasonable interpretation.
3. The change of circumstances must be so fundamental that it radically
transforms the extent of obligations still to be performed under the
treaty
4. The change of circumstances must have been unforeseen i.e. the action
causing the fundamental change must not have been because of the
actions of either parties

Examples for fundamental change in circumstances –

● The International Load Line Convention 1930 was suspended by the US in 1941 on
account of state of war as a fundamental change of circumstances.
 ● The League of Nations minorities treaty was regarded as having ceased to exist by
common consent because of a change of circumstances between 1939 and 1945.

Whether war will form a fundamental change of circumstances? The position on this is not
clear. Though India and Pakistan

Article 64 VCLT – jus cogens

● When a treaty is in violation of a new jus cogens norm that has emerged, the treaty
becomes terminated (Aloeboetoe case)

VCLT, Akehurst and Malcolm Shaw

Readings necessary for reservation

Read: VCLT with commentaries

16th August, 2023

General Principles of International Law

→ Explicitly mentioned in Article 38(1)(c) ICJ Statute as a source of law
→ Eg: laches, good faith, res judicata, and the impartiality of judges.
→ ILC has dropped the term “civilised nations” from General Principles of International
Law
→ The need for GPIL arises in the case of non-liquet – no law – in this case you turn back
to the municipal legal systems
○ It is the people who are the connecting link between domestic and international
law – the lawyers in national courts are the ones holding offices in international
organisations.
○ They transpose domestic courts’ language into international courts
→ It is said that general principles of international law are not international law – the
principles / terminologies being transposed to international courts are not used by
diplomats in their exchanges, it is mainly used by lawyers in national courts
→ Eg: the principle of estoppel – this cannot be mentioned in the diplomatic notes but is
only used by lawyers in court.
→ ICJ and other international courts are all normal courts at the end of the day – their job
is to resolve disputes – they work in tandem with domestic courts to maintain the rule
of law – they ultimately end up applying some of the same rules.
→ International courts transpose principles from national legal systems into international
legal systems in order to avoid facing a state of non-liquet.
 → Difference between CIL and GPIL
CIL is applied in relations between two states – in GPIL, the principles are applied
separately in each state, not between the relations between two states.
→ Two step process to identify GPIL
a. Determining the existence of a principle common to the principal legal systems
of the world.
b. Ascertaining the transposition of that principle to the international legal system.
→ Substantive principles (principles giving rise to rights and obligations) can also form
principles of international law – eg: taxation laws, paying damages for a wrong you have
committed
→ READ: Non-liquet and Function of Law in the International Community, Julius
Stone.
→ There is no established hierarchy of different sources of international law
However, positivists say that the hierarchy established through practice, treaties,
customs and then other sources, should be followed – because treaties are lex specialis
and it is easy to locate consent in treaties.
→ P. 45 Akehurst – deal with GPIL

3rd ILC Report

[pp. 14-28 relevant]
- Conclusion 4 – how to recognise GPIL derived from national legal systems
- Conclusion 2 – For a general principle of law to exist, it must be recognized by the
community of nations. – different from VCLT that says that the entire international
community has to recognise jus cogens for it to gain that status
- Draft conclusion 7 – Identification of general principles of law formed within the
international legal system
To determine the existence and content of a general principle of law formed within the
international legal system, it is necessary to ascertain that:
a. A principle is widely recognized in treaties and other international instruments;
b. A principle underlies general rules of conventional or customary international
law; or
c. A principle is inherent in the basic features and fundamental requirements of
the international legal system.
- Gap filling role of GPIL – in the Right of Passage case, the Court considered that it
was not necessary to resort to the general principles invoked by Portugal in support of
its claims as it had already determined that the issue at hand was regulated by a bilateral
custom applicable between Portugal and India
 → Examples where the court applied GPIL in cases: (refer 2nd ILC Report, para. 40)
- In Tadić, the Appeals Chamber of the International Criminal Tribunal for the
Former Yugoslavia, in addressing its power to deal with contempt, relied on
common law systems (United Kingdom) and civil law systems (China, France,
Germany, Russian Federation) – they cited cases from 64 different nations in
the world.
- A Trial Chamber of the International Criminal Tribunal for Rwanda in the
Musema case referred to some civil and common law systems, and considered
that there were sufficient similarities in them to define the crime of conspiracy
to commit genocide.

→ ICJ Advisory opinion on the Use of Nuclear Weapons

17th August, 2023

Pp. 98-105, Malcolm Shaw

Corfu Channel case – ICJ – something about admissibility of circumstantial evidence

Chorzow factory case – ICTY – seizure of a night trade factory in upper Silesia by Poland –
it is the general conception of law that every violation of an engagement entails an obligation to
make reparations. Reparation of a wrong may consist in an indemnity corresponding to
damage which the nationals of the injured states have suffered as a result of an act contrary to
international law.

Res judicata is also a GPIL – this was recognised by the ICJ in the Genocide Convention case
– the decision of the courts are not only binding on the parties but are also final in the sense
that they cannot be reopened by the parties.

There have also been cases where the ICJ has looked at more relevant cases instead of relying on
GPIL – Right of Passage case

Barcelona traction case – relied on the municipal concept of limited liability company

GPIL can also come from the international legal system – Draft conclusion 6, ILC Report 2
Draft conclusion 6
Ascertainment of transposition to the international legal system
A principle common to the principal legal systems of the world is transposed to the
international legal system if:
 (a) it is compatible with fundamental principles of international law; and
(b) the conditions exist for its adequate application in the international legal system.

Read draft conclusions 5 & 6 together

GPIL should be compatible with the fundamental principles of international law.

Para 133. Martens clause

Uti possidetis juris –

19th notes get

21st August, 2023

Module III

Relationship between International Law & Municipal Law

Two main theories

1. Monism – International law and municipal law are part of the same system – USA is
the biggest supporter of this theory.
○ Positivism – positivists said that international law was law improper since there
was no sovereign and tribunals of law were missing in the international system –
they said that municipal law and international law are one and the same thing.
○ Positivists laid a lot of emphasis on the consent of states – this is why they
advocated for the codification of law.
○ Scholars like Triepel and Strupp supported the doctrine of dualism– in
considering the relationship between international law and domestic law, they
laid a lot of emphasis on the independence of the state.
○ Proponents of monism: there were two strands of monism, one led by Hersch
Lauterpacht and the other by Hans Kelsen
i. Hersch Lauterpacht – coined the term “crimes against humanity”
● They said that states cannot work under the disguise of
sovereignty and state supremacy to violate human rights and
commit gross human rights violations their citizens –
Lauterbacht was a Jewish lawyer from Poland who was in exile –
they said that there should be something so sacrosanct that no
state violates these principles saying that these violations are
sanctioned by their domestic law.
● Humanitarian intervention and sovereign responsibility go hand
in hand – you cannot take the defence of state sovereignty to
violate human rights – there is a certain responsibility you hold
as a sovereign to protect its people.
● Nuremberg trials – they had to justify that all the crimes (like
genocide, crimes against humanity etc.) were crimes – before
that point, all of these were not crimes – this is why the London
Charter was important – it defined all these trials so as to
prosecute the accused in the Nuremberg trials.
ii. Hans Kelsen – Kelsen was a purist
 2. Dualism – For the treaty to become part of the domestic legal system, it needs to be
incorporated into the law through legislations or judicial proceedings.
○ International law and domestic law exist separately and cannot be said to
influence each other.

There can be some cases where the parties approach courts at all levels for the resolution of a
dispute
Eg: In 1998 – a person was denied right to consular assistance – it was contested that USA had
violated VCCR 1960 – they took the matter to US courts, Interhuman rights committee and to
the ICJ as well.

Sometimes the domestic courts do need to give effect to international law but essentially
international law and municipal law have been accepted to be part of the same system and not
two isolated systems.

Transformation v. Incorporation
- Incorporation states that the rules of international law are to rule of the land adopting
it thus making them national laws.
- Transformation theory international law are only considered national law when they
are included into the legislature deliberately.

1. Supreme Court of India in International Law: A Topsy Turvy Journey from Dualism to
Monism, Liverpool Law Review, 2022
2. BS Chimni on Oxford Handbook of Intl Law – sent as part of module 1
3. India and International Law: Formal Dualism Functional Monism, Aparna Chandra,
2017
4. VG Hegde, International Law in Courts of India, Asian Yearbook of International
Law, 2013

India’s position is not clear – some say dualism but certain judicial proceedings have pointed
towards India moving towards monism – but there is no clear position and it is still uncertain.
22nd August, 2023

International law & Municipal law

Art 51- 4 endeavours

- Maintenance of peace

- Maintenance of just relations

- Respect for treaties

- Resolve disputes by arbitration

India focuses on 51 c

Distinction in 51 c that int law relates to international customary law, now int customary law is
not incorporated in indian municipal law.

For dualism- you need process of transformation- law making- in india done by parliament- 3
lists- there is an entry 14 schedule 7 – read

Article 253. Legislation for giving effect to international agreements Notwithstanding anything
in the foregoing provisions of this Chapter, Parliament has power to make any law for the
whole or any part of the territory of India for implementing any treaty, agreement or
convention with any other country or countries or any decision made at any international
conference, association or other body

73. Extent of executive power of the Union

(1) Subject to the provisions of this Constitution, the executive power of the Union shall
extend

(a) to the matters with respect to which Parliament has power to make laws; and

(b) to the exercise of such rights, authority and jurisdiction as are exercisable by the
government of India by virtue of any treaty on agreement: Provided that the executive
power referred to in sub clause (a) shall not, save as expressly provided in this constitution
or in any law made by Parliament, extend in any State to matters with respect in which the
Legislature of the State has also power to make laws

Art 73 (1)(b) read with 253- gives interpretation that any absence of law by parliament gives
enormous power to executive to negotiate sign and ratify int treaties.
We go back to executive if parliament fails to make any law.

Discussing Article - The Supreme Court of India and International Law: A topsy-turvy
Journey from Dualism to Monism by Prabhash Ranjan*

- page 8- M/ S entertainment network v m/s super cassette industries

- page 9 - Maganbhai Ishwarbhai Patel vs Union of India

- page 9- Tractor Export, Moscow v. Tarapore,

read all the cases in the article

23rd August, 2023

Prabhash Ranjan article

India is a dualist system – constitutional scheme that lays down the relevance of international
law to constitutional law. 4 endeavours enshrined in the constitution
1. Promotion of intl peace and security
2. Maintain just and honourable relations between states.
3. Foster respect for international law and treaty obligation.
4. Encourage the settlement of disputes by arbitration.

We mainly focus on the third point, fostering respect for international law – but different
scholars, like BS Chimni and Prof. C. H. Alexandrowicz, have drawn attention to the
importance of the 4th point, resolution of disputes through peaceful means and not resorting
to violence.

But this is a DPSP – they are non-enforceable but they are fundamental to the governing of the
country – DPSPs reflect the economic, social and cultural rights given in the ICESCR.
[UDHR, ICCPR, ICESCR and their two optional protocols form part of the Bill of
Rights]

1. New York Convention on the Enforcement of Arbitral Awards – Tractor Export,

Moscow v. Tarapore case
2. ICCPR
3. CEDAW

India has a dualist doctrine of transformation and we need to have an enabling legislation
in order to give effect to international law
Maganbhai Ishwarbhai Patel vs Union Of India And Anr
Tractor Moscow Exports v. Tarapore
Jolly George Varghese
State of WB v. Keshav Ram Industries

Inconsistencies – 1984 case of Gramophone – whether intl law becomes part of domestic law
without legislation and whether it overrides domestic law in case of conflict – transfer of goods
from Singapore to Nepal – whatever goods were on the shop were seized in Calcutta – the
court dealt with the interplay with Indian Copyright Act and india's transit treaty with Nepal
– intl treaties are not part of the indian legal system but we need an enabling legislation for the
same – even if there is no express legislation the CoN requires that intel law ay be
accommodate in domestic law provided that it does not conflict with intl law.
Vishaka v. State of Rajasthan – classic case of incorporation – the court turned to CEDAW –
any intl law not inconsistent with domestic law must be read into the law in order to enhance
the meaning and harmonise the two laws.

Entertainment v. super cassettes ltd – the court recognised that indian courts can turn to
intl law to interpret the domestic law.
1. If there is a void which is created because there is no domestic legislation on the
matter
2. If the court wants to fortify a position
3. If the court wants to interpret the domestic legislation

Incorporation is a feature of monism – it is followed in the USA – as soon as you sign a

treaty, it becomes part of the domestic law.
USA has divided treaties into two kinds – self executing treaties and non self executing
treaties

In the UK, there was earlier a rule called Ponsonby Rule, which said that after signing a
treaty, you have to put that treaty before Parliament for 21 days and only after that
period would it be ratified – this gap was necessary to give the Parliament time to ponder
whether they should assent to the treaty and consider whether the treaty is feasible to be
applied to the domestic law

TN Godavarman case – important from environmental pov – red sandalwood is an

endangered species – this was decided on the basis of CITES

Nalsa v. Union of India

Referred to ICCPR
Safai karamchari v uoi
Referred to CIRP and ICCPR
Puttaswamy – ICCPR and general rights of HR commentary

The SC incorporated the intl law even in the absence of domestic law – earlier the courts used
to say that since there was no enabling legislation and so international law could not be applied
to the domestic system.
Birendra bahdur pandey (1984) – trend changed
However, the later cases following the new trend, were all related to the environment or human
rights
2004 – keshav ram – returned to transformation

Incorporating provisions of those treaties to which India is not a party

Nilabati Behera v. UOI – compensation for unlawful arrest and detention
India has put a reservation to ICCPR – Article 9 clause 5 – we are not in a position to provide
compensation
This case asked for compensation from the authorities – the SC ordered for

DK BAsu, RUdal Shah – the court has granted compensation – even though India has put a
reservation, the court has recognised the right arising out of that treaty being applicable to
Indian law.

Incorporation of Customary International Law

● Article 372 of the Constitution – shall continue in force until repealed or amended –
those laws still in force back then were the common law of ENgland, CIL and treaty
obligation – these would be in force till repealed or amended by the competent
authority – thus, CIL is also a part of Indian law and will have effect in india
● Respect for international law and treaty obligations – these two are separate because
intl law is other sources of intl law including CIL and General Principles of
iNternational law – here also CIL is made applicable to Indian law
● Ram jethmalani v. UOI
● India is not a party to VCLT – most of the provisions in VCLT are just codification of
already existing CIL
● Rules of treaty interpretation

Pucl v uoi
The rules of CIL not contrary to municipal law shall be applicable to municipal law

Vellore citizen welfare forum v. uoi 1996 – the Supreme court said that sustainable
development is part of of CIL – since it is part of CIL, it is part of the Indian legal system
The court referred to soft law – Agenda 21 and Brundtland commission report – to say that
sustainable development is CIL – but this is not the proper methodology to distil CIL – other
scholars argued that CIL cannot be determined using soft law – it requires state practice and
opinio juris
Pg. 19 of Prabash Ranjan article – referred to prof. Chimni, pg. 25
Some Indian scholars like Chimni, who advocate the third-world approaches to
international law, or TWAIL as it is famously called, critique the tendency of the SCI to
so uncritically incorporate CIL into the domestic legal framework (Chimni, 2019: 572).
 The TWAIL argument is that given the eurocentric and imperialistic history of
international law, the growth of CIL, over the years, reflects the interests of the developed
countries, not of third world countries like India (Chimni, 2018). CIL’s growth has been
historically influenced by the western capitalist countries that dominated and controlled
the international legal system (Chimni 2018: 28). Developing countries played a very
limited role in the evolution of CIL. However, the SCI, while dealing with CIL, has
remained agnostic about this historical account of the growth of CIL. One reason for this
could be that the judges of SCI are not well versed in the process of international law-
making. Accordingly, TWAIL scholars like Chimni assert that SCI’s practice reflects a
certain “naivety about the international legal process” (Chimni, 2019: 572).
Contesting that intl law is eurocentric.

Doctrine of
Mohd salimullah v. uoi – doctrine of incorporation not followed
30th August, 2023

Subjects in International Law

Legal personality = Rights + obligations
● A body capable of holding rights and duties is called a legal personality – can be a legal
person or a natural person.
● It is simple to understand who is a person in domestic law
● Some people may have subjective personalities and others may have objective
personalities.
● A legal personality is a body that can sue and be sued.
● In domestic law, your consent is not taken as to whether you want that law to be
applicable to you – consent of the subjects does not matter.
○ It can be argued that in certain spheres of domestic law, consent of the parties is
required (eg: contracts) – hence, it is not a single rule.
● However, consent matters in international law.
● ICC Enforcement Mechanism – to enforce rights arising from ICCPR – can go to
UNHRC.
● Individuals have derivative personalities in international forums while states have
absolute personalities – this is because states used to be the first subjects of
international law.
● In discussing the definitions of international law, Oppenheim described it as governing
states – Schwarzenberger left the scope open – any body capable of holding rights and
obligations would have an international legal personality
● Henry Dunant – Battle of Solferino – A Memory of Dunant – he was of the opinion
that the states should have a role in determining whether war should be waged or not
and should have alternatives for resolving disputes – led to the Geneva Conventions
and the establishment of the International Red Cross.

States – Uncontested Legal Personality

● States are the primary subjects of international law – can be understood by looking at
the evolution of international law.
● Positivists – said that civilised states are the subjects of international law – all those
states who want to gain legal personality in international law have to attain the status of
“civilised”
● Prior to 1947, India only had anomalous legal personality – this is how they were able
to be founding members of international charters and conventions prior to India
attaining independence.
● Article 1 of Montevideo Convention
 ○ Lays down the 4 requirements for a body to be a ‘state’
○ Capacity to enter into relations with other countries – this means sovereignty –
this sovereignty points to both internal and external sovereignty
● Prior to 1947, there were several attempts in India to gain independence
○ 1857 Sepoy Mutiny – this was fought between Indians and the East India
Company, a trading company, and not the nation itself.
○ 1858 – the powers were transferred to the Crown.
○ The power was not transferred from Britain to India in one day – it took place
through multiple small steps – the British took british india to the international
forum because they wanted to increase their voting share in any international
vote – the Maharajas who represented India in the international forum often
took an independent position – this was the beginning of how external
sovereignty was given to India
○ This disparity in internal and external sovereignty was explained by
international scholars as being as result of India’s anomalous legal personality.

The 4 Attributes of a State

1. Territory
- On territory, the state enjoys supreme and exclusive sovereignty– it
comprises land territory, territorial waters, national waters (rivers) and
airspace over the territory as also subsoil under the earth.
- For example, the Holy See for long has been considered a subject of
international law with capacity to make treaties and to send diplomats; it
was not regarded as a state until it achieved a small piece of territory and
became the Vatican City after the conclusion of the Lateran Treaty of
1929.
- Grotius used terra nullius to justify occupation of some territory by
another ‘civilised’ state – so what is Israel doing to Palestine now?
- Corfu Channel case 1949 – ICJ – “between independent states the
respect for territorial sovereignty is an essential foundation of
international relations” – echoed in UN Charter, Friendly Relations
Declaration and other documents as well
2. Permanent population
- The concept of nationality and statehood are related to population.
- The permanence of the population is what is required but whether it
requires nationality of that state is not clear.
3. Government – stable, effective and durable government
- The example of the Taliban
 -Sri Lanka – state where an effective government is not in place due to
rebellion, civil war etc. – In this case, do we contest that the statehood of
that entity is lost? Can the extinction of a state be brought about? (yes –
the case of Yugoslavia, USSR etc.)
- The entity should have the political sovereign who should enjoy habitual
obedience of the bulk of the population – if the government's power is
lacking, it is futile for the outside world to seek to attribute rights and
obligations to the population as a state.
- International law is not concerned with the form, character or power of
the government of a state and its influence in the community of nations
– the international community will not interfere or prescribe what type
of government should be followed by a state.
- Entitlement gets primacy over effectiveness
4. Capacity to enter into relations with other parties.
- Independence in law from the authority of any other state.
- Independence may also be described as sovereignty.
- However, colonies have also entered into all manners of international
engagement – eg: India – but their legal personality was restricted to
anomalous.
- Island of Palmas case – independence in regard to a portion of the
globe is a right to exercise therein, to the exclusion of any other state the
function of a state.

Stability of these attributes can be one of the evidence provided to show that the state possesses
these 4 features.

There is also the requirement of recognition by other states – this is in addition to the 4
attributes – however, this is contested – why should another state be able to determine whether
or not an entity is a state? This led to two theories:
1. Declaratory Theory – recognition is only an evidence of the main 4 attributes of a state
2. Constitutive Theory – recognition is part of the attributes of a state

★ Recognition by how many states is necessary for becoming a state?

Recognition is not a legal act – there is no international obligation to recognise another
state that has separated from the parent state – recognition is a political act.
31st August, 2023

Population transfer also used to be allowed – this was allowed because some governments
wanted their ethnic groups within their territory.
- 1923 Greek Turkish population exchange
- India-Pakistan population transfer
- However, population exchange/forcible transfer of population is not legal
- Exception: if armies do it, it is legal (for example, transfer of population in borderlands)

A state’s international obligations are not affected by change of government.

The post-war governments of West Germany and Italy had to pay compensation for the acts of
their earlier governments (for the governments of Hitler and Mussolini respectively) by the
Nazi and fascist regimes.

This approach favouring continuity is illustrated by the Tinoco case.

- There was a dictator in Costa Rica – he published some bank notes and gave
concessions to UK private companies.
- The new government declared that the concessions and bank notes were invalid and the
UK protested on behalf of the British companies.
- The arbitrator held that Tinoco had been the effective ruler of Costa Rica and his acts
were therefore binding on the subsequent governments.
- The fact that his regime was unconstitutional and not recognised under Costa Rican
law and by several states was dismissed as irrelevant.

Can dependent states (states with limited sovereignty) enter into treaties?
● Yes – semi-autonomous states can enter into bilateral treaties.
● The agreed grant of secession could take in many years and some limited right to enter
into treaties could be given to those states going through secession or separation or
dissolution – example of India entering into treaty relations prior to 1947 (India
● Until the domestic constitutional link is severed between the mother state and aspirant
entity, compatibly with the mother state’s constitutional law, that aspirant entity is not
a state.

Protectorate state – Sikkim-Bhutan, Cuba-US

Federal states – LaGrant case and Avena case
Article 7(1)(b) VCLT – she will deal with this tomorrow
South Africa purported to confer independence on a number of black states in 1980 –
Bantustan – the General Assembly considered apartheid to be violative of self
determination – they urged all other states to not recognise Bantustan
The creation is a violation of the jus cogens norms of international law.

Primacy of entitlement over effectiveness – Namibia and South Africa

SA occupied Namibia even after the mandate was over and UNGA had to take steps to make
SA leave – UNGA asked for election in Namibia and was carried out under the supervision of
the UNGA

1st September, 2023 – did not teach

2nd September, 2023

Subjects of International Law [contd.]

● The classical definition of international law is focused on those set of rules and
regulations that states have been using among themselves like diplomatic relations
● Most of CIL is related to the state itself and it is very few that regulate the relations
between individuals.
● In order to be counted as CIL, we focus on state practice, it is not the practice of other
organisations like NGOs.
● Thus, international law has primarily considered states to be the subjects of
international law.

Territory – a specific geographical area within which a sovereign is able to exercise its
authority.
● Territorial sovereignty is found in many international documents like the UN Charter,
Friendly Relations Declaration etc.
● It is such a sacrosanct principle that no other state can infringe upon it
● Two conflicting principles – right of territorial sovereignty and right to self-
determination.
○ The parent entity may claim that the seceding entity is infringing upon their
territorial and political sovereignty.
● States can also give some of its territory to some other state – eg: Cambodia, Myanmar
(they are trying to sell land to transnational corporations – these lands were originally
occupied by Rohingyas – this is why the state is persecuting them so that they are able
to sell off the land)
● Unlimited control is not a necessity for territorial sovereignty
● The perfect delimitation is not required
● Loss of effective control over a part of its territory does not deprive it from exercising
sovereignty over the rest of the territory (could be due to civil strife, occupation by
terrorist groups etc.)
● The state territory may also extend to the territory of protectorates even though it
usually does not involve this
○ Chicago Convention on International Aviation – Article 2 – includes territory
under mandate, protectorate etc.
○ Some BITs also include continental shelf and EEZ within territory.

Population
● Only requirement is a permanent population, composed of nationals and non-nationals.
Government
● Governments exercising control over their domestic territory – through emergency,
delimiting constituencies etc.
● There needs to be a government in that territory wherein it can exercise effective
control
● There may be cases where the government is deprived of effective control – in such
cases, the statehood of that entity is not questioned.
● Failed state – Somalia, Congo, Uganda
○ It is not a legal concept
● Though there is the concept of continuity of government, states’ rights and obligations
under international law are not affected by change in government.
○ Tinoco Arbitration Case, 1920 – there was a dictator who had come to power
in Costa Rica and had issued bank notes and concessions to UK companies –
when the government changed the Costa Rican government claimed that they
did not want to be bound by the obligations entered into by him – however,
this claim was rejected.

Independence & Capacity

● Capacity is interrelated with sovereignty and independence – the other state, before
entering into relations with an entity claiming sovereignty, the state has to ensure the
other entity is independent.
● The attainment of independence is not a one-day process – sometimes it takes years, or
even decades.
● Independence can be linked with the right of self-determination – linked to this is the
concept of creation of state.
● How is a state created?
○ States are created through secession, dissolution, partition, separation etc.
○ For the states that come into existence through secession, their statehood is
contested – the first contention comes from the parent state from which it has
seceded.
○ Kosovo case – seceded from Serbia – the Serbian constitution still has not
severed the link with Kosovo.
- UNGA Resolution 1244 of 1999 – there is still continuing validity of
the – Kosovo's valid statehood is prevented by Serbia – one fine day
kosovo unilaterally declared its independence – matter went to the
advisory opinion of ICJ
- ICJ did not clear anything.
○ There is no rule of international law which forbids secession – because if there is
such a prohibition then it conflicts with the right of self determination –
 Friendly Relations Declaration 2625 of 1970 provides for the primacy of
states’ territorial integrity over the secessionist claims – only secession permitted
and consented to by the territorial state complies with international law.
○ UNSC Resolution 1244 has put Kosovo under an interim administrative
regime, United Nations Interim Administration Mission in Kosovo.
○ Advisory Opinion of ICJ, 2010 – “there is no rule of intl law that forbids
secession nor is there any rule preventing the mother state from crushing a
secessionist movement. A secessionist entity has no standing under international
law and secession produces no immediate consequences under international law.
The position is not that unilateral declaration of independence is not
prohibited and is thus lawful, but that it is not prohibited because it
never takes place within the realm of international law, but instead
within the domestic realm of the states which is outside the regulatory
sphere of international law.”

Public Order Limits on State Creation

● If an entity is claiming statehood in violation of jus cogens norms – then it will not
attain statehood
○ Though recognition of a state is a political and not legal act, if a state is violating
jus cogens norms, then the international assembly can pass a resolution asking
states not to recognise that entity as a state.
○ Example: Bantustans (refer earlier notes), Rhodesia.
● Kelsen – state does not exist for the purpose of intl law till it is recognised by other
states – he favoured the constitutive theory of international law – recognition has a
constitutive effect in the sense that it is a necessary condition for the constituting of the
state concerned.
● Lauterpacht – favoured the declaratory theory of international law – the existence
of a state or government is a question of pure fact, and recognition merely
acknowledges it. If an entity satisfies the requirements of a state objectively, it is a state
with all international rights and duties and other states are obliged to treat it as such.
[read articles on Kelsen and Lauterpacht]

The Primacy of Entitlement Over Effectiveness

● India – entities claiming independence through decolonisation can attain statehood
even though the ties to their colonisers have not come to an end.
● Namibia – SA continued to occupy the territory of Namibia even after the mandate
came to an end – UNSC Resolution 432 – said that the sovereignty of a state must be
respected.
Readings for this topic:
Akehurst, 2 readings of Kelsen and Lauterpacht, more readings (menon and rosalin higgins),
“subjects” has been changed to “participants” of international law

Read: ICJ Advisory opinion on reparations for injuries suffered in the service of the United
States, 1949

4th September, 2023

International Organisations as Subjects of International Law

Book to refer: Rahmatullah Khan – Implied Powers of the UN

ICJ Advisory Opinion on Reparations for Injuries Suffered in the Service of the
United Nations, 1949
If there are chances of use of force, the UN tries to ensure that it is solved through peaceful
means.
● 1947-48: case related to Arab-Israeli conflict – there was a Swedish national who was
the agent of the UN (mediator from UN) to mediate the conflict between Israel and
Palestine – he was killed by Israeli terrorist groups.
● Issues:
○ Whether the UN can seek reparations for this from the state who hosted him?
○ Who will raise this claim?
● If the UN did have the capacity to sue the state concerned, the complexity was whether
Sweden should claim reparations or whether the UN should seek these reparations?
● Diplomatic protection – if something happens to a citizen of the state in another state,
then the state concerned raises a case in the appropriate forum.
● But here, there is no state, there is only an international organisation – at the same time
the victim is also a member of an independent state – if Sweden does not take Israel to
court, can the UN seek reparations from Israel instead?
● This case introduced the concept of functional protection and not just diplomatic
protection
● The UN Charter does not explicitly mention that the UN will have legal personality
but it does indicate such in some places in the UN Charter.
○ Article 104, UN Charter
“The Organization shall enjoy in the territory of each of its Members such legal
capacity as may be necessary for the exercise of its functions and the fulfilment of
its purposes.”
● Preliminary observations in the Advisory opinion
○ Meaning of “agent” – pg. 7, pt. (c)
○ What injuries are included in the state's responsibility? -
 ○ Different ways in which a state can show its capacity (“capacity” = competence
to bring an international claim) – request for enquiry, negotiation, request for
submission to an arbitral tribunal or to the Court.
● While this capacity certainly belongs to states, granting this international legal capacity
to an international organisation was a matter of debate – it was opposed by the
positivists –
● It is not that the UN is the first international organisation – other international
organisations used to derive this legal personality from their constituent documents,
but nothing of the sort was explicitly provided for in the UN Charter – granting such
capacity would be equivalent to giving the UN wide discretionary powers – law is not
about granting discretionary powers, law tries to restrict wide powers.
● Pg. 8 – theoretical discussion on the characteristics of “subjects of law of a legal system”
● Pg.9

● Diplomatic protection – an exception to the rule of diplomatic protection is that

sometimes the state can also extend it to persons not having the nationality of that state.
The rule of diplomatic protection is based on two considerations:
1. The defendant state has broken an obligation towards the national state in
respect of its nationals.
2. Only the party to whom an international obligation is due can bring a claim in
respect of its breach.
● Doctrine of Implied Powers – needs to be applied in order to locate where the IO
derives its power of functional protection.
 ● Power of functional protection exists with the IO and the power of diplomatic
protection exists with the state – both these powers can coexist but it is subject to there
being an agreement between the international organisation and the concerned national
state.

5th September, 2023

Kulbhushan Jadav case – denial of consular access under Article 36 of VCCR by Pakistan –
Kulbhushan Jadav himself could not have taken Pakistan to the ICJ because the parties in a case
in the international platform should be on the same footing – Pakistan and India are both
states and so can take each other to court.

What happens when there is a conflict between the claim of a state and the claim of an
international organisation? – pg. 15

Both diplomatic and functional protection can co-exist – there is no actual hierarchy of
claims – it depends on the facts and circumstances of each case and is to be decided by the
court on a case to case basis

Cases are first to be tried to be resolved through goodwill and cooperation but if that does not
work out, then there are to be treaties or conventions between the IO and the state in order to
resolve the dispute.

What position should be given to ICRC in international law?

● Question was put before the UN – Indian delegate, Bajinder Singh, said that the legal
status of ICRC is to be considered to be a unique case – India was willing to give it
observer status but eventually it all boils down to the fact that it is a unique matter since
the ICRC is a private organisation – how can an NGO like ICRC create binding
obligations for states?
● ICRC had consultative status in the UN but now it has observer status – India
supported its observer status but explicitly said that this should not set a precedent for
other private organisations.
● The US said that it is the unique mandate of the ICRC that sets it apart from other
humanitarian organisations – this is why it should not set a precedent for other private
organisations.
● Thus, the ICRC’s legal status is a unique legal personality.
6th September, 2023

Individuals & Corporations as Subjects of International Law

It is highly contested that individuals have legal personalities in international law. The most
support for the legal personality of individuals in international law comes from international
criminal law and international humanitarian law – developments in both fields arose only post-
WWII.

The philosophical legal debate had two sides – Oppenheim advocated that individuals do not
have legal personality but Lauterpacht said that individuals do have international legal
personality.

The subjects of international law can bring direct claims against each other – this can be seen
from how states are able to take each other to court. But individuals are seen as subjects upon
whom states give protection.

The primary question to be answered is whether individuals can exercise functional or

diplomatic protection?

What is the need for making individuals subjects of international law?

● Because if they are not subjects, they would not be able to enforce their rights and
obligations in an international forum.
● Crimes against human rights are not committed by some abstract entity like some state
– states are composed of persons – those persons who commit crimes under the garb of
the state should be brought to justice.
● Even prior to Nuremberg, PCIJ did recognise the legal personality of individuals – it
was this same reasoning that was applied in Nuremberg.
● Article 1 para 3, UN Charter
● The function of the Security Council is the maintenance of peace and security – grave
HR violations on a large-scale can have implications on the international peace and
security – the states must take action in such cases – under Chapter VI and VII of the
Charter, the Security Council can take both military and non-military actions – the
ICTR and ICTY were both results of resolutions passed by Security Council in 1994
and 1993.
● The above example illustrates the distinct legal personality of individuals.
● In cases where the state actors themselves commit crimes (through legislations, judiciary
siding with the state etc. – eg: Judges’ Trial at Nuremberg)
● International law has moved from command responsibility to individual
responsibility
 ● Rosalyn Higgins said that instead of using the term “subjects” of international law, we
should use the term “participants of international law”

The development of international law demands that individuals should also be granted legal
personality but “within a limited sphere” – they have derivative legal personality – they
derive their personality because the states that they are part of are parties to international
treaties and are themselves subjects of international law.

Friedmann – distinguished between individual as a beneficiary of international law (in cases

regarding humanitarian law) and individual as a subject of international law (in cases regarding
international criminal law).

Policy oriented school of jurisprudence – law is about making choices – the policy of the
state should be such that it furthers the gain of society – Rosalyn Higgins is a proponent of
this school of thought.
● Instead of embracing or rejecting individual personality, she wants to abandon the
concept of subjects of international law itself
● She wanted to consider individuals as participants in international law.
● Participants do not make international law – they do not have law-making power –
only state practice forms international law, not individual actions – the impact of these
participants will not result in the creation of law.
● The purpose of replacing the concept of the subject by that of a participant seems to be
to remove the necessity of applying the established criteria for determining
whether the given entity is the subject of international law – the criteria here is the
combinations of rights + duties + obligations – this criteria is what is sought to be
changed.

Lauterpacht and Kelsen are romantic with the idea of individuals being subjects of
international law because they are both monists – they say that there is no need to make a
distinction between domestic law and international law – by considering international law and
domestic law as part of the same system, it eliminates the possibility of states committing
atrocities against citizens by using their domestic law to justify it – it aims to limit the powers
of the state to commit HR violations. Similarly, by making individuals subjects of international
law, it makes it possible to hold individual leaders and perpetrators responsible for their actions
in international law and not let them get away with committing atrocities under the garb of the
state.

Thus, individuals have derivative/limited legal personality but that does not make them a
subject of international law – this is because they derive their personality from treaties – only
if the state to which they belong are part of the concerned treaty do they have the capacity to
approach an international forum.
[Refer the article for more notes in the comments]

7th and 8th September, 2023 – CRE, no class

11th September, 2023

Akehurst – pg.123 pdf

● Corporations and individuals are nationals.

● Diplomatic protection is again attracted here because if anything happens to a
corporation in a foreign land, then it is the state’s right that is infringed – it is the state
who has to bring a claim against the offending state.
● IOs cannot have diplomatic protection but they do have functional protection.
● With the different subsets of international law, it has given rise to the growing
recognition of corporations in international law
● In 1993, the Permanent Court of Arbitration modified this procedure to encourage
access of parties of which only one is a state.
● ICSID also hears disputes arising out of investments between states and the nationals of
other states – but this is also governed by certain rules like extinguishing their local
remedies first before approaching arbitration.
● In 1998, the Canada-US Free Trade Agreement also provided that private parties have
access to binational panels which can reach binding decisions in certain cases.
● Individuals also have rights in the human rights category – but these depend on treaties
consented to by the government to which they belong — this consent can be qualified
and withdrawn also – in this case an individual will not have rights.
● Generally it is said that individuals are subjects of international law because they can be
tried in international courts of criminal justice – but Akehurst says that individuals do
not thereby become intl legal persons but arrangements of international criminal justice
are means where states agree to discharge their obligations to prosecute international
crimes.
● The ICTY Appeals Chamber in the Blaskic case observed that the spirit and purpose
of ICTY statute confers on the international tribunal an incidental or ancillary
jurisdiction over individuals other than those whom the international tribunal may
prosecute and try. These are individuals who may be of assistance in the task of
dispensing criminal justice entrusted to the international tribunal. This means only the
states are obliged to ensure that individuals within their territory comply with law, not
to the individual themselves.
Akehurst – pg 119 pdf

NGOs as Subjects of International Law

● Ways in which NGOs assist international law-making
○ Support or lobby for transparency in international law-making (mainly in the
human rights front)
○ Expert assistance
○ Fact finding and groundwork
○ Observer
● Help in garnering international attention to human rights violations.
● NGOs are not created through international law, the relevant law is the state law of the
state to which the NGO belongs.
● 1991 – ICRC was given observer status by UNGA – they were given a limited legal
personality – they are not subjects of international law.
● Article 71 UN Charter – ECOSOC has brought in certain resolutions as to which
organisations can be accorded observer and consultative status.

International Committee of the Red Cross (ICRC)

Tools to Do the Job: The ICRC’s Legal Status, Privileges and Immunities, Els Debuff
● ICRC was later officially mandated by states to carry out humanitarian
● The ICRC’s mandate is enshrined in the Geneva Convention, Option Protocols to
Geneva Convention.
● ICRC’s legal status is similar to that of an IO, but an atypical one.

12th September, 2023

● Henry Dunant’s enlightenment in the Battle of Solferino

● States were cautious while according to the ICRC Observer Status so that it doesn’t set
a precedent.
● ‘Neutrality’ means ICRC will not take any sides in the war. It cannot seem to be partial
towards one side.
● The formula of legal personality – required to establish subjecthood of the entity. Does
ICRC fit into the formula?
● The enemy army should be able to make a distinction and identify them so that they
aren’t attacked.
● War is not outlawed but there are certain rules. Apart from these, Geneva Convention
contains certain rules regarding the conduct of war. Rule of proportionality is to be
followed.
 ● ICRC has to act as a neutral party and provide support to the hors de combats. The
victims are not merely soldiers but also civilians and prisoners of war.
● What is the mandate of the ICRC? It is derived from the Geneva Convention (Law of
War Crimes), optional protocols and the Red Crescent Movement.
● The privileges and immunities are important for the ICRC to function on the ground.
This is the functional protection.
● ICRC is established as a result of domestic law viz. Swiss law.
● The functional protection is the starting point which is important to understand the
legal personality of ICRC.
● Observer status was accorded to the ICRC – Italy moved the resolution. The
commonality between Italy, India and USA’s statements are:
1. Does not set a precedent
2. Unique status of ICRC

Thus, the ICRC does have an international legal personality, but a unique one – this is on the
basis of the method of creation of the ICRC and the composition of the ICRC.

13th September, 2023

Only because individuals of States are imposed individual criminal responsibility, it is because it
is the State’s responsibility. Individuals cannot be forced to give evidence. The subjecthood of
individuals is not settled. They are considered subjects because the States have entered into
treaty agreements.

Refer: PK Menon, States as Subjects of International Law

State Succession

Refer: Chapter 14 of Akehurst

● State succession refers to the process of the transmission of the rights and obligations of
the ‘predecessor State’ to the ‘successor State’.
● We focus upon two treaties: 1978 Vienna Convention on State Succession in Respect of
Treaties and 1983 Vienna Convention on State Succession in Respect of State Property,
Archives.
● Under the treaties, State Succession is defined as the replacement of one State by
another in the responsibility for the international relations of territory, not as a
wholesome replacement of sovereignty over a territory

Read: Bosnia v. Federal Republic of Yugoslavia & The Succession of States in Respect to Treaties
by PK Menon
14th September, 2023

State Succession [contd.]

The Concept of Continuity of State

→ The existence of a state continues even when the governments change.
→ However, a state still requires a government for the state to enter into treaties and
international conventions – but the role of the government is limited – for example, if
X and Y are two nations who enter into a treaty when X is ruled by Government A; if
the government changes from A to Government B, then it will not affect the relation
between X and Y
→ This is because the government is only an organ of the state – the state continues.
→ The government is the one who exercises its capacity to enter into international
relations – government is an internal aspect so the form of government (democracy,
dictatorship etc.) does not matter.

Tinoco Arbitration case

JL Brierly
There was an arbitration between Great Britain and Costa Rica in 1923 – Great Britain
claimed that certain British companies had acquired some rights against Costa Rica by
contracts entered into with Tinoco. It appeared that in 1917, Tinoco overthrew the existing
government of Costa Rica and established a new Constitution which lasted till 1919 and in
1919, the old Constitution was restored and in 1922, the restored government passed legislation
nullifying all engagements entered into by the Tinoco government.

The Chief Justice held that if Tinoco’s government was the actual government of Costa Rica at
the time when the rights were alleged to have been acquired, the restored government could not
repudiate the obligations which his acts had imposed on the state of Costa Rica. It was further
said that this question must be decided by evidence of facts, and it was immaterial that Tinoco’s
government was unconstitutional. Tinoco was in actual and peaceable control without
resistance, conflict or contest by anyone until a few months before the time when he retired and
his acts were held to be binding upon Costa Rica.

This decision shows that a state is bound internationally by the acts of the person(s) who
in actual fact constitute its government. This is sometimes expressed by saying that the
new government “succeeds” to the rights and obligations of its predecessor.

Doctrine of Clean Slate

Many of the states were colonies of the great powers of the world at one point – after the
decolonisation movement, these powers left these territories but what was to be done about the
treaties they entered into on behalf of the colonies? The former colonies said that they would
not be bound by any of the treaties or obligations entered into by the colonisers on their behalf
– they wiped the slate clean and decided to determine for themselves the obligations they were
to enter into.

Other viewpoints said that the history of a state would follow it – but the extent as to
which the history of the state would follow it would depend on its method of creation – for
these states, the method of creation was through decolonisation which took place through
national acts, UNGA resolutions etc. – after decolonisation, many new states came into
existence with their own sovereign capacity.

The doctrine of clean slate denied any transmission of rights, obligations and property interests
between the predecessor and successor sovereigns. It manifested itself with the rise of the
decolonisation process under which the new states acquired sovereignty free from
encumbrances created by the predecessor state

State Identity
The identity of a state is important because it makes one aware of the rights and obligations the
state enters into. When a state has come into being as a result of voluntary secession, there is
little to no dispute about the rights and obligations entered into by the state on behalf of the
parent state.

However, the problems of state succession are not clearly answered – the conventions prevalent
currently do not reflect customary international law, they have a very low requirement of the
number of ratifications required for the convention to become effective, among other concerns.

The case of the dissolution of the USSR has seen diverging attitudes.
➢ The Moscow Agreement of 4th December, 1991 on Succession with regards to USSR’s
state debt and assets lists all 15 Soviet Republics, including Russia, as successors to the
USSR.
➢ The Minsk Agreement of 8th December, 1991, between Russia, Ukraine and Belarus,
which established the commonwealth of independent states included a statement that
the USSR as an international legal person has ceased to exist. But the UN Secretary
General took the view that Russia continued to exist as a predecessor state after the
dissolution of the USSR.
15th September, 2023

[refer: Malcolm Shaw, pg. 956]

How does a state come into existence?

● Succession – Pakistan & Bangladesh
● Partition – India & Pakistan
● Dissolution – Czech Republic; USSR; SFRY
● Merger

The rights and obligations of the states formed through the above-mentioned means are to be
determined on a state-to-state basis – translating the rights and obligations of the mother state
to the new state as well would be violative of the consent of the new state.

This is related to Roman property law to an extent.

● To avoid a situation of non liquet, international law introduced general principles of
international law – GPIL can come from municipal law or international law.
● Municipal law is referred to develop the concept of state succession – the same
property rights from Roman law (If something happens to the identity of some entity
and the entity is succeeded by a successor, then to what extent are the rights and
obligations of the predecessor transferred to the successor?)
● The identity of the former will follow the latter – but it is unclear as to what extent this
identity will follow – if the successor says that they do not want to follow in the
footsteps of the former, then the doctrine of tabula rasa (doctrine of clean slate) will be
applied. Another perspective says that if you have inherited the archives, then you have
inherited the debts as well.
● For example, the dissolution of SFRY:
The collapse of the Socialist Federal Republic of Yugoslavia (the SFRY) took place over
several months as the various constituent republics proclaimed independence. The process
was regarded as having been completed in the view of the Arbitration Commission on
Yugoslavia by the time of its Opinion No. 8 issued on 4 July 1992. The Commission
noted that a referendum had been held in Bosnia and Herzegovina in February
andMarch 1992 producing a majority in favour of independence, while Serbia and
Montenegro had established ‘a new state, the “Federal Republic of Yugoslavia”’ on
27 April 1992. The Commission noted that the common federal bodies of the SFRY had
ceased to function, while Slovenia, Croatia and Bosnia had been recognised by the
member states of the European Community and other states and had been admitted to
membership of the UN. The conclusion was that the former SFRY had ceased to
exist.

Succession of Treaties
The rules concerning succession to treaties are those of customary international law together
with the Vienna Convention on the Succession of States in respect of Treaties, 1978. As far
as devolution agreements (devolve the rights and obligations of the predecessor sovereign of the
newly formed state) are concerned, Article 8 of the Convention provides that such agreements
themselves cannot affect third states. Article 9 which deals with the unilateral declarations
emphasises that such a declaration by the successor state alone cannot affect the rights and
obligations of the states and the third state.

The Case of Libya and Chad

The International Court dealt with the succession to boundary treaty in this case and declared
that once agreed, the boundary stands, for any other approach would vitiate the
fundamental principle of the stability of boundaries, the importance of which has been
repeatedly emphasised by the court.

For international human rights treaties, they are automatically applied on the new entities as
well.

16th September, 2023 – viva, no class

18th September, 2023

Revision:
States come into existence as a result of:
1. Partition – doctrine of tabula rasa
2. Secession
3. Dissolution
4. Decolonisation – doctrine of tabula rasa

Rule Pertaining to the Succession of Treaties Establishing Boundaries

● Article 11 of the Vienna Convention on the Succession to Treaties
A succession of states does not as such affect
a. A boundary established by a treaty
b. The obligations and rights established by a treaty and relating to the regime of a
boundary.
● The successor state would also succeed to the rights and obligations created by
boundary treaties – supported by Waldock, Mohammed Bedjoy – both of them say
that boundaries established by treaties remain untouched by the mere fact of a
succession. In principle, the territory devolves upon the successor state on the basis of
pre-existing boundaries.
● This has been supported by state practice – an example is found in the Latin American
doctrine of uti possidetis – the same thing was also supported by the OAU – they said
that they would not disturb the boundaries laid down by their colonisers
● The 1964 OAU resolution – all states pledged themselves to respect the colonial
borders.
● This was also supported by the ICJ in the Burkina Faso-Mali case and the Libya-
Chad case.
● Article 62(2) VCLT – a fundamental change in circumstances is not enough reason to
withdraw from a treaty establishing boundaries.

Rule Pertaining to the Succession of Other Multilateral Treaties

P. 971 Malcolm Shaw
There is no general rule on succession to other multilateral treaties – look at the factual matrix
and mark the reaction of third states.

Practice seems to suggest ‘a tendency’ or ‘a general inclination’ to succession to ‘some

categories of multilateral treaties’ or to ‘certain multilateral conventions’. However, this
‘modern-classical’ approach is difficult to sustain as a general rule of comprehensive
applicability. One simply has to examine particular factual situations, take note of the
claims made by the relevant states and mark the reactions of third states.

In bilateral treaties, the presumption is of non-succession – evidence from past cases from
Finland, Panama, US etc. support the clean slate approach.
 In such cases, the importance of the individual contractual party is more evident, since
only two states are involved and the treaty is thus more clearly reciprocal in nature.
Accordingly, the presumption is one of non-succession, depending upon all the particular
circumstances of the case. Practice with regard to the US, Panama, Belgium and
Finland supports the ‘clean slate’ approach.

Rule Pertaining to the Succession of Human Rights Treaties like the Genocide
Convention
Pg. 982, Malcolm Shaw
Human rights treaties create not merely subjective, reciprocal rights but rather
particular legal orders involving objective obligations to protect human rights

The ICJ said in the Reservations to the Genocide Convention case that in human rights treaties,
the states do not have any individual interests of their own, they are merely coming together to
achieve the higher purpose envisioned in the treaty.

There is automatic succession to these human rights treaties.

Succession to International Organisations

● The case of the USSR – would all 12 constituent states become members of the UN
automatically or would they have to apply afresh for membership?
○ Minsk Agreement – it was said that Russia had inherited the legal personality of
the USSR and hence would continue to be a member of the UN.
● The same was said in the case of India and Pakistan’s membership to the UN.

EJIL: Talk, Dapo akande – 21st August, 2017 https://www.ejiltalk.org/the-partition-of-

india-and-pakistan-lessons-for-the-un-membership-in-the-event-of-emergence-of-new-states/

…one of the key questions that arises is whether the legal personality of the existing state
continues and, if so, whether it may simply retain its membership in the UN despite the
break-up. Or alternatively, is the previous state to be taken as no longer existing with all
the entities emerging on its territory to be regarded as new states? Where new states have
emerged from a UN member should such new states be required to apply anew for UN
membership?

India had been a member of the League of Nations, membership of which was open to
“all self-governing State, Dominion and Colony”.

In the lead up to the partition and the independence of India and Pakistan, the UN
Legal Counsel prepared an opinion in which it was stated that:
“From the viewpoint of international law, the situation is one in which a part of
an existing state breaks off and becomes a new state. In this analysis, there is no
change in the international status of India; it continues as a state with all the
treaty rights and obligations, and consequently, with all the rights and
obligations of membership in the United Nations. The territory which breaks
 off, Pakistan, will be a new state; . . . and it will not, of course, have
membership in the United Nations.”

He recommended that Pakistan would have to apply for admission to membership.

This position adopted by the UN Legal Counsel was essentially reflected in an agreement
reached between India and Pakistan in the days before Independence. However upon
Independence on 15 August 1947, the Foreign Minister of Pakistan sent a cable to the
UN, expressing the view that both India and Pakistan should become Members of
the UN automatically upon independence but also stating that “If, however, this
view is not accepted, I hereby apply for admission of Pakistan as a Member of the
United Nations.” Pakistan’s application (which was supported by India) was treated as
an application for new membership, and membership was recommended by the Security
Council on that basis. Matters were not so simple in the General Assembly, where some
states took the view that both Pakistan and India should be treated equally such that
they either both automatically become members or they both had to apply for
membership. No definitive conclusion was reached as to the correct legal position,
but it was agreed that Pakistan’s membership should not be delayed, and it was
agreed on 30 September 1947 to admit Pakistan as a new member of the UN.

Thus, there were divergent views regarding Pakistan’s succession into the UN.

19th September, 2023 – did not take class

20th September, 2023

[added on to notes of 18th September]

Article 2(1)(f) of VCST defines a newly independent state:

‘The territory of which immediately before the date of the succession of states was a
dependent territory for the international relations of which the predecessor state was
responsible’.

Article 16 of VCST laid down the general rule that such states were not bound to maintain in
force or to become a party to any treaty by reason only of the fact that the treaty had been in
force regarding the territory in question at the date of succession.
● Lays down that the doctrine of clean slate applies only for newly independent states –
the doctrine of tabula rasa is enshrined in Article 16 of the VCST.

Succession to Assets and Debts

State Succession to Debts and Assets: the Modern Law and Policy, Paul Williams & Jennifer
Harris
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2032920

Vienna Convention on Succession of States in respect of State Property, Archives and

Debts, 1983.

Majorly referred to the Yugoslav decisions

The problem became apparent in:

1. Unification of the German Democratic Republic and Federal Republic of Germany
2. Dissolution of USSR
3. Dissolution of SFRY
We do not have strong customary law for these matters since they are all recent matters.

International law does not define what a public or private company is, or what public sector
and private sector are – does not define public property and hence recourse to municipal law is
often required – the relevant municipal law here is the law of the predecessor state to
determine what category the property would fall under.

Article 8 of the Vienna Convention, 1983 provides that state property for the purposes of
the Convention means ‘property, rights and interests which, at the date of the succession of
states, were, according to the internal law of the predecessor state owned by that state’ and this
can be taken as reflective of customary law.

The tangible state property can be:

1. Movable property – determines on the basis of functionality, territoriality and

equitable proportions
2. Immovable property – remains with the predecessor state.
 The Yugoslav Agreement on Succession Issues, 2001, however, provides that, ‘It shall be
for the successor state on whose territory immovable and tangible movable property is
situated to determine, for the purposes of this Annex, whether that property was state
property of the SFRY in accordance with international law.’ It is a recognised
principle of customary international law that the public property of a
predecessor state with respect to the territory in question passes to the successor
state. Thus, as a general rule, the test of succession of public, or state, property as
so characterised under the laws of the predecessor state is a territorial one.

The situation with regard to movable property outside of the territory in question is
more complicated. Article 17(1)(c) of the Vienna Convention, 1983 provides that such
property (in the case of separation of part of a state) ‘shall pass to the successor state in an
equitable proportion’. This must be regarded as a controversial proposition since
it appears to modify the dominant territorial approach to the succession of state
property. However, in the case of the dissolution of the predecessor state, the argument in
favour of an equitable division of movable property not linked to the territory in respect
of which the succession occurs is much stronger.

What is the difference between assets and archives?

Archives carry some historic and sentimental value. There is a need to protect these archives
because they are a crucial part of the heritage of a community.

Article 20 of the 1983 Vienna Convention provides that state archives in the present context
means:
All documents of whatever date and kind, produced or received by the predecessor state
in the exercise of its functions which, at the date of the succession of states, belonged to the
predecessor state according to its internal law and were preserved by it directly or under
its control as archives for whatever purpose.

Examples: Italy had to restore all the archives and objects of historical value belonging to
Ethiopia; France had to restore Vietnam’s archives to it.

Articles 149 and 303 of the 1982 Convention on the Law of the Sea.
● Article 149 – provides that all objects of an archaeological and historical nature found
in the International Seabed Area are to be preserved or disposed of for the benefit of
mankind as a whole, ‘particular regard being paid to the preferential rights of the state
or country of origin, or the state of historical and archaeological origin’,
● Article 303 – it stipulates that states have the duty to protect objects of an
archaeological and historical nature found at sea and shall cooperate for this purpose.

21st - get notes

22nd – CRE, no class

25th September, 2023

Use of Force
Earlier use of force used to be allowed in the absence of any other peaceful means of dispute
resolution.
Some article and akehurst pg 451