PIL NOTES-2

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PIL NOTES
Unit 1
Introduction to International Law
PRIVATE INTERNATIONAL LAW
Rules of private international law are primarily national law, made by national courts or legislatures
unlike public international law. But both public international law and private international law are
interdependent on one another. Alex Mills, the author of Connecting Public and Private International
Law explains six major connections between public and private international law.
Principle
One of the fundamental premises of traditional private international law is that foreign law and
courts are normatively equal to local law and courts. The choice between them is not, or at least not
generally, one of superiority, but one of appropriateness (which law or court is best placed to resolve
the dispute). The guiding principle is that the courts and the laws of fellow sovereigns are presumed
to be equal to those of the forum, and entitled to mutual respect. One of the central concerns of public
international law is, similarly, regulating the respectful coexistence of sovereign states. Public
international law is based on the principle of sovereign equality, which means that no state is superior
to any other (there are no ‘second class sovereigns’), and each state is obliged to recognise the
sovereignty of each other state.
The relationship between these two foundational principles – the normative equality of sovereign
states in public international law, and the normative equality of their legal systems in private
international law marks the relationship between them.
History
The earliest origins of private international law are generally considered to be around the time of the
Italian Renaissance – a time when an expansion of international trade and commerce led to an
increase in the number of disputes with significant foreign elements. The idea of private international
law emerged to respond to these problems, as a mechanism to address the risk of conflicting legal
treatment of private disputes. There was no single rule to be made applicable for private international
law disputes because private international law is based on each and every state’s national law. Since,
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States started employing the principles of private international law to resolve disputes, there was
conflict between nations. Thus, public international law developed.
Functional Commonality
A third major connection between public and private international law that can be highlighted is a
connection of functional commonality. Public international law includes so-called rules of
‘jurisdiction’, which determine the permitted scope of a state’s exercise of regulatory authority
whereas private international law determines which law should apply and which court will have
jurisdiction over that dispute. There are few crimes like genocide, terrorisms which international
scholars consider as international crimes which attracts universal jurisdiction. These crimes can be
tried both under public international law and private international law.
Policy Incorporation
A fourth significant connection between public and private international law relates to the matter of
policy incorporation. Private international law should reflect public international law, in the sense, a
judgement or an arbitration award passed by other country should be enforced in their country as
well. In such cases, giving effect to norms of international law or a foreign judgment essentially
involves prioritising other rules of public international law over the rules of ‘jurisdiction’ which
provide the foundations of private international law – but such a prioritisation may well be demanded
by public international law itself. This internationalised conception of public policy thus highlights a
distinct connection between public and private international law.
Shared Objectives
Rules of private international law have traditionally (through choice of law rules in particular) sought
to achieve objectives of decisional harmony, ensuring that the same decision is reached wherever in
the world a dispute is litigated. Private international law has long been concerned, among other
things, with facilitating cross-border activity by coordinating the peaceful coexistence of sovereign
states, striving to reduce the ‘conflict of laws’ between them. In any case, the objectives of decisional
harmony, of avoiding a conflict of laws, are not objectives which can be reached by each state acting
unilaterally in adopting its own national rules of private international law, in pursuit of national
policies. They require a process of formal or informal coordination, the recognition by states that
they have collective interests and goals which may be best served through rules of private

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international law which are, at least to some extent, internationally harmonised. Thus even where the
source of private international law is national law, many of its ambitions, effects and objectives are
international.
Methodology
A further potential connection between public and private international law is a connection of
methodology. Private international law essentially addresses the problem of deciding which court or
legal order gets to regulate an issue, when there are multiple courts or legal orders which have
connections with that issue. The increase in the number of courts and tribunals raises the possibility
that more than one forum may be seized of a single dispute or two (or more) closely related disputes.
Clear rules governing the relationship between international courts and tribunals have not developed
as part of public international law, although a number of potential principles have emerged, drawing
on the more sophisticated experience of private international law in the management of parallel
proceedings.
BASIS OF PUBLIC INTERNATIONAL LAW/
THEORIES OF PUBLIC INTERNATIONAL LAW
Various doctrines exist regarding the basis for the binding authority of international law. The two
most prominent schools of thought are naturalism and positivism. Many other doctrines are either
derived from or founded upon these two doctrines.
NATURALIST SCHOOL
In the 17th and 18th centuries and earlier times, under the influence of theology and the "law of
nature," the science and study of international law was dominated by the naturalist school. This
school maintained that the validity of international law was based upon the will of God and that
sovereigns were subject not only to divine law, but also to the laws of nature established by God. The
naturalist school generally negates the necessity, and denies the existence, of positive law. It
proposes that besides natural law (jus nature), there is no room for any other law and that
international law and other systems of law all belong to the system of the law of nature. They also
advocated that jus cogens are to followed in public international law. Any public international law
that is in violation of jus cogens are held to be null and void, according to the naturalists.

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Early writers that can be labelled as "naturalists" include the two well-known Spanish theologians
and jurists, Francisco de Vitoria and Francisco Suirez. For Vitoria, the law of nations "was founded
on the universal law of nature."' Similarly, Sudrez believed that international law was the derivation
from or extension of natural law, and that natural law was the basis of international law. Pufendorf
denied the existence of any positive rule, holding that only natural law contained legally binding
norms. Pufendorf and his followers not only considered that the basis of international law was the
law of nature, but also viewed international law as part of natural law or completely identified the
two as the same.
CRITICISMS
First, each naturalist uses the "law of nature" as "a metaphor for some more concrete conception such
as reason, justice, utility, the general interests of the international community.
A second criticism of naturalism involves its disconnection with reality. By denying the existence of
rules of positive law, extreme naturalists espouse a doctrine that many modern scholars view as
simply not being supported by reality.
Critics contend that the so-called notions of ''natural law,' ''inherent human rights" and the like are
purely artificial creations of theoreticians and that such concepts do not exist in the absence of
positive law-making.
POSITIVE SCHOOL
In direct opposition to the naturalist theories are positivism and various derivative positivist theories.
Positivism generally teaches that the law of nations is the aggregate of positive rules by which States
have consented to be bound, exclusive of any concepts of natural law such as "reason" and "justice."
For the positivists, nothing can be called "law" among States to which they have not consented. The
proponents of the positivist doctrines maintain that the will of the State is absolutely sovereign and
that it is the source of the validity of all law. The validity of all laws, whether domestic or
international, depends upon the supreme will of the State.
According to Austin “Law is the command of the sovereign”. He considers it to be law only if it
emanates from the sovereign. Since, there is no sovereign authority in public international law to pass
laws, he calls public international law as illegitimate and also considers it as Positive Morality.

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According to HLA Hart law consists of primary and secondary rules. Primary rules are those rules
which confer rights and duties to citizens and the secondary rules are those which recognize those
rules. Since, Rule of Recognition is absent in public international law, he as well like Austin fails to
consider public international law as law. (KElson’s grundnorm theory may be included)
Alberico Gentilis (1552-1608), the English writer of Italian origin, and Richard Zouche (1590-1660),
another English writer, may be said to be the originators of the school of positive law. Although
Gentilis formulated the school of the so-called "jus naturae et gentium" (natural law and international
law), his doctrine had already departed from theology or naturalist philosophy. He opposed to the
idea of identifying international law with natural law, advocated the interpretation of international
law from the perspective of reality, recognized the existence of different nation-States, believed that
every nation-State in reality had equal rights and for the first time attributed the basis or foundation
of international law to the practice (and will) of the State, as reflected in treaties, voluntary
obligations, custom and history.
Further another prominent positivist, Bynkershoek emphasized the importance of the practice of
modern States, custom and treaties, completely ignored the "law of nature" and held
(1) That the rules of international law were established through the consent of States, and
(2) That all agreements between States were the products of their sovereign wills.
CRITICISMS
The positivist doctrine of the will of the State represents a major theoretical progress in that it
recognizes the objective linkage between the basis of validity of international law and the will of
States. It is inaccurate, however, to state that the binding force of international law depends simply
on the will of the State or the common will of the States. If the will of the individual State determined
the validity of international law, then each State might have easily renounced a given rule of
international law merely on the ground that such rule was against its supreme will, thus resulting not
in the affirmation but in the very negation of the validity of international law. If "the will of States"
denoted the common wills of all States upon which the binding force of international law were
founded, then one must say every rule of the law ought to be based on such "common wills." But this
is not the case in real international life either.

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THEORY OF CONSENT
The exponents of the doctrine of consent also maintain that the will of the State is the controlling
element of the binding force of international law, but their emphasis is on the mechanism of State
consent through which the will of the State is expressed. For them, the rules of international law
become positive law when the will of the State consents to being bound by them whether expressly
or impliedly. According to the consent doctrine, it is the sovereign and supreme will of the State that
commands obedience. This will of the State is said to be expressed in the case of domestic law
through State legislation and in the case of international law through consent to international rules.
Being a main theory of positivism, the doctrine of consent generally teaches that the consent or
common consent of States voluntarily entering the international community constitutes the basis of
validity of international law. States are said to be bound by international law because they have given
their consent.
An extreme faction of the consent theory, on the one hand, professes that a State is not bound by any
legal norm to which it has not explicitly consented. On the other hand, another faction of the consent
doctrine holds that if a State (especially a newly created or newly independent State) has not openly
and expressly objected to a certain norm of international custom, it may be said to have given its
implicit consent to such norm." In other words, the consent of States to a given rule of international
law may be either explicit as indicated in a treaty, or tacit as implied in the acquiescence in a
customary rule. In the case of custom, it is the implied consent and in the case of treaties it is the
express consent that is said to serve as the basis for the validity of international law. When States
exercise their wills to explicitly or implicitly accept and consent to be bound by certain rules of law,
those rules become positive rules of international law and acquire legally binding validity.
As far back as early 18th century, Bynkershoek took the position that the basis of obligations in
international law derived from either the express consent or implied consent of States, and that there
was no room for the existence of inter-State law beyond what States had accepted as binding by
means of express or implied consent.
CRITICISMS
Fenwick is particularly critical of the positivist consent views regarding the basis of international
law. He points out that the positivist theory is incorrect because it goes against the principles and
things which the States accepted "from their very inception." In his opinion, the theory that

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international law is based upon the consent of States is "inadequate to explain the assumption upon
which governments appear to have acted from the beginning of international law." Whatever the
position taken by writers, he observes, governments have always looked upon international law as
having an objective character, as being binding because it is the "law," not because States find it
convenient to observe. One of the defects of the pure consent theory is that it may be used to justify
the withdrawal of consent, leading to the denial of a given rule of international law. If a State
concludes a treaty with another, such a treaty will be binding upon the parties. But if the consent
once given is subsequently withdrawn, will the State still be bound by the treaty? If the treaty was
said to be no longer binding after withdrawal of consent, it would lead to the conclusion that a State
can by its unilateral act enforce its unconditional right to relieve itself from any obligation to which it
was bound under the treaty. Similarly, since custom was said to be the tacit consent of States, a State
might, at will, withdraw this tacit consent by changing its direction of behaviour or breaking a given
custom.
THEORY OF AUTO-LIMITATION
The consent theory as originally propounded was later modified in certain respects by followers of
the positivist school. It later developed into the auto-limitation or self-limitation doctrine (also known
as "voluntarist positivism" or "voluntarism"). Some proponents of the auto-limitation doctrine
attribute a will to States, clothe that will with full sovereignty and authority, and maintain that
international law consists of those rules which the wills of the various States have accepted by a
process of voluntary self-restriction. The doctrine of States' auto-limitation or self-limitation is thus
another traditional theory of the positivist school. It teaches that international law is the outcome of
the exercise of self-limitation by States, and that the basis of its validity is the wills and voluntarism
of States. The self-limitation doctrine proclaims that States are sovereigns, whose wills reject any
type of external limitation, and if their sovereignty is in any way limited, that limitation cannot be
from any external force, but only be imposed by the States themselves.
Voluntarism stemmed from the teaching of Hegel and was put forward and fully developed by the
Austrian, Georg Jellinek (1851-1911), on the basis of the main postulates of positivism. In the view
of Jellinek, the supra will of the State by consenting to be bound by customary and conventional
rules of international law places limitations on its sovereignty.

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The rules of international law derive their binding force by self-limitation of the sovereign will of
States through consent. The will of the State being sovereign could not be subordinated to any
external power unless it consented to it.
CRITICISMS
Jellinek's theory is not only incapable of adequately explaining the basis of international law, but it
also contains a certain element of danger. In the relationship between State sovereignty and
international law, there exists an element of a kind of self-restriction by States on their sovereign
power, but it would go too far to maintain that such self-limitation on a State's sovereignty
constitutes the basis of validity of international law. It would also be incorrect to say that such self-
limitation may be withdrawn at a State's will.
Difference between Private International law and Public International law
PUBLIC INTERNATIONAL LAW PRIVATE INTERNATIONAL LAW
It is the body of customary or conventional It may be defined as the rules voluntarily

rule which ae considered as legally binding by chosen by a given State for the decision of
civilized state in their intercourse with each cases which have a foreign element or
other and in concerned solely with the rights complexion
and obligations of sovereign states.
It is concerned solely with rules concerning Private international law deals with cases in
the rights and obligation of the state’s interest. which some relevant fact has a geographical
Whereas. generally speaking, individuals and connection with a foreign country and may on
their dealings are the sole concerns of private that ground raise a question as to the
international law application of Indian or some other
appropriate foreign law to the determination
of the issue or as to the exercise of
jurisdiction by Indian or foreign courts

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According to Robert Phillimore, rights arising But private international law does not confer
out of public international law are absolute these absolute rights
and their breach constitutes casus belli
(whatever justifies war)
They do not differ from State to state These differ from State to State
ERGA OMNES
In international law, the concept of erga omnes obligations refers to specifically determined
obligations that states have towards the international community as a whole. In general legal theory
the concept “erga omnes” (Latin: ‘in relation to everyone’) has origins dating as far back as Roman
law and is used to describe obligations or rights towards all. In its Obiter dictum on the Barcelona
Traction case, the International Court of Justice, as the primary judicial organ of the United Nations,
gave rise to the concept of erga omnes obligations in international law. The World Court specifically
enumerated four erga omnes obligations: the outlawing of acts of aggression; the outlawing of
genocide; protection from slavery; and protection from racial discrimination. In this judgment the
Court drew a distinction between the erga omnes obligations that a state has towards the international
community as a whole and in whose protection all states have a legal interest, and the obligations of a
state vis-à-vis another state. Such obligations, as enumerated above, have been determined by the
Barcelona Traction case.
JUS COGENS
Article 53 of the Vienna Convention on the Law of Treaties of 1969 (VCLT).2 As is well known,
this article determines that “a treaty is void if, at the time of its conclusion, it conflicts with a
peremptory norm of general international law. For the purposes of the present Convention, a
peremptory norm of general international law is a norm accepted and recognized 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.” In
accordance with Article 53 VCLT, a treaty is null and void if it is concluded in conflict with a

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peremptory norm of general international law (i.e. jus cogens). To give a concrete example, a treaty
between two countries aimed at committing genocide against a particular ethnic group on one or both
of their territories would be null and void. The definition in Article 53 VCLT does not identify any
norms having peremptory status. The threshold for gaining peremptory status is high, for although it
does not require a consensus amongst all states (and one single state would not be able to block the
recognition of a peremptory norm), it does require the acceptance of a large majority of states.
RELATIONSHIP BETWEEN JUS COGENS AND ERGA OMNES
Jus Cogens are the pre-emptive norms which cannot be derogated either by a treaty or by a
customary law. Erga Omnes are basically the obligation or the duty which a state has against rest of
all the nations. So, there exist a close relationship between jus cogens and erga omnes. Jus cogens
creates norms and erga omnes deals with the obligation. The Barcelona Traction decision of the ICJ
provides authority for the conclusion that jus cogens obligations would have erga omnes effect.74
Without expressly referring to jus cogens the ICJ implied as much by the types of obligations it
mentioned as examples of erga omnes norms. These included the out-lawing of the unilateral use of
force, genocide and the prohibition of slavery and racial discrimination. Given the fact that these
same prohibitions come widely regarded as being of a peremptory nature, it follows that when an
obligation is recognized as one from which no derogation is permitted due to its fundamental nature,
all states (and other subjects of international law) have a legal interest in its protection.
A jus cogens rule creates an erga omnes obligation for states to comply with a rule. An erga omnes
obligation is therefore the consequence of a rule being characterized as jus cogens. Erga onnes is a
legal term that is used to describe the rights and obligations towards all. Breach of an erga onnes
norm in theory makes the party which has breached obliged to all. Jus cogens are a set of legal norms
that cannot be contracted out by any agreement. The breach of such norms does not always make the
party breached obliged to all but it is the case when an erga omnes norm is breached; the state which
breaches erga omnes is obliged to all.
TWAIL
• The regime of international law is illegitimate. It is a predatory system that legitimizes,

reproduces and sustains the plunder and subordination of the Third World by the West.

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• Neither universality nor its promise of global order and stability make international law a
just, equitable, and legitimate code of global governance for the Third World. The
construction and universalization of international law were essential to the imperial
expansion that subordinated non-European peoples and societies to European conquest and
domination. The first TWAIL meeting was held in March 1997 at Harvard University.
• The primary objective – one that has marked the work of TWAILers since then – was to
cross-examine international law’s assumed neutrality and universality in light of its
longstanding association with imperialism, both historical and ongoing.
• The Third World is a political reality.
• It describes a set of geographic, oppositional, and political realities that distinguish it from
the West. It is a historical phenomenon that has a dialectic relationship with Europe in
particular and the West in general. The Third World is more truly a stream of similar
historical experiences across virtually all non-European societies that have given rise to a
particular voice, a form of intellectual and political consciousness. The term Third World is
different from less-developed, crisis-prone, industrializing, developing, underdeveloped, or
the South because it correctly captures the oppositional dialectic between the European and
the non-European, and identifies the plunder of the latter by the former. It places the state of
crises of the world on the global order that the West has created and dominates.
Objectives of TWAIL
• End the domination of European Countries in the international sphere.
• Alternate legal order wherein the Third World has a say.
• Scholarship (research) and politics to eradicate underdevelopment.
TWAIL is not a recent phenomenon. It stretches back to the decolonization movement that swept the
globe after World War II. This confrontation has its roots in the anti-colonial movement.
TWAIL is a response to decolonization and the end of direct European colonial rule over non-
Europeans.
• It basically describes a response to a condition, and is both reactive and proactive.

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• It is reactive in the sense that it responds to international law as an imperial project.
• But it is proactive because it seeks the internal transformation of conditions in the Third
World.
• The United Nations, formed after World War II by the dominant Western powers, aimed to
create and maintain global order through peace, security, and cooperation among states.
• The new global order had two important legitimating features. Non-European powers were
now recognized as having the right to self-determination, which was a repudiation of direct
colonialism. Second, states were to be governed by human rights. Ostensibly, the United
Nations was the neutral, universal and fair guardian of the new order.
• But in reality, European hegemony over global affairs was simply transferred to the big
powers; the United States, Britain France, the Soviet Union, and China which allotted
themselves permanent seats at the Security Council, the most powerful UN organ. The
primacy of the Security Council over the UN General Assembly, which would be dominated
by Third World states, made a mockery of the notion of sovereign equality among states.
• Any TWAIL scholarship or political action must be fundamentally oppositional to an
important question in international law.
• Such disagreement must be related to an issue that is of significance to, or affects in an

important way, the Third World.
• The purpose of such scholarship or work must be to eliminate or alleviate the harm or injury
that the Third World would likely have suffered as a result of the unjust international legal,
political, and economic order.
• Such scholarship or political action will be concerned with justice or the fairness of norms,
institutions, processes, and practices in the transnational arena. Its overriding purpose must
be the elimination of an aspect of Third World powerlessness.

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UNIT 2
Sources of international law
2 sources-
1. Formal- from which legal rules derives its legal validity, conventions, customs and GPL
2. Material sources- denote the derivation of the substantive content of the rule, judicial decisions
and writings of publicists.
Article 38 (1) of Statute of ICJ, 1945:
Article 38(1) of the statute of international court of justice is widely recognised as the most
authoritative and complete statement as to the sources of international law. Which states that a court
who functions is to decide with accordance to international law such as disputes as are submitted to
it, shall apply,
(i) International conventions;
(ii) International customs;
(iii) The general principles of law recognized by civilized nations;
(iv) Judicial Decisions:Subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of various nations, as subsidiary means for the determination of
rules of law.
Article 59 states that the court has no binding force except between the parties and in respect of the
particular case.
- A distinction can be made in between formal and material sources, the former it is claimed,
conferred upon the rules an obligatory character while the latter comprises the actual content of the
rules.

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A. International Convention-
Treaties:
Article 1 of the 1969 Vienna Convention on the Law of Treaties.
"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."
Definition: According to Malcolm. N. Shaw treaty is an express agreement and are a form of
substitute legislation undertaken by the States. He considers treaties as superficial contracts because
parties create rights and obligations.
Treaty as per VCLT:
1. Should be in writing
2. Should be between States
3. There is no prescribed format
4. Prospective in nature
Types of Treaties:
1. Create future rights and duties

2. Codifies customs - Vienna Convention on Diplomatic Relations, 1964
3. Law making treaties – lay down rules of universal application.
4. Treaty contracts – Between two or few nations.
Few Treaties:
1. Treaty of Versailles, 1919

2. Vienna Convention on Law of Treaties, 1969
3. United Nations Charter, 1948
4. UNCLOS I, II & III
Treaty v. Custom – with relation to consent:
1. Treaty- express consent.

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2. Custom – Tacit consent
- Pacta Sunt Servanda – promises are to be kept.
- Treaties are binding and are to be honoured.
- Contrast to customs, treaties are more modern and deliberate.
- Article 2(1) (a) of the Vienna convention of treaties law of treaties
NORTH SEA CONTINENTAL SHELF CASE
Denmark and Netherlands v. Germany I .C.J. Reports 1969
Background-
The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement for the
formation of customary international law: (1) State practice (the objective element) and (2) opinio
juris (the subjective element). In this case, the Court explained the criteria necessary to establish
State practice – widespread and representative participation. It highlighted that the practices of those
States whose interests were specially affected by the custom were especially relevant in the
formation of customary law. It also held that uniform and consistent practice was necessary to
demonstrate opinio juris – opinio juris is the belief that State practice amounts to a legal obligation.
The North Sea Continental Self Cases also dispelled the myth that duration of the practice (i.e. the
number of years) was an essential factor in forming customary international law.
Facts
The case involved the delimitation of the continental shelf areas in the North Sea between Germany
and Denmark and Germany and Netherlands beyond the partial boundaries previously agreed upon
by these States. Denmark and Netherlands intended to extend their boundaries based on equidistance
principle as per Article 6 of the Geneva Convention on Continental Shelf, 1958. Germany opposed to
this since its coast was concave and feared that it would much of the continental shelf which would
be an inequitable result to Germany. Hence, a case was filed by Denmark and Netherlands against
Germany.

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Issue-
1. Is Germany under a legal obligation to accept the equidistance-special circumstances principle,

contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958, either as a
customary international law rule or on the basis of the Geneva Convention?
Contentions of Denmark and Netherlands-
The delimitation as between the Parties of the said areas of the continental shelf in the North Sea is
governed by the principles and rules of international law which are expressed in Article 6, paragraph
2, of the Geneva Convention of 1958 on the Continental Shelf. Equidistance Principle is now
international customary law since it is being followed by majority of states. Equidistance principle
has acquired the status of international custom.. So, Germany is bound by the principle irrespective
of not being a member to the convention.
Contentions of Germany-
The delimitation of the continental shelf between the Parties in the North Sea is governed by the
principle that each coastal State is entitled to a just and equitable share. The method of determining
boundaries of the continental shelf using equidistance method is not a rule of customary international
law. Germany has signed the Convention but has not ratified the same. So, Germany is not bound by
the Convention
Decision-
The use of the equidistance method had not crystallized into customary law and the method was not
obligatory for the delimitation of the areas in the North Sea related to the present proceedings.
Findings-
The Court held that Germany had not unilaterally assumed obligations under the Convention. The
court held that equidistance principle is not customary International Law because of Article 12 which
allowed reservation to any article except Article 1, 2 & 3. The court also took notice of the fact that
even if Germany ratified the treaty, it had the option of entering into a reservation on Article 6 as per
Article 12 of the Geneva Convention of Continental Shelf, 1958. Further the Court, also opined that
the Framers of this convention did not intend to make equidistance principle, an international custom
as they allowed reservation under Article 12. In conclusion, the Court held that Germany had not

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acted in any manner so as to incur obligations contained in Article 6 of the Geneva Convention. The
equidistance–special circumstances rule was not binding on Germany by way of treaty law.
B. Customs-
International custom is the oldest and most original source of international law.
Customary rules of international law are the rules which have been developed in a long process of
historical development in order to understand the meaning of custom' it is necessary to know the
meaning of the word ‘usage’.
Usage means those actions which are often repeated by the States; custom on the other hand emerges,
when a clear and continuous habit of doing certain actions grows up under the aegis of the conviction
that these actions are right. Custom is such a usage as has the force of law. Usage is an international
habit which has yet not received the force of law
There are two essential elements of a custom-
1. State practice- This is also known as the material element-
There are a number of points to be considered concerning the nature of a particular practice by states,
including its duration, consistency, repetition, and generality.
The concept of duration usually has a time scale recognised by customary rule in the particular
municipal system but in the case of international law there is no such rigid time element it depends
on the circumstance of the case and the nature of usage in question. Hence, duration is not the most
important component of state practice.
-The rule regarding continuity and repletion was laid down in the Asylum case ( ICJ, 1950) in which
the court declared that the customary rule must be in accordance with the constant and uniform usage
practiced by the states in question.

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RIGHT TO PASSAGE:
India v. Portugal, [1960] ICJ Rep 6
Facts-
The case is concerned with right of passage over Indian Territory between Portugal and India. The
Portuguese Government requesting the Court to recognize and declare that Portugal was the holder or
beneficiary of a right of passage between its territory of Diu and its enclaves of Dadra and Nagar-
Haveli and between each of the 1atter and that this right comprises the facility of transit for persons
and goods, including armed forces, without restrictions or difficulties. It is common ground between
the Parties that the passage of private persons and civil officials was not subject to any restrictions.
Issues-
1. Was India legally bound to provide Portugal right to passage?
2. Whether the right of passage of military personnel and arms should have the same right of passage
over Indiana territory as that of private persons and goods
Contentions of Portugal
1. Portugal claimed a right of passage to the extent necessary for the exercise of its sovereignty over
the enclaves, without any immunity and subject to the regulation and control of India.
2. In support of its claim, Portugal relies on the Treaty of Poona of 1779 and on sanads (decrees),
issued by the Maratha ruler in 1783 and 1785, as having conferred sovereignty on Portugal over the
enclaves with the right of passage to them.
Contentions of India
1. India contends that the Treaty and the two sanads of 1783 and 1785 taken together did not operate
to transfer sovereignty over the assigned villages to Portugal, but only conferred upon it, with respect
to the villages, a revenue grant of the value of 12,000 rupees per annum called a jagir or saranjam.
2. India argued before the Court that practice between only two states was not sufficient to form a
local custom.
3. Portugal had right to passage but that right covered only civilians and not armed men.

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Decision
The Court held that a local custom is binding on the parties. The court further reasoned as to why a
century and a quarter of practice based on mutual rights and obligations were insufficient for local
custom to arise. This local practice, thus, prevailed over any general rules. The court held that the
Portugal has right of passage but it is restricted only to civilians and diplomats.
ASYLUM CASE:
Columbia v. Peru [1950] ICJ 6
Facts-
Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the crime of
military rebellion” which took place on October 3, 1949, in Peru. 3 months after the rebellion, Torre
fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador confirmed that Torre
was granted diplomatic asylum in accordance with Article 2(2) of the Havana Convention on Asylum
of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the Ambassador also
stated Colombia had qualified Torre as a political refugee in accordance with Article 2 Montevideo
Convention on Political Asylum of 1933 (note the term refugee is not the same as the Refugee
Convention of 1951). Peru refused to accept the unilateral qualification and refused to grant safe
passage.
Issues
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for
the purpose of asylum under treaty law and international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter
called the Havana Convention) when it granted asylum and is the continued maintenance of asylum a
violation of the treaty?
Decision
The court stated that in the normal course of granting diplomatic asylum a diplomatic representative
has the competence to make a provisional qualification of the offence (for example, as a political

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offence) and the territorial State has the right to give consent to this qualification. In the Torre’s case,
Colombia has asserted, as the State granting asylum, that it is competent to qualify the nature of the
offence in a unilateral and definitive manner that is binding on Peru. The court had to decide if such a
decision was binding on Peru either because of treaty law (in particular the Havana Convention of
1928 and the Montevideo Convention of 1933), other principles of international law or by way of
regional or local custom. The court looked at the possibility of a customary law emerging from State
practice where diplomatic agents have requested and been granted safe passage for asylum seekers,
before the territorial State could request for his departure. Once more, the court held that these
practices were a result of a need for expediency and other practice considerations over an existence
of a belief that the act amounts to a legal obligation.
In the North Sea Convention Shelf case the ICJ remarked the state practice including that of states
whose interests are specially affected, had to be both extensive and virtually uniform in sense of the
provision invoked.
NORTH SEA CONTINENTAL SHELF CASE FOR INTERNATIONAL CUSTOMARY LAW:
For a customary rule to emerge the Court held that it needed:
(1) Very widespread and representative participation in the Convention, including States whose
interests were specially affected (in this case, they were coastal States) (i.e. generality); and
(2) Virtually uniform practice (i.e. consistent and uniform usage) undertaken in a manner that
demonstrates
(3) a general recognition of the rule of law or legal obligation (i.e. opinio juries). In the North Sea
Continental Shelf cases the court held that the passage of a considerable period of time was
unnecessary (i.e. duration) for the formation of a customary law.
In North Sea Continental Shelf case, the Court observed that;
• The Court examined 15 cases where States had delimited their boundaries using the
equidistance method, after the Convention came into force wherein 39 states had ratified the
convention. So, the Court held that there was no widespread of equidistance principle to call
it a custom.

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• The court concluded, even if there were some State practice in favor of the equidistance
principle, the court could not deduct the necessary opinio juris. The North Sea Continental
Shelf Cases confirmed that both State practice (the objective element) and opinio juris (the
subjective element) are essential pre-requisites for the formation of a customary law rule.
This was said to be indispensable to the formation of a new rule of customary IL.
This case involved a dispute between Holland and Denmark, over the delimitation of the continental
shelf.
In the Anglo-Norwegian Fisheries Case (Rule of persistent Objector) the ICJ emphasized its views
on that some degree of uniformity amongst state practices was essential before a custom could come
into existence.
• A similar approach occurred in the North Sea Shelf case in which the ICJ in accordance with
Art 6 of the Geneva Convention on the Continental Shelf 1958 provided that in a situation an
agreement could not be reached and unless in special circumstances justified a diff approach,
the boundary line was to be determined in accordance with the principle of equidistance from
the nearest point of the baseline from which the breadth of the territorial sea of each state is
measured.
• The question thus was whether a case could be made out that the equidistance principle had
been absorbed into customary law and was in accordingly binding upon Germany.
• The court concluded in negative and held that the provision in the Geneva Convention did
not reflect an already existing custom. The issue turned to whether the practice subsequent to
the convention had created a customary rule. (Court answered in negative)
• The court in the Nicaragua case maintained the approach and noted that for a new customary
rule to be formed them must also be accompanied by opinion juris sivenessitatis. (state acted
in a belief that this action is obligatory by the existence of a rule of law requiring it.
• Was reaffirmed in Germany v. Italy.
• Court has maintained a high threshold with regard to overt proving of substantive constituent
of customary law formation

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In the Nicaragua v. United States case the court emphasized that it was not necessary that the
practice in question had to be in absolute rigorous conformity with the purported customary law. To
deduce the existence of customary rules, the court deems it sufficient that the conduct of the states
should in general be consistent with such rules and in case of an inconsistency it should be treated a
breach of the rule and not as indications of new rules.
2. Opinio Juris – (How state views its own behavior).
- Opinio Juris or the belief that a state activity is legally obligatory is a factor which turns the usage
unto a custom and renders it as a part of international law.
- In the Lotus Case the PCIJ laid down a high standard by declaring that abstention could only give
rise to the recognition of a custom if it was based on a conscious duty to abstain. (states had actually
to be aware that they were not acting a particular was because they were under definite obligation not
to act in a way.
S.S LOTUS CASE
France v. Turkey, P.C.I.J. (ser. A) No. 10 (1927)
Facts:
A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel – Boz-
Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel. The 10
survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the Lotus. In
Turkey, the officer on watch of the Lotus (Demons), and the captain of the Turkish ship were
charged with manslaughter. Demons, a French national, were sentenced to 80 days of imprisonment
and a fine. The French government protested, demanding the release of Demons or the transfer of his
case to the French Courts. Turkey and France agreed to refer this dispute on the jurisdiction to the
Permanent Court of International Justice (PCIJ). Turkey was not a member of League of Nations.
Hence, submitted a written document accepting the PCIJ jurisdiction before hearing.
Issues:
1. Did Turkey violate international law when Turkish courts exercised jurisdiction overa crime
committed by a French national, outside Turkey?

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Contentions of France:
International law does not allow a state to take criminal proceedings against the foreign offender by
reason of the victim’s nationality. International law, apart from express or implied agreement, does
not entitle a state to extend the criminal jurisdiction of its courts to include offences against its
citizens committed outside its territory. Acts performed on the high seas in the relevance of criminal
proceedings are subject to the courts of the nationality of the ship. Jurisdiction cannot be transferred
to the nationality of the vessel sunk.
The Turkish courts cannot exercise jurisdiction of an extra territorial sort, such as claimed in the
Lotus case, unless they can point out some evidence that such exercise of jurisdiction is allowed in
the International Customary Law.
Contentions of Turkey:
S.S Boz-Kourt was with Turkish flag, and so Turkish Courts have jurisdiction of the offence. Vessels
on the high seas form part of the territory of the nation whose flag they fly, and in the principal case
the offence occurred on the Turkish vessel, Boz-Kourt, where the effects were felt. Turkish
government has jurisdiction because of international customary law. Turkey has jurisdiction and
therefore no reparation should be paid by the Turkish government to the French government.
Decision: Turkey, by instituting criminal proceedings against Demons, did not violate international
law.
Findings:
There is no customary practice in international law that criminal proceedings occurring from
collisions at sea are exclusively within the jurisdiction of the state on whose flag the vessel is flown.
The Court observed that, “the offence for which Lieutenant Demons appears to have been prosecuted
was an act – of negligence or imprudence – having its origin on board the Lotus, whilst its effects
made them felt on board the Boz-Kourt. It is only natural that each should be able to exercise
jurisdiction and to do so in respect of the incident as a whole. It is therefore a case of concurrent
jurisdiction.”

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THE TWO PRINCIPLES WHICH EVLOVED IN THIS CASE
● Outside its territory – 1st Lotus Principle
It may not exercise its power in any form in the territory of another State. In this sense jurisdiction is
certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a
permissive rule derived from international custom or from convention.
● Within its territory – 2nd Lotus Principle
State may exercise its jurisdiction, in any matter, even if there is no specific rule of international law
permitting it to do so. In this case, the Court equated the Turkish vessel to Turkish territory. The
Court held that the “… offence produced its effects on the Turkish vessel in which the application of
Turkish criminal law cannot be challenged, even in regard to offences committed there by
foreigners.”
CRTITICISM/DISSENTING OPINION
Judge Loder characterized Turkey's position as "based on the contention that underinternational law
everything which is not prohibited is permitted. In other words... every door is open unless it is
closed by treaty or by established custom.”
Judge Weiss claimed that the majority opinion meant that Turkey "can do as she thinks fit as regards
persons or things unless a specific provision in a treaty or established custom in international
relations prevents her from so doing. This power is thus in its essence unlimited ....”
CURRENT SCENARIO
Article 11 of the High Seas Convention, Geneva, 1958
1. In the event of a collision at the high seas, no penal or disciplinary proceedings may beinstituted
against the master or any service person of the ship other than the flag state of the shipor the
nationality of the person.
NOTE - The exact wording of Article 11 is also included in the convention's successor,
UNCLOS (United Nations Convention of the Law of the Sea of 1982) under Article 97.

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Regional And Local Customs:
Requirement of standard proof
Asylum case
Right of Passage over territory case- the court stated that when a clear practice is established by
states which have been accepted by both parties as to govern the relation between them the court
must attribute decisive effect to that practice fie the purpose of determining their specific rights and
obligations and such practice must prevail over any general rule.
C. General Principles of Law
There are two major opinions-
(1) Embraces general principles in domestic jurisprudence that can be applied to international legal
questions – GPL = fair hearing
(2) Transformation of natural law of universal principles of law applicable to all of mankind into
specific rules of IL
In the Chorzow Factory case which followed the seizure of a nitrate factory in Upper Silesia Poland
the PCIJ held that it is a general conception of law that every violation of an engagement involved an
obligation to make reparation.
CHORZOW FACTORY CASE
Germany v. Poland
Facts-
After the 1st World War, bilateral agreement was entered between Poland and Germany according to
which Upper Silesia area was transferred by Germany to Poland and Poland agreed not to confiscate
any of the German properties situated in Upper Silesia. But later, Poland confiscated two German
Companies. Aggrieved by this Germany filed a case against Poland before PCIJ.
Issues-
1. Whether Poland has violated the agreement?

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2. If Poland has violated the agreement, should Poland be made to pay reparation to Germany?
Decision-
Poland was also held to be in violation of the agreement entered with Germany and made liable to
repair any loss suffered by Germany due to the forfeiture of the two companies as they violated the
obligation that Poland had towards Germany in observance of International law.
Principle-
It is a general conception of international law that every violation of an engagement between two
independent states ensue an obligation to make reparation, adopted from municipal law. The core
principles which are common to the legal systems are considered as general principles of law. When
there is breach of any contract, the common principle that is followed by the nations is to claim for
damages or compensation. The ICJ accepted this principle and applied it in international law.
THE CORFU CHANNEL CASE
UK v. The Republic of Albania
Facts-
On May 15th 1946 the British warships passed through the Channel without the approval of the
Albanian government and were shot at. Later, on October 22nd, 1946, a squadron of British warships
(two cruisers and two destroyers), left the port of Corfu and proceeded northward through a channel
previously swept for mines in the North Corfu Strait. Both destroyers were struck by a mine and
were heavily damaged. This incident resulted also in many deaths. After the explosions of October
22nd, the United Kingdom Government sent a note to the Albanian Government, in which it
announced its intention to sweep the Corfu Channel shortly. The Albanian reply, which was received
in London on October 31st, stated that the Albanian Government would not give its consent to this
unless the operation in question took place outside Albanian territorial waters.
Issues-
1. Whether Albania has acted in violation of international law by keeping mines in theterritotrail
waters?

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2. Whether innocent passage as claimed by the British Government subjected to the prior consent of
Albania?
3. If Albania has violated the international law, can UK claim reparation?
Decision-
According to the principle of state responsibility, they should have done all necessary steps
immediately to warn ships near the danger zone, more especially those that were approaching that
zone. In fact, nothing was attempted by the Albanian authorities to prevent the disaster. These grave
omissions involve the international responsibility of Albania. The Court also held that UK had right
to innocent passage and there was no need to seek prior permission from Albania. The Court,
therefore, reached the conclusion that Albania is responsible under international law for the
explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss
of human life which resulted from them, and that there is a duty upon Albania to pay reparation to
the United Kingdom.
D. Judicial Decisions-
- The teachings of the most qualified publicist of various nations.
- Art 38- Subsidiary means, immense imp
- Article 59- no binding force except for between parties and in respect of that particular case
- North Sea Shelf Case-The ICJ remarked the state practice including that of states whose interests
are specially affected, had to be both extensive and virtually uniform in sense of the provision
invoked.
• This was said to be indispensable to the formation of a new rule of customary IL.
• This case involved a dispute between Holland and Denmark, over the delimitation of the
continental shelf.
ANGLO- NORWEGIAN FISHERIES CASE(can also be written for Persistent Objector)
UK v.Norway

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Facts
The parties involved in this case were Norway and the United Kingdom, of Great Britain and
Northern Ireland. The implementation of the Royal Norwegian Decree of the 1935 was met with
resistance from the United Kingdom. The decree covers the drawing of straight lines, called
“baselines” 4 miles deep into the sea. This 4-mile area and 10 miles from the coast are reserved
fishing exclusive for Norwegian nationals. UK contested the drawing of baselines and so filed a case
before ICJ.
Issues
1. Whether the baseline that is drawn by the Norway is in consistent with International Law?
Decision
Generally, ICJ do not follow doctrine of precedent, in this case the Court deviated from previous
judgments and upheld the legitimacy of the baseline principle of Norway owing to its geographic
indentation, islands and islets. The international customary law has been a law of reference in the
court arguments. Customary international law does not recognize the rule according to which belts of
territorial waters of coastal states is to be measured. The court dismissed UK’s petition stating that
Actual practice of states did not justify the creation of any such custom(insufficient uniformity of
behavior).
Reparation case- It recognized the personality of international institutions in cases
REPARATION CASE - Advisory opinion case – advice was by General Assembly
Facts
The newly formed United Nations had appointed Bernadotte as the mediator in the first Israeli-Arab
conflict, with Israel fighting for independence. With his first partition plan, Bernadotte angered many
extremist forces within Israel. He came to be seen as an enemy of Israel, and was assassinated in
Jeruzalem at point blank range by the Jewish group LEHI. Because Bernadotte was in the service of
the United Nations, the new organization sought to improve security for its agents like Bernadotte.
The ICJ was for the first time called upon to decide whether UNO is a legal person.
Issue

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1. Whether UNO a legal person?
Decision
In the opinion of the Court, the Organization was intended to exercise and enjoy, and is in fact
exercising and enjoying, functions and rights which can only be explained on the basis of the
possession of a large measure of international personality and the capacity to operate upon an
international plane. It must be acknowledged that its Members, by entrusting certain functions to it,
with the attendant duties and responsibilities, have clothed it with the competence required to enable
those functions to be effectively discharged.” So, in order for the UN to be effective, the UN’s
founders must have ’clothed it’ with legal personality, and so it such legal personality. You can
question whether the Court means to say that legal personality must be assumed in order to be
effective, or that it must be assumed because the founder’s must have found it necessary to be
effective. There were neither customs nor treaties to attribute legal personality to the international
organizations. But in this case the Court held that UNO is a legal person.
EQUITY AND INTERNATIONAL LAW- (NOT IN IMP QUESTIONS):
LIBYA v. MALTA
Facts
Libya and the Republic of Malta, submitted a dispute concerning delimitation of continental shelf to
the International Court of Justice on July 26, 1982. Both States had granted petroleum exploration
concessions in their continental shelves, leading to disputes due to application of different principles
of international law in its delimitation. Essentially, while Malta strictly applied the ‘equidistant’
principle, Libya preferred to modify the principle in light of relevant circumstances. The two States
entered into a ‘Special Agreement’, Article I of which, requests ICJ, to determine applicable
principles of international law for delimitation and practical application in the instant case. Libya
believed the Court’s duty was restricted to identification of appropriate principles of international law
for delimitation, while Malta believed that the Court’s role extended to practical application of the
identified principles, including, drawing the line, to which the Court rightfully agreed, deriving
authority from Article I of the Special Agreement. Amongst the numerous principles in international
for delimitation, Malta contended that the equidistant principle must apply, while Libya called for
sufficient modifications based on relevant circumstances.

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Issues
1. Whether the countries are bound by Equidistance Principle?
2. Whether customary law is to be considered in delimiting continental shelf?
Judgment
The Court determined the applicable law as customary international law for twofold reason; firstly,
while Malta is a party to Geneva Convention on Continental Shelf 1958, Libya is not and secondly,
while both are parties to United Nations Convention on the Law of the Sea (UNCLOS) 1982, it had
not entered into force. Court allowed Libya’s contention and held that equidistance principle needed
not be followed.
Findings
Parties agreed that the law applicable for delimitation of continental shelf must be customary
international law, requiring it to be affected by application of equitable principles, giving due
consideration relevant circumstances, therefore rejecting Malta’s contention of strict application of
the equidistant principle, but conceding that distance remains the primary criterion. The Court
applied principles of customary international law such as; non-refashioning of geography; non-
encroachment by one party on appertaining areas of the other; consideration of all relevant
circumstances; noting “equity does not necessarily imply equality.
RIVER MEUSE CASE
Facts
Belgium and Netherlands entered into a treaty to settle water dispute once for all permanently. They
entered into a treaty to govern water diversions of river Meuse and feeding that water to the irrigation
canals. Netherlands proceeded to construct and complete the Juliana Canal, the Bosscheveld Lock
and the Borgharen barrage. On its part, Belgium began the construction of the Albert Canal,
unfinished at the time of the judgment, a barrage at Monsin and a lock at Neerhaeren. Netherlands
filed a case against Belgium to stop the canal construction.

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Analysis
The principles of equity form a part of international law. Under Article 38 and independently of that
statute, this Court has some freedom to consider principles of equity. The maxim “He who seeks
equity must do equity” is derived from Anglo-American The Court also referred to Roman law. In
Roman law, a similar principle made the obligations of a vendor and a vendee concurrent. Neither
could compel the other to perform unless he had done, or tendered his own
Writers
Emergence of comprise system of IL
Absence of any leg body
To dev the scope and content
Substantive law increased, influence of writers decreased
Imp role in developing new areas
UNIT 3
RELATIONSHIP BETWEEN MUNICIPAL LAW AND INTERNATIONAL LAW
Whether ML and IL are same or different existence?
It is common for the jurists to categorise the theories relating to the relationship between
international and national law into monism and dualism which have dominated and influenced the
application of international law and its adaptation in national law. The modem authors have invented
more theories which expand the notion of dualism and are considered to be integral part of dualism.
A thorough study of these theories is necessary in order to understand the relations of international
law and municipal law
Monism
Monism is perhaps the oldest notion which propagates that international and national law belong to
one legal system from which general rules emanate This implies that once a rule is made in the
international sphere it becomes the law of the land both in letter and in spirit The theory of monism

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stipulates that international and national law for one single legal order or at least a number of
interlocking orders which is to be presumed to be coherent and consistent.
In this context, views of some renowned jurists are worth noticing Hans Kelsen, in his work. General
Theory of Law and State (1945) has developed the principles of monism on the basis of the formal
methods of analysis dependent on a theory of knowledge He emphasised that most is scientifically
established if international and national law are the part of the same system of norms having their
validity and contempt by intellectual operation involving the assumption of single basic norm
(Grundnorm) He further advocated that due to the Grundnorm factor, the authority and law-making
powers vest in international law which forms the basis for States to exists and survive in comity with
other States He lays down that law is a hierarchical system whereby each legal norm derives its
authority and validity from a higher norm.
Another jurist Hersch Lauterpacht lays down that the ultimate subjects of international law are
individuals although not directly and thus the States have to obey the low rules and limits prescribed
by the international law.
The advocates of monism insist that the States make law only once when they consent to follow any
international rule or any important customary rule of international law. Both international and
national law form the basis for one legal system International law and national law form a single
system of norms because they received their validity from the same source.
In States with a monist system international law does not need to be translated intonational law. The
act of ratifying an international treaty immediately incorporates that international lawinto national
law. The monist theory supposes that international law and national law are simply two components
of single body of knowledge called ‘law’. ‘Law’ is seen as a single unit of which ‘national’ and
‘international’ versions are simply particular expression.5 In the case of conflicts between the two
systems, international law is said to prevail. In this view, the international law is supposed to be
supreme, but in cases of conflicts there are several different explanations to prove this statement.
“Monist systems” do differ in their approach.
• Under some Constitutions direct incorporation of international obligations into the domestic
law occur on ratification.
• In other States direct incorporation occurs only for self-executing treaties.

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Monists consider municipal law and international law as the same branches of legal systemwhich
serves the needs of human society. International Law and Municipal Law are the twofacets of law.
According to them International laws are directly applicable into National Legal order. There is no
need to give effect or to implement international law.
KELSON’s PERSPECTIVE OF MONISM
● Municipal Law and International law are not separate but are branches of law.
● Municipal Law derives its legal system from international law.
● International Law delegates its functions to Municipal Law.
● International Law is supreme.
COUNTRIES THAT FOLLOW MONISM
USA – Article VI - This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under theAuthority of the United
States, shall be the supreme Law of the Land; and the Judges inevery State shall be bound thereby,
anything in the Constitution or Laws of any State to the Contrary notwithstanding.
Germany – Article 25 - General rules of International law shall be an integral part of federal land.
They shall take precedence over the laws and directly create rights and duties to the inhabitants.
France – Article 55 - Treaties or agreements duly ratified or approved, upon their publication have
an authority superior to that of laws.
Dualism
Contrary to monism. Dualist scholars have propounded that international and State law are two
separate laws. They have their distinct identity and area of operations Albeit monism continued to
exercise the great influence on international law since a very long period of time due to its
association with natural law, the concept of state will infuse the idea of dualism along with the
sentiments of nationalism and an urge 1966 to incorporate a new and independent legal system in the
States. Also dualists categorically make a difference between the subjects of international and

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national law while in intentional law States are the prime subjects national law makes individuals as
their direct subjects.
This implies ipso facto that dualism advocates the policy of law-making twice by specifically making
a law to that effect International law does not become the law of the land or the judiciary of various
States, cannot give recognition to international law unless international law has been adopted
specifically by the State for the welfare of subjects. The observations made by Triepel and Anzilotti
point out the following differences between the two legal systems,
1. The subjects of the state law are individuals, while the subjects of the international law are States
solely and exclusively
2. Their juridical origins are different the source of State law is the will of the State itself while the
source of the international law is the common will (Gemeinwille) of States.
The theory of dualism rests upon the principles of sovereignty of State and its powers to make law
pertaining to the domestic matters as well as international. The consent of the State plays a vital role
in implementation of international law. The States with their power of supremacy and sovereignty
create a wall and fix the limit for international law to peep inside only to the extent allowed by the
States
The theory of dualism is also known by the name of "pluralistic theory and further paves the way for
other theories which are considered to be part of dualism such as specific adoption theory,
transformation theory and delegation theory.
DUALISM/TRANSFORMATION
Contrary of monism theory, dualism denies that international law and national law operate in the
same sphere, although it does accept that they deal with the same subject matter, but the international
and national laws are two different and separate systems, which are based not only upon different
jurisdictions and sanction bodies, but also upon the different sources and different subjects of the
matter. Proponents of dualism considered that between internal and international provisions there
cannot be any kind of conflicts since these provisions doesn’t have the same object – internal
provisions are applied exclusively between the state’s borders, and cannot intervene in the
international legal system.

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If a state accepts a treaty but does not adapt its national law in order to be similar to the treaty or does
not create a national law explicitly incorporating the treaty, then it violates the international law.
Dualism considers international law and national as independent from each other, and both systems
are regarded as mutually exclusive and are therefore generally not able to get into conflict with each
other. Similarly, “The systems are so different, that no conflict between them is possible, however,
most of the dualists would assume that domestic law would be applied”
ANZILOTTI AND DUALISM:

For him international law and state law equally constitute two distinct normative orders.
"The former are binding by reason of the principle 'pacta sunt servanda', and cannot be repealed
except as laid down by international law. The latter are binding by reason of the rule which enjoins
obedience to the legislature's prescriptions, and can only be repealed in the manner provided by the
public law of the particular community concerned."
TRIEPEL AND DUALISM:

Triepel' treats the two systems of state law and international law as entirely distinct in nature. He
contends first that they differ in the particular social relations they govern; state law deals with
individuals, international law regulates the relations between states, who alone are subject to it.
Secondly, he argues, their juridical origins are different; the source of municipal law is the will of the
state (Common will of People) itself, the source of international law is the common will of states.
Specific adoption theory

As the name suggest the theory stresses that a rule of international law to be followed in States must
specifically be adopted within the ambit of State law. Without adoption, it shall be difficult to
incorporate any provisions of international law. In the light of huge number of international treaties
laws and obligations of mandatory and normative kind this theory is gaining popularity and the States
are urging its adherence while obliging international law. Thus, will of the State, supported by the
choice as to which international Convention should be adopted, is the driving force behind this
theory.
However, the important question as to how exactly the adoption should be made remains unanswered
as the rules regarding adoption 67 seem to be silent. Usually the Acts of Parliament, signature by the
head of the State on international instruments or treaties, etc can be taken as the ways in which
adoption can be affected.

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The theory often comes in conflict with a view that there are many rules and principles of
international law which are being followed by the States without any specific adoption. The
international customs and general practices often cannot be adopted specifically Even if the State
wishes to adopt any custom, it has to combat a number of procedural difficulties.
Nonetheless, the theory of specific adoption needs to be taken in positive spirit inasmuch as it fosters
the respect for international law and facilitates it implementation.
Transformation theory
This theory prescribes that in order to implement or apply any international law in the domain of
municipal law, the miles of international law must undergo a transformation Without transformation,
a rule of international law does not become a domestic rule to follow. However, the nature in which
transformation of an international rule be affected has not been mentioned anywhere. There remains
a need to define what exactly constitute the transformation if an international rule wants to penetrate
its application in the domestic law.
Consent of the States indeed play a vital role while dealing with transformation theory. In actual
practice international rule need not undergo a transformation Further, there are so many law-making
treaties which do not require a transformation for the implementation of their provisions.
Delegation theory
The exponents of this theory emphasised that international law cannot be followed in the States
unless the same has been delegated properly Usually in many democracies it is the Constitution
which delegates the powers to its organs including the head of the State and other wings of the
government. Thus, as per this theory, once a delegation is made it becomes easy for the States to
enact, implement and actually enforce the international law
The rules which international law are applied in domestic law in accordance with the procedure and
the system prevailing in each State in accordance to its Constitution. However, in actual practice
usually there is no delegation or decentralisation of powers so far as the application of international
law is concerned.

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In some countries, international law ipso facto becomes the law of the land without even resorting to
delegation Even international customs and general principles recognised by civilised nations do not
employ the delegation theory
Application of ML in International Law?
Issues of ML before IL
● What is the scope of ML when determining IL?

● ML is an evidence of State practice as part of customary international law
● ML to ascertain the compliance or non-compliance with the international obligation
Vienna Convention on the Law of Treaties, 1969
Article 27 - Internal law and observance of treaties:
A party may not invoke the provisions of its internal law as justification for its failure to perform a
treaty. This rule is without prejudice to Article 46
Article 46 – Provisions of internal law regarding competence to conclude treaties:
State may not invoke the fact that its consent to be bound by a treaty is in violation of a provision of
its internal law unless that violation concerned a rule of its internal law of fundamental importance
Every State has the duty to carry out in good faith its obligations arising from treaties and other
sources of international law, and it may not invoke provisions in its constitution or its laws as an
excuse for failure to perform this duty – Art 13 Draft Declaration on Rights and Duties of States,
1949
Cameroon v Nigeria
● Land and Maritime boundary dispute between Cameroon and Nigeria

● Two countries entered into Treaty- Maroua Declaration in 1975 – signed by the Heads of the
State
● Nigeria’s argument was that Maroua declaration of 1975 was not valid as it had not been
ratified as per requirement of the constitution of Nigeria.

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● Applying Art 46, the Court held rules concerning the State to sign treaties are constitutional
rules of fundamental importance, hence valid as Head of States are recognised as
representing their States for the purpose of concluding a treaty in Art 7 of VCLT
Art 7 VCLT 1969
● A person is considered as representing a State for the purpose of adopting or authenticating

the text of a treaty or for expressing the consent of the State to be bound by a treaty, if :
● He produces appropriate full powers
● Appears from the practice of the States concerned that their intention was to consider that
person as representing the State for such purposes and to dispense with full powers
Alabama Claims Arbitration, 1872
● During the American Civil War, a number of ships were built in England for private buyers
● Vessels were unarmed when they left England but it was generally known that they were to
be fitted out by the Confederates in order to attack Union shipping
● Caused considerable damage to American shipping
● US sought to make the UK liable for these losses on the basis that it had breached its
international obligations as a neutral during the War
● UK argued that under English law no way in which it could prevent the sailing of the vessels
● Arbitrator rejected the UK argument and upheld the supremacy of international law - State
cannot rely upon the provisions or deficiencies of its ML to avoid its obligations under IL.
Application of IL in ML
1. British practice
British practice as to customary international law
Although the principle of parliamentary supremacy 1s dominant in Great Britain, international law is
treated as a part of British law so far as customary rules of international law are concerned. In the UK
the doctrine of precedent has much value as a consequence of which the lower courts are bound to
obey the higher courts in regard to any interpretation in the matter pertaining to international law.

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Thus, once a provision of international law is construed by the higher court in Britain all other courts
must foster respect and are obliged to follow it
Due to the undisputed dominance of the doctrine of parliamentary supremacy the laws which are
enacted by Parliament in England are revered in their totality and have the required authority for their
compliance. The cascade effect of the doctrine of parliamentary supremacy overrules almost
everything against Parliament in the UK and infuses unfettered powers to enact and implement to
mend and amend the existing laws
The major effect of this doctrine warrants the rules of international law to be in consonance and
conformity with the statutes passed by the British Parliament. If the rules of international law are in
conflict with the British statutes the courts in England will give preference to the British statutes over
any conflicting international law
The British have also subscribed to the famous rule of harmonious construction to achieve a balance
between international and national law. This mandate and implies that the courts in England must
interpret British statutes in such a manner so as to foster respect and implement international law
Usually there remains a presumption that the British Parliament never intends to violate the
international law. This presumption is vital and severely needed in the light of removing any
ambiguity or vagueness from the statutes
Furthermore, the rules of international law need not be proved in the court of law in Great Britain as
they form the part of British law which is being followed since time and more
Following are the exceptions of the British practice in regard to customary rules of international law
1. Acts of State do not come within the purview of the British Courts, irrespective of the violation of
international law.
2. Prerogative powers of the Crown-In some matters the British courts are bound to obey the
prerogative powers of the Crown For example, if the Crown grants recognition to any State, the
British courts are bound to accept it. They cannot question the matters coming within the prerogative
powers of the Crown.

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British practice as to treaties
International treaties are the first and direct source of international law which forms the basis of its
existence. The rich constitutional practices in Great Britain and the relationship between the
Parliament and the Crown monitor the fate of international treaties In Great Britain it is mandatory to
seek the consent of Parliament with regard to some treaties
Unlike in case of international customs, the provisions of international conventions do not

automatically become the law of the land without the positive nod from Parliament In the light of
these prevalent practices, it can be inferred that dualism has influenced the application of
international law in Great Britain.
In case of a tussle between law enacted by Parliament and a treaty it is the British statute which
prevails most of the time. A careful reading and of various judgments of courts in Britain reveals that
unless an international rule is enacted by Parliament it does not become a rule of municipal law. The
courts sometimes have gone to the extent of declaring that unless an international rule is specifically
adopted, the courts are not bound to follow it.
In Britain, the practice regarding the rule laid down by treaties is different from the practice in regard
to the customary rule of international law. In regard to the treaties, the British practice is based on the
constitutional principles governing the relationship between the Executive or Crown and the
Parliament In regard to the treaties, the matters relating to negotiations signatures, etc. are within the
prerogative powers of the Crown.
R v Keyn
• Franconia, a German ship, collided with the Strathclyde, a British ship, at a point in the
English Channel within three miles of the English coast
• D the German captain was found guilty but the question was whether the English court had
the jurisdiction to try the case

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• On board a foreign ship on the high seas, the foreigner is liable to the law of the foreign ship
only.
• Established rules of the law of nations - only when a foreign ship comes into the port or
waters of another state that the ship and those in those on board become the subject to the
local law.
• “Unless Keyn was on British territory could not be properly brought to trial under English
Law, in the absence of express legislation”
• Subsequently, the Territorial Waters Jurisdiction Act, 1878 was enacted, which stated that –
“the rightful jurisdiction of Her Majesty extends over the open seas adjacent to the coasts of
the UK and to such a distance as is necessary for the defence and security of such dominions”
American practice:
Pertaining to the application of customary rules of international law, international law is considered
as a part of domestic laws in the US. A plain reading of the leading case of Paquete Habana would
reveal the practice followed in the US which is based on the theory of monism. In the absence of any
international treaty resolve must be had to the customs and usages of the civilised nations.
With regard to the American practice relating to treaties many things depend on the provisions of the
Constitution. The US Constitution mandates that all laws made in pursuance thereof and international
treaties entered into under the authority of the US shall be the supreme law of the land.
Further there are two kinds of treaties in the US i.e. self-executive and non-self-executive treaties
Self executive treaties are those which become applicable in the country without any consent of the
Congress Non self-executive treaties on the other hand are those which become applicable only after
the consent of the Congress or by the enactment of a special statute.
In the US the practice in regard to customary rules of international law and the rules laid down by
treaty is different.

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MONISM/INCORPORATION IN USA – CASES

LA GRAND CASE
Facts-
German nationals Walter and Karl LaGrand, who were arrested for committing murder and other
crimes in connection with an attempted bank robbery in 1982 in the US state Arizona. In the
following years, the LaGrand brothers were tried, convicted and sentenced to death. Undoubtedly,
the US authorities had failed to notify the LaGrand brothers of their right, protected by article 36 (1)
of the Vienna Convention on Consular Relations, to receive consular assistance during the ensuing
criminal trial.
Issue-
1. Whether USA had violated 36(1) of Vienna Convention of Consular Relations?
Judgment-
The Court rejected USA’s Contention that there was no domestic law in their country which provides
for consular relations and held that USA had violated Article 36(1) of Vienna Convention on
Consular relations by not informing the accused of their consular help. The Court also held that USA
cannot argue that lack domestic law as a reason to violate International Law. USA being a monist
country, a treaty that is duly ratified will become there law of the land as they follow the doctrine of
monism/incorporation.
Sei Fuji v California
Plaintiff was a Japanese citizen who had purchased some land in 1948 in California. By legislation
enacted in California, aliens had no right to acquire land. To prevent the property from going to the
State, the plaintiff argued that such legislation was not consistent with the Charter of the United
Nation, and international treaty which called for promotion of human rights without racial
distinction.
Issue raised was whether the UN charter was a self-executing treaty and a part of law of the land,
which would supersede inconsistent local statutes.
Court declared that, in making a decision as to whether a treaty was self-executing or not, it would
have to consult the treaty itself to try to deduce the intention of the signatories and examine all
relevant circumstances.

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It was held that the Charter provision did not operate to invalidate the alien land law
The general purpose and object of the Charter does not impose individual member nations to create
rights in private persons.
Indian practice
After an unprecedented revolution and a never before struggle India got independence in 1947
Previously it was just a colony which was subject to the brutal rule of the British Thus it was quite
obvious for the Indians to walk upon the shadow of the British at least for some period of time. This
dependence gave birth to Article 372 of the Indian Constitution which validated some laws to remain
in force unless repealed by the Indian Parliament.
Article 51(c) directly and specifically mandates the State to foster respect towards international law
and treaty obligations in the dealings of organised people with one another.
Similarly, Article 253 of the Indian Constitution empowers Parliament to make laws for
implementing any treaty, agreement or convention with any other country or any other body.
By virtue of the powers instilled in Parliament courtesy Art 253 the Indian Parliament has legislated
on thousands of international provisions and laws for the betterment of society.
Art 51, 372 and 253 of the Indian Constitution finds its application and enforcement in India.
However, one should also take note of the fact that Art 51 falls within Part 4 i.e. DPSP. DPSP
contains a deadly virus in the form of Art 37 which paralyses everything which is mentioned in Part
4 by making its provision unenforceable in the court of law.
Jolly George Varghese v Bank of Cochin
Facts
The judgement-debtor (appellants) suffered a decree against them in a sum of Rs. 2.5 lakhs, wherein
the respondent-bank was the decree-holder. There were two other money decrees against the
appellants, the total sum payable by them amounting to over Rs. 7 lakhs. In execution of the decree
in question (arrears of Rs. 2.5 lakhs), a warrant was issued to the appellants on 22-6-1972 for arrest
and detention in civil prison under Section 51 and Order 21 Rule 37 of the Civil Procedure Code.

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There had earlier been a similar arrest warrant for execution of the same decree. Besides this process,
the decree holders had also proceeded against the properties of the judgment-debtors and in
consequence, all these immovable properties had been attached for the purpose of sale in discharge
of the decree debts. It is stated that the execution court has also appointed a Receiver for the
management of the properties under attachment. The enjoyment or even the power to alienate the
properties by the judgment-debtors has been forbidden by the court direction keeping them under
attachment and appointing a Receiver to manage them. Nevertheless, the court has issued a warrant
for arrest because, on an earlier occasion, a similar warrant had been already issued.
Related Issue-
Whether it is justified to imprison a person merely for failure to perform a contractual obligation
(Article 11 of International Covenant on Civil and Political Rights)?
Judgment-
Article 11 of the Covenant on Civil and Political Rights - “No one shall be imprisoned merely on the
ground of inability to fulfil a contractual obligation.” On the issue of International Law, it was held
through various examples that the remedy for the breach of an International Law cannot be found in
Municipal courts. This is because, for an International law to become enforceable it must take up the
form of a Municipal law. The process involves the legislation on a law, drawing inspiration from the
International law and its objective so as to retain the intended essence. Unless the International law
takes a Municipal form, it does not constitute a part of the ‘corpus juris’ of the State (India).
West Bengal v. Kesoram Industries Ltd. And Ors , Appeal (civil) 1532 of 1993
• It is true that the doctrine of 'Monism' as prevailing in the European countries does not
prevail in India. The doctrine of 'Dualism' is applicable. But, where the municipal law does
not limit the extent of the statute, even if India is not a signatory to the relevant International
Treaty or Covenant, the Supreme Court in a large number of cases interpreted the statutes
keeping in view the same.

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Unit 4
Law of treaties
Definition of a treaty
Treaties today are the most common source of international law norms. Certain areas of international
law, such as international environmental law, are almost exclusively regulated by treaties.
A brief definition of a treaty is contained in Art. 2(1) a VCLT 1969. However, this definition is only
for the purpose of the Convention, although it is assumed to reflect a general definition
• ‘“Treaty” means an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or two or more
related instruments and whatever its particular designation.
Between States: VCLT, 1969 is limited to treaties where the States are parties to the treaties.
• It does not cover treaties to which International Organizations are parties. Individuals and
Transnational Corporations: Both these parties do not have the capacity to enter into a treaty
as per VCLT, 1969
Written form: According to VCLT, writing is an essential element to be considered as a treaty
• VCLT does not apply to oral agreements
• Oral agreements – intention of the parties
• Unilateral agreements
• Governed by International Law: Agreements between States regulated by the municipal law
of one of the parties or by conflict of laws principles do not fall under VCLT
• VCLT is confined to the formation and execution of the treaty which is governed by
International Law
• Instrument – Single or two or more related instruments: Classic form for a treaty is a single
instrument. Modern practice treaties are made in less formal ways, such as ‘exchanges of
notes’ or ‘exchange of letters’.
• An exchange of notes usually consists of an initial note (by one State) and a reply note (by
the other State) - consists of two related instruments.

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Designation:
• Convention is the term used for a formal instrument of a multilateral character
• Protocol is an instrument which is subsidiary or ancillary to a convention or is a

supplementary treaty
• ‘Exchange of Notes (or of letters)’ is an informal method, whereby States recognize certain
obligations as binding upon them.
Pacta Sunt Servanda (Basis of the binding force of Treaties)

Starke, “In nearly all the cases the object of the treaty is to impose binding obligations on the States
who are parties to it”. The binding effect of that rule rests in the last resort on the fundamental
assumption which is neither consensual nor necessarily legal, of the objective binding force of
international law. This assumption is frequently expressed by the form of principle - pacta sunt
servanda, which means ‘States are bound to fulfill in good faith the obligations assumed by them
under treaties’.
The principle of sanctity of contracts is an essential condition of life of any social community. No
economic relations between States and foreign corporations can exist without this principle. It is a
positive norm of international law.
ICJ in its advisory opinion of 1951 on the Reservation to the Genocide Convention stated that, “None
of the contracting parties is entitled to frustrate or impair by- means of unilateral decisions or
particular agreements, the object and raison de etre of the Convention.
In North Atlantic Fisheries case (1910) the PCIJ pointed out the central position of the good faith
principle in the concept of pacta sunt servanda.
The binding force of treaties is evident from the fact that treaties are pieces of international
legislation and. therefore, possess legislative authority accordingly. The preamble to the Convention
notes that the principle of pacta sunt servanda is universally recognized. Art.27 of the Convention
strengthens pacta sunt servanda rule by providing that no party to a treaty might attempt to justify its
failure to perform any of its international treaty obligations by invocation of its internal law.

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Exceptions to the principle
Although the principle is observed by the “States in respect of all the treaties, there are exceptions to
this rule. When a new State comes into existence as a result of revolt, it does not consider itself to
remain bound by the treaties concluded by the Predecessor State. The principle is also not applied
when the obligations arising from the treaty is related to that part of the territory which has been
ceded/merged with other States.
Rebus sic stantibus is an important exception to the principle of pacta sunt servanda. According to it,
there is an implied clause in every treaty that provides that the agreement is tending only so long as
the material circumstances on which it rests remain unchanged. Finally, pacta sunt servanda is not an
absolute principle for it fails to explain the binding force of customary rules of international law.
Ratification of Treaty
When a treaty signed by the representative of the State is confirmed or approved by the State, the act
of confirmation or approval is called ‘ratification’. Ratification is an international act whereby a State
establishes on the international plane its consent to be bound by a treaty.
It is generally agreed that ratification becomes effective from the day when it is made. It has no
retroactive effect. The rights and obligations of the treaty become applicable to the ratifying State
only as from the date of ratification and not from the date of signature. Ratification of a treaty by the
States is done only in those cases where it is so required by the provisions of a treaty.
The process of ratification is confined only to the signatory States thus when a State becomes a
party through accession no ratification is required.
According to Art. 14 of the Vienna Convention, ratification of a treaty is necessary when:-

• The treaty provides such consent to be expressed by means of ratification,
• It is otherwise established that the negotiating States agreed that ratification should be
required
• The State representative has signed the treaty subject to ratification, or
• When the intention of ratification is evident from the circumstances and talks during
negotiations.

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Purpose or significance of ratification

• Generally all the treaties are required to be ratified. Purpose of ratification of a treaty may be
many. A State ratifies a treaty on the basis of sovereignty. A State may require amending its
own laws in order to give an effect to the provisions of a treaty. It is one of the principles of
the democratic set up that the Government should consult public opinion either in Parliament
or elsewhere as to whether a particular treaty should be confirmed
Mode of ratification
Ratification of a treaty is an internal procedure, determined by the internal laws and usage of each
State. In USA, a treaty must be ratified by President with the advice and consent of Senate. In U.K.,
ratification is done by the Crown on the advice of the minister concerned. In India, President ratifies
the treaty on the advice of the Central Cabinet.
Refusal of ratification
• States are not bound to ratify a treaty.
• International law does not impose any duty upon the States to ratify those treaties which have
been signed by their representatives.
• Nor it is necessary for the States to explain the reason for not ratifying the treaty.
• The above rights flow from the concept of State sovereignty.
• Arts. 39 and 41 of the U.N. Charter, the Security Council is empowered to exert pressure
against a State for the ratification of a treaty which is related to the maintenance of
international peace and security.
• International law does not prescribe any time within which ratification must be given. In the
case of certain German Interests in Polish Upper Silesia [PCIJ (1928) Ser. A. No. 7], it was
pointed out that a signatory States’ misuse of its rights in the interval before ratification may
amount to a breach of treaty (It implies that with the signature of a treaty, a certain limited
status is conferred upon the signatory State with respect to treaty).

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Consequences of non-ratification
State parties are not bound by treaties until they ratify them. It is not necessary in all cases for a
treaty to be binding with ratification only. Much depends upon the intention of the State parties. If a
State party has intended that ratification was essential then the treaty becomes enforceable in law
only after ratification.
Reservations to a Treaty
When a State accepts a part of a treaty and thereby excludes the legal effect of certain provisions of
the treaty in its application, it is known that a State has accepted a treaty with reservation.
The term ‘reservation’ has been defined in Art. 2(1) of the Vienna Convention as, “a unilateral
statement made by a State when signing, ratifying, accepting, approving or acceding to a treaty,
whereby, it purports to exclude or modify the legal effect of certain provisions of the treaty in their
application to the State”. State is free by virtue of having sovereignty to formulate such reservations
as it thinks fit.
There are few aspects of the law of treaties which have generated greater controversy in recent
decades than the question of reservation to treaties. The bilateral treaties are concerned there are no
difficulties because if either party refuses to accept the reservation, the treaty comes to an end. In
Multi-lateral treaties present conflicting legal problems. Some reservations may dilute the very aspect
for which the treaty was formed. Reservation may be expressly allowed by the treaty, or expressly
prohibited by the treaty; it is when the treaty is silent about reservations, that the problems arise. The
modern practice of States shows that even in such cases a State is entitled to make reservation in a
treaty and the relation of those States which do not oppose the said reservation are governed by the
treaty.
In Genocide Convention case [ICJ Rep.(1951)], a number of States sought to attach reservations to
the Genocide Convention, the Convention however contained no provisions governing reservations.
A number of contracting States objected to certain of those reservations.
(a) A State which has made and maintained a reservation which has been objected by one or more of
the parties to the 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,

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(b) If a party to the treaty objects to a reservation which it considers to be incompatible with the
object and purpose of treaty, it can consider that the reserving State is not a party to the treaty, and if
compatible..., it could consider that the reserving State is a party to the treaty.
Thus, it was the compatibility of the reservation with the purpose of the Convention which must
furnish the criterion of the attitude of the State making the reservation, and the State which objected
thereto. But the ‘compatibility’ test has been criticized on the ground that it was fundamentally
subjective and uncertain in its application and, therefore, would be unworkable in practice.
The Vienna Convention adopts the view that modem practice along with the compatibility doctrine
expressed by ICJ should be generally accepted. The provisions contained in Arts. 19-23 may be
summarized as follows
(1) States are entitled to formulate a reservation on signature or ratification of a treaty or accession
thereto unless the treaty prohibits the reservation or provides that only specified reservations, which
do not include the reservation in question, may be made.
(2) In other cases, States are entitled to formulate a reservation unless the reservation is incompatible
with the object and purpose of the treaty.
(3) A treaty will operate between the State making the reservation and States accepting the
reservation, but not between the State making the reservation and a State objecting thereto (except
with the express consent of the latter). The State making an objection may consider that the reserving
State is not a party to the treaty.
(4) The legal effect of a reservation established with regard to another party in accordance with these
provisions is that it
(a) Modifies for the reserving party in its relations with that other party the
provisions of treaty to which the reservation relates to the extent of the
reservation, and
(b) Modifies those provisions to the same extent for that other party in its
relations with the reserving State.

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The reservation does not modify the provisions of the treaty for other parties to the treaty inter se.
The reservation creates legal rights and obligations different from those arising from the original
treaty only between the reserving State and the accepting State. The legal relationship between other
non-reserving States is not affected.
(5) When an objecting State has not opposed the entry into force of the treaty between itself and the
reserving State, the provisions to which the reservation relates do not apply as between the two States
to the extent of reservations.
(6) Once a reservation has been made by a State, it does not require any subsequent acceptance by
the other contracting States unless the treaty so provides. In latter cases, at least one State must
accept the reservation. However, when in a treaty, the number of parties is limited, and it is intended
that a treaty should be accepted in its entirety between all the parties, acceptance of reservation by all
other parties is essential.
(7) Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the consent
of State which has not accepted the reservation is not required for its withdrawal. Similarly, an
objection to a reservation may be withdrawn at any time.
(8) A reservation made by a State shall be considered to have been accepted by another State if no
objection to such reservation has been raised within 12 months from the date of notification of
reservations or by the date on which it expressed its consent to be bound by the treaty, whichever is
later.
Exceptions to Reservations State may formulate a reservation unless:

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

• Reservation = State is trying to modify the terms of the treaty
• Reservation = refusal of an offer and the making of a fresh offer

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Amendment & Modification
When few parties try to change the terms of the treaties and such changes is effecting only those
parties, then it is termed as modification.
When all the parties to a treaty or convention agree to change the terms of the treaty, it is considered
as amendment. Amendment is applicable to all the states.
Art.40 of the convention deals with amendment
(1) If the treaty does not provide for the amendment procedure, this provision is applicable.
(2) Proposal to amend a treaty should be made known to all the contracting parties and they have
right to express their opinion;
(a) The decision as to the action to be taken in regard to such proposal;
(b) The negotiation and conclusion of any agreement for the amendment of the treaty
(3) All states are entitled to be parties to the amended treaty.
(4) But there is no rule that all the parties of the unamended treaty shall become parties to the
amended treaty.
(5) Any state which becomes party to the treaty after the treaty is amended, such a state is bound by
the amended treaty unless otherwise provided.
(a) – If expressly not provided, a newly contracting party will be considered as a party to the
amended treaty.
(b) – be considered as a party to the unamended treaty for those states who have not
consented for the amended treaty
Article 41of the convention deals with modification.
(1) - Two or more parties may modify the treaty terms between them if;
(a) – if such modification is allowed in the treaty.
(b) – the modification is not prohibited by the treaty and;

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(i) – such modification does not affect the rest of the parties.
(ii) – such modification is not against the object and intention of the treaty.
Persistent Objector Rule
POR concerns the scope of application of a customary international law rule or its ‘opposability’
Two decisions of the ICJ: Asylum case and Fisheries case
PERSISTENT OBJECTOR AND SUBSEQUENT OBJECTOR
The basic rule of general customary international law (as opposed to a local custom) is that it binds
all States. New states are bound by old customary law, in spite of the fact that they did not consent to
the custom at the time of its formation or thereafter. States that are silent during the formation of
customary law are bound by their silence – we call this tacit acceptance or acquiescence. States can
express its intention to be bound by customary law through public declarations, much like the
signature appended to treaties.
In customary international law,
(1) A state may refuse to be bound by the customary international law at its inception – a persistent
objector or
(2) A state may refuse to be bound by customary international law after it comes into force – a
subsequent objector.
ANGLO-NORWEGIAN FISHERIES CASE – PERSISTENT OBJECTOR
Facts
Due to the dented coast of Norway, they followed baseline method. (Baseline method is
where all the coastal ends are joined, and then territorial waters are determined) Norway did not
follow the 10 miles principle from the low tide; rather it followed 4 miles principle from the baseline.
England questioned this before ICJ.

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In Anglo-Norwegian Fisheries case, held that even if a customary law rule existed (on a ten-mile rule
relating to straight base-lines), “…the ten-mile rule would appear to be inapplicable as against
Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.”
When it is considered as Persistent Objector?
(1) A state objects to the practice at the initial stages of the formation of customary law and continue
to object in a sustained manner; or
(2) A state adopts a contrary practice at the initial stages of the formation of customary law and
continue to do so a sustained manner.
Subsequent Objector
The consequence of a subsequent objector – one who objects after the formation of the customary
law rule – is clear. The state that objects continues to be bound by the customary law. If it acts in
contrary to the law, it violates the law. The state can be held responsible for the violation under
international law.
If a number of states agree to the deviation then these states could create another customary law rule,
either as a local custom or, if a sufficient number of affected states participate, a general custom.
For a subsequent objector to develop a new customary law rule an existing norm must be broken. A
state wishing to change customary law must either
(1) Violate the law and hope other states would acquiesce to it (and if, and until such time the state
would be in breach of a customary international law); or
(2) Without violating the existing law the state must get a sufficient number of states to accept a new
customary law.

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Unit 5:
STATEHOOD AND RECOGNITION
Subjects of international law: Individuals, States; International Organizations; Non State

Entities; Entities Sui Generis,
Definition and Incidence of Statehood; Rights and Duties of States; Recognition – Theories,
Modes, Effects of Recognition
Subjects of International Law
A subject of international law is an entity possessing international rights and obligations and having
the capacity
(a) To maintain its rights by bringing international claims; and
(b) To be responsible for its breaches of obligation by being subjected to such claims
THEORIES OF SUBJECTS UNDER PUBLIC INTERNATIONAL LAW
● Realist theory - States
● Fictional theory - Individuals
● Functional theory – States and individuals
REALIST THEORY
Traditional theory supported by Corbett. States alone are the subjects of the International Law. States
are subjects of International Law. Individual people are objects of it. Individuals lack judicial
personality under International Law because they do not have rights or duties under it.
According to this theory, only the Nation/States are considered to be the subject of international laws.
It relies on the principle that it is for the nation/state that the concept of international law came into
existence. These nations/states are distinct and separate entities, capable enough to have their own
rights, obligations and duties, possessing the capability to maintain their rights under international
law.

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Prof. L. Oppenheim being the strong supporter of this theory believes that as the law of nations is
primarily a law between the states, to that extent, subjects of the law should be nations only.
However, the theory has been criticized on the fact that it fails to explain the case of slaves and
pirates as under international law, slaves have been conferred with some rights, while the pirates are
treated as enemies of mankind.
FICTIONAL THEORY
Kelsen and Westlake supports this theory. League of Nations supports this theory. Universal
Declaration of Human Rights, Convention on the Settlement of Investment Disputes between States
and Nationals of other States etc. are examples for the recognition of individuals in international
law.
Supporters of this theory suggest that the subjects of international law are the individuals only and
that legal order is for the well-being of the individuals. They firmly believe that the Nation/state are
nothing but aggregate of individuals as subjects.
Prof. Kelsen is the supporter of the theory and believes that the duties of the states are ultimately the
duty of the individuals of the states and there is no difference between the international law and
municipal law and has been made to be applicable on the individuals only.
Even if the theory of Kelsen appears logically sound, it is seen that the international law’s primary
concern is with the rights and duties of the states.
FUNCTIONAL THEORY
This is a modern theory and coordinates the prior two theories. According to this, legal functionality
is given to those who have the capability to perform legal functions internationally. States,
individuals and international organisations are subjects of public international law.
Both the Realist and the Fictional Theory take on an extreme course of opinion, but, according to
Functional Theory, neither state nor individuals are the only subjects. They both are considered to be
the subjects of modern International law as they both have recognized rights, duties and obligations.

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Along with them, several other entities, like African Union, have been accepted as subjects of
international law.
In the present times, individuals have been conferred with certain rights and duties, for example,
International Covenant on human rights. Moreover, it is agreed that international organisations are
also the subjects of international law. The International Court of Justice held that the United Nation is
an international person and is a subject of international law, capable of having rights and duties.
STATES AS SUBJECT OF INTERNATIONAL LAW
States are the original and major subjects of International Law. International Law is primarily
concerned with the rights, duties and interests of States. The moment an entity becomes a State (once
state gets statehood), it becomes an international legal person and acquires international legal
personality. States are the original subjects of international law – i.e. international law was created to
regulate relations between States.
When a state attains STATEHOOD?
Article 1 of Montevideo Convention on Rights and Duties of States, 1933
1. A permanent population - no specific number
2. A defined territory – no minimum sq.kms
3. Government
4. Capacity to enter into relations with other states.
The term State refers to a country as a whole and not the territorial units of which a county many be
composed, which is also referred to by the term “state” in some domestic jurisdictions.
The definition is stated in Article 1 of the Montevideo Convention on Rights and Duties of States,
1933 which holds;
The state as a person of international law should possess the following qualification;

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(a) a permanent population; -
State must have a population which is stable – necessary to qualify a region as a town or city –
Barbados, Marino, Tuvalu have relatively small population. Nauru is the smallest with less than 9000
inhabitants yet they considered as state.
In Re Duchy of Sealand the court found that what was needed for this criterion was a “cohesive
vibrant community”
(b) a defined territory
Requirement simply demands that there is a geographical area, which includes not only land but also
waterways and airspace, inhabited by the permeant population. ICJ held in the North Sea Continental
Shelf case that the boundaries of a State do not have to be specifically defined.
(c) government
There must be a functional political body which governs the permanent population according to the
laws of its domestic jurisdiction.
It is not necessary that the government exercise control over all parts of its claimed territory.
The exercise of government authority from outside the defined territory will not render an entity
devoid of statehood.
(d) Capacity to enter into relations with the other states.
It is also sometime referred to as independence or sovereignty and for some academicians it is

deemed to be at the top of the hierarch of the requirements for statehood.
For Guggenheim what this means is that in order to qualify as a State the entity must not be subject
to executive or legislative decision by any other State.
INDIVIDUALS AS A SUBJECT OF PUBLIC INTERNATIONAL LAW
Fictional Theory – objective of PIL is to serve humans.
Treaty of Versailles, 1919 – Article 304 (b)

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o Individuals of Allied and associated powers can bring in cases against

Germany before Mixed Arbitration Tribunal.
Case law- Danzig Railway Employees case
● Case
● Danzig Railway Officials case
● Facts
There was a treaty between Poland and Danzig regarding the conditions of employment of
railway officials. Danzig citizens had to pass Polish civil service to take up the employment
for Danzig Railways. There was a breach in the treaty by Poland and the breach resulted in
the pecuniary damage to the railway officials of Danzig. So, Danzig railway officials filed
case against Poland before PCIJ.
● Contentions of Poland
In case of breach of treaty by Poland, it is liable only to Danzig as a State and not to its
officials. Agreement is entered between Poland and Danzig. So, railway officials of Danzig
have no locus standi to file a case.
● Decision of the Court
The Court held that, the agreement intended to create legal rights which could be enforced by
the private citizens as well.
INTERNATIONAL ORGANISATIONS AS A SUBJECT OF INTERNATIONAL LAW
● International organizations
● Reparation case (case summary already given)
NON STATE ACTORS AS A SUBJECT OF INTERNATIONAL LAW
● Inter-Governmental organisation

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o FAO
o ILO
o WIPO
o MNC
o International NGO
o Amnesty international
o Red Cross (explain these institutions in few sentences)
SUI GENERIS SYSTEM – alike institutions also should be granted legal personality.
TYPES OF RECONITION
De Jure Recognition – cannot be withdrawn
● De Jure Recognition is given to a new State when a new State fulfills all the essential
characteristics of a State.
● De Jure recognition can directly be granted to a State who has or has not granted de-facto
recognition.
● Newborn States grant the permanent status as a sovereign State through de-jure mode of
recognition.
De facto recognition – can be withdrawn
● De Facto Recognition is mostly granted to governments.

● It is a temporary recognition of a State, this can be conditional or without any condition.
● This mode of recognition is granted when a new State holds a sufficient territory or
control over a particular territory, but the other existing State consider that when they
don’t have enough stability or any other unsettling issues. So we can take it as a test of
control for newly formed States.
● The UK first recognized Soviet Government as de-facto recognition in 1921 and later
recognised as de-jure in 1924.

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Difference between De Facto and De Jure Recognition
De Facto Recognition De jure Recognition
De Facto recognition is temporary and factual

De Jure recognition is a permanent and legal recognition.
recognition.
De Jure recognition is granted to a State when all the

De Facto recognition is granted to a State when
essentials are fulfilled along with the permanent control of
it fulfils the essential conditions of the State.
those essentials.
De Facto recognition is the primary step to De Jure recognition can directly be granted without De
grant De Jure recognition. Facto recognition.
De Facto recognition can easily be revoked. De Jure recognition can never be revoked.
The States having De Facto recognition cannot The States having De Jure recognition can enjoy diplomatic
enjoy diplomatic immunities. immunities.
The States having De Facto recognition have

The States having De Jure recognition have absolute rights
only few rights and obligations against other
and obligations against other States.
States.
De jure recognition is given only when a State has the attributes of statehood that are given under
Article 1 of Montevideo Convention on Rights and Duties of States, 1933 whereas de facto
recognition is granted only on conditional basis. Upon fulfilment of stipulated conditions, de jure
recognition is granted. If the state is unable to meet the conditions stipulated, then the de facto
recognition may be withdrawn. In other words, de facto recognition may be granted when not all the
attributes of statehood are met and if all the attributes are fulfilled, then de jure recognition may be
granted but failing to fulfil the requirements might result in the withdrawal of de facto recognition.

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Functions of formal recognition: (need of recognition)
1. Acceptance as a state
2. Establishment of legal relations
Modes of recognition
1. Implied/tacit recognition
▪ Exchange of diplomats
▪ Entering into treaty
● When an existing State identifies a new State through any implied act then it is considered
as implied recognition. There is no formal statement or declaration issued.
● The recognition through implied means may vary from case to case. The actions required
for implied recognition must be ambiguous and there shouldn’t be any doubt in the
intention of the State who recognises a new State.
2. Express recognition
Is a State bound to be recognised?
NO. Recognition is a political act and there is no legal duty for a state to recognise.
● When an existing State identifies a new State expressly by official declaration or

notification, then it is considered to be a expressed form of recognition.
● Express recognition can be expressed through formal means such as sending or publishing
a declaration or statement to the opposite party.
● It can also be expressed through personal messages from the head of State or from the
minister of foreign affairs.
LAW GOVERNING RECOGNITION
● Montevideo Convention, 1933

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● ARTICLE 3 - The political existence of the state is independent of recognition by the other
states.
● ARTICLE 6 - The recognition of a state merely signifies that the state which recognizes it
accepts the personality of the other with all the rights and duties determined by international
law. Recognition is unconditional and irrevocable.
● ARTICLE 7 - The recognition of a state may be express or tacit. The latter result from any
act which implies the intention of recognizing the new state.
● ARTICLE 8 - No state has the right to intervene in the internal or external affairs of
another.
RIGHTS AND DUTIES OF STATE
● DRAFT DECLARATION ON RIGHTS AND DUTIES OF STATES, 1949
RIGHTS OF THE STATE
Article 1 – Right to Independence
Every State has the right to independence and hence to exercise freely, without dictation by
any other State, all its legal powers, including the choice of its own form of government.
Article 2 – Jurisdiction
Every State has the right to exercise jurisdiction over its territory and over all persons and
things therein, subject to the immunities recognized by international law.
Article 3 – Policy of non -interventions
Every State has the duty to refrain from intervention in the internal or external affairs of any
other State.
Article 4 – refrain from fomenting
Every State has the duty to refrain from fomenting (inciting) civil strife in the territory of
another State, and to prevent the organization within its territory of activities calculated to
foment such civil strife.

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Article 5 – Equality
Every State has the right to equality in law with every other State.
DUTIES OF STATES
● Article 6 - Every State has the duty to treat all persons under its jurisdiction with respect for
human rights and fundamental freedoms, without distinction as to race, sex, language, or
religion.
● Article 7 - Every State has the duty to ensure that conditions prevailing in its territory do not
menace international peace and order.
● Article 8 - Every State has the duty to settle its disputes with other States by peaceful means
in such a manner that international peace and security, and justice, are not endangered.
● Article 9 - Every State has the duty to refrain from resorting to war as an instrument of
national policy, and to refrain from the threat or use of force against the territorial integrity or
political independence of another State, or in any other manner inconsistent with
international law and order.
● Article 10 - Every State has the duty to refrain from giving assistance to any State which is
acting in violation of article 9, or against which the United Nations is taking preventive or
enforcement action.
● Article 11 - Every State has the duty to refrain from recognizing any territorial acquisition by
another State acting in violation of article 9.
● Article 12 - Every State has the right of individual or collective self-defence against armed
attack.
● Article 13 - Every State has the duty to carry out in good faith its obligations arising from
treaties and other sources of international law, and it may not invoke provisions in its
constitution or its laws as an excuse for failure to perform this duty.
● Article 14 - Every State has the duty to conduct its relations with other States in accordance
with international law and with the principle that the sovereignty of each State is subject to
the supremacy of international law.

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RECOGNITION OF INSURGENCY AND BELLIGERENCY
As a general principle, States maintain a policy of non-interference in the domestic affairs of another
State. A stage may come when rebels are in effective occupation of a large part of the territory and
exercise authority in that territory. In these circumstances, third States, without making a formal
pronouncement and without conceding to the rebellion forces belligerent rights, refrain from treating
them as law-breakers, and consider them as the de facto authority in the territory under their
occupation. Such attitude is adopted by the third States to maintain with rebels relations deemed
necessary for the protection of their nationals, their commercial interests, etc.
When that happens, the rebels possess against third States the status of insurgents. As a result of
recognition, insurgents are not treated as pirates and international rules of war become applicable to
them. A stage may come when civil war between insurgent forces and parent government assumes
such dimensions that third States are compelled to treat the civil war as a real war between rival
powers. If such a situation occurs, third States recognize insurgent forces as a ˜belligerent' power. As
a result of recognition of belligerency, the conflict is internationalized and the belligerent get some
rights under international law.
● INSURGENCY
Insurgency means rebellion, riot or mutiny by portion of the citizens of a State against the
established government. It indicates armed struggle by dissident forces against the
established government in a state.
The Conditions for recognition of insurgents
Some essential conditions for recognition of insurgency can be listed as follows:
a) The insurgents need to have control over a considerable part of the territory;
b) Most of the people living in the territory must support the rebels for their own accord and
not as a result of the enforcement actions taken by the insurgents;
c) The insurgents must be able and willing to comply with international obligations.

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● Belligerency
On the other hand, 'Belligerent signifies a stage of the civil war in which there are two
contenders for power that can be placed on a platform and there is something like a state of war,
and not only civil conflicts.
The Conditions for Recognition of belligerency are as follows:
1) There should exist within the state a status of armed conflict
2) The belligerents must administer and occupy a major portion of national territory
3) The hostilities must be conducted in accordance with the rules of war and through
organized armed forces acting under a responsible authority.
LEGAL CONSEQUENCES OF RECOGNITION TO THE BELLIGRENTS
● One of the legal consequences of the recognition is that the laws and customs of war can be
applied to the insurgents or belligerents and the legitimate government. It includes Protection
of civilians against internal armed conflicts and Provision of rights to the belligerent’s
soldiers against each other.
● The protection and security of civilians against internal armed conflicts is dealt by the
Additional Protocol II to the Geneva Conventions of 1949, of 1977. This convention sets
standard regulations prohibiting the belligerents of intentionally causing civilian casualties on
the other side.
● Using poisoned weapons on arms as projectiles that cause suffering are prohibited.
● The belligerents can have bilateral trade with the recognizing state
● The belligerents can enter into treaties with the recognizing state.
● A recognized belligerent state becomes entitled to sue in courts of the recognised state.

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UNIT – 6
STATE TERRITORY AND STATE SUCCESSION
State Territory is an attribute of statehood. There will be no state without a territory. The sovereignty
of the state can be exercised in its territory. Oppenheim stated that state Territory is the space within
which the State exercises its supreme authority. Territory of the state is the property of that state.
State territory includes
• Land Territory
• National Waters
• Territorial Sea
• Air Space
• Subsoil under earth
MODES OF ACQUISITION
● Cession
● Occupation
● Accretion
● Subjugation, and
● Prescription.
MODES OF LOSS
● Cession
● Subjugation
● Revolt
● Prescription
● Secession
● Dereliction / renunciation
● Operation of nature

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Modes of acquisition of territory
Cession
Cession of the state territory is the transfer of sovereignty over state territory by the owner state to
another state. The cession may comprise a portion of the territory of the ceding State or the totality of
its territory. Cession is the transfer of territory usually by treaty from one state to another. And since
cession is a bilateral transaction, the parties involved are states. The cession of territory maybe
voluntary or maybe under compulsion as a result of war. The act of cession maybe even in the nature
of a gift, sale, exchange or lease. There are cases where the states sold their territory.
● In 1803, France sold Louisiana to the US for 60 million
● In 1867, Russia sold Alaskan territory in America to the US for 7,200,000 dollars
● In 1899, Spain sold the Caroline Islands to Germany
Occupation
When a particular territory is not under the authority of any other state, a state can establish its
sovereignty over such territory by occupation. The territory may never have belonged to any state, or
it may have been abandoned by the previous sovereign.
The PCIJ (Permanent Court of International Justice) held that the occupation to be effective must
consist of the following two elements;
• Intention to occupy. Such intention must be formally expressed and it must be permanent.
• Occupation should be peaceful, continuous.
Mere act of discovery by one state is not enough to confer a title by occupation. There are two
requirements;
• The territory subject to claim must not be under the sovereignty of any state (terra nullius)
• The state must have effectively occupied the territory.
There are two elements of effective occupation.
• One is the intention and will to act as sovereign (animus), and

• Second one is the peaceful and continuous display of state authority (factum).

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Legal Status of Eastern Greenland Case (Norway v Denmark) PCIJ Rep1933

● Norway occupied Eastern Greenland in July 1931,claiming that it was terra nullius, while
Denmark insisted that Danish sovereignty existed over all
● Greenland from about 1721, at the time when Denmark and Norway were one State
● Until 1931 there was no claim by any power other than Denmark to the sovereignty over
Greenland.
● Further, up till 1921 no power disputed the Danish claim to sovereignty, the Court held that
Denmark had a valid title to Eastern Greenland
Island of Palmas case
● As a result of Spanish-American war of 1898, Spain ceded the Philippines to US by Treaty of
Paris;
● In 1906, officials of US while visiting the Island found Dutch flag flying there;
● Island of Palmas 2 miles long & less than a mile wide;
● In 1928, it had population less than 1,000 & was of negligible economic , military or other
importance;
● Mere discovery by one state is not sufficient to confer title by occupation;
● “Long continuous exercise of effective authority can confer title at international law”
● Spain discovered the island but Netherlands had exercised continuous effective authority
over it;
ACCRETION
Accretion refers to the physical expansion of an existing territory through the geographical process. It
is the name for the increase of land due to some new formations. It is a customary rule of
international law that enlargement of territories by new formations, takes place ipso facto by
accretion, without the state concerned taking any special step for the purpose of extending its
sovereignty. Hence, accretion too is a direct mode of acquisition of territory. Accretion can be;
• Natural – by operation of nature.
• Man –made – artificial creation of islands.
Chamizal Arbitration
● Treaty of 1848 specified the middle of Rio Grande as border
● The river continually shifted between 1852 and 1868, with the radical shift in the river

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● after a flood in 1864

● By 1873 the river moved around 600 acres cutting off the land that was in effect made US
Territory
● Newly exposed land came to be known as Chamizal tract and incorporated in EI Paso
● Both US and Mexico claimed the land Dispute was settled as per the treaty stipulations
● Part of the tract that resulted from gradual process of accretion belonged to US but that part
resulted from a flood in 1864 belonged to Mexico
SUBJUGATION
Subjugation means to incorporate (territory) into the domain of a country. Subjugation is a unilateral
act where territory is seized by one state. Subjugation is the acquisition of territory by conquest
followed by annexation. This direct mode of acquisition is often called title by conquest i.e waging of
wars. The new sovereign is the successor of the former.
PRESCRIPTION
It means continued occupation over a long period of time by one state of territory actually and
originally belonging to another state. The requirements of prescription are as follows;
● The possession must be exercised in the form of actual exercise of sovereign authority
● The possession must be peaceful & it must be for a long period of time.
● Display of State authority by the acquiring State is to be accompanied by ‘acquiescence’ on

the part of the losing State
● Protests or other acts or statements which demonstrate a lack of acquiescence can prevent
acquisition of title by prescription
Case law – Temple preh vihear case
Cambodia complained that Thailand had occupied a piece of its territory surrounding the ruins of the
Temple of Preah Vihear, a place of pilgrimage and worship for Cambodians, and asked the Court to
declare that territorial sovereignty over the Temple belonged to it and that Thailand was under an
obligation to withdraw the armed detachment stationed there since 1954. Thailand filed preliminary

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objections to the Court’s jurisdiction, which were rejected in a Judgment given on 26 May 1961. In
its Judgment on the merits, rendered on 15 June 1962, the Court noted that a Franco-Siamese Treaty
of 1904 provided that, in the area under consideration, the frontier was to follow the watershed line,
and that a map based on the work of a Mixed Delimitation Commission showed the Temple on the
Cambodian side of the boundary. Thailand asserted various arguments aimed at showing that the map
had no binding character. One of its contentions was that the map had never been accepted by
Thailand or, alternatively, that if Thailand had accepted it, it had done so only because of a mistaken
belief that the frontier indicated corresponded to the watershed line. The Court found that Thailand
had indeed accepted the map and concluded that the Temple was situated on Cambodian territory. It
also held that Thailand was under an obligation to withdraw any military or police force stationed
there and to restore to Cambodia any objects removed from the ruins since 1954.
Note - Prescription is the acquisition of territory which belonged to another state, where as
occupation is acquisition of terra nullius.
MODES OF LOSS OF TERRITORY
Note – when there is acquisition, there is also loss of territory but this is always not the rule. Only
cession, subjugation and prescription fall under both acquisition and loss of territory. So, cession,
subjugation and prescription can be written for both.
Secession
When a state secedes from the political union to which it belonged.
• Republic of Yugoslovia
• USSR
Revolt
When a state revolts and gains independence, the former state which had control over the state would
lose its state territory.
Dereliction / renunciation
It is dereliction when a state renounces its sovereignty over the territory. There is a close relation
with dereliction and occupation. A territory can be occupied when the state has renounced its
sovereignty.

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Operation of nature- self explanatory
STATE SUCCESSION
State succession is where one state succeeds the other.
According to Professor Starke, the term "State Succession" means transmission of rights and
obligations from States which have altered or lost their identity to other States or entities, such
alteration or loss of identity to other State or entities, occurring primarily when complete or partial
changes of sovereignty takes place over portions of territory.
Under Article 2 of the Vienna Convention, 1983, on Succession of States, it has been defined that
Succession of States means the replacement of one State by another in the responsibility for the
international relations of territory.
TYPES OF SUCCESSION
Universal Succession – whole territory is lost or destroyed.
▪ Subjugation
▪ Voluntary merger
▪ Cessation/dismemberment/Break up
This is also referred to as Total Succession. When the entire identity of the parent State is destroyed
and the old territory takes up the identity of the Successor State, it is known as Universal Succession.
This can happen in cases of:
● Merger
● Annexation
● Subjugation
In certain cases of universal succession, the old State gets divided into multiple States. The
dissolution of Czechoslovakia is an example of universal succession. The new States of the Czech
Republic and Slovakia are both successor States.
Partial Succession – surrenders some part of territory but retains personality and legal responsibility.

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• Cession – when some part is surrendered.
• Achieving Independence
Partial Succession occurs when a part of the territory of the State gets severed from the parent State.
This severed part now becomes an independent State. This can occur when there is a civil war or a
liberalization war. There are two important examples of partial succession.
• One is the separation of Pakistan from India.

• The other is the separation of Bangladesh from Pakistan.
The existing States continued with their legal obligations and duties while the new States got their
own recognition and carried no rights or duties of the parent States.
CONSEQUENCES OF STATE SUCCESSION
Treaties
Where a State merges voluntarily into another State or where it is subjugated by another State, the
Successor State remains one and the same International Person, while the predecessor State which
has merged or been subjugated becomes totally extinct as an International Person. Hence, the treaties
are not binding on the successor state unless otherwise provided.
Membership of International organisations
Membership of the International organizations and the obligations incidental thereto do not pass to a
successor State.
India and Pakistan – UNO
Public Property
When one State succeeds de facto to another, it succeeds to all the public and proprietary rights of the
extinct State. The Successor State takes all the assets of the vanquished State, including such assets
as State funds, funds invested abroad, movable and immovable property.

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Private Property
The rights of the individual over their property remain the same.
Private laws
Private law remains the same until abrogated.
Contractual Liability
Unless otherwise provided, successor state is liable for all the contracts.
TORTS- No liability
Nationality – changed to the successor state.
UNIT – 7
STATE JURISDICTION AND REPONSIBILITY

Corollaries of sovereignty and equality of states are
• Jurisdiction over territory and its population
• Duty of non-intervention in the area of exclusive jurisdiction
• Honouring customary law and enforcing the treaty law on consent.
State Responsibility
The law of State responsibility determines the consequence of a State’s failure to comply with its
international obligation to cease the violation and provide reparations for any harm caused to another
State.
Whenever a duty established by any rules of international law has been breached by act or omission,
a new legal relationship automatically comes into existence. The relationship is established between
the subject to which the act is imputable, who must respond by making adequate reparation, and the
subject who has a claim to reparation because of the breach of duty. Thus, when a state has failed to
comply with an international obligation and cause harm to another State by invading its territory,
refusing to grant privilege and immunities to its diplomats detaining its citizens illegally, or sinking
its ship – it is obliged to make reparations. If it refuses to make good the damage or give full

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satisfaction, the injured State had a legal right to impose military or economic sanctions. If the State
in breach to impose military or economic sanction.
State Responsibility: Concept

State Responsibility is the principle which establishes an obligation to make good any violation of
international law producing injury. As States are the conventional subjects of international law,
technically the principle of State responsibility applies only on the State-to-State level. Duties owned
to citizens are left out.
Grotius – Maxim – “every fault creates the obligation to make good the losses” - Therefor SR is a
duty to make reparation for the injury sustained, a duty incumbent upon the State which violation or
did not comply with an international obligation.
United Kingdom Vs Spain

Responsibility is the necessary corollary of a right. All rights of an international character involve
international responsibility. If the obligation in question is not met, responsibility entails the duty to
make reparation.
Corfu Channel case

ICJ placed Albanians liability to Great Britain for failure to notify British Ships about mines in the
Albanian waters of the Corfu channel which exploded and damaged the ships on what the court
refers to as, “Certain General and Well recognized principles” including “every states obligation
not to allow knowingly its territory to be used for acts contrary to the rights of other states.
Chorzow Factory case

The Permanent Court of International Justice (PCIJ) observed that any breach of an engagement
involves an obligation to make reparation. Reparation is the indispensable complement of a failure to
apply a Convention, and there is no necessity for this to be stated in the Convention itself.
Law on state responsibility

It consisted of customary rules evolved out of the practice of States and of a wealth of cases brought
before international arbitral tribunals. Very few treaty rules existed the most notable being Article 3
of the Fourth Hague Convention of 1907 on the Laws and Customs of War on Land, providing;

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If a hostile party which violates the provisions of the said regulation will be liable to pay the
compensation.
Later under the support of League of Nations – attempt was made to codify cutomar law governing
various matters – committee of jurist were appointed – codification conference held – showed
disagreement on the matter of responsibility.
Then UN General Assembly established the International Law Commission (ILA) - encourage
progressive development and of International law and its codification.
Finally, ILC has adopted the Draft Article on the Responsibility of States for Internationally
Wrongful Act.
Objectives
● To formulate by way of codification and progressive development, the basic rules of
international law concerning the responsibility of the states for their internationally wrongful
acts.
● State to be considered responsible for wrongful actions or omissions and legal consequences.
The Draft article divided into 4 part

1. The internationally wrongful act of a State; - deals with the requirements for the international
responsibility of a state to arise.
2. Content of International responsibility of a State; - deals with the legal consequence for the
responsible state of its internationally wrongful act in particular as they concern cessation and
reparation.
3. The implementation of the international responsibility of a State;- It identifies the state or
states which may react to an internationally wrongful act and specifies the modalities by
which this may be done, including in certain circumstances, by the taking of countermeasures
as necessary to ensure cessation of the wrongful act and reparation for its consequences.
4. Part 4 contains certain general provisions applicable to the articles as a whole.
Responsibility of States for Internationally Wrongful Acts , 2001

Article 1 - Every internationally wrongful act of a State entails the international responsibility of that
State.

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Article 2 - Elements of an internationally wrongful act of a State

There is an internationally wrongful act of a State when conduct consisting of an action or
omission:(a) is attributable to the State under international law; and(b) constitutes a breach of an
international obligation of the State.
Article 4 -1. The conduct of any State organ shall be considered an act of that State under
international law, whether the organ exercises legislative, executive, judicial or any other functions,
whatever position it hold sin the organization of the State, and whatever its character as an organ of
the central Government or of a territorial unit of the State.
Clause 2. An organ includes any person or entity which has that status in accordance with the internal
law of the State.
Article – 5 - Conduct of persons or entities exercising elements of governmental authority

The conduct of a person or entity which is not an organ of the State under article 4 but which is
empowered by the law of that State to exercise elements of the governmental authority shall be
considered an act of the State under international law, provided the person or entity is acting in that
capacity in the particular instance.
Article 6 - The conduct of an organ placed at the disposal of a State by another State shall be
considered an act of the former State under international law if the organ is acting in the exercise of
elements of the governmental authority of the State at whose disposal it is placed.
Article 7 - . It provides that the conducts of an organ of a state or of a person or entity empowered to
exercise elements of the governmental authority shall be considered an act of the state under IL if the
organ, person or entity acts in that capacity even if it exceeds its authority or contravenes
instructions.
Article 8 - Conduct directed or controlled by a State

The conduct of a person or group of persons shall be considered an actor a State under international
law if the person or group of persons is in fact acting on the instructions of, or under the direction or
control of, that State in carrying out the conduct.
Article 9 - Conduct carried out in the absence or default of the official authorities

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Article 11 – Conduct acknowledged and adopted by a State as its own

Conduct which is not attributable to a State under the preceding articles shall nevertheless be
considered an act of that State under international law if and to the extent that the State acknowledges
and adopts the conduct in question as its own.
HOW TO ASCERTAIN STATE RESPONSIBILITY?

The law of state responsibility is concerned with the determination of whether there is a wrongful act
for which the wrong doing state is to be held responsible, what the legal consequences are and how
such as an obligation on the part of the wrong doing state to restore the previous situation of to pay
compensation and how such International responsibility may be implemented as for instance through
counter measures adopted by the victim state such as reprisals or restorations.
Circumstances under with a state may be held responsible:
IL makes no distinction between tortious and contractual liability. The breach of a treaty or
customary obligation will give rise to the same remedy usually an award of damages or a declaration.
1) An act of commission or omission that violates an obligation established by a rule of IL in
force between the state responsible for the act and the state injured thereby.
The responsibility of the state does not require an act of malice, negligence or carelessness on the
part of any individual state agent. Fault on the part of the state or any of its organs is all that is
required. In Corfu Channel case the Court imposed liability on Albania due to violation of a pre-
existing obligation.
2) The wrongful or unlawful act must be imputable to the state as a legal person. Immutability or
aributability has the effect of indicating that the act in question is an act of the state
concerned.
(Responsibility of States for Internationally Wrongful Acts (ARSIWA) – refer above).
Summarily, in some cases, acts of private individuals accompanied by some acts or omission on the
part of the state for which the state becomes liable. (Article 8&11 ARSIWA)
1) Encouraging individuals to attack foreigners
2) Failing to take reasonable care to prevent the individuals when an attack is imminent
3) The obvious failure to punish the individuals concerned

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4) Failure to provide the injured foreigner with an opportunity of obtaining compensation from the
wrong doers in the local court i.e. denial of justice
5) Obtaining some benefit from the individuals wrongful act, i.e. the police not repossessing stolen
property of an international and returning it to the rightful owner.
6) Express ratification of the individuals’ act namely expressly approving it and stating that the
person was acting in the name of the state.
3) Loss or damage must have resulted from the unlawful act
Circumstances excluding state responsibility

Acts that preclude wrongfulness will not attract state responsibility. Justifiable acts causing loss or
damages:
- Consent to carry out activities that would otherwise be prohibited by IL renders those activities
lawful. This consent must be given before or at the same time as the violation. Except: consent by
error, coercion or fraud. (Art. 20 ILCDA)
- Self defense under Article 51 of UN Charter - Self-defense can be resorted to on the violation of
the right of territorial integrity, the right for political independence, right to protection over
nationals as well as some rights of an economic nature. Article 21 of the ILCDA provides that the
wrongfulness of the act of a state is precluded if the act constitutes a lawful measure of self-
defense taken in conformity with Charter of the UN.
- Countermeasure - In the event of a breach of IL, the injured state as an individual state is legally
entitled to disregard an international obligation owed to the delinquent state by taking counter
measures (Art.22 ILCDA) . A counter measure is an illegal act that is rendered lawful as a
response to a prior illegal act. Counter measures must fulfill some basic conditions and in
addition subject to a number of limitations.
Art.49-54 ILCDA-conditions limitations
Conditions:
Injured state must first call upon the responsible state to discontinue wrongful action or to make
reparation. If reparation is not made, through negotiations (Article 33 Uncharted) it should be
settled. Only if the wrongdoer refuses or willfully hampers negotiations, the injured party can opt
for countermeasures, in good faith.

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Limitations
Must not involve threat or use of force; Must not disregard Intl rules for the protection of human
rights in general; Must not disregard jus cogens; Target only the responsible State, not breach 3rd
State rights’ Proportionate against the injury.
Force Majeure – Art.23(1) of ILCDA - occurrence of an irresistible force or of an unforeseen

event beyond the control of the state making it materially impossible in the circumstances to
perform the obligation.
Distress – Art.24 of ICDLA - the wrongfulness of an act of a state not in conformity with the
international obligation of that state is precluded if the author of the act in question has no other
reasonable way in a situation of distress of saving the authors life or the other lives entrusted to
the authors care.
Necessity – Art.25(1) of ILCDA – When it is the only means for the state to safeguard an
essential interest against a grave and imminent peril
(Mention Nicaragua Case from Unit - 2)
India – Pakistan Issue:

The India-Pakistan conflict has been largely conducted via proxies raising issues of state
responsibility and the taking of legitimate countermeasures. As to establishing Pakistan’s
international responsibility, India states that Pakistan uses organisations based in Pakistan to
perpetrate terrorism/attacks in India (eg: 2008 Mumbai terrorist attacks (26/11)). Without the active
support of certain elements of Pakistani authorities to LeT, the attack would not have been possible.
Adopting ‘strategic restraint’, the then Indian government did not militarily respond to 26/11 despite
evidence of Pakistani involvement making the latter responsible in international law for those
attacks. But due to continued attacks by Pakistan-based groups, India is willing to impose
countermeasures in a manner that, Pakistani exports to India will attract duties, India may repudiate
key aspects of Indus Waters Treaty, 1960 post the Pulwana attack, etc. The lawfulness of any such
countermeasure (if taken) deserves careful analysis for it must be proportionate (Draft Article 51).

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Crucially, countermeasures should not amount to the use of force (Draft Article 50(1)(a)); so the laws
on the use of force will continue to govern situations of armed conflict.
STATE JURISDICTION PRINCIPLES/THEORIES

• Territorial Principle (Place of crime scene)
• Nationality Principle (Person committing the crime)
• Protective Principle (National interest that is injured by the offence)
• Universality Principle (Custody of person committing the crime)
Territorial Principle - A state has the primary jurisdiction over all events taking place in its territory
regardless of the nationality of the person responsible.
S.S Lotus case- concurrent jurisdiction was determined in S.S lotus case.
A collision occurred in the high seas between a French vessel and a Turkish vessel. Victims were
Turkish nationals and the alleged offender was French. Could Turkey exercise its jurisdiction over
this French national under international law?
The Court laid down two principles:
(a) A State cannot exercise its jurisdiction outside its territory unless an international treaty or
customary law permits it to do so.
(b) Within its territory, a State may exercise its jurisdiction, in any matter, even if there is no
specific rule of international law permitting it to do so. In these instances, States have a wide measure
of discretion, which is only limited by the prohibitive rules of international law
“What is not prohibited by customary law or by treaty law is permitted under international
law.”
Subjective territorial principle

Crimes that are committed within its territorial borders. Under the subjective aspect of territorial
jurisdiction a sovereign is recognized as having the power to adopt criminal laws that apply to crimes
that are physically committed within his territorial borders.

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Objective territorial principle

Crimes that have affected the nationals of another state. Under the objective aspect of territorial
jurisdiction a sovereign is recognized as having the power to adopt a criminal law that applies to
crimes that take effect within its borders even if the perpetrator performs the act outside of its
borders.
Nationality principle
Nationality Principle allows state to exercise jurisdiction over its nationals for crimes committed
elsewhere in the world. It is based on personal link between accused & the state claiming
jurisdiction.
Protective principle
State may exercise jurisdiction over an alien who commits an act abroad but prejudicial against the
State’s security & interest. Protective principle is based on “Effect Doctrine”, whereby States enacted
legislation to give themselves jurisdiction over any matters producing “effect” in their territory. In
this situation, the crime was committed abroad and neither the person who committed the crime, nor
the victims, were nationals of that State. In this case, jurisdiction is asserted on the basis that the
security or the interests of the State is affected by an act committed abroad.
Universal principle
Any state can exercise jurisdiction over the crime irrespective of that person’s nationality and the
place of commission of crimes. Crimes which fall under universal principle are;
• Genocide
• Torture
• Slavery
• War crimes
IMMUNITIES FROM JURISDICTION

Sovereign immunity – immunity that a state can enjoy.
Sovereign immunity has two facets;
• Absolute immunity – A state can claim absolute and complete immunity in exercising its
functions. But it now not practised.

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• Restrictive immunity – A state can claim only restrictive immunity in exercising sovereign
functions and not commercial function. This is widely followed in international law.
• Case law- Trendtex corporation v Central Bank of Nigeria – Court held that the purpose of a
contract is irrelevant to its destination as attracting absolute or qualified immunity.
Diplomatic &Consular Immunity

Diplomatic relations have traditionally been conducted through the medium of ambassadors. With
the advent of technology, the burden that was there on the ambassadors has been reduced.
1. Diplomat immunity – immunity that a diplomat duly appointed can enjoy.
Vienna Convention on Diplomatic Relations, 1961
Vienna Convention on Diplomatic Relations, 1961, came into force in 1964.

Article 2 - The establishment of diplomatic relations between States, and of permanent diplomatic
missions, takes place by mutual consent.
Article 3 – Functions of a diplomat

1. The functions of a diplomatic mission consist, inter alia, in:
• Representing the sending State in the receiving State;
• Protecting in the receiving State the interests of the sending State and of its nationals,
within the limits permitted by international law;
• Negotiating with the Government of the receiving State;
• Ascertaining by all lawful means conditions and developments in the receiving State, and
reporting thereon to the Government of the sending State;
• Promoting friendly relations between the sending State and the receiving State, and
developing their economic, cultural and scientific relations.
Article 27 - immunities
The diplomatic bag shall not be opened or detained.
The diplomatic courier with the valid seal also enjoys the same protection.

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Article 29 – Immunity from arrest

The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or
detention. The receiving State shall treat him with due respect and shall take all appropriate steps
to prevent any attack on his person, freedom or dignity.
Article 30 – Immunity given to his residence

1. The private residence of a diplomatic agent shall enjoy the same inviolability and protection as the
premises of the mission.
2. His papers, correspondence and his property, shall likewise enjoy inviolability.
Article 31 – Immunity under civil matters

1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He
shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) A real action relating to private immovable property situated in the territory of the receiving
State, unless he holds it on behalf of the sending State for the purposes of the mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions.
(d) A diplomatic agent is not obliged to give evidence as a witness.
The immunity of a diplomatic agent from the jurisdiction of the receiving State does not
exempt him from the jurisdiction of the sending State.
Article 32 – Waiver of Immunity

• The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under
article 37 may be waived by the sending State.
• Waiver must always be express.
• To try a diplomat in the receiving state, the sending state should waive the immunity expressly.
• To try a diplomat in sending state, the requesting state should label him as “persona non grata”
and send him back to sending state where he can be tried.

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Other privileges – Article 34

● No taxes can be levied. Only indirect taxes.
● Tax on his private property but not on the property he holds for the State.
● Registration and court fees may be levied if such transfer of property is not carried on behalf
of the sending state.
VIENNA CONVENTION ON CONSULAR RELATIONS, 1963-Came into force in 1967

Article 2 - Establishment of consular relations
1. The establishment of consular relations between States takes place by mutual consent.
2. The consent given to the establishment of diplomatic relations between two States implies, unless
otherwise stated, consent to the establishment of consular relations.
3. The severance of diplomatic relations shall not ipso facto involve the severance of consular
relations.
Article 31- Inviolability of consular premises

• Authorities of the receiving State shall not enter the consular premises unless they have taken
prior permission from the head counsel or his designee or by the diplomatic head of the
mission.
• During emergency situations– authorities can enter without permission
• If they commit grave crime – detain them.
• Exempt from civil and criminal liabilities
• No taxes can be levied.
Unit 8
Law of the Sea
UNCLOS III These challenges made it imperative to reformulate the law of the sea and make it
conducive to the demands and interests of all concerned, hence UNCLOS III was held in 1967 ,
which tried to address most issues of concern.

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In this conference, the UN ambassador from Malta Mr. Arvid Pardo requested for a legal power that
could bring about international governance over the oceanic floor and bed. Such a legal power would
also ensure that there would not be any problems arising between various countries over the oceanic
floor and bed space.
In a major way, it was this UNCLOS III that paved the way for the now existing nautical law. The
features and the highlights of the same can be explained as follows:
• UNCLOS as the currently prevailing law of the sea is binding completely.
• Even as the name of the nautical law suggests a United Nations’ involvement, the UN does
not have any major functional role in the working of UNCLOS There are 17 parts, 320
articles and nine annexes to UNCLOS
• The law of the sea provides for full money rights to nations for a 200-mile zone by their
shoreline. The sea and oceanic bed extending this area is regarded to be Exclusive Economic
Zone (EEZ) and any country can use these waters for their economic utilization.
• The IMO (International Maritime Organization) plays a vital role in the operation of
UNCLOS. Along with the IMO, organizations like the International Whaling Commission
and the International Seabed Authority are vital parties in the functional areas of the nautical
law.
• The Convention also laid down the machinery for settlement of disputes, including an
International Tribunal for the Law of the Sea, at Hamburg.
Territorial sea
It is a length of sea adjacent to the coast of a State and subject to its sovereignty. Sovereignty of
territorial sea includes airspace, seabed and subsoil.
Territorial sea is a projection of national territory. In the 1951 Fisheries case the ICJ ruled “it is the
land which confers upon the costal State a right to the waters off its coasts”
1. Internal Limit
The territorial sea is measured from a baseline that constitutes its interior limit. Baselines that are
used to measure the territorial sea are the same ones used to measure the contiguous zone, the
exclusive economic zone and the continental shelf.

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The regular baseline used to measure the breadth of the territorial sea is the low tide line through the
length of the coast.
In some cases, this line may be different, such as,

1) Ports, where territorial sea can be measured from the constructions built further from the coast
2) Bays from their closing lines
3) Irregular coasts from straight baselines that surround them.
In places where the coastline is deeply indented and cut into or if there is a fringe of islands along the
coast located in its immediate proximity, territorial sea can be measured from straight baselines that
join diverse points of the continent and islands near it. These lines do not follow the coastline but the
general direction of the coast Waters located inside straight baselines are considered to be interior
waters.
2 methods have been laid down to measure the breadth-the low-water line and straight baseline.
Normal method is the low-water line as marked on large-scale charts officially recognized by the
coastal state. But issues arise where the coastline is deeply indented and cut into, or if there is a
fringe of islands along the coast in its immediate vicinity. In such situations the straight baseline
method can be adopted.
Article 7 made it possible for coastal countries to draw straight baselines along its coast. This method
was enunciated in Anglo-Norwegian Fisheries Case. It was propounded in the judgement that
where a state had a rugged coastline, deeply indented or if there is a fringe of islands in its immediate
vicinity, the straight baseline, joining the law water at appropriate points, is admissible, provided
i) The drawing of the baseline must not depart to any appreciable extent from the ‘general
direction’ of the coast.
ii) Areas lying within the baseline are sufficiently linked to adjacent land domain
iii) Economic interests as evidenced by long established usage, peculiar to a particular region
concerned, must be taken into account, before the straight baseline method is followed.
The coastal state is free to determine its baselines by any of the two methods, to suit different
conditions. Maritime Delimitation in the Black Sea case- ICJ stated, “coastal state may determine its
relevant base points in accordance with UNCLOS. Also, specific rules have been laid down by the
Convention for the territorial waters of bays, archipelagos and islands.

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2. Breadth of territorial sea

During the 19th century, most States, including maritime potencies, claimed a territorial sea of 3
nautical miles (each mile is equal to 1.852 meters). However, at the same time, other States
pretended higher breadths (Spain and Portugal. 6 nautical miles, Scandinavian countries: 4 nautical
miles: Russia: 12 nautical miles)
Despite the fact that in the 1923 Hague Conference on Codification most countries were of the
opinion of establishing the rule of 3 miles, neither did such proposition succeed, nor was such an
agreement reached on the UN First and Second Conference on the Law of the Sea
In the Third Conference, a consensus was reached in relation to the breadth of the territorial sea,
establishing that every State has the right to establish the breadth of its territorial sea until a distance
that may not exceed 12 nautical miles measured from the correspondent baselines 216 such rule is
today considered to be part of international consuetudinary law
3 Delimitation
As regards the delimitation of the territorial sea with opposite and adjacent States Article 15 Law of
Sea Convention. 1982 governs it providing that the territorial sea may not extend beyond the median
line which is equidistant from the nearest points of the baselines of the coastal States, except by an
agreement between the parties by reason of histone title or other special circumstances. In such cases,
agreement shall be done and tribunal may be setup to decide such case.
4 Jurisdiction on merchant ship

The principle of criminal jurisdiction of the coastal State may not be applied on board a merchant
ship that passes through the territorial sea, unless in such exceptional cases, like, when a crime has
consequences on the coastal State or when it is of such a nature that may disturb the peace of the
country or the good order of the temporal sea or if the assistance of the local authorities has been
requested by the master of the ship by a diplomatic agent or consular officer of the flag State, or if
such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic
substances.
In civil matters the coastal State may not stop or divert ships that pass through its territorial sea to
exercise its civil jurisdiction in relation to a person on board. The coastal State may not levy

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execution against or arrest the ship for the purpose of any eval proceedings save only in respect of
obligations or liabilities assumed or incurred by the ship itself in the course or for the purpose of its
voyage through the waters of the coastal State.
5. Warships
It is been defined in Article 29, UNCLOS 1982 as “ship belonging to the armed force of a state
bearing external marks distinguishing such ship of its nationality, under the command of an officer
duly commissioned by the government of the State and whose name appear in the appropriate service
list and manned by a crew which is under regular armed force discipline.
The Costal State may abstain itself to exercise its jurisdiction over a foreign warship that passes
through its territorial sea. In case the ship insists on a contravention the coastal State can require it to
leave its territorial sea.
6. Right of innocent passage

Sovereignty of a State on its territorial sea is subject to an important limitation; the right of innocent
passage of foreign ships in such sea.“Right of innocent passage” refers to a continuous navigation
without stopping through the territorial sea and it must not be prejudicial to the peace, good order or
security of the costal state. Customary International law recognizes the right of innocent passage for
shits of all states through the territorial waters of a state, but no such right exists for aircrafts in the
airspace above the territorial waters. Innocent passage may be fast and uninterrupted
Article 17- “Ships of all states, whether coastal or not shall enjoy the right of innocent passage
through the territorial sea.” No such right over internal waters.
Article 19(1) - Passage to be ‘innocent’ must not be prejudicial to the peace good order or security of
the coastal state and should be in conformity with the Convention and the rules of international law.
The Convention also elaborates the acts which are considered prejudicial to the security, good order
and peace of coastal states. Military exercise cannot be considered to be “innocent”.
Under the 1958 Convention, ‘ships of all states’ are entitled to innocent passage- does not distinguish
between merchant, public or warships. So it is doubtful whether this right is available to warships
ipso facto or only on prior notification or authorization to the coastal state.

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The Corfu Channel Case decided that warships have the right to passage through international straits.
1982 Sea Convention accorded warships the ‘transit passage’ in straights, and makes them subject to
the local laws and regulations of the coastal state.
Passage through Straits

Under customary international law, foreign ships have the right to passage through international
straits, and this right cannot be suspended on the grounds of security in a part of the territorial sea
that is an international strait used for navigation from one part of high seas to another. This rule was
recognized in the Corfu Channel case
International straits
A strait is a maritime pass that connects two more extended spaces of water (For example, Strait of
Gibraltar, connecting the Atlantic Ocean to the Mediterranean Sea, Strait of Bab-el Mandeb,
connecting the Red Sea to the Gulf of Aden; and Strait of Hormuz, connecting the Arabian Sea and
the Persian Gulf.). Each coast projects a length of territorial sea. If the strait is narrow, both lengths
overlap, if it is wide, there is a length of high seas between them
In the Corfu Channel case, the ICJ recognised the right of innocent passage of warships through
international straits that connect two parts of the high seas, with no need of obtaining an authorisation
of the coastal State concerned.
UNCLOS distinguishes various categories of straits. The most important straits are those used for
international navigation between a part of the high seas or an exclusive economic zone. The general
principle is that all ships and aircrafts have the right of passage in transit on these straits understood
as the freedom of navigation and over flight exclusively for the means of fast and uninterrupted
transit.
Among other categories of straits, there are straits that connect a part of the high seas or an exclusive
economic zone with the territorial sea of another State, in which the right of innocent passage is
applied and cannot be suspended.
The regime of the straits ruled by UNCLOS does not affect the juridical regime of the straits in
which the passage is ruled (total or partially) by long-term conventions still in use that refer
specifically to such straits. For example, Magellan Strait and Phosphor Strait.

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Contiguous Zone
UNCLOS recognises the right of coastal States to establish a contiguous zone to its territorial sea
Article 33 states
1. In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may
exercise the control necessary to.
• Prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations
within its territory or territorial sea,
• Punish infringement of the above laws and regulations committed within its territory or
territorial sea
2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which
the breadth of the territorial sea is measured
The coastal State does not enjoy sovereignty over the contiguous zone in the same way as it does in
the territorial waters. Contrary it only has limited competence in order to adopt certain measures of
control over foreign ships to prevent and punish violations to laws.
EXCLUSIVE ECONOMIC ZONE
In the 12th century freedom of navigation on the high seas was proclaimed. The natural consequence
was the freedom of fishing in such area due to the belief that natural resources were unlimited.
During the 60s and 70s fishing floats of developed countries started to perform activities in the high
seas but close to the territorial sea of other States. The result was an excessive exploitation of
resources and the risk of extinction of some species, like whales On the contrary less developed
countries were afraid that their resources would be totally consumed. For these reasons, States
adopted a number of measures in order to exercise their sovereignty in zone of the high seas located
close to their territorial sea.
In the first year, unilateral declarations were not widely accepted but during the Third Conference a
general consensus arose in order to establish a zone between the territorial and the high sea, it was
called the exclusive economic zone (EEZ) and was included in part 5 of UNCLOS.

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1. Rights of the coastal State in the exclusive economic zone
In the EEZ, the coastal States have sovereignty rights for the purpose of exploration exploitation
preservation and administration of natural resources in soil subsoil and superjacent waters. They also
have jurisdiction with regards to the scientific investigation and protection of the maritime
environment. Rights to exploiting resources of coastal States in their EEZ are quite wide and include
the soil subsoil and suprjacent waters. It applies to all economic activities and all-natural resources.
Coastal States can take all necessary measures in order to assure the respect of norms adopted in
conformity with UNCLOS, including inspections, capturing, and starting judicial processes. A
coastal State does not have ipso jure right over the EEZ. It must proclaim it and make this act public
through letters and declarations that describe the exterior limit of the zone
2. Breadth
The EEZ is situated between the territorial sea and the high sea. It cannot extend over 200 nautical
miles measured from the baselines used to 220 measure the territorial sea Part of this zone overlaps
with the territorial sea (12 miles), so its maximum breadth is up to 188 miles
3. Right of third States

In some aspects, the EEZ is similar to the high seas since all States have the right of navigation, over
flight and laying of submarine cables and pipelines, and certain limited access to living resources.
4. Preservation and utilisation of live resources
Coastal States must assure the preservation of all living resources of their EEZ, and to this end, they
must define a permitted volume of captures (fishing). Then the coastal State must define its own
capacity of exploitation of living resources. If it 1s not capable of absorbing such volume then they
can open the zone for foreign fishers who do not have an automatic right to perform activities, since
they must be authorised by the coastal State by agreements or other instruments. The coastal States
can put certain conditions, licence concessions quotas, fees, season rules, etc.
Continental Shelf

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It refers to the submarine zone situated between the coast and the outer edge of the continental
margin Continents do not break abruptly but they submerge between 130 and 200 meters until they
have a well-marked break and have a much higher deepness.
In 1945, President Harry Truman (US) stated that all-natural resources of the soil and subsoil of the
continental shelf under the high seas, adjacent to the coasts of the US, were under its jurisdiction and
control The Proclamation also specified that the character as high seas of the waters above the
continental shelf and the right to their free and unimpeded navigation are in no way thus affected.
This declaration was followed by other countries and was the beginning of the creation of a
consuetudinary norm 13 that the coastal State has an historic and original right over the continental
shelf situated in front of its coasts: It is included in Part VI of UNCLOS
1. Customary law
The concept of continental shelf adopted by the UNCLOS is quite different from the geographical
concept. The Convention state that it extends beyond the territorial sea. Difficulties arise at the time
of determining as to the exact point that the continental shelf can be considered to be extended.
During the UNCLOS Conference, two positions arose. On one hand, States that had a large
continental shelf like Argentina and Canada, claimed rights over all the extension of the shelf on the
other hand, States that had little or no continental shelf claimed right in an area of 200 miles.
The Conference took into account both the situations on one side, it recognised the right of every
State to a minimum of 200 miles in the submarine zone of the natural prolongation of its territory.
The distance was measured from the baselines used to measure the territorial sea. On the other side, it
gave States with larger continental shelf, the possibility to claim as part of their shelf subject to
certain limitations the submarine waters which extend over their territorial sea through the natural
prolongation of their territory up to the external limit of the continental margin Article 76; UNCLOS
establishes a quite complex norm
In order to avoid the confusion, it must be clear that the continental shelf extends to submarine areas
beyond the territorial sea but the continental shelf is measured from the baselines used to measure the
breadth of the territorial sea. Since UNCLOS establishes that the seabed and subsoil of territorial sea
are under the exclusive jurisdiction of the coastal State and do not belong to the continental shelf, in
fact this shelf is measured from the exterior limit of the territorial sea One thing is from where the
shelf is measured and other is up to where it extends.

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2. Rights of coastal States

Coastal States have sovereignty over the continental shelf for the purposes of exploration and
exploitation of natural resources these rights are exclusive and if the coastal State does not exercise
them, no other State can perform those activities without the express consent of the coastal
State. Coastal state has the exclusive right to authorize and regulate the drilling of the subsoil for all
purposes.
Natural resources of the continental shelf can be of two types
Mineral and non-living resources from the seabed and the subsoil and living organisms or sedentary
species, which do not move from the soil or the subsoil Rights of States in the continental shelf do
not affect the juridical condition of super jacent waters or air space above them. They remain under
the EEZ or the high seas. Consequently, the State is not allowed to fish species that swim in the
waters above the shelf It can only do so in the waters above the continental shelf that belongs to the
EEZ
3. Delimitation
A State's continental shelf can be measured in all its extension when the coasts of that State are in
front of an ocean or an open sea. On the contrary, when the coast of a State is in front of the coast of
another State, it is necessary to delimitate their respective continental shelf. There are a number of
cases related to such delimitation. But does not establish a method in order to achieve such a result
International jurisprudence has considered that in each case relevant circumstances must be
considered such as the physical characteristics of the coasts and the existence of islands, but has not
yet considered the principle of equidistance.
North Sea Continental Shelf case (1969) - “Delimitation is effected by agreement in accordance with
equidistance principle and taking into account all the relevant circumstances, in such a way as to
leave as much as possible to each Party all those parts of the continental shelf that constitute a natural
prolongation of its land territory...., without encroachment on the natural prolongation of the land
territory of the other”. The court used the term ‘relevant circumstances’ instead of the term ‘special
circumstances.
Anglo-French Continental Shelf Arbitration (1978) - The Court of Arbitration established a simple
single rule, namely, “equidistance- special circumstances” rule, as the conventional and customary

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rule of delimitation (i.e. delimitation in accordance with equitable principles). However, it refused to
endorse the traditional interpretation of Art. 6 which maintained that the "equidistance" line was the
general rule and that “special circumstances” provided the exception. The fact that the rule is a single
rule means that the question whether another boundary is justified by special circumstances is an
integral part of the rule providing for application of the equidistance principle. Thus, there is no legal
burden of proof in regard to the existence of special circumstances.
HIGH SEAS
The expression "high seas" refers to the extensions of the sea that are not included in the interior
waters, territorial sea or EEZ. In 1609 the Dutch Jurist Hugo Grotius published Mare Liberum, in
which he claimed the freedom of the high seas and the prohibition of appropriation by any State. On
the contrary, in 1653 the English Jurist John Selden published Mare Clausum However, freedom of
the sea was the general rule.
The juridical regime of the high seas was codified by the 1958 Geneva Convention on the High Seas
which was later included and developed by UNCLOS.
1. Freedom of seas
High seas cannot be appropriated by any State No State can have any pretension of sovereignty on
the high seas High seas is open for any State, with or without maritime coasts.
Freedom of sea includes freedom of navigation freedom of overflight, freedom to lay submarine
cables and pipelines, freedom of fishing, freedom to construct artificial Islands and other installations
permitted under international law, and freedom of scientific investigation.
However, all these freedoms must be exercised taking into account the interests of other States and
must be used only for pacific purposes
2. Preservation and rule of fishing in the high seas

Coastal States are affected by the fishing in the high seas close to the EEZ, in particular on migratory
species that swim between different zones In 1996, a specific treaty was adopted in this regard.
3. States without coast

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All States enjoy freedom of navigation States without coasts ha the night to access to and from the
sea. To this end they joy freedom of transit through the intermediate States for all means of
transports. The conditions and modalities for the exercise of this freedom of transit must be
established by bilateral agreements, regional or sub-regional Conventions Transit States, in exercise
of their complete sovereignty over their territories, can take all necessary measures in order to assure
that the rights and facilities given to the States without coasts, may not affect their own legitimate
interests
4. Jurisdiction on ships ( Flag state jurisdiction)

Ships that sail on the high seas are subject to the exclusive jurisdiction of the flag they are entitled to
fly. It is forbidden for other States to exercise rights over those ships, including arresting a person on
board.
This general principle allows some restricted exceptions that are ruled by UNCLOS and other
international treaties Exceptions apply only to merchant ships but not to military or warships. The
latter enjoy complete immunity of jurisdiction with regards to any other foreign State.
UNCLOS states that in the case of collision, that is, when a ship strikes another, judicial processes of
persons involved can only be initiated in the flag State or in the State of which such person is a
national. However, this was not the rule applied by the Permanent Court of Justice in the Lotus case.
● Cases in which interference of foreign ships in the high seas is allowed
1 piracy
2. Immediate persecution
3 visit and registry and
4. Authorisation given by a treaty
Piracy
Pirates or sea bandits are individuals that sail by their own performing or trying to perform with
personal interests, acts of violence or robbery. In such cases any State can hold a pirate ship or an

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aircraft and detain persons on board. The tribunals of the capturing State can prosecute and sanction
the crime of piracy which can also be universally repressed
Hot pursuit (immediate persecution)
Warships and military aircrafts have the right to continuing persecuting in the high seas, when the
authorities of that State have well founded reasons to believe that the ship has committed an
infraction to the laws or regulations. Pursuit must be commenced when the foreign ship or one of its
boats is within the internal waters, the archipelagic waters, the territorial sea or the contiguous zone
of the pursuing State and may only be continued outside the territorial sea or the contiguous zone if
the pursuit has not been interrupted. This right comes to an end when the foreign ship goes inside the
territorial sea of its own or another State. The doctrine of maritime hot pursuit is codified in art 111
of the 1982 United Nations Convention on the Law of the Sea (UNCLOS).It recognizes that a vessel,
if has committed a violation of the laws of a foreign state while in that state’s sovereign or territorial
waters, may be pursued onto the high seas and seized.
Essentials
• The pursuit commences immediately while the infringing vessel or any of its accessory boats
is still within the internal or territorial waters of the coastal state.
• The pursuit is continuous and uninterrupted.
• A visual or auditory signal to stop has been given from such a distance as to be seen or heard
by the fugitive ship.
• The pursuers are warships, military aircraft or other government ships or aircrafts specially
authorized to that effect.
• The right ceases as soon as the vessel enters the territorial sea of its own country, or of a third
state.
• Where a ship has been stopped or arrested on the high seas in circumstances not justifying the
exercise of the right of hot pursuit, the coastal state has to compensate for any lose or damage
that may have thereby sustained.
Indian Position - As to right of hot pursuit, Sec. 9 of the India Maritime Zones Act provides that
where in pursuance of the commission of any offence under this Act, any foreign vessel is pursued
beyond the limits of EEZ of India, the powers conferred on an authorized officer may be exercised

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beyond such limits in the circumstances and to the extent recognized by international law and State
practice. Thus, even illegal fishing gives right of hot pursuit in India.
Visit and registry

A warship which encounters a merchant ship in the high seas has no right to perform any act of
interference unless in the presence of grave cases specified by UNCLOS, that is, when there is a
reasonable motive to suspect that the ship has no nationality or is dedicated to piracy or slave trade.
In such cases, the warship can demand that the suspicious ship exhibit the documentation or justify
the use of the flag they fly.
Treaties
Some treaties authorise warships of Contracting States to adopt a number of vigilance and police
measures with regards to merchant ships in case they commit certain infractions. For example,
Convention on Fisheries of the North Sea, 1882
Nationality of ships
All States, coastal or not have the right to fly their flag in their ships navigating in the high sea Every
State can establish the requirements to concede its nationality to a ship and to use its flag Ships have
the nationality of the State whose flag they. The freedom of States to authorise the use of their flags
has permitted some States to adopt measures of low exigencies, creating "convenient flags", like
Liberia or Panama They are also used to avoid the payment of fees and taxes. UNCLOS states that
there must be an authentic relation between the State and the ship However; it does not include any
sanction for the violation of such norm.
Unit 9
NATIONALITY, ASYLUM AND EXTRADITION
Nationality

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Fenwick defines nationality as “the bond which unites a person to a given State which constitutes his
membership in the particular State, which gives him a claim to the protection of that State and which
subjects him to the obligation created by the laws of that State
● It is the legal relation between a person and a State which affords jurisdiction to the State
over the person and also affords the person protection of the state.
● The ICJ while deciding the case Nottebohm case came up with its definition of nationality
as;
A legal bond having as its basis a social fact of attachment, genuine connection of existence and
sentiments together with the existence of reciprocal rights and duties.
● How is nationality important internationally, whether directly or indirectly?
It is the municipal law of the state itself which determines the nationality of an individual. It is the
fundamental requirement in the domestic law, in order for an individual to exercise the basic rights.
Significance of Nationality- Nationality is the basis of a State’s right to exercise diplomatic

protection abroad, whose national has suffered a wrong at the hands of another State. On the basis of
this right under customary international law, a State is entitled to forcible intervention to protect the
life and property of its nationals.
Nationality and Citizenship- Nationality is different from citizenship, though often used
interchangeably. Nationality is the quality of belongingness to a particular State by which a person is
internationally known, it creates a legal relationship between the State and the individual under
international law. Citizenship, on the other hand, is the sole concern of municipal law. It bestows a
political status upon an individual whereby a citizen enjoys civil and political rights under municipal
law. The concept of citizenship is irrelevant to international law. It may happen that all the citizens
may possess the nationality of a State, but all the nationals of that State may not necessarily be its
citizens
● Article 15 of the Universal Declaration of Human Rights states that
“Everyone has the right to a nationality” and that “no one shall be arbitrarily deprived of his
nationality nor denied the right to change his nationality.”

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● Article 7 of the Convention on the Rights of the Child states that
“Every child has the right to acquire a nationality.”
● Article 5 of the Convention on the Elimination of All Forms of Racial Discrimination

requires States to
“Prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of
everyone, without distinction as to race, colour, or national or ethnic origin, to equality before
the law, notably in the enjoyment of the following rights . . . the right to nationality.”
Acquisition of nationality
Nationality of a State can be acquired various mode, depending upon the national and international
legislations for the time being in force;
1) The nationality laws of every State provide for the acquisition of its nationality by birth,
either according to jus soli, i.e., by being born in the territory of a State; or jus sanguinis, i.e.,
by descent— being born to parents who are its nationals; and sometimes, according to both,
or according to alternative principle.
a) Jus Soli
Many states confer nationality to a man or woman on the groundwork of birth. The persons who take
birth inside the territorial limit of a country becomes entitled to the nationality of that state. This
principle is referred to as jus soli. UK, USA and many different states follow the principle of jus soli.
In India, nationality is conferred on the basis of birth under Section 3 of the Indian Citizenship Act,
1955.
b) Jus Sanguinis(Descent)
An individual can obtain nationality of a state with the aid of an individual on the groundwork of
nationality of either parent. Thus, a baby can also turn out to be a national of that state in which his
dad and mom are nationals. This principle has been acknowledged as jus sanguinis, and has been
acquired by Germany and France for conferring nationality. USA and UK recognize this principle as
well as the principle of jus soli. In India an individual can be an Indian national on the basis of the
principle of jus soli under Section 4 of the Indian Citizenship Act, 1955.
2) By naturalisation:

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When a person acquires the nationality of a foreign state by living in its territory for a long time, it is
called naturalisation. Sec.6 of the Indian Citizenship Act, 1955 deals with the same.
Other ways are;

a. By getting married to a foreign national
b. By adopting children
c. By a acquiring the domicile
d. By getting appointed as a government official
3) By resumption; means “to resume”
Sometimes a person might lose his nationality due to certain circumstances. Subsequently he
may retain his nationality by fulfilling the prescribed conditions and thus can resume being a
national of that State. Section 20 of the Citizenship rules 1956 provides a procedure for
restoration of nationality.
4) By Subjugation; the nationals of a state which gets defeated or conquered by another State
acquire the nationality of the conquering state by way of subjugation. Section 7 of the Indian
Citizenship Act 1955 deals with the same.
5) By cessation; When a state gets ceded into another all the nationals of that State acquire the
nationality of the State in which it is merged by way of cessation.
6) Option- The nationals of a state which is partitioned into two or more states have an option
to become nationals of any of the successor states. This principle is also applicable when the
territories are exchanged.
7) Registration- Nationality can also be acquired through registration. The process may differ
from one state to another in accordance with the laws of the respective states. Indian
Loss of Nationality
1. By release; it is necessary to submit an application – if it is accepted then the person

concerned is released from the nationality of the State concerned.

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2. By deprivation; Law may provide in certain states that if the national of that state obtains
employment in another State without the prior permission of the government, he will be
deprived of his nationality. Section 10 of the Indian Citizenship Act provides that a person
may be deprived of his Indian citizenship (nationality)
3. By renunciation; a person may also renounce his nationality. The need for renunciation
arises when a person acquires the nationality of more than one State. In such a condition, he
has to make a choice as to of which country he will remain a national Consequently he has to
renounce the nationality of one State
4. By residing abroad; Many States laws provide that if a person resides for a long period of
time abroad (such period of time being specified), his nationality ends.
5. By substitution: Some States also provide for the substitution of nationality. As the name
suggests under this rule, a person may get the nationality of a State in place of the nationality
of another State Thus, he loses the nationality of one State and acquires the nationality of
another. Section 9 of the Indian Citizenship Act provides for the automatic termination of
Indian citizenship when an Indian citizen voluntarily acquires the citizenship of another
country.
6. Involuntary Loss of nationality - Compulsory expatriation of individuals from their country

leads to loss of nationality, and in most of the cases, in statelessness. Large number of Jews
lost their nationality during Hitler’s rein; also, refugees from Eastern European countries.
Statelessness
● An individual is associated to a state as a nation of the state but sometimes a person
might not possess the nationality of any state. Such a situation is known as
statelessness.
● A person does not possess the nationality of any nation cannot exercise the right
conferred upon him by international law.
● Stoeck Vs Public trustee held that if a person is not a citizen of nay state, he shall be
called stateless.

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In this case it is also observed that what state a person belongs to must ultimately be decided by
the municipal law of the state to which he claims to belong or to which it is alleged that he belongs.
● Oppenhiemer Vs Cattermole in this case it incorporated Hague Convention of

1930 Article 2 provides that any question as to whether a person possesses the
nationality of a particular state shall be determined in accordance with the law
of that State.
● Convention on the Reduction of Statelessness 1961
NOTTEBOHM CASE AND NATIONALITY
FACTS
Nottebohm was born in Germany, and was a German citizen, although he lived in Guatemala since
1903, and conducted a prosperous business there, but never became a citizen of Guatemala. Germany
and USA were enemies in the World War II. So, in October 1939, he applied for the Liechtenstein
citizenship because to protect his property and life from Guatemala. He chose Liechtenstein because
it was a neutral country in the war and also his brother lived in that place. He proved that he was a
continuous visitor as he frequently visited his brother who resided in Liechtenstein. He paid tax for
an year and later got citizenship of Liechtenstein through naturalisation.He returned to Guatemala in
the early 1940.But he was not allowed to enter and Guatemala confiscated his property. The issue
arose when Liechtenstein argued that Guatemala has not honoured its citizenship.
ISSUES
● Whether Guatemala is under obligation to honour the citizenship granted by Liechtenstein?
● Whether Guatemala should pay reparation to Liechtenstein and Nottebohm?
DECISION

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● International Court cannot interfere in the domestic law and so the court cannot enquire into
the domestic process or domestic law of any country in granting citizenship. But when two
countries recognizes him as their national, then public international law comes into picture.
The Court upheld the principle of meaningful nationality which involved the intention to
reside and settle. The citizenship need to be honoured only when the person has intention to
reside and settle in the country. In the present case, Notttebohm acquired Liechtenstein
citizenship only to escape the threat in Guatemala.
Asylum
Means shelter and active protection extended to a political refugee from another State by a State
which admits him on his request. It involves two main elements;
1. a shelter which is more than a temporary refuge

2. a degree of active protection on the part of the authorities which have control over the
territory of asylum.
Right of asylum
● Article 14 of UDHR – everyone has the right to seek and enjoy in other countries asylum
from prosecution.
● The right of asylum has been said to comprise certain manifestations of State conduct;
1. To admit a person to its territory
2. To allow a person to sojourn there
3. To refrain from expelling a person
4. To refrain from extraditing the person
5. To refrain from prosecuting, punishing, or otherwise restricting the person’s liberty
There are 3 facets of the right to asylum
1. The right of State to grant asylum; Every sovereign state us deemed to have exclusive
control over its territory and also over the person present in the territory. Thus, it is the
decision of the sovereign state whether to grant or deny asylum to person in its territories and
as a consequence, the right of asylum is often viewed as the right of a state rather than that of
an individual.

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2. The right of an individual to seek asylum; Article 13 (2) of the UDHR says that everyone
has the right to leave any country, including his own. This same right is also enshrined in
Article 12(2) of the International Convention on Civil and Political Rights. The right to leave
one’s own country in pursuit of asylum is thus a right of the individual asylum-seekers
enforceable in certain situations.
3. The right of an individual to be granted asylum; In International law today an individual an
individual has no right to asylum enforceable vis-à-vis the State of refuge. Article 14(1) of
the UDHR proclaims the right of an individual “to seek and enjoy in other countries asylum
from persecution”.
Types of asylum
Territorial asylum:
● It is granted by a State in its own territory and is considered as an attribute of the territorial
sovereignty of the State. It is not usually granted to ordinary criminals.
● It is employed primarily for the protection of those person who are accused of political
offences like sedition, treason etc.
● Article 1 of Convention on Territorial Asylum provided that every state has the right in
exercise of its sovereignty to admit into its territory such person as it deems advisable
without through the exercise of the right giving rise to complaint by any other state.
General Assembly of the UN recommended that in practice the State should do the following:
● If a person request for asylum- should not be rejected – If large no. of people request – shall
be reject on the basis of national security of its people.
● If State feels difficulty in granting asylum it should consider the appropriate measures with
the individual states and UN.
● When a State grants asylum to the fugitive’s other state should respect it.
Extra- territorial or diplomatic asylum:

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Asylum granted by a State, not in its physical territory but outside it, on a national territory like its
embassy or public vessels and warships is called extra territorial or diplomatic asylum. It is further
classified into;
a. Asylum in foreign embassies; It is the granting of asylum in the legation premises.
International law does not recognise a general right of a head of mission to grant asylum in
the premises of the legation for the obvious reason that such a step would prevent territorial
law taking its own course and would involve a derogation from the sovereignty of that State
where the legation or mission is situated. Such a grant of asylum is an exceptional measure
and unavoidably controversial as well.
b. Asylum in consular premises; All the general principles relating to legation premises are
also applicable to the grant of asylum in consular premises.
c. Asylum in the premises of international institutions; There is no general rule relating to
asylum in the premises of international institutions. However temporary asylum may be
granted in case of danger of imminent violence.
d. Asylum in warships; It is the view of some writers that the individuals not being the
members of the crew who board the vessel to take refuge after committing a crime on shore,
cannot be arrested by the local authorities and removed from the vessel in case the
commander of the ship refuses to hand over the fugitive Reference may also be made here to
Convention adopted at the Sith International Conference of American States held at Havana
1928 which forbids the grant of asylum on warships to persons accused of or condemned for
crime. The Convention, however, lays down certain conditions under which asylum may be
granted to political offenders.
e. Asylum in merchant vessels; The merchant vessels do not enjoy immunity from the local
jurisdiction and consequently cannot be granted to local offenders in merchant vessels.
Asylum case
Columbia v. Peru [1950] ICJ 6
Facts
Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the

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crime of military rebellion” which took place on October 3, 1949, in Peru. 3 months after the
rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The Colombian Ambassador
confirmed that Torre was granted diplomatic asylum in accordance with Article 2(2) of the Havana
Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru. Subsequently, the
Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the same
as the Refugee Convention of 1951). Peru refused to accept the unilateral
qualification and refused to grant safe passage.
Issues
• Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence
for the purpose of asylum under treaty law and international law?
• In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe
passage?
• Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter
called the Havana Convention) when it granted asylum and is the continued maintenance of
asylum a violation of the treaty?
Decision
The court stated that in the normal course of granting diplomatic asylum a diplomatic representative
has the competence to make a provisional qualification of the offence (for example, as a political
offence) and the territorial State has the right to give consent to this qualification. In the Torre’s case,
Colombia has asserted, as the State granting asylum, that it is competent to qualify the nature of the
offence in a unilateral and definitive manner that is binding on Peru. The court had to decide if such a
decision was binding on Peru either because of treaty law (in particular the Havana Convention of
1928 and the Montevideo Convention of1933), other principles of international law or by way of
regional or local custom. The court looked at the possibility of a customary law emerging from State
practice where diplomatic agents have requested and been granted safe passage for asylum seekers,
before the territorial State could request for his departure. Once more, the court held that these
practices were a result of a need for expediency and other practice considerations over an existence
of a belief that the act amounts to a legal obligation.
Extradition

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It is the delivery of an accused or a convicted individual to the state on whose territory he is

alleged to have committed or to have been convicted of a crime, by the State on whose territory
the alleged criminal happens to be the time being. Treaty is not a pre-requisite to ask for
extradition. In the absence of treaty, it is left to the discretion of the executive authorities whether
to extradite or not.
Grotius view – duty of the state either to punish the criminal or to return them to the State where they
have committed the crime. In practice however states do not accept such obligation. Under
International law, extradition is mostly a matter of bilateral treaty.
Purpose;
State exercises complete jurisdiction over all the person within its territory – if person commit crime
– runaway to other country – country helpless to exercise jurisdiction – therefore it is necessary to
have international cooperation among the State.
Rule relating to extradition;
Rules established by courts in regard to the law of extradition:
1. Non-extradition of political criminals: In the international law of extradition, the extradition

for political crimes is not allowed.
Generally political offences are divided into 2 kinds; -
a. Pure political offences are the one for which the exception of the political offence appears
the most sensible, for example treason, espionage and sedition.
b. Relative political crimes are “ordinary” crimes of violent nature which most of the times
result of political uprisings.
US and UK signed a Supplementary Treaty – under Art 1 of the treaty the following crimes were
exempted from the list of political offences; murder, voluntary manslaughter, assault, kidnapping,
abduction, firearm, letter or parcel of bomb, grenade etc.
2. The rule of speciality; An accused is extradited for a particular crime and the country which
gets back the criminal is entitle to prosecute that person only for the crime for which he was
extradited.
PRINCIPLES THAT GOVERN EXTRADITION

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● Influence of nationality on extradition - ‘Autdedere, aut judicare’ (either extradite or

judge) – If a national of one country commits a crime in another country and flies back to his
country, his native country should either try him or extradite to the other country where he
has committed crime.
● Principle of extraditable offences – The extradition treaty should mention the list of
offences to which extradition is allowed.
● The principle of double criminality - The crime for which request is made by the country
for extradition that must also be a crime in the country from where the accused is being
extradited.
● Rule of specialty - An accused is extradited for a particular offence and the country which
requests the extradition is entitled to prosecute that person only for the crime for which he
was extradited i.e. he cannot be punished for any other offence but can only be punished for
the offence for which he is being extradited.
● Proportional punishment – Extradition may be refused on the ground that the punishment is
not proportion to the crime that is committed. If the territorial state believes that the accused
would be given capital punishment, then territorial state could refuse extradition.
● Principle of fair hearing – Extradition is made on the condition that the accused would be
given fair trial in the requesting state.
In US Vs Rauscher US got Rauscher extradited from Britain on the ground that he had fled to Britain
after murdering a fellow servant in an American ship. In US he was tried not for murder but for
causing grievous hurt to a man named Janssen. The US court held when a person is brought under the
jurisdiction of the court under the extradition treaty, he may try only for such offence for which his
extradition was sought. This law also prevails in India.
3. Double criminality; The crime for which extradition is claimed should be a crime in both the
countries. (the country claiming the extradition and the country extraditing). This is called the
rule of double criminality.
4. Extradition is not allowed for military criminals

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5. For religious crimes also persons are not extradited.

6. For extradition it is necessary that certain other prescribed formalities should be fulfilled.
7. Generally, states do not allow the extradition of their own citizens.
APPROACHES TO EXTRADITION
1. NON-ENQUIRY APPROACH – U.S.A
▪ Extradition is in the hands of executive

▪ Executive authorities not to inquire much into other country’s domestic laws
and courts
▪ Based on the presumption that one day that country may need the favor
returned.
▪ Based on the assumption that the accused would have fair trial.
▪ Based on the principle of reciprocity
2. JUDICIAL APPROACH – INDIA AND U,K
• The judiciary asserts an active role in determining whether particular cases

merit extradition.
• Not decided on per se manner.
• India - Extradition Act, 1962
• Section 4 – application to Central government from the requesting state
• Section 5 – Magisterial enquiry if the government thinks it fit.
• Section 7 – Extradition only if that is a prima facie case.
UNIT – 10
SETTLEMENT OF DISPUTES

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‘International’ disputes, however, are not restricted to those between states: also applicable are those
disputes involving other entities, including international organizations, ‘de facto regimes, and ethnic
communities enjoying a particular kind of status under international law.
● PACIFIC MEANS OF SETTLEMENT
● Article 33 (1) the ICJ Charter states that any dispute that is likely to endanger the maintenance of
international peace and security should first be addressed through negotiation, mediation or other
peaceful means, and states that the Council can call on the parties to use such means to settle their
dispute.
● Article 2(3) of the UN Charter states that all Member States have to settle their international
disputes by peaceful means in such a manner that international peace and security, and justice, are
not endangered.
Negotiation
The tool of negotiation enjoys a special place among the pacific measures listed in Article 33 (1)—
not least because negotiations are a universally accepted method of dispute resolution and possess
several advantages. One important feature is flexibility: negotiations can be applied to conflicts of a
political, legal, or technical nature. Moreover, since only the concerned states are involved,
negotiation empowers the parties themselves to steer the process and shape its outcome to deliver a
mutually accepted settlement. It involves only the States parties to the dispute, those States can
monitor all the phases of the process from its initiation to its conclusion and conduct it in the way
they deem most appropriate. The degree to which the negotiating parties trust each other to
implement the negotiated solution is a major factor in determining whether negotiations are
successful.
Inquiry
Two parties to a dispute may initiate a commission of inquiry or fact-finding to establish the basic
information about the case, to see if the claimed infraction was indeed committed, to ascertain what
obligations or treaties may have been violated, and to suggest remedies or actions to be undertaken
by the parties. These findings and recommendations are not legally binding, and the parties
ultimately decide what action to take. A commission of inquiry may usefully be employed in parallel

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with other methods of dispute resolution—for instance, negotiation, mediation, or conciliation—as

factual clarity is an important factor in any dispute resolution strategy.
Mediation and Good Offices

Mediation refers to the offer by a third party of its good offices to the parties to a dispute in the
interest of seeking a resolution and preventing an escalation of the conflict. The third party mediator
may be an individual, a state or group of states, or an international or regional organization. The
function of the mediator is to encourage the parties to undertake or resume negotiations. The
mediator may also proffer proposals to help the parties identify a mutually acceptable outcome.
These good offices may be offered by the mediator, or solicited by one or both conflicting parties. A
fundamental prerequisite is that all parties accept the mediator.
Conciliation
Conciliation combines fact-finding and mediation. A conciliation commission functions not only to
engage in enquiry—to set out clearly the facts of the case—but also to act as a mediator, to propose
solutions mutually acceptable to the disputing parties. Such commissions may be permanent, or
temporarily established by parties to a particular dispute. The commission’s proposals are not
binding, but each party has the option of declaring unilaterally that it will adopt the
recommendations.
Arbitration
The most concrete achievement of the 1899 Hague Peace Conference was the establishment of the
Permanent Court of Arbitration (PCA), located in the Peace Palace in The Hague. Parties agree to
submit disputes to arbitration, and thereby commit to respect in good faith the outcome, which is
binding. The PCA, which is always accessible, has competence in all arbitration cases submitted to it
by agreement of the parties involved. The PCA provides a list of arbitrators, appointed by states
parties to the Hague Convention, from which parties submitting a dispute to arbitration can choose.
Adjudication
The term ‘international tribunals’ refers to the International Court of Justice and other courts with
international jurisdiction. Depending on the definition employed, there are currently between
seventeen and forty international courts and tribunals. Normally, the decisions of an international
tribunal are definitive and cannot be appealed. Normally, cases brought to the ICJ cover: the

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interpretation and application of treaties; sovereignty over territory and border disputes; maritime
borders and other matters related to the law of the sea; diplomatic protection afforded to foreigners;
the use of force; violations of contracts; and principles of customary international law.
ROLE OF ICJ
One of the purposes of the United Nations is to bring about by peaceful means, and in conformity
with the principles of justice and international law, adjustment or settlement of international disputes
or situations which might lead to a breach of the peace. In order to achieve the above purpose, it was
essential to establish a judicial arm of the organization. It was therefore decided to establish a court
named the International Court of Justice. The International Court of Justice (ICJ) was established in
1945 as the successor to the Permanent Court of International Justice. Since its establishment, the ICJ
has become the principal judicial organ of the UN entrusted with the resolution of legal disputes
between sovereign states. The court consists of fifteen judges elected by the UN General Assembly
and confirmed by the Security Council.
The ICJ has a dual role: to settle in accordance with international law the legal disputes submitted to
it by States, and to give advisory opinions on legal questions submitted to it by the UN General
Assembly and the Security Council and other duly authorized organs and agencies.
JURISDICTION OF ICJ
(a) Special agreement

Article 36, paragraph 1, of the Statute provides that the jurisdiction of the Court comprises all cases
which the parties refer to it. Such cases normally come before the Court by notification to the
Registry of an agreement known as a special agreement, concluded by the parties especially for this
purpose
(b) Matters provided for in treaties and conventions

Article 36, paragraph 1, of the Statute also provides that the jurisdiction of the Court comprises all
matters specially provided for in treaties and conventions in force. Such matters are normally brought
before the Court by means of a written application instituting proceedings
(c) Compulsory jurisdiction in legal disputes

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The Statute provides that a State may recognize as compulsory, in relation to any other State
accepting the same obligation, the jurisdiction of the Court in legal disputes. Such cases are brought
before the Court by means of written applications.
The States parties to the present Statute may at any time declare that they recognize as compulsory
ipso facto and without special agreement, in relation to any other State accepting the same obligation,
the jurisdiction of the Court in all legal disputes concerning:
• the interpretation of a treaty;
• any question of international law;
• the existence of any fact which, if established, would constitute a
breach of an international obligation;
• The nature or extent of the reparation to be made for the breach of an
international obligation.
ADVISORY JURISDICTION
Legality of use of nuclear weapons advisory jurisdiction case
Background
The General Assembly of the United Nations asked the Court to provide its legal opinion on the
following question “Is the threat or use of nuclear weapons in any circumstances permitted under
international law?” In 1993, two years previously, the World Health Organization had asked the
Court a similar question on the legality of the use nuclear weapons under international law. The
Court declined to answer because the Court held that the World Health Organization did not have the
competence to ask the Court that particular question.
Issue
• Did the Court have the competence to give an advisory opinion based on a request of the
General Assembly? In other words, did the General Assembly have the competence to ask
the Court for an advisory opinion on the above question?
• If yes, were there any reasons that would compel the Court to decline to exercise its
jurisdiction?
• Did treaty or customary law authorize the use of nuclear weapons?

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• Did treaty or customary law contain a “comprehensive and universal” prohibition on the
threat and use of nuclear weapons?
• Will the threat or use of nuclear weapons be lawful in self defense in situations where the
very survival of the State is at stake?
LAW INVOLVED
● Article 65 (1) of the Statute of the ICJ to provide an advisory opinion, when it is requested by a
“competent organ of the United Nations”.
● The Court may give an advisory opinion on any legal question at the request of whatever body
may be authorized by or in accordance with the Charter of the United Nations to make such a
request.
● Secondly, the General Assembly is a “competent organ” because it is authorized by Article 96 (1)
of the United Nations Charter to request an advisory opinion from the Court. The Court says that:
The General Assembly or the Security Council may request the International Court of Justice to give
an advisory opinion on any legal question
JUDGEMENT
The Court concludes that it had the jurisdiction to respond to the question as per the law mentioned
above. The Court agrees that even if it has the competence to give an opinion, it can still refuse to
respond to an advisory opinion based on the discretion it has under Article 65 (1) of the Statute. If
you recall, Article 65 (1) says that “the Court may give an advisory opinion…”
On the use of nuclear weapons, the Court decided that neither customary law, nor treaty law,
explicitly authorizes the use of nuclear weapons. The Court concludes that there is no comprehensive
and universal prohibition on the threat or use of nuclear weapons either in treat or customary law.
The Court upheld the decision of S.S Lotus case and held that what is not prohibited in international
law by treaties or customary international law, it is permitted. Applying this ratio, the Court held that
since there are no customary laws and treaties prohibiting use of nuclear weapons, it is permitted to
use but on one condition; self defense.

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Introduction to International Law

PRIVATE INTERNATIONAL LAW

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BASIS OF PUBLIC INTERNATIONAL LAW/

THEORIES OF PUBLIC INTERNATIONAL LAW

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Difference between Private International law and Public International law

PUBLIC INTERNATIONAL LAW PRIVATE INTERNATIONAL LAW

It is the body of customary or conventional It may be defined as the rules voluntarily

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RELATIONSHIP BETWEEN JUS COGENS AND ERGA OMNES

• The regime of international law is illegitimate. It is a predatory system that legitimizes,

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• The Third World is a political reality.

• It basically describes a response to a condition, and is both reactive and proactive.

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• It is reactive in the sense that it responds to international law as an imperial project.

• Such disagreement must be related to an issue that is of significance to, or affects in an

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Sources of international law

Article 38 (1) of Statute of ICJ, 1945:

(i) International conventions;

(ii) International customs;

(iii) The general principles of law recognized by civilized nations;

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Article 1 of the 1969 Vienna Convention on the Law of Treaties.

Treaty as per VCLT:

1. Create future rights and duties

1. Treaty of Versailles, 1919

Treaty v. Custom – with relation to consent:

1. Treaty- express consent.

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2. Custom – Tacit consent

- Pacta Sunt Servanda – promises are to be kept.

- Treaties are binding and are to be honoured.

- Contrast to customs, treaties are more modern and deliberate.

- Article 2(1) (a) of the Vienna convention of treaties law of treaties

NORTH SEA CONTINENTAL SHELF CASE

Denmark and Netherlands v. Germany I .C.J. Reports 1969

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1. Is Germany under a legal obligation to accept the equidistance-special circumstances principle,

Contentions of Denmark and Netherlands-

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There are two essential elements of a custom-

1. State practice- This is also known as the material element-

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India v. Portugal, [1960] ICJ Rep 6

1. Was India legally bound to provide Portugal right to passage?

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Columbia v. Peru [1950] ICJ 6

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NORTH SEA CONTINENTAL SHELF CASE FOR INTERNATIONAL CUSTOMARY LAW:

For a customary rule to emerge the Court held that it needed: