A

Topic 3 (Sources of International Law):

General principles of International Law

1. Andrew Clapham, Brierly's The Law of Nations ( very brief introduction
to the sources) Pg 63-65

2. Peter Malanczuk, Akehurst's Modern Introduction to International Law,

Routledge 7th Revised Ed.
Chapter 3 : Sources of International Law, Pg 48-51

3. Crawford, James, Brownlie's Principles of Public International Law, OUP

8th Ed.
Part 1: Chapter 2: The Sources of International Law, Pg 34-37

4. A Functional Approach to "General Principles of International Law-

M. Cherif Bassiouni (PFA) - pg 768-775, 788-812

Topic 12 (The Law of Treaties):

1. Peter Malanczuk, Akehurst's Modern Introduction to International Law, Routledge 7th

Revised Ed.
Chapter 9 : Treaties, Pg 130-146

2. Crawford, James, Brownlie's Principles of Public International Law, OUP 8th Ed.
Part VI: Chapter 16: The Law of Treaties, Pg 367-387

3. Relevant Provisions under VCLT as discussed in class (PFA) {refer syllabus}

Below are the references for Topic 3 (Sources of International Law):

Judicial Decisions and Learned Writers

1. Andrew Clapham, Brierly's The Law of Nations ( very brief introduction to the sources) Pg
65-68

2. Peter Malanczuk, Akehurst's Modern Introduction to International Law, Routledge 7th

Revised Ed. Chapter 3 : Sources of International Law, Pg 51-52

3. Crawford, James, Brownlie's Principles of Public International Law, OUP 8th Ed. Part 1:
Chapter 2: The Sources of International Law, Pg 37-41,43

Module1: Crawford, James, Brownlie's Principles of Public International Law, OUP 8th
Ed.
Part 1, Chapter 1: Introduction, Pgs 3-12
2. Peter Malanczuk, Akehurst's Modern Introduction to International Law, Routledge
7th Revised Ed.
Chapter 1 : Introduction, Pgs 1-7
Module 2: Crawford, James, Brownlie's Principles of Public International Law, OUP
8th Ed.
Part 1, Chapter 1: Introduction, Pgs 3-12
2. Peter Malanczuk, Akehurst's Modern Introduction to International Law, Routledge
7th Revised Ed.
Chapter 1 : Introduction, Pgs 1-7

Module 3: 1. Andrew Clapham, Brierly's The Law of Nations ( very brief introduction to the sources) Pg 54-
63.

2. Peter Malanczuk, Akehurst's Modern Introduction to International Law, Routledge 7th Revised Ed.
Chapter 3 : Sources of International Law, Pg 35-48.

3. Crawford, James, Brownlie's Principles of Public International Law, OUP 8th Ed.
Part 1: Chapter 2: The Sources of International Law, Pg 20-34.

4. Cassese, Antonio, International Law, Oxford 2nd Ed.

Chapter 8: Custom, pg 152-160, 162-169.

Is international law really a law?

 Earlier it was called law of nation promulgated by jurists such as Victoria, Grotius,
Gentili, Pufendorf
 International law is a specialized body of thinking and here they deal with relationship
between rulers. It reflects two things: customs and practices. It involved in matters
such as treaty making, use of oceans, modalities of war-fares and dealing with state
ambassadors.
 Thomas aquinas, 13th century: he wrote summa theologica: international law provided
structure and it started moderating the relationship between kingdoms, republics and
principalities. International law was more of a moral question. It spoke about
territorial claims, diplomatic rights and treaties. International law is not the business
of a private individual, not a business of private individual to declare war and
summon people together.
 It was Eurocentric in origin. It travelled with the colonialists.
 China, Siam and Japan were trying to get independence. In 19th century, China started
employing gun boat diplomacy. It refers to pursuit of foreign policy where people
show conspicuous show of naval power. China formed called treaties of Beijing
(1860). This was a series of unequal treaties that china entered with UK, French
empire and the Russian empire. These were drawn during the convention of Peking.
 Japan showed their importance by. Battle of Tsushima in 1905, won this battle against
Russia and outcaste their importance
 Ethiopia: trying to get independence. They defeated Italy in the battle of Adowa
(1896) and showed their claim for independence. The condition in rest of the Africa
was not like Ethiopia. It was controlled by various European nations [Great Britain,
France, Belgium, Germany, Spain, Portugal, Italy].
  By the time of WWII, there was already a modern system of international law.
Treaties were made, international relations were maintained and customs were being
created.
 It was shaped mainly by colonialism.
 In 1920s, out of 64 countries, 16 were formal Spanish and Portugal colonies. In the
non-european countries [Liberia, Thailand, ottoman empire, Ethiopia, japan, china,
Afghanistan]. They were trying to retain their independence. It was widely thought
that international law dependent on two things:
o On consent: whether implied or expressed.
o It was consent between states and is applicable only to states.
 1904, Oppenheim: law of nations was about common consent and it was between
individual states and not humans. Thus, subject of international law was stated as
states.
 In 1925, the permanent court of justice: one of its judgment indicated that the rights
under the international law could be conferred to individuals as well.
 In 1815-16: we were moving from bilateral to multilateral treaties. There was a
congress of Vienna. There were lot of international conferences happening.
 1856: River commission were taking formed. E.g. European commission of Danube.
 1865: international telegraphic union
 1919: league of nations came into existence.
Sources of international law:
Article 38(1), Statute of ICJ. Before this, the sources were:
 Natural law origins: law of nature, it has human reasoning attached to it. Jus Naturale.
Hugo Grotius: he laid down foundations of international law from natural law. He
started removing natural law through his writing from religion and theology. Moral
ethics of natural law should not be concentrated to just Christians. It should be given
to all natural and moral beings. Natural law was divided into two things:
o Jus gentium: law of the mankind. Law of nations
o Jus civile: law of state
Grotius wanted to separate jus naturale from jus gentium. In his book [De Jure belli
Ac Pacis, 1625]: amongst all states, there are some laws which are agreed upon by
common consent. Such common consent is just above a particular body of law but is
about law in general. This was termed as law of nations. He said that law of nations is
distinct from law of nature. Law of nations is a system of norms. This system could be
derived from a universally applicable natural morality or it could be attested by the
consent of the nations. International law had a limited agenda because legal issues
external to a state were limited.
Wolffe: his published his works in 1740 and he described natural law through science
and technology. He acted as a bridge between Grotius and Vattel. He said that a
collective society cannot be promoted without a formation of a universal political
entity. It entity is called supreme state. World is so huge and the states are scattered
and it is not possible to assemble together. So whatever is approved by civilized
nations, it should be considered as the law of nations.
Vattel: in 1768, his texts were opposing wolffe’s idea and he could not comprehend
the idea of supreme state. There should be something called collective capable
working in common interest. It was for the maintenance of order and liberty.
 Immanuel Kant: 1724-1809: international federation of republican state. It was very
similar to a supreme state. If there is this authority and it imposes coercive rule, this
would be the only method to get peace. States who co-exist with other states must
emerge from their lawless conditions of pure warfare and like individual man they
must start renouncing their salvage and instead adopt public coercive rules and such
international state should continue to grow until it embraces the entire world
population.
 Positive law origins: law of the sovereign. positivism was happening around 1600-
1800. During this time, newly formed sovereign states were emerging. Roman empire
had broken up. For these states, law was something which happens within states.
International law is something which happens between states. Positivists say that
international law is where there is a common consent in the formation of the law
between the states, there was some kind co-operation in state affair, and it meant that
state had capacity to make permanent commitments. Law started defining what it
needs for an entity to become a state. By defining all of this, positivists were trying to
eliminate the paradox of within the state and between the state. International law is
not above domestic law but is applicable between states.
o John Austin [1832, the province of jurisprudence determined]: international
law is ‘law improperly so.’ This is so because there is not authoritative figure
who is drawing the international law. International law should come by an
authoritative figure and given to person/persons, i.e. state. International law is
more of a general opinion. The only way international law can be imposed is
by moral sanctions. These moral sanctions were decentralized. State may fear
that violating international law may incur some evil or lead to difficulties.
International law does not comply with his understanding of positive law
because international law does not have a sovereign, command structure or
formal sanctions.
o Jeremy Bentham [1748-1832]: there is sovereigns as national sovereigns are
coming together to make the law. They proclaim law for their own
communities. These national sovereigns were not disabled from making
collective sanctions. Thus, there is an authoritative figure.
o HLA Hart: international law is just a marginal form of law. It possessed some
but not all the characteristics of developed laws. it was imperfect in every
way. For a law to be a law:
 It should have a primary rule: it is formed by human interaction and
human action.
 A secondary rule: they spoke about rules of enforcement, adjudication
and change. This was to operate in relation with primary rules.
 A rule of recognition: it enable an observer to identify that whether the
components of the system is legal or not.
 Hart found primary rule for international law. International law has
very rudimentary system of enforcement, adjudication and change.
There was no courts of compulsory jurisdiction, there was no
legislation who may make the international laws, there was very failed
internal attitude of the officials. It is a social rule which may look
similar to municiple rule but it is more of a social law.
o Ian Brownlie: HLA Hart might be true that international law lacks secondary
rules. But are they that important? He believes that it should matter less as
secondary rules have less importance in maintaining legality. Other things
 should be looked. Just because we classify a system is legal, it does not mean
that it is effective. They may still be a kiosk. He proposed another way to
classify a system as legal system: if the rules, traditions and institutions of a
given system enjoys some sort of salience within the relevant society to meet
its social needs and apply certain methods and technique, then it is a legal
system. It should be different from a manifestation of an unregulated force.
 John Finnis [natural law and natural rights]: he used the theory of customary
international law to defend international law. He said that CIL is authoritative and it
was adopted by the international community even though it does not sovereign
authoritative structure. They came even without the secondary rules. So, similarly
international law is even a law if we see it through natural law.
THUS INTERNATIONAL LAW IS A
LAW!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

International law: 1780: Jeremy Bentham, he first used the term international law in his book.
Around 1840, people still used law of nations and not international law.
PIL was law which governs the relations between states and among each other. [between
WWI and WWII]
In the 19th and 20th century: only states can enjoy some sort of legal personality [positivist].
State was the subject of international law.

Holy see- Vatican [jurisdiction of the catholic churches]: when they talked about the states,
they forgot that holy see was also the subject of international law.
In 20th century: more actors were added in the international law and individuals and
organization were also getting certain rights.
3rd Reinstatement by American law institute of the foreign relations law of USA: it involved
all the other actors in the definition of international law. It deals with the conduct of states
and it also involves international organizations as well as relationship with other persons,
who can be natural or juristic.
Sir Robert Jennings: there is no need for objective definition of PIL. State remains the
primary actor in the international law. Only states can be member of UN, can appear before
ICJ.
Characteristics of PIL:
 It is different from national legal system
 Modern state 14th century: if there is a state that has centralized use of force,
monopoly over using this force against human. For using such force, the state has
various mechanism. It has bureaucracy. Western system of modern state:
o Law enforcement agency
o Law making agency
o Law determination agency
o By using this understanding of modern state, international law is defined.
 The states are considered equal
 The is no sovereign
  The subjects are much lesser than domestic system.
 It is horizontal in nature: this is no supreme authority [there is not centralized law
making authority, now world legislature as such; the ICJ is not actually like what is
found in the domestic sphere, consent is required for filing case; more prominent
mechanism for law enforcement in domestic sphere], centralized use of force, no
elaborate law enforcement mechanism, central organs like UN
 Injured state can take remedies through ADR mechanism (reparation) or through
remedies provided in the treaties. Other methods are
o Self help: taking law in one’s hand. They implement rights without the
intervention from higher authority. In domestic system, self help as a doctrine
is limited. Two ways in which this is used
 Reprisal: illegal act but is not considered illegal but it is a response of
an illegal act. It should be proportional to the initial injury.
 Retortion: cutting off an economic ties. It is usually done to injure the
other person. It is not always possible
o Where states come together as a community. E.g. UN. UNGA resolutions are
mostly recommendations and not binding. UNSC: because of the veto system,
it becomes politically inclined. IMF: they can cut off the membership of a
state, such states cannot buy gold and forex.
 States are generally unequal in power.
 It is primitive in nature.
 Collective responsibility: whole community is responsible when a state does
something wrong.
 Lot of influence of power and politics in the international legal system.
 It cannot survive on its own and is dependent on the national legal system. It is
dependent on municipal law for its enforcement.

SCOPE OF INTERNATIONAL LAW:

 Initially very minute: war, states, diplomacy
 Transnational concern during 20th centuary.
 Oscar schacter: people cannot comprehend the complex international law.

Origin of PIL:
 W. G. Grewe: there are three differrnt systems of international law came about. All
three were influenced by the people, their policies and ideologies who were in power.
o 1494-1648: he called it the international order of the Spanish age.
o 1648-1815: the French age
o 1815-1919: the English age
 Rudolf Bernhardth: the origin of PIL lies in the year 1648-1815. Further development
in 1815-1914 (WWI); more development during 1939-1945. He also talked about
developments in other parts of the world.
 Legal historians divided it into
o Classical system of PIL: began in 1648 – 1918: relationship between states. It
was just the modern state that was the actor and subject of international law.
Right to contest wars, have claims against other states and protect from other
states and ensure national interests. Medieval kings were powerful but they
 had to submit themselves to higher authorities like pope. So they were not
modern states. Anyone who discovered sea routes got more authority.
o New/Modern system of PIL: since WWI: not only Europe influenced, other
states also influenced. More stronger and independent states got emerged.
They developed unrestricted sovereignty and did not submit to higher
authorities.
Peace of Westphalia, 1948: new political order created. Religion going down and State
concept was having rise. There were independent states at the end of the war. Germany was
divided into smaller states. More bigger powers such as France, Sweden, Netherlands.
Switzerland emerged as neutral State. Antonio Cassese: this event noted two things:
 It started a new international system which spoke about plurality of states;
 There was no ultimate superior leader.
Frederich Gentz: 1806: he analyzed the peace of Westphalia: the area of Europe had balance
of power in the area of Europe subsequent to this peace. Europe became an organization of
separately existing states, of which no single state had the ability to impair the independence
and basic rights of another state without getting the resistance from other states. Balance of
Power: there is no superior power and if one state faces some issues, its neighboring states
should come and form coalition. State’s national security can be enhanced if the states in the
region try to distribute the military capabilities in such a way that one state is not strong
enough to dominate the other state. European Public law is governed by the balance of
power.
1789: it became more than balance of power doctrine. Liberty, egalitarianism and fraternity
came. Self determination and freedom emerged.
Peace of Westphalia is connected with the idea of sovereignty.

Sovereignty: 1500s: in 1576, Jean Bodin: he wrote the book called de republica. His writings
were affected the French politics. The reason for the wars and factions in France was due to
absence of a supreme authority. The only thing with which it can be curbed is through
strengthening the French monarchy. He was talking about an unaccountable supra-legal
powers. It should have power over the land as well as the people. Law of lands, law of
governments: it was divine law, this is above the supra-legal power. The divine law creates
the supra-legal power and which can further create the law of the land. Sovereignty exists
only when there is supra-legal powers.
Sovereignty: independence. There should be a state which should be independent.
Sovereignty is not a legal term, rather it is an emotive terms as it does not have a rigid
meaning. If a state has huge powers and power to abuse their power, then it would make them
a sovereign state.
1899: Hague Conference, proposed by Czar Nicholos II of Russia. Three conventions: law of
the sea warfare, law of land warfare, established permanent court of arbitration [proposed by
Britain and France] [they wanted to propose something for the peaceful settlement of
disputes]. non-binding resolutions. 27 participants: USA, Japan, China, Mexico, Siam
1907: IInd Hague Conference, it was proposed by President Theodor Roosevelt. No
additional conventions. They added to the existing conventions. 43 states participated. No
countries from Africa.
Very few parties were there and they did not discuss important issues such as colonialism.
Very less countries took interest.
1878, Berlin Conference: only 6 major power + turkey
1884-85: IInd Berlin Conference: 12 states

Between 1914-1918: in 1920, Paris Peace Conference. They proposed a treaty of Versailles:
allied powers [France, Italy, USa] and formed league of nations: Germany was given orders
to provide reparations to the countries who suffered due of WWI. They even lost 1/3rd of the
territory. They even proposed obligation not to resort to war.
1921: permanent court of justice. Went on till 1946. They proposed cooling off period. In
case some party has dispute with another, they cannot go for war until 3 months have
exhausted from the date of dispute. If they do not do so, state would be charged of conducting
an Act of War.
1928: USA and France entered into a pact. Kellogg Briand Pact also called as Paris Pact.
Wanted a achieve a broader prohibition of war.
Covenant of league of nations:
 Article 22: mandate system: they wanted to establish a sacred trust of civilization. At
one point, there were a lot of states forming due to disintegration. E.g. disintegration
of ottoman empire. There was a need for league of nation to stop fighting over the
disintegrated society. They wanted the higher powers to guide the disintegrated
territories. The states who were on the verge of disintegration would be guided by a
higher power. It was an international way of colonialism. It is noted as a failure of
league of nation. E.g British mandate of Palestine. Three types of mandate;
o Class A mandate: territories out of ottoman empire
o Class B mandate: territories out of German empire
o Class C mandate: other german territories
 32 contentious cases when PCJ started. 27 advisory opinions were also there.
 USA was not part of league of nations: a failure of league of nations.
 League of nations started with 27 countries. After 1934, lot of states started leaving
the league of nations.
 Reason for failure:
o Institutional: only members of league of nations could be part of PCJ. States
could leave the league of nations as well so all the nations did not come under
PCJ. League of nations could only function when all the nations agree on
something.
o Political: It runs on the ideology of collective responsibility. it also means that
all the states should have equal interest in preventing aggression against
another state. But, this ideology could not be achieved when the aggression
was created by a greater power. The countries could not come together to
protect the attacked state. E.g. Japanese aggression in 1932 in the Manchurian
province in china, league of nation did not do anything. E.g. Italy attacked
Ethiopia in 1936, nothing happened. The initiation of 2nd WW was the biggest
failure. It could not stop the tyranny of Hitler and atomic bombing on Japan.
In 1945, the UN Charter was formed.
26 June, 1945: UN Charter adopted. On 24th October, it came into force.
In 1941, Atlantic Charter: many political leader took part in this Charter. Theodore Roosevelt
and Winston Churchill were the main faces. After final destruction of Nazi Germany, we
need to see and establish peace, which would afford to all nations the means of dwelling in
safety within their own boundaries. There is a need to bring about full collaborations between
the nations especially in economic field. There is a need to bring about economic
advancement and social security.
4 countries that sponsored UN Charter: US, Britain, Soviet Union, China
Originally, it was signed by 51 states.
The major objective was to introduce law and order, collective security internationally.
1944: preparatory work for the UN Charter. It was in Dumbarton Oaks conference, the work
started.
In 1945, San Francisco charter conference: adopted
One state cannot attack another state
Article 51: use of force in the form of self defence.
Collective security system: Chapter 7 of the UN Charter. It gave power to the UNSC the
authority to determine whether there is any threat or breach of international security and it
wanted UNSC to adopt binding economic and military solutions against the aggressor.
For about 4 decades, UN charter did not function. There was a lot of problems, hostilities and
friction between the former allied power. Cold war was going on. They could not stop USA
from going to vietman war.
1962: Cuban Missile Crisis, October crisis: USSR deployed nuclear weapons in Cuba which
had the capacity to destroy the Northern Hemisphere. USA enacted Blockade around cuba.
USA approached Organization of American State instead of UN. This marked the failure of
UN Charter.
In the beginning, it gave more powers to the permanent members. Permanent members have
the veto powers. And apart from those 4, France is also given the veto powers. It violated
article 2(1) of the UN Charter as it said the UN is based on sovereign equality of all
members. This gave these states some privilege position.
1956: France and Britain’s power started going down due to Suez canal conflict. USA and
Soviet union asked Britain and France to withdraw from the Canal. This was seen as success
of UN Charter.
Formation of Blocks was also happening. Socialist block: Poland, Romania, Yugoslavia,
Czechoslovakia, Bulgaria,
De-colonializatoin: there were lot of colonial empires. They were confronted by liberation
movements. Israel-1948, india- 1947. Most of the countries were de-colonised by 1960.
1960, UNGA: they brought a declaration called the 1960 declaration on the granting of
independence to colonial countries and people. By this time, now it had about 130 members
in 1960.

SOURCES OF INTERNATIONAL LAW:

Ibis societas ibis jus: if social structure; there should be law
Hans Kelsen:
 Material source: historical sense. Historical influence explains factual existence of
rule of law in certain places and time.
 Formal source: legal sense: criterion which talks about a rule of law and how this rule
is accepted in current system.
Article 38, statute of ICJ
International conventions and treaties: principles that govern relations between conventions
and CIL:
 Lex posterior derogate priore: later law repeal the earlier one
 Lex posterior generalis non derogate priori speciali: later law that is general in
character do not derogate from earlier one which is special.
 Lex specialis derogat generali: special law will always prevail over general law.
If comity maintained for some time, then it can develop to a customary rule. for usage to
become custom:
 Consistent
 Should have no reserations

In treaties, states willingly come together, in CIL, no mention of parties to make law. Primary
concern to protect some interest: just a need [opinion necessitatis]-unintentional and
unconscious law making- Ago and Barile [CIL is spontaneous]
State practice: looking at press releases, newspaper articles, diplomatic correspondence
sayings, military court decision, manual of legal practice, opinions of legal advisors.
Case: Nicaragua v USa [1986]
Libya v malta [1985]

Customary International law: Section 38(1)(b): it is unwritten. There is a deliberate law

making process involved in case of treaties. Gradual process of making customary
international law:
 General practice [state practice]
 Accepted as law [opinion juris]
General practice: it should be consistent and uniform usage. In the Asylum Case [1950]: Peru
v Columbia: CIL must be based on a constant and a uniform usage. A single precedent is not
enough to establish CIL, but there should be a period of repetition and degree of repetition.
Facts: Victor Raul, leader of rebel group in Peru, unsuccessful, he seeked asylum in the
Columbian embassy, Peruvian authorities wanted Raul to be released. ICJ: Whether
Colombia had the right to give asylum to Raul, whether he should be handed over; whether
Peru should provide a safe conduct by the Peruvian authorities for Raul to leave the country?
It is not possible to discern any constant usage in the law of diplomatic asylum.
Nicaragua v. USA [1986]: para 86: it does not consider that for a rule to be recognized as
CIL, the practice need to be rigorously uniform. The court deem it sufficient that the general
practice of conformity with the rule must be there. Inconsistent practice should be treated as
breach of the rule and not the creation of new rule.
Rule should be supported by large amount of practice which outweighs the opposite practice.
It does not matter how long a practice is practiced. Minor inconsistencies are allowed.
All the states should come together in formulation of rule and it should show wide acceptance
of the rule by the states. E.g. Law of the sea: the practice of the maritime nations are
considered for to be considered as customs.
Duration: north sea continental shelf case: 1969, Germany and Denmark v Netherlands:
although
Doctrine of acquiescence: if the country is silent about a claim of the rule, it leads to
production of a legally binding CIL.

Custom is of two elements:

Objective [state practice]; Subjective [opinio juris]: para 14 of Nicaragua v USA
Libya v Malta: continental shelf case, 1985: the substance of CIL must be looked at primarily
in the actual practice and opinio juris of the state.

Opinio juris sive mecessitatis: psychological element. A state practice should be backed by
some kind of legal obligation. Evidence of this can only form CIL. ICJ looks at the scholarly
articles, court judgments, state practice and decisions of the tribunals to ascertain opinion
juris.
SS lotus case:1926: ECIJ: France v Turkey: on page 28. There need not be continuous
conduct of legal duty, there should be higher obligation attached with it to do it.
Nicaragua case: paragraph 207: if there is astate practice, there should be evidence of legal
obligation attached to it which make it obligatory for the state to do it.
Actual practice attached to it.
Not just official practice. There should be act or omission which would evidence opinio juris.
We even need to see how other states are reacting to the act or omission.
There are other rules known as permissive rules : state does not protest the omission or act of
the other states even though the state’s interests are affected, then it makes the rule
permissive.
Rules imposing duties on the state: the other state needs to prove that it regards the rule
obligatory. It can be shown when the state:
 Starts acknowledging the duty
 Failure to take actions or impose sanctions.

France had a ship called Lotus, Turkey had a ship called Boz kourt. French ship collided with
the Turkish ship. Lotus ship helped the people in the Turkish ship and then continued their
journey to Constantinople. After they reached this port, Turkish authorties called the Captain
of Lotus to give the evidence of collision. When he went, he was arrested by the authorities
and they imposed negligence on him. The question here was about jurisdiction. France was
the flag state and turkey was the port state. Turkey said that it has permissive rule that to try
the Captain under Turkish jurisdiction and France said that there a rule obligating turkey not
to try the Captain. PCIJ decided in favor of France. Permissive rule did not succeed because
not many states had prosecuted before this incident in such circumstances.
Inherent mechanism for the change of CIL:
Lot of states protesting.
Equal number of states resisting a new CIL and equal number of states supporting the CIL?
They wait for the consensus to change.

Treaties:
 They are the major instruments for co-operation
 Has to be codified
 Ad hoc compromises, for the time being agreeing to something
Differences between international legal system and national legal system:
 Law making treaties [genocide convention]

Certain german interests in Polish upper Silesia, PCIJ, 1926: Treaties only create laws in
between the states. The law governs the parties to that treaty.
Pacta tertis nec nocent nec proscent: treaties may neither impose legal obligation nor create
entitlements on the third party.
Article 35 and 36 of the Vienna Convention on the Law of the Treaties, 1963 says that if
there is a third state, it can derive interest from the treaty if they consent to it. It came into
force in 1980. After this, there were several restriction that came into being:
 Unfettered freedom on the process of treaty making was curtailed.
 States had to follow certain central core norms of public international law.
 Democratization: VCLT expressly made it compulsory not to make treaties which is
advantageous to only them. E.g Article 52: no coercion for economic relations
 States started working towards the need of the public
 Article 4: pre-existing treaties were not bound by VCLT.
Law making treaty: if any legal obligation is placed on the treaty making state or not [traites
lois]. It does not impose legal obligation just for single event. 1 time observance of a treaty:
not a law making treaty. It creates some kind of general norm which creates legal proposition
which is binding on the parties.
The number of parties involved is largely more. There is explicit acceptance of the rule. it is
of declaratory nature. CIL may also become a treaty. Baxter Paradox: it becomes rigid and it
arrests the further development of CIL. When such codification happens, it is hard to amend
later. The image of the CIL remains as the treaty itself.
If a party does not want to be part of a treaty, but if it becomes CIL: then state which were not
bound by it initially are also bound by it. Exception to this is persistent objector.
UNCLOS provided that the territorial limit for sea is 12 nautical miles. But USA and Japan
wanted to make it 3 nautical mile. However, they were forced to extend it to 12 nautical
miles.
Courts use CIL to mound the treaty law. E.g. Article 51 UN Charter. This does not happen
vice versa.
No dispute settlement mechanism: if treaties becomes custom,

VCLT:
International law commission: TREATY: draft provision: if there is any international
agreement, in return form, whether embodied in a single instrument or in two or more
instruments, then whatever a particular designation it might be [agreements, charter,
agreement, convention], it should be concluded between two or more states or it can be
between other subjects of international law, and it should be governed by international law.
Treaty under VCLT: article 2(1)(a)
It excludes any commercial agreement that two states may come into under a national law,
VCLT wont apply. VCLT governs only those treaties which are governed by international
law.

In the case of Qatar v. Bahrain, 1994: there is no overriding requirement of the form of a
treaty. A treaty can be concluded in the means of minutes of the conference or in a exchange
of letter between states. How a treaty is brought about is only according to the negotiations
between the parties. Formation of the treaty is usually concluded by the government head of
the state.
State agents were given full powers to negotiate on behalf of the states. Article 2 1 c
Person with full power: he can go and sign and seal the treaty. It does not creates obligation
over the state.
Signature does two thigns:
 Qualify a signatory state that can go for ratification of the treaty
 It shows the evidence of negotiation.
 It creates an interim obligation in the form of good faith
States should have an express negotiation and mention explicitly that signing of the treaty
will bound the state: when can sign bind the state.
If a treaty text says that the text may be approved or adopted by a resolution of UNGA and
submitted to the members state for approval or adoption: signing is enough. States need not
ratify.
Ratification [Article 14]
  Internal act of approval of such treaty text. It can be in the form of an Act of the
Parliament.
 If there is some kind of formal procedure.
Accession
Acceptance
Approval
Entry into force: provision of the treaty deals with this. If date is not mentioned, as soon as
negotiation are done and consent through signature is completed. Article 26, 76 and 77.
Article 102 UN Charter. Why depostiroties:
 To discourage secret diplomacy. It wants the whole system to be transparent.
 So as to promote availability of treaties that have been concluded
They cannot rely on the documents for any proceedings in the UN.
ReservationS: 19-23 of vclt. ARTICLE 2d: unilateral statements when the country wants to
add or delete some part of the treaty. It is deferent from interpretative statement.
Absolute integrity
Advisory opinion case: Reservations to the conventions on the prevention and punishment of
the crime of genocide. This came in the year 1951. The court did not follow the absolute
integrity principle and it followed compatibility criterion: a state which has made a
reservation and such a reservation is objected by one or more parties to the treaty, then such
parties do not seize the part of the treaty and continue to be regarded as part of the treaty. The
reservation should be compatible with the objects and purposes of the treaties.
International law commission rejected the compatibility criterion: when all parties does not
make rejection, the absolute integrity should be followed. Rule of unanimous consent should
be followed.
In 1952, UNGA resolution, UNGA Res 598(vi): it was communicated to the sec gen to the
UN that practice to be followed should be compatibly criterion. In the future, they should
leave such opinions themselves.
1962: ILC decided to favor compatibility criterion.
Article 20(5)
Convention on the elimination of all forms of discrimination against women [CEDAW]:
check out UAE and Austria reacted to it.

Observation AND APPLICATION

Article 26, 27, 28, 29, 30
103: UN CHATER
351 OF EUROPEAN TREATY ON FUNCTIONING OF eu

INTERPRETATION:
  Textual approach: the treaty itself is the best guide that would show the common
intention of the parties and it is the best guide to interpret the meaning of the treaty.
Article 32. It is a reflection of CIL. In the case of Bonsai and Herzegovina v. Serbia
and Montenegro (2007): para 160:
Polish Postal Services of Danzig [1925] pcij8
Principle of ordinary meaning:
o Principle of integration: the meaning of the provision of a treaty must emerge
in the context of treaty as a whole. Article 32(1) - (2)
o Principle of contemporaneity: one has to look at it from the view of the
general principles of the international law and then read and interpret the
provision of the treaty. Article 31(4). If any other approach is used by the
States, then the burden of proof is on the State giving such different approach.
Article 32: supplementary means of interpretation. Initially, when ILC had written a
draft commentary on VCLT, they explained that Art. 31 and 32 are not separate
Articles and they have to work in conjunction. E.g. Libya v. Chad, 1994, Bankovic v.
Belgium, 2001[using travaux prepetavoires].
 Restrictive approach: came somewhere around 1929 when Territorial jurisdiction of
the river commission of the river oder was constituted. If there are any provision
implying a limitation to state sovereignty then such provision should be interpreted in
a restrictive manner. It was mostly used in cases of core territorial sovereignty and
privileges.
 Teleological approach: we look at the object and purpose of the text to reach a
conclusion. Under this approach, there is a principle called evolutionary principle. It
is also called progressive principle: If a word is generic, then they interpret such word,
we give it a progressive or modern meaning. This often happens when ECHR
interprets laws. E.g. Navigational Rights case, 2009: ICJ was interpreting “for all
purposes of commerce”: the court wanted to see if this term covers commercial
tourism as well. Yes it covers all modern form of commerce. When the parties have
used generic terms, the parties are aware that the meaning would evolve over time,
and when a treaty has been entered for a long period of time or is for a continued
duration and the parties have intended that the meaning of the term would be
evolving.
 Effectiveness principles: used to interpret the powers of the UN organ. This is also
called institutional effectiveness principle. One should interpret the term one should
do it in such manner that it aids the working the UN organization. The interpretation
should be conducive for the working of the UN organs.
Amendment to Treaties, 39-41: depends on consent of parties, influenced by political
decisions of the nations. Article 108-109: Un Charter.
Invalidity [Part 5, section 2]: article 42, 46, 47, 48, 49, 50, 51, 52, 53. Void [51-53]; voidable
[46-50].
Termination and suspension, part 5, section 3: 54, 55, 56 [USA v nicaragua, 1984: it reflects
CIL], 60
Suspension: 60: compensation can also be taken under section 60. It can be in addition or in
spite.
38 1 c
Civilized nations:members staaets of UN
General principles of INt law or Gen Prin of nat law?
It includes any specific principle under international law which is already existing.
Basically, to fill up the gaps in PIL, they borrow principles from national legal systems that
are common to all national systems of law. It can be any specific rule of law. All the national
law systems are not same. Thus, the principles can be different. Another problem with this
stance is that the ICJ judges are mostly from different national system and they often look at
their national system while defining a GPIL. They often do not examine that what are the
GPIL in other nations. Article 9, ICJ Charter:
In 1970: Hersch Louchterpacht was trying to define what GPIL is. He stated that those
principles of law, private and public, which contemplation of legal experience of the civilized
nations leads one to regard as obvious maxims of jurisprudence of a general or fundamental
character. A GPIL can have a comparison, a generalization and symposia of rules of law in its
various branches like private and public, constitutional, administrative and procedural which
are common to various systems of national law.
Bin Cheng: Cardinal principles of the legal system in the light of which international law is to
be interpreted or applied. 1953
Prof. Schlesinger: GPIL are core legal ideas which are common to all civilized legal systems.
Verzijl: GPIL are principles which are so fundamental to every well ordered society that no
reasonable form of co-existence is possible without their being generally recognized as valid.
1968: Prof Gutteridge: an international judge before taking over a principle of private law
must satisfy himself that it is recognized in substance by all the main system of law and that
in applying it, he will not be doing violence to the fundamental concepts of any of those
systems.
There is no consensus on the objective test to find the GPIL.
#SS Lotus Case [France v. Turkey], 1927, PCIJ: General Principle is applied between all
nations belonging to the community of States. There are two elements for general principle:
Universality; acceptability. The territoriality and criminal liability were already universalistic
in nature, and thus this is not the correct test. If the facts were different, the test would not
have been this.
There should not be any element like universality and acceptability for creation of GPIL. ICJ
rejected the test. [South West Africa cases, 1966: Judge Tanaka north Sea continent self case,
1969]: the recognition of a principle by a civilized nation does not mean recognition by all
the civilized States: South West Africa case. In the other case, the evidence should be sought
in the behavior of the State from great majority of the interested states to establish something
as GPIL.
Its actually discriminatory and incompatible to divide nations into civilized and non-civilized
nations. All member states of UN are of civilized character.
Evidence of GPIL: it could just be state conduct. it can be a unilateral declaration, writing of
scholars in a state, certain foreign policies, certain practices and pronouncements, statements.
These evidences can show us GPIL. CIL is more perfect in nature, it needs two component.
GPIL is more imperfect and some policy may even lead to forming of it. It just requires state
conduct.
Asylum Case: whether any principle can just be a unilateral qualification or universal
acceptance which can qualify as GPIL? It was held by Judge Castilla that the unilateral
statements of interested states can be termed as GPIL. They found an evidence in the
Montevideo Conference where a policy decision was termed as GPIL.
South West Africa Case: Judge Jessup: a GPIL can be evidenced through publications done
in civilized nations. Article by Tobin who wrote about termination of multi-partite treaties in
1930. Stephens in the year 1939 wrote about revisions of the treaty of Versailles. Unanimity
rule in the revision of treaties: by Hoyt 1959.
Can court precedents in the national legal system can establish GPIL: in case if there are
precedential authority, they should be in harmony with internationally established principles.
One can take an evidence of GPIL by looking at different branches of law in different
nations.
In the south Africa case, judge Mcnair examined English and American laws regarding the
policies and principles about trust. By analyzing such laws, he established policies and GPIL.
International law does not adopt the national law as a whole but include them according to
the needs. Sometimes, we can analyze the origins of the law like Roman origin or common
law system. GPIL is considered as a safety vavle. Because only when CIL is already
established or treaties are not there, only then GPIL is used to analyze the case.
Experience has shown that the main function of the GPIL has been safety valve and it is to be
kept in reserve rather than a source of law of frequent application.

1924: Mavromattes Palestine Concessions case [Greece and Great Britain]: principles of
Jurisdiction, Judge Basset: how the principle of jurisdiction is common to all legal systems.
There are certain elementary concepts common to all systems of jurisprudence and one of
these is the principle that a court of justice is never justified in hearing and adjudging the
merits of a cause of which it has no jurisdiction. The requirement of jurisdiction is one that is
universally recognized and is common to all national spheres and that this concept if
fundamental and should also be made peremptory in the international legal sphere.
Frontier between Iraq and Turkey, 1926: it is a well known rule that no one can be a judge in
his own suit usually holds good.
Greco Turkish agreement case, 1926: Advisory opinion by PCIJ: anybody who possesses
jurisdictional power also has the right to determine the at the first place the extent of such
jurisdictional power.
Chorzow factory case: between German and polish Government: polish army caused harm to
the german factories. Germany was asking for reparation. A principle which seems to be
established by international practice and in particular by the decision of the arbitral tribunals
is that reparation is a must. It wipes out all the consequences of the illegal act and
reestablishes a situation which would in all probability have existed if that Act had not been
committed.
S S Lotus case: how to ascertain if GPIL exists or not. If Turkey has jurisdiction to try the
Captain of the ship. In the fulfillment of its task of itself ascertaining what the international
law is, the court has concluded in its researches all precedents, teachings and facts to which it
has access and which possibly have revealed the existence of one of the principle of
international law.
Lighthouses case [France v. Germany, 1934]: contracting parties are always to be acting
honestly and in good faith. This is a legal principle which is recognized in private law and
cannot be ignored in international law.
Legal status of eastern Greenland case, 1930: Denmark v. Norway: they used the principle of
estoppel.
1939: electricity Company of Sophia and Bulgaria: Belgium v. Bulgaria: principle of interim
protection. The principle should be internationally accepted by the tribunals.

PCIJ failed to give a rigid guideline. It is similar in the ICJ cases.

1. Cambodia v. Thailand [Temple of Preah Vihear], 1962, ICJ: even though they could
have used the General Principle of preclusion, they did not used it in this way. They
merely asserted the sentences. He who is silent appears to consent, if he should and
could have spoken. There is an established rule of law, but they did not call it a GPIL.
Such principle was articulated only in the dissent. In dissent, the judge said that the
majority judgment was treating the principle of preclusion as formless maxim.
2. Principle of Good Faith: Nuclear test case between Australia v. France, 1974: the
court recognized the principle of good faith. It is the principle which governs the
relations and performance of international obligations. Just as the very rule of pact
sunt servanda, the law of treaties is based on good faith so also is the binding
character of the international obligation assumed by unilateral declarations.
3. Western Sahara case, 1975: question of principle of self-determination. The principle
of self-determination is existing and arising under international law and to reach a
conclusion about this, the court examined various UN document, ICJ decision. Court
perceived GPIL as general principle of international law.
4. Portugal v. India, 1960 [Right of passage to Indian territory case]: Dadar and Nagar
Haveli. Do Portugal has right of passage between the enclaves of Dadar and Nagar
Haveli and Daman and Diu. Is India’s refusal to allow such passage is legal? Does it
violated rights of Portugal or not. Portuguese also invokes the GPIL recognized by
civilized nations in support of its claim of a right of passage as formulated by it.
Having arrived at a conclusion that the course of dealings between the British and
Indian authorities on one hand and the Portuguese authorities on the other hand had
established a practice well understood by the parties. The court does not considered it
necessary to examine the GPIL recognized by civilized nations. There is a regional
custom which already grants them the right of passage. We need not involve GPIL as
regional custom would have precedence over GPIL.
5. Gap filling function of GPIL was looked at by in the South West Africa case of 1962
[Liberia, Ethiopia and South Africa]: filling a gap in the existing treaty. Article 7 of
the Covenants of League of nations: Compulsory jurisdiction of PCIJ [some provision
of the League of Nations were still in function]. South Africa went on to argue that
there is a lack of compulsory jurisdiction as no dispute as mentioned under Article 7
was existing. However, the Court used the legal interest principle and said through
Judge Jessup that even if there is any kind of legal interest at stake, such legal interest
would give rise to the jurisdiction of the PCIJ under Article 7. Such principle of legal
interest need not only be financial or economic, but can go on to be a humanitarian
interest as well.
 6. International Status of South West Africa, 1950: Court was analyzing the mandate
system prevalent in the league of nations. Court employed the GPIL prevalent in the
common law systems. They looked at the law of trust.
Other than just gap filling principle, GPIL is also looked as an interpretative thing. In case
there is a convention or custom which is ambiguous, then GPIl can be employed as an
interpretative tool.
7. Portugal v. India: there were two conflicting rights: right to access these enclaves by
Portugal: this right to access came through the sovereign claim over such enclaves.
Another right that India has that right to give passage. India was a territory, it had the
power to control the adjacent territories. Both of these rights were customary in nature
as one came from soveriengty claim and one from territoriality claim. Court employed
GPIL to clear the ambiguity. The Court used the principle of necessity and it gave
right to India to control the adjacent territories. Whatever sovereignty that the
Portugal is claiming can be controlled by the Indian territoriality claim.
8. Asylum Case: to determine the doctrine of asylum, the court still went on to interpret
the doctrine using GPIL. There is a GPIL of law where Columbia can give asylum to
Peruvian.
9. South West Africa case: GPIL may also arise from a treaty interpretation and law of
contracts in the national legal system. E.g. adjudicating some claims arising out of
treaties or out of a contract. how there is a principle of separation. One of the treaty
provisions may have become inoperative, but that does not mean that other treaty
provisions have also become inoperative. Even though the life of the league of nations
have ceased, it does not mean the all the provisions of league of nations cease of exist.
GPIL has arisen here from a treaty provision. The court said that sometimes GPIl can
be derived from national law as well. Protection of human rights can be taken as
GPIL.

Methodology to reach a conclusion for GPIL:

 Inductive reasoning: The Courts identifies the existence of different world system.
Then they search for a common identity. There are 5 world legal systems: civil legal
system, common law system [Britain, India, Malaysia, Canada, Australia], socialist or
Marxist legal system, Islamist legal system, Asian family of legal system. USA is not
a representative of a common law system.
 Comparative legal research: when we lay down legal systems side by side and
compare them. Professor Akehurst has said that he has relied on relied on laws from
Britain and USA. This comparative methodology is an empirical way to find GPIL.
E.g. Cutting case: USA v Mexico. They identified the legal system of USA and
mexico and reached conclusion about sovereignty. To identify the GPIL, they had
dependent also on the principles given by the national courts. Lagos v. Baggianini: the
Italian court in this case wanted to identify the principle of asylum and they compared
various legal systems to reach to a conclusion. E.g. Nnottebohm Case: in this case,
ICJ used the comparative legal methodology to examine different provisions about
nationality law. E.g. North Sea Continental Shelf case: court looked to different laws
to understand the GPIL.
38 1 d: it is a subsidiary means: Judicial decision, highly qualified publicists, subsidiary
means for determination of law.

Judicial Decision: Courts are not bound to follow the precedents. The judicial decision are the
evidence of law. It shows the innovation of the court itself.
Article 59: decisions of the Court have no binding force except for the parties and the
particular case.
e.g Greece v turkey case, 1925: exchange of Greek and Turkish population case. The Court
took precedents into consideration. It considered SS Wimbledon case to reach to the
conclusion.
Reparation for injuries advisory opinion, 1949. Court relied on another advisory opinion:
Competence of the ILO to regulate incidentally the personal work of the employer.
If ICJ wants to bypass any previous decision, it does not talk about it.
Can judicial decisions can be called subsidiary means?? One problem here is the multiple
tribunals have been created. It has become difficult to harmonize the judgments of all the
tribunals. There is a lack of formal relationship between all the tribunals. Judicial decision
term is vague as it does not talk about whether it is national courts or international tribunals.
In the asylum case, the Court looked at the judicial decisions of the national courts. We can
identify the state practice to look for the state practice. If the Court takes the national case,
there are a lot of cases, so a lot of cases go unnoticed. Only in rare cases, courts take up
national decisions as a source of International Law.
Polish Upper Silesia case: Article 59 is simply to prevent legal principles accepted by the
court in a particular case from being binding on other states or in other disputes.

Teachings of the most highly qualified publicists of various nations: only when the need is
there for understanding the concepts of international law, these writings can be resorted to.

Advisory opinion on Nuclear weapons 1996

Other source of law: ILC

Where 38 1 d is used: Notterbomh, SS Wimbledon, Genocide case of Bosnia, Question of

Javorzina, German Settlers in Poland case

Other sources: UN GA resolutions; ILC drafts

Hierarchy:
Relationship between international law and national law:

Monism: proponents: A Verdross; Deccencere Fernandeire: international and national law is

one single legal order. International law can be directly applied to the national law. Hans
Kelson: Pure monism: monism is a reflection of liberal thinking. Since the norms of the
national legal order are determined by a norm of an international law, they are basic norms
only in a relative sense. It is the basic norm of the international legal order which is the
ultimate reason of validity or the national legal order. It is the grundnorm from which the
norms derives its validity. Such grundnorm is the recognition of international legal thinking.
In the time of conflict, national law would be null and the international law will prevail. The
constitution would also become null if it is against the international legal order. It does not
really exist in state practice. It would be written down in the constitution of the State itself if
it wants to be a monist nation. If there are some self-implementing treaties, which does not
require validity of the national legal system, then we can identify such state as monist state. It
reflects theory of natural law. It follows the principle of lex posterior [the later law will
prevail over the new law]. E.g. Germany. Excuse that because of the municipal law, we are
not adhering to the international norms cannot be given. See Article 27 VCLT.
Dualism: pluralistic concept. There is a separation between national law and international
law. National law is something within a state and it applies to all the citizens of the state. It
identified relationship between citizens and citizen and government. International law:
relationship between states. It recognize the distinct aspect of national and international law.
In case international law is to be applied on national legal system, it is because of the national
legal system. The national legal system should accept such incorporation. If there is a
conflict, the national law prevails. It gives right to the national system to decide that which
system should prevail. Proponents: Oppenheim; D Anzilotli; M Virally. There really cannot
be conflict between the two laws because the objective of both the law is different. If there is
a perfect international treaty, it should be effective on an international level. To be effective
at national level, the nations have to introduce it through national laws. Transformation
should happen in the form of nationalization of the treaty. Both the systems have an
international responsibility, which is same, be it national law or international law. The basis
for international law is pacta sunt servanda but it is the constitution for the national law.
Virally said that there is a historical legal significance in this theory. This theory was brought
in 19th century when the nation state concept was coming up and the national law was more
prominent. There is an intersection of internal and international law because it is upto the
national authorities to enforce the international law, once the law is incorporated into the
national system. Some sort of continuous screening happens, the state has to be aware of the
new international laws and implement it in the national legal system. It reflects adherence to
the theory of positivism for it upholding the sovereignty of the national legal system.
G Fitzmaurice, 1957: the entire monist, dualist controversy is unreal, artificial and strictly
beside the point because it assumes something that has to exist for there to be any controversy
at all. There does not exist namely a common field of operation in which the two legal orders
under discussion both simultaneously have their own spheres of their activity. If there is any
conflict in the two system, then the consequences should not be borne by the national legal
system for it being a separate entity, the consequences has to borne by the State as an entity
in the international sphere.
There is no pure monism and dualism country. E.g. Netherland: it is a predominantly monist
country. But definition of the crimes became the part of the dutch legal system, but not all
provisions. They provided this under the ICC implementation Act, 2002.
Other partly monist and dualist societies: USA.
Medellin v. Texas: if there are non-self implementing treaties, they have to go through an
approval of the legislature.
Packquete Habana case: International law is a part of our national legal system. If there is a
customary international law, then it would be automatically part of national system. If any
international law is contrary to the legislative or judicial process, it has to go through an
legislative process.
Uganda: constitution says that if there are any kind of treaties on neutrality, peace has to go
through parliamentary processes. Even though they are party to the Vienna Convention on
Diplomatic Relation, they have implemented a national Act to implement it. It is a
predominantly dualist country.

Britain: most of the international law need to go through the Crown to get implemented.
When it comes to CIL, it become a part of the national legal system automatically.

International law goes hand in hand with national law. If there is any vacuum in the national
law, we cannot take it as a defense in the international forum.
Free Zones Case [France v. Switzerland, 1932]: France cannot rely on her own legislation to
limit the scope of her international legal obligations.
Alabama Claims case:; Britian had taken the defence that internal law does not permit
international obligation. Held that this defence cannot be taken. Any lack of national law does
not mean that there is no international legal obligation.
There is a general duty to fulfill the international obligation and bring the national law in
consensus. Public International law does not control the modalities of the national legal
system.
There is a lack of uniformity as to how states incorporate the international obligation in their
national legal system.
Exchange of Population between Greek and Turkey case: in case there is a state who has
contracted international and has international legal obligation, then it is the duty of the state
to bring in certain obligations in the international legal system to ensure the fulfillment of the
obligation.
Municipal law cannot prevail over the treaty and international obligation: Polish nationals in
Danzig case, 1931. It does not matter even if it is the Constitution, if it is against the
international obligation, the states need to amend the constitution as well.
Once a treaty is ratified, national law cannot be used to evade the obligation of the treaty law.

INDIA AS A DUALIST NATION:

Jeeja Ghosh v. Union of India: she is a PWD. she was aboard Spicejet. She was bleeding.
She was asked to deboard. Argued: against the right to equality. Held: the action is illegal and
awared her compensation. The court looked at international law [UN Convention on the
Rights of Persons with Disabilities, ratified by India in 2007]; Article 27 of VCLT: it requires
India’s internal legislation to comply with international commitments. [SCC ¶11-14]
There was no need to bring into Article 27. Court was supposed to bring in Article 26.
Vishaka case: regards must be given to international convention when there is no
inconsistency between them and there a void in the domestic law.
National legal service authority v UoI: if the parliament has made any legislation which is
in conflict with international law, then Indian Courts are bound to give effect to the Indian
Law rather than international law. However, in the absence of the contrary legislation,
municipal courts in India would respect the rules of international law and if there are any
international conventions not inconsistent with FRs, then it must be read with Articles 14, 15,
19, 21 to enlarge the meaning and the content thereof.
Vellore citizens welfare forum v. UoI [1996]: read this case!!

Article 51: Keshvananda Bharti case: in view of Article 51 of the Constitution. Domestic law
should be in consonance of UN Charter.
Minerwa Mills: the court’s jurisprudence of fundamental rights , two wheels of the chariot.

Where there is a problem or ambiguity in construing the national obligation or national law,
court has to read these national laws in harmony with the international obligation: Kuldeep
Nayar v. Union of India
If India is a party to the international obligation and there is no problem in having both
together, then there is no need to look at the treaty from where the obligation come from,
instead we just need to look at the national legislation
Salil Bali v. Uoi: constitutionality of the JJ Act. They were talking about the age of juvenile
under this Act. The court upheld the constitutionality and court relied on internatonal
convention for that. In tune with the provisions of the competition and various declarations
and by the world community.
There is a treaty: india is a party to it: but india has not yet incorporated it in the national
legal system: e.g. PUCL v UoI: phone tapping case, 1997: expansion of right to rprivacy
under article 21. It needs to look at the municipal laws in consonance with international
conventions. Article 17 of ICCPR and article 12 of UDHR were considered. India is a party
to these two convention. The provisions of the covenant with elucidated……..can certainly
be relied by the law…….hence ……..

Vishaka case: it is now an accepted rule of judicial construction that regards must be have to
international conventions……….when there is a void in the national law. Any international
convention not inconsistent with the fundamental rights………………. This could be called
as creeping monism. It usually happens when a state is part of a human rights treaty and the
national legal system does not provides for the same. They need to maintain balance: being
an international actor and being an upholder of national laws [role as constitutional actor].

India is not a party to the it, but in some way it has incorporate or used treaties to reach a
decision. Court referred extensively to the treaties. G. Sundarajan v. Uoi: here the court was
talking about setting up of a nuclear plant and they were trying to understand that whether it
is contrary to public policy. They went on to uphold that it is not checking the benefits. They
also talked about the obligation of relevant authorities. Court referred to Joint Convention on
safety of Spent Fuel management and safety of radioactive waste management. India is not a
signatory to the same, but the convention is worth referring to appreciate the worldwide
concerns for world safety.

NALSA v. Uoi: torture convention, 1980 of which india was not a party
Ktaer Abbas Al Qulafifi v. Uoi [Guj High Court]: article 21: principle of non-refoulment that
arises from Refugee Convention, 1950. The principle of non-refoulment is encompassed in
Article 21………..it is part of general international law and it can be used as a tool to expand
Aricle 21. There is substantial if not conclusive authority that it is binding on all states
……….

REFER TO PDF CALLED 14 AUG FOR THE FOLLOWING NOTES

Where the court is authorized to use international law as a tool to derive results:
 Nilabati Behra v. State of Orisaa: the wide powers given through Article 32 which in
itself is a FR imposes a constitutional obligation on the Court to forge such new
constitutional tool which may be necessary for doing complete justice and enforcing
FR guaranteed by the Constitution.
 M V Elizabeth v. Harwan Investment: the legislations have always marched behind its
time but it is a duty of the court to expound and fashion the laws of the present and
future to meet the ends of justice.
 Gramophone Co of India v. Birendra Bahadur Shastri: comity of nations or not, it is
the municipal law which will prevail over international law. If parliament says no to
any international obligation, the courts cannot say yes to it.
 ADM Jabalpur v. Shivkant Shukla: in case of conflict between municipal law and the
international law, the courts should given preference to the municipal law.
Drawbacks of using international law:
 It increases and expands the power and discretion which the courts have.
 The court is usurping parliament’s functions by giving legal effect to treaties.
 The courts does not study the international law in depth which lead to creation of
different legal norms possessing varied legal gravity. There is uncertainty about the
legal norms.
 Courts have just raised these norms, but not have really argued and established these
norms.
 They do not scrutinizes in depth as the international law looks authoritative.
 They are being used when courts lacks sufficient national legal authority.
Treaty making in India:
 Executive treaty making
 Parliamentary treaty making
Article 73, 246 and 253
P B Samant v. UoI: read Article 73 and 253 in conjunction. There is no manner of doubt that
in case the government enters into treaty or agreement, then in respect of its implementation,
it is open for the parliament to pass a law which is on a matter mentioned in the state list. In
case the parliament is entitled to pass the law, then it is difficult to appreciate how it can be
held that central government is no entitled to enter into treaty or agreements which affects the
matters included in the state list.
Manganbhai Ishwarbhai Patel v UoI: the executive is competent to represent the state in all
international matters and by agreement, convention or treaties incur obligations under
international law which are binding on the state.
Parliament has not made any law so far on the subject of treaties and until it does so, the
president’s power to enter into treaties remains unfettered from any international
constitutional restriction.
Article 46 of VCLT: restriction on the treaty making power.
Jolly Verghese v Bank of Cochin: international convention law must go through a process of
transformation into municipal law before an international treaty can become an internal law.
Gramophone india case: the national courts will endorse international law but not if it
conflicts with national laws.
D K Basu v. State of West Bengal: executive was incorporation of ICCPR. Reservation to
Article 9(5):: there is no enforceable right to compensation for persons claiming to be victims
of unlawful arrests and detentions against the state. Court said that this reservation has now
lost its relevance in view of the law laid down by the court in a number of cases awarding
compensation for the infringement of the fundamental right to life of a citizen.
Recommendations placed before the National Commission to review the constitutions: the
parliament should adopt a law to regulate implementation and making of the treaties. There
recommendation was to democratize the whole process and they wanted to bring about
transparency and accountability in the process. There should be a parliamentary committee
which has to be created so as to determine which treaties have to be subjected to a fuller
parliament and which treaties can be signed by the government itself.

Parliament’s treaty implementation power: Article 253:

Manganbai ishwar bhai patel v UOI: there is a distinction between the formation and the
performance of the obligations constituted by a treaty. Under the constitution, the obligations
arising under the agreement or treaties are not by their own force binding upon indian
nationals or others. The power to legislate in respect to treaties lies with the parliament and
making of law under this authority is necessary when the treaty or agreement operates to
restrict the rights of citizens or others or modifies the laws of the state. If the rights of the
citizens and other that are justiciable are not affected, no legislative measure is needed to give
effect to the agreement or treaty.
PIL: governs the relationship between states

Subjects of PIL
Legal Persons: They can make claims and have obligations. Responsibility if there is a breach
of obligation. Three capabilities:
 Have rights and obligations
 Capacity to enter into treaty or international agreement
 Enjoy certain privileges and immunities.
Subjects of International Law:
 States: legal personalities. Immunities and other things.
 International organizations: reparation of injuries suffered in the service of UN
case, 1949. Waldock: scholar. He also claimed that international organization can be
deemed as subject of international law. Adopted by Reports of ILC.
Categorization:
 State actors: Friedmann in 1964 wrote an Article called changing structure of nations
in international law:
 Non-state actors
o Individuals
o International organizations
o Multinational companies
Theories:
 Realist theory: P E Corbett: states were considered as the supreme or the only entity
under the international law. State is a broad entities comprising individuals ad they
enjoy rights and duties. Other entities come within states.
 Fictional theory: its not states but individuals are the only subjects of the international
law. Hans Kelsen and John Westlake. Becuasee they thought that the whatever be the
legal order, it’s the conduct of the individuals which would maintain the rights and
obligations. State is just a fictional entity under which subjects of international law
reside. Nation states are an aggregate of individual.
 Functional theory: Akehusrt and Bownlie: middle ground. Both state as well as
individuals can be subjects of international law. States can maintain their rights and
obligations and in another parallel, individuals can be subjects of international law as
they are operating the legal orders. There can also be other special entities.
State as a subject of international law:
 SS Lotus case [France v turkey]: international law governs a relationship between
independent states in order to regulate the relationship between these independent
communities or with the view of achievement of common aims.
 Concept of sovereign equality: equal rights and equal abilities. When we give equal
rights and abilities, we assume that state becomes one subject of international law.
 Martin Dixon: subjects of international law is a body or an entity recognized or
accepted as being capable of possessing and exercising international law and duties.
 Article 1 of the Montevideo Convention on Rights and Duties of the States:
o State has to have a permanent population
o It needs to have a defined territory
o It needs to have a recognized government
o It should have a capacity to enter into legal relationship
 State: power dynamic. They are critical actors having power to influence others and
control some outcome. This outcome would not have occurred naturally but due to
State’s influence.
 Different kinds of states:
o Independent state: that do fulfill all the criterions under the Montevideo
convention. They have unlimited legal personality under the international law.
They have a specific capacity to enter into treaties and agreement with other
states and sometimes these capacity alter their legal personalities as well.
o Composite state: group of states which come together.
 Federations: when there are two or more states that come together to
the extent that they actually start abandoning their separate legal
personality. There is a separation of power between federal
government and members of the federation. E.g. USA. Federal
government has more power on the international level while the state
government has more power domestically. Federal government possess
an international personality. General rule is that the member states
does not enter into foreign relations. Other examples: Germany [but
the members also have international personality. Member states are the
agents who are working with the federal government. This can also
happen in the USA but their they need the consent of the federal
government to do so]; Canada.
 Confederations: the difference here is about voluntariness. Here
members come together on their own voluntary desire. USA initially
was a confederation but later became a federation. E.g. Swiss
Confederate.
o Personal union: there are two or more states that come together with consent
and they decide to have one same head of state but this does not destroy their
distinct international personality. E.g. 1714-1837: Hannover was a personal
union where states came together and made United Kingdom. E.g. English
Channel Islands: Sark, Jersey, Alderney, Guernsey: they made the british
monarch their head of state. They have all sovereign powers over their
individual states.
o Real union: two or more states come together and share certain state organs.
E.g. 1723 – 1829: Austria and Hungry: it was called Austro-Hungarian dual
monarchy. They kept their separate international personality but it depends on
their personal choice of arrangement.
o Protectorate: it is a state that does have an international personality but they
have surrendered their competence to another state which is called protecting
state, other state is called protected state. There is usually a treaty origin. E.g.
France and Morocco. General agreement of Algericas in 1907 between France
and Morocco. They arranged the powers between Morocco and France. Sultan
of Morocco was given economic liberty, his post as head of the state
sustained, other powers like decision regarding finance, judiciary,
 administration, education, military reforms were surrendered to France. France
could even have its own military in morocco without the permission of Sultan.
It was an unlimited treaty without any time period. In 1912, treaty of Fez
between Morocco and France, here France undertook the international
relations making power of Morocco. Sovereign power was given to France by
Morocco. They can use it on behalf of sultan or in name of sultan in Morocco
internal and external affairs. But it still had international personality. E.g. Free
City of Danzig.
Check pdf titled Saturday
[State v. empire]

State under international law:

Article 1, Montevideo Convention, 1933: for criterions for state:
 Defined territory
 Permanent population
 Capacity to enter into foreign relations
 Stable government
In 1965, the Second reinstatement of the foreign relations law of the UN: state means an
entity which has a defined territory, has a populations under a control of a government and it
engages in foreign relations.
This definition was continually criticized by the sovereign doctrines of international law as it
does not contain the word sovereignty. As a reply to that, when we look at the capability of
enter into international relations, it divides the states into capable state and incapable states. It
shows the sovereignty of a State.
Article 6 of VCLT: states possess legal capacity to conclude treaties.
It was in 1970 under the UNGA resolution 2625: declaration on principles of international
law governing friendly relations and co-operation among states in accordance with the united
nations. This resolution stressed on one fact: all states must enjoy sovereign equality. Each
state has an inherent right to full sovereignty.
When we collective read all of this, we can say that state is a collective, social, organized
entity which possess an independent legal status under International law, it has certain duties
and rights under international law, it is capable of participating in international relations and
a capacity to conclude treaties, responsible for violation of international obligations, it has the
right to defend its legal status.

Defined Territory:
It is the earth surface where the entity has exclusive control and sovereignty over. It imposed
as supreme authority over this territory. It consists of land, air above, land below, national
waters surrounding it, territorial waters. State cannot exist without territory. Holy See was not
considered as a State until 1929 as it did not have a territory. The Lateran treaty 1929
provided Vatican city to the Holy See and it got the status of state. There is no rule that
prescribes for a minimum size of the required territory.
If there is a territorial change like addition of territory through cession (one state giving some
territory to other state) [Alaska and USA], then Original State would still be called as a State.
The identity as a State does not changes. If the territory is decreased, would also not change
the defined territory or the identity of the state. If there is something called accretion
(something which is formed along with the state due to natural process), it will also not
change the identity of the state.
If secession happens, like colony getting independence, the dominant state would still be a
state.
How well defined should the frontiers of the should be? A state need not have a fixed
frontier. Existence of USA was not in question even though other states like France had a
claim over some territory of USA. Even if there is a boundary state, it does not affect the
statehood.
This state practice of how disputed territories still can be called as a state started after WWI
when new states were arising. Their frontiers were not finally settled. The states had a
proviso that a treaty with the original state would settle the boundary. E.g. When Finland was
coming up: Britain said: in recognizing the independence of Finland, his Majesty’s
government does so with confidence and understanding that the Finnish Government accepts
the decisions to be taken by the peace conference on the drawing of the frontiers. e.g. State of
Israel: Israel does not have a undisputed territory. In 1948, when Israel approached UN to
become a part, Judge Jessup said that: one does not find in the general classic treatment of the
subject……….territory be exactly fixed by frontiers. the formula in the classic treatment
somewhat vary both with reason and historic demonstration which shows that the concept of
territory does not include the precise limitation or understanding on the boundary. It is not
that it should not have the territory, there should be some portion of earth which the people
inhabitate and the government has control over, however, exact delimitation of boundary is
not required. Thus, Israel is a state.