International Law One Shot

Introduction

International law is the body of rules that guides how states deal with one another. It also increasingly covers international organisations and, to some extent, individuals. For an LL.B. student or exam aspirant, Public International Law can feel vast, because it combines history, theory, important cases and detailed rules from conventions. This one-shot article brings the whole syllabus together in one place, in simple language.

The article moves step by step through these topics:

• the historical development of international law and its leading definitions;
• the debate on whether international law is “real” law, and the main theoretical approaches;
• the sources of international law under Article 38(1) of the Statute of the International Court of Justice, including custom, general principles, jus cogens and obligations erga omnes;
• the law of treaties under the Vienna Convention on the Law of Treaties;
• the relationship between international law and municipal (national) law, including the Indian position;
• nationality, state responsibility (ARSIWA) and the leading ICJ cases;
• the law of the sea under UNCLOS; and
• recognition of states and governments.

Read each part with the cases in mind. Examiners often reward answers that state a rule clearly and then support it with the right case.

Historical Development of International Law

International law did not appear suddenly. It grew over thousands of years, from simple agreements between ancient rulers to the organised system of the United Nations era. Knowing this history helps you understand why some rules exist and why certain groups of states criticise the system.

Early Origins

• Ancient Treaties: Around 2100 BC, there was a treaty between the city-states of Lagash and Umma in Mesopotamia. Another early treaty was between Rameses II of Egypt and the Hittite King. These treaties show that, even in ancient times, rulers respected agreements.
• Greek Influence: Greece contributed ideas about international relations, especially through the conflicts and alliances among its city-states.
• Roman Empire: Rome developed two types of law: jus civile (civil law), which applied to Roman citizens, and jus gentium (the law of nations), which was used for dealing with foreigners. The idea of a “law of nations” is an early ancestor of modern international law.
• Religion: Religious beliefs, especially those from Christianity, shaped ideas of moral behaviour and social order. These ideas added to the early thinking on international law.

Middle Ages

• Church’s Role: The Christian Church had great influence and helped establish laws among different territories.
• Merchant Law: Rules for trade, known as the “Law Merchant,” developed for traders who crossed borders. In simple words, these were common business rules that merchants from different lands could all follow.
• Rhodian Sea Law: Specific rules for sea travel and sea trade were established.
• Treaty of Westphalia (1648): This treaty ended wars in Europe and marked the start of the modern idea of sovereign states. A sovereign state is a country that is recognised as independent and has its own authority within its borders.

Modern International Law

• Key Thinkers: Important figures such as Francisco Vitoria, Alberico Gentili and Hugo Grotius helped shape the ideas of modern international law. Grotius in particular promoted the “freedom of the seas,” which influenced the law on international waters.
• Congress of Vienna (1815): This was a meeting at which European countries agreed on many issues after the defeat of Napoleon. It made international law more centred on European ideas.
• World Wars: After World War I and World War II, international organisations such as the United Nations were formed. This led to a more structured international legal system aimed at global cooperation and peace.

Definitions of International Law

Different jurists have defined international law in different ways. The main difference between them is who international law applies to: only states, or also international organisations and individuals.

Oppenheim

Oppenheim defines international law as the set of customary and conventional rules that are legally binding on “civilized” states in their relations with each other. This definition treats states as the primary subjects of international law. (“Customary” rules come from long practice; “conventional” rules come from treaties or conventions.) Students should note that the word “civilized” reflects the language of an earlier period.

Starke

Starke adds that international law consists of rules and principles that guide the conduct of states, and also of international organisations and, to some extent, individuals, especially where their rights or duties affect the international community.

Jessup

Jessup introduced the concept of “transnational law”. This includes not only international law but also other rules for actions that cross national borders. His approach widens international law beyond relations between states and recognises the activities of individuals and organisations.

Whiteman

Whiteman describes international law as a standard of conduct that applies, at any given time, to states and other entities under its jurisdiction. This definition highlights that international law keeps changing as it sets standards of conduct.

Nature of International Law: Common Criticisms

A favourite exam question asks whether international law is “true law.” The three ideas below explain why some people doubt its legal character.

1. International Law as “Weak Law”

International law is sometimes called “weak” because it lacks the strong enforcement machinery that national law has. Countries may agree to rules, but there is no global police force to make sure every country follows them. Instead, international law relies on countries agreeing to follow these rules willingly.

2. Vanishing Point of Jurisprudence

This phrase means that, unlike national law, international law often appears to lack a solid structure. International law can sometimes be unclear or difficult to enforce. This makes it seem less definite than the clear rules and enforcement found in a country’s own laws.

3. Law Without Sanction

International law is sometimes called “law without sanction” because it lacks punishments that enforce it automatically. (A “sanction” here means a penalty for breaking the law.) Countries may face consequences, such as other countries refusing to trade with them, but there is no strict system of punishment. Instead, countries follow international law to maintain good relations and avoid conflict.

Theoretical Approaches to International Law

Apart from the criticisms above, different schools of thought explain international law from their own point of view.

1. Communist Approach to International Law

This approach sees international law as a tool that advanced capitalist states use to dominate less powerful countries. According to this view, international law may support the interests of powerful capitalist nations rather than promote true equality and fairness among all states.

2. Third World Approach to International Law (TWAIL)

The Third World Approach stresses how traditional international law has often ignored or sidelined Third World countries, mainly because of historical colonisation and unequal economic structures. This perspective argues that international law should protect the interests of developing nations and make sure these countries have a fair say in international matters.

3. New Haven School of International Law

The New Haven School sees international law as a way to achieve social progress by focusing on human rights and individual well-being. It stresses that international law should not only govern states but should also consider the rights and needs of people across borders. This school supports a more inclusive, people-focused approach to international law.

Sources of International Law

A “source” of international law tells us where a rule of international law comes from. The starting point for every answer on sources is Article 38(1) of the Statute of the ICJ.

Article 38(1) of the Statute of the International Court of Justice (ICJ)

Article 38(1) gives a clear guide to the sources of international law. It states that the Court must apply:

• 1. International Conventions: These are agreements or treaties between states that create legally binding rules for the participating countries. Conventions can be broad (covering many countries and issues) or specific (limited to particular regions or topics).
• 2. International Customs: These are general practices followed by states that are accepted as law.
• 3. General Principles of Law: These are principles recognised by civilized nations.
• 4. Judicial Decisions and Scholarly Writings: These are used as supplementary (helping) sources to determine rules of law, but they do not carry binding force between parties unless explicitly decided.

International Conventions

International conventions or treaties are essential because they are written agreements that states enter into voluntarily, and they are legally binding. Examples include the Charter of the United Nations and the Geneva Conventions. These conventions help create law on issues such as human rights, environmental protection and the rules of war. They reinforce the principle of pacta sunt servanda, a Latin phrase meaning “agreements must be kept.”

1. Law-Making Treaties

Law-making treaties work like laws for many countries. They create general rules that all the signing countries agree to follow. These rules apply to everyone involved, not just to specific situations or parties. Examples include the Charter of the United Nations and the Geneva Convention on the Treatment of Prisoners, which set international standards of behaviour across different countries.

2. Treaty Contracts

Treaty contracts are more specific agreements between countries about particular issues or situations. They do not set broad rules for all countries; instead, they deal with specific arrangements. For example, two countries might agree on trade terms or on environmental cooperation that applies only between them.

These two types of treaties show how international agreements can either create general rules for many countries or set up specific contracts between a few.

Customary International Law (CIL)

Customary International Law (CIL) is based on practices and behaviour that countries have followed consistently because they believe these practices are legally binding. CIL has two main elements:

1. State Practice

This refers to the actual actions of countries. For a rule to become a custom, many countries must follow it in a similar and consistent way. The practice needs to be uniform, which means countries act the same way in similar situations.

2. Opinio Juris

Opinio juris (Latin for, roughly, “opinion of law”) is the belief that a particular action is done out of a legal obligation. It is not enough that a country follows a practice; it must do so because it believes the law requires it.

An example of customary law is the rule that allows ships of all countries to navigate freely on the high seas. Over time, as countries consistently followed this practice and believed it to be a legal duty, it became part of customary international law.

North Sea Continental Shelf Cases

• Countries Involved: Denmark, Netherlands and Germany.
• Issue: The main question was how to divide the North Sea continental shelf among these countries. (The continental shelf is the seabed area that extends from a country’s coast under the sea.) Denmark and the Netherlands argued for the “equidistance principle,” meaning the boundary would be drawn at an equal distance from each coast. Germany argued that this was unfair because of the unusual shape of its coastline.
• Court’s Decision: The International Court of Justice (ICJ) decided that Germany was not bound by the equidistance rule in the 1958 Geneva Convention because, although it had signed the treaty, it had never ratified it. The Court also held that the equidistance rule was not part of customary international law. To create a customary rule, the Court stressed the need for widespread state practice and a general belief that the rule is legally binding (opinio juris).

Asylum Case (Colombia v. Peru)

• Countries Involved: Colombia and Peru.
• Issue: The main question was whether Colombia had the right to grant asylum to a Peruvian politician accused of political crimes, and whether it could unilaterally (on its own, without Peru’s agreement) decide that the crime was political for asylum purposes. Colombia argued that it could grant asylum under a regional custom in Latin America.
• Court’s Decision: The ICJ ruled that Colombia did not have the right to unilaterally decide the nature of the crime for granting asylum. The Court found that there was no customary law in Latin America allowing a country to unilaterally qualify an offence for asylum. The Court also stated that Peru was not obliged to give safe passage to the asylee, because under the Havana Convention a safe-conduct is due only when the territorial State demands the departure of the refugee, which Peru had not done, and the practice of granting safe-conducts rested on expediency rather than legal obligation.

Formation of Customary International Law (CIL)

The formation of Customary International Law (CIL) involves two main elements:

1. State Practice (Material Element)

This refers to consistent actions or behaviour by states. For a practice to become part of CIL, it should be widely followed and uniform across various countries. It involves several factors, such as:

• Consistency: States must behave similarly in comparable situations.
• Time: The practice needs to be followed over a period of time, although the length of that period may vary depending on the situation.
• Uniformity: Practices should be similar within a state and across states, showing a common understanding.

2. Opinio Juris (Psychological Element)

Opinio juris is the belief or sense that a particular practice is legally required. It means states follow a practice not just out of convenience or habit, but because they consider it legally obligatory. This belief turns state practice into a legally binding rule of customary law.

The International Court of Justice (ICJ) has stressed that, for a practice to become CIL, states must engage in it because they see it as a legal duty, and not merely for political or moral reasons.

Together, these elements – consistent state actions and a shared belief that they are legally necessary – form the basis of customary international law.

Essentials of State Practice

• 1. Whose Practice Counts? – Generally, actions taken by high-level state officials, government ministers and diplomatic representatives are treated as state practice. The actions of other bodies, such as NGOs or multinational companies, may play an indirect role but are not primary.
• 2. Types of Actions – State practice includes actions such as diplomatic correspondence, government statements, military orders, legislation and decisions of national courts. Even omissions or abstentions (choosing not to act), such as a state deciding not to prosecute a foreign diplomat, can sometimes count as state practice.
• 3. Uniformity and Consistency – To form a customary rule, the practice should be consistent both within the state itself and among different states.
• 4. Duration – Customary international law does not require a practice to be ancient, but a consistent and repeated pattern over time helps establish it as a custom.

Persistent Objector Principle

This principle allows a state to avoid being bound by a new rule of customary international law if it consistently and openly objects to that rule from the beginning, before the practice becomes a general rule.

For example, Norway, in the Fisheries Case, consistently objected to a 10-mile closing line in bays, so it was not bound by that rule for its own coast.

Opinio Juris

Opinio juris is the belief that a state’s actions are legally required, and not done merely out of convenience, morality or habit. It is the “psychological element” in customary international law. This means that states follow a certain practice because they feel legally obliged to do so, and not simply by choice.

Key Points:

• 1. Foundation of Customary Law: Opinio juris, together with state practice (consistent actions by states), is necessary to form customary international law. Without a genuine belief in legal necessity, state actions alone do not make a custom legally binding.
• 2. Examples in Cases:
  • In the North Sea Continental Shelf cases, the ICJ ruled that, for a practice to become customary law, states must recognise it as legally binding and not just as a convenient choice.
  • Similarly, in the Lotus Case, the Permanent Court of International Justice (PCIJ) held that an absence of action could be treated as a practice only if states refrain because they see it as a legal duty.

Right of Passage over Indian Territory (Portugal v. India), ICJ Rep. 1960

This case is especially important for Indian students. An “enclave” is a piece of territory of one state that is completely surrounded by the territory of another state.

• Issue: Portugal argued that it had a historical right to pass through Indian territory to reach its enclaves in Dadra and Nagar Haveli, based on treaties and long-standing practice.
• India’s Position: India argued that any historical agreements were outdated and did not apply, as it had sovereignty over the territory.
• Court’s Decision: The ICJ recognised Portugal’s right of “passage” for private individuals and goods, based on local custom, but denied the right to move armed forces.
• Outcome: The ICJ upheld a limited right of passage for Portugal, focusing on the historical practice of civilian and official movement.

General Principles of International Law

• Basic Principles: These are foundational rules shared by many legal systems around the world, such as fairness, justice and good faith. They often apply when there are gaps in treaties or customary law.
• Examples in Case Law:
  • Good Faith: Emphasised in various judgments; it means that states should act honestly in international relations.
  • Reparation Obligation: In the Chorzow Factory Case, it was held that a state should make reparation (compensation or other remedy) for its wrongful acts.
  • Private Rights Under Law: The German Settlers in Poland Case showed that private rights remain even if sovereignty changes.
  • Circumstantial Evidence: The Corfu Channel Case accepted circumstantial evidence (indirect evidence from which a fact can be inferred) as valid proof in international legal matters.

Corfu Channel Case

• Background: In 1946, two British destroyers struck mines while passing through the North Corfu Strait, which caused significant casualties and injuries.
• Arguments:
  • United Kingdom: Claimed the right of innocent passage – in simple words, the right of a foreign ship to pass peacefully through another state’s waters – and argued that Albania should have warned about the mines.
  • Albania: Argued that British warships had no right to enter Albanian waters without permission.
• Court’s Decision: The ICJ found Albania responsible for not giving notice of the minefield and concluded that the mines could not have been laid without Albania’s knowledge. Albania was therefore obliged to warn ships of the danger, based on principles of humanity and freedom of maritime communication.

Judicial Decisions

Judicial decisions include rulings of the Permanent Court of International Justice (PCIJ), the International Court of Justice (ICJ), national courts, and international tribunals such as the International Criminal Court (ICC). These decisions are secondary sources. They help interpret and clarify rules, but they are not primary law themselves.

Key Cases:

• Anglo-Norwegian Fisheries Case: Laid down rules on baselines for territorial waters.
• Reparation Case: Dealt with the legal personality of international institutions.
• Genocide Case: Considered reservations to treaties.
• Nottebohm Case: Examined the concept of nationality.

Judicial decisions help in understanding and applying international law, but they are binding only between the parties involved, as stated in Article 59 of the ICJ Statute.

Scholarly Writings

Scholarly writings by respected experts, such as Grotius, Gentili and Oppenheim, are recognised as sources that contribute to the development and understanding of international law. These works offer interpretations, insights and theories that guide how the law is applied.

These teachings explain and lay foundations for developing areas of law. Although they are not binding, they help fill gaps where formal international law or custom may be unclear.

Emerging Sources of International Law

• 1. United Nations General Assembly Resolutions and Declarations: These resolutions are not legally binding, but they can indicate state practice and opinio juris (a sense of legal obligation). For instance, in the Nicaragua case the ICJ held that opinio juris may be deduced from the attitude of states towards certain General Assembly resolutions, particularly the Friendly Relations Declaration (resolution 2625).
• 2. Soft Law: Soft law includes instruments such as guidelines, standards and declarations that are not legally enforceable but still shape international norms. Although not strictly law, they influence the development of binding norms over time, as seen in the Pulp Mills case.
• 3. International Law Commission (ILC): The ILC, created by the UN in 1947, helps develop and codify international law. Through draft treaties, reports and recommendations, the ILC has shaped significant conventions, such as the Vienna Convention on Diplomatic Relations.
• 4. Other International Bodies: Organisations such as the United Nations Commission on International Trade Law (UNCITRAL) and the International Labour Organization (ILO) contribute to international norms in specific fields such as trade and labour standards.
• 5. Unilateral Acts: Unilateral acts by states, such as declarations or recognitions, can create obligations if they are made publicly and with intent. For example, when a state recognises another state, this may have legal consequences based on the principle of publicity and intent.

Jus Cogens

Definition: Jus cogens (Latin for “compelling law”) are “peremptory norms” recognised by the international community as a whole. This means these rules are so fundamental that no state can deviate from them.

Examples: The prohibitions against genocide, slavery, torture and crimes against humanity are considered jus cogens. These norms cannot be overridden by treaties or agreements, as stated in Article 53 of the Vienna Convention on the Law of Treaties (1969).

Emergence: For a norm to become jus cogens, it usually first exists as a rule of customary international law, which is the most common basis, although treaty provisions and general principles of law may also serve as bases. Then, the international community must accept it as a rule from which no derogation (exception or departure) is allowed.

Obligation Erga Omnes

Definition: Erga omnes is Latin for “towards all.” These are obligations that a state owes to the international community as a whole. Any violation therefore affects all states, not just the state directly harmed. The ICJ introduced this concept in the Barcelona Traction Case.

Examples: Obligations relating to the protection of human rights and the prohibition of crimes such as genocide fall under erga omnes. For instance, in the Genocide Case it was established that all states have a legal interest in preventing genocide, as it affects the whole international community.

Difference Between Jus Cogens and Obligation Erga Omnes

Jus Cogens focuses on the non-derogable nature of certain laws, that is, the fact that no exception is allowed (substantive focus).

Obligation Erga Omnes relates to the scope and application of these norms. It ensures that any state can hold another state accountable for violations, even if it is not directly affected (procedural focus).

International Comity

Definition: International comity refers to the practices and courtesy that states extend to one another by respecting each other’s legal processes and governance, without any binding legal obligation. It is more about mutual respect and cooperation than enforceable law.

Role: Although it is not legally binding, international comity helps maintain good relations and smooth dealings among states through respectful behaviour, such as recognising foreign judgments or legal systems in appropriate cases.

Resolutions of International Organizations

Purpose: Resolutions, especially those of bodies such as the United Nations General Assembly, can guide international norms even if they are not binding. They show the collective intentions or opinions of member states on various issues.

Influence on International Law: Although they are not enforceable, resolutions can reflect state practice and contribute to the development of customary international law, especially when they are widely adopted and reflect a general legal principle. For instance, certain UN resolutions have helped shape concepts such as self-determination.

International Law Commission (ILC) and Codification

Function: Established by the UN in 1947, the ILC aims to codify and progressively develop international law. (To “codify” means to put existing rules, especially customary rules, into a clear written form.) It drafts and studies treaties, and many international conventions have been influenced by its work.

Codification Process: The ILC’s work generally involves:

1. preparing drafts;
2. gathering comments from states; and
3. often, leading to international conferences that turn these drafts into treaties or recognised legal documents.

Impact: Through codification, the ILC has helped formalise areas of international law, such as the Vienna Convention on the Law of Treaties, which established comprehensive rules on how treaties are created and enforced.

Law of Treaties

Since treaties are the first source listed in Article 38(1), the rules about how treaties are made, read and ended form a major part of the syllabus. The basic text is the Vienna Convention on the Law of Treaties (VCLT).

Definition of a Treaty

• Vienna Convention on the Law of Treaties (VCLT): Defines a treaty as “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”.
• Elements: A treaty must:
  • be an international agreement;
  • be between states;
  • be in written form;
  • be governed by international law; and
  • have the intention to be legally binding.

Content of a Treaty

Treaties cover a wide range of issues, such as trade, human rights, environmental protection and maritime boundaries. They may also establish international organisations, such as the United Nations or the European Union.

The VCLT, often called the “Treaty of Treaties,” lays down procedures for drafting, interpreting and enforcing treaties.

Conclusion and Entry into Force of Treaties

Once states have negotiated a treaty, two separate questions arise. First, when is the treaty concluded, meaning finalised and agreed? Second, when does it enter into force, meaning when does it actually start to bind the parties? The Vienna Convention on the Law of Treaties (VCLT) answers both questions, and students often lose marks by mixing them up.

Conclusion: For a treaty to be concluded, authorized representatives (like heads of state or ministers) must sign it. In simple words, a person who has the power to speak for the state must put the state's signature on the agreed text.

• Article 9 (VCLT) – Adoption of the text: Adoption of the text of the treaty requires the consent of all states involved. At an international conference, it can be adopted by a vote of two-thirds of the states present and voting, unless by the same majority they decide to apply a different rule. “Adoption” only means that the wording of the treaty is settled. It does not by itself bind any state.
• Article 11 (VCLT) – Consent to be bound: Consent to be bound by a treaty can be expressed through:
  • Signature – the representative signs the treaty;
  • Ratification – the state formally confirms, usually after signing, that it agrees to be bound;
  • Acceptance – a formal act similar in effect to ratification; or
  • Accession – a state joins a treaty, usually one whose text has already been negotiated and signed by other states.

Entry into Force:

• Article 24 (VCLT): A treaty enters into force on a date agreed upon by negotiating states. If not specified, it becomes effective when all parties express their consent.
• Article 25 (VCLT): A treaty can be applied provisionally pending its formal entry into force if states agree on this. “Provisional application” means the states start following the treaty temporarily while the formal steps are still being completed.

Reservation in the Law of Treaties

A reservation is a declaration made by a state when signing, ratifying, or joining a treaty, intending to exclude or modify certain provisions of the treaty as they apply to that state. This allows a state to be part of a treaty even if it disagrees with specific parts.

Key points:

• Definition: According to Article 2(1)(d) of the VCLT, a reservation is a “unilateral statement” by which a state aims to exclude or alter the treaty's legal effects for itself in specific areas. “Unilateral” means it is made by one state on its own, not agreed with the others.
• Purpose: Reservations facilitate treaty participation by allowing states to agree to most of a treaty without being bound by all provisions. Without reservations, a state that objects to one clause might refuse to join the treaty at all.
• Acceptance and Objection: Articles 20 and 21 of the VCLT explain that other states may accept or object to a reservation. If a reservation is not objected to within 12 months, it is considered accepted.
• Restrictions: Article 19 of the VCLT states that reservations cannot be made if:
  • The treaty prohibits reservations.
  • The treaty allows only specified reservations, and the reservation in question is not one of them.
  • The reservation contradicts the “object and purpose” of the treaty, that is, the central aim for which the treaty was made.

Interpretation of Treaties

Treaty interpretation relies on fundamental principles to determine the meaning and intent of treaty provisions. Because treaties are drafted by many states, often in several languages, disputes about what a word or clause means are very common.

1. Approaches to interpretation:

• Objective Approach: Focuses on the actual text of the treaty, analyzing the words used.
• Subjective Approach: Considers the intentions of the parties involved in the treaty.
• Teleological Approach: Examines the treaty's purpose and aims. (“Teleological” comes from a Greek word for “end” or “goal”, so this approach asks what the treaty was meant to achieve.)

2. Article 31 of the VCLT: Treaties should be interpreted in good faith based on the ordinary meaning of the terms, within their context and the treaty's objectives. In practice, this rule combines all three approaches: it starts with the words (objective), reads them in context, and keeps the treaty's purpose in mind (teleological).

3. ICJ case example:

4. Supplementary means (Article 32, VCLT): If the interpretation remains ambiguous, supplementary methods like the treaty's preparatory work (travaux préparatoires) and circumstances of conclusion can be used to clarify meaning. Travaux préparatoires is a French term meaning “preparatory works”, such as drafts, records of negotiations and conference debates that show how the treaty text was developed.

Amendment and Modification of Treaties

Treaties are not frozen forever. Over time, states may want to change them. International law recognises two different ways of doing this: amendment and modification.

1. Amendment:

• Definition: An amendment formally changes the provisions of a treaty and affects all parties involved.
• Process: The Vienna Convention on the Law of Treaties (VCLT) Article 40 specifies that an amendment usually requires a formal process, and only parties agreeing to it will be bound by the new version.
• Examples: Many multilateral treaties outline their own rules for amendments, which can differ from this general rule. For example, under Article 108 of the United Nations Charter, an amendment comes into force for all members once it is adopted by a vote of two-thirds of the members of the General Assembly and ratified by two-thirds of the members, including all permanent members of the Security Council.

2. Modification:

• Definition: A modification is an adjustment to certain treaty terms that applies only between specific parties without affecting the entire treaty.
• Conditions: Modifications are permitted if the treaty itself allows or does not explicitly prohibit them. However, modifications cannot be made to parts of a treaty that would undermine its fundamental purpose (object and purpose of the treaty).
• Example: When two or more states in a multilateral treaty agree to different terms among themselves, this creates a modified version of the treaty specific to those states only.

Termination of Treaties

Treaties can end or be suspended based on specific rules set out in Part V of the Vienna Convention on the Law of Treaties (VCLT). “Termination” means the treaty comes to an end, while “suspension” means its operation is paused for a time. Key points include:

• 1. Termination by Treaty Provisions or Consent: Some treaties include provisions for termination or allow states to mutually agree to end the treaty.
• 2. Withdrawal or Denunciation: If a treaty does not specify termination, parties may withdraw if this possibility was initially intended or implied by the treaty's nature. A notice period, typically 12 months, is usually required. (“Denunciation” is the formal notice by which a state announces that it is leaving a treaty.)
• 3. Later Treaty: A new treaty on the same subject can replace an older one if all parties to the original treaty agree.
• 4. Material Breach: A serious breach of a treaty by one party can justify other parties in terminating or suspending the treaty.
• 5. Impossibility of Performance: A treaty can end if an unforeseen event makes it impossible to fulfill (e.g., the destruction of a territory crucial to the treaty's operation).
• 6. Fundamental Change of Circumstances (Rebus Sic Stantibus): If the circumstances that were essential to the treaty have drastically changed, a party may invoke this principle to terminate the treaty. The Latin phrase means roughly “things standing thus”, that is, the treaty was made on the understanding that certain basic circumstances would continue.

Consequences of Termination or Suspension

• 1. Release from Obligations: Termination releases the parties from further obligations under the treaty.
• 2. Retention of Existing Rights: Termination does not impact rights or situations created before the treaty ended.

In other words, termination looks forward, not backward. The parties need not perform the treaty in the future, but whatever was validly done under it while it was in force remains unaffected.

These methods allow treaties to adapt or conclude based on changing international relationships and circumstances.

Theories of the Relationship between International Law and Municipal Law

“Municipal law” simply means the domestic or national law of a state (it has nothing to do with municipalities or local bodies). A frequent exam question asks how international law and municipal law relate to each other. The main theories are explained below.

1. Monism

• Concept: Monism holds that international and municipal (domestic) laws are part of a single legal system. They are interconnected, with international law automatically applicable within the state's domestic legal system.
• Application: In a monist system, international law doesn't require any domestic legislation to be enforced within the state.

2. Dualism

• Concept: Dualism argues that international law and domestic law are two separate legal systems. Each has its own sphere, and they operate independently.
• Application: For international law to apply within a state, it must be formally adopted or transformed into domestic law by legislation. Until this transformation, international law has no direct effect within the state.

3. Specific Adoption Theory

• Concept: This theory posits that a specific act of adoption or legislative measure is needed for international law to become applicable domestically.
• Application: In this view, each treaty or rule of international law must be separately adopted to be binding at the national level.

4. Transformation Theory

• Concept: According to the transformation theory, international law needs to be “transformed” into domestic law to have legal effect within a state.
• Application: This theory emphasizes that domestic legal procedures or legislation are required to make international law enforceable within the country.

5. Delegation Theory

• Concept: This theory suggests that the power to apply international law domestically is “delegated” by international law to domestic authorities, allowing states to implement international obligations within their legal systems.
• Application: The state exercises a degree of discretion in how it integrates international obligations, emphasizing a cooperative approach between international standards and domestic enforcement.

Relevance and Interpretation of International Law in the Indian Legal System – Constitutional Provisions

The Indian Constitution contains several provisions that connect India's domestic legal system with international law. These are important for both university exams and judicial service papers.

1. Article 51(c)

This Directive Principle states that the State shall endeavour to foster respect for international law and treaty obligations in the dealings of organised peoples with one another. It reflects India's commitment to follow international norms, aiming to foster peace and cooperation globally.

2. Article 73

This grants the Union government the power to make and implement treaties. It enables India to enter into agreements with other countries, laying the foundation for international relations and obligations.

3. Article 253

Under this article, Parliament has the power to make laws to implement treaties and agreements. This provision means that where a signed treaty needs to be given effect in domestic law, Parliament can make a law to implement it, even on subjects that would otherwise be outside its legislative competence.

4. Judicial interpretations

Indian courts have referenced international law to interpret domestic laws and uphold fundamental rights when there's no conflict with existing laws.

These interpretations highlight how the Indian Constitution facilitates the integration of international law into the Indian legal system. The overall picture is that the executive makes treaties, Parliament enacts laws to implement them, and courts use international norms to fill gaps and interpret Indian law, so long as they do not conflict with existing laws.

Indian Supreme Court Case Discussions Using International Law

The following three judgments are the most commonly cited examples of the Supreme Court using international law. For each, remember the background and the specific international instrument the Court relied upon.

1. Gramophone Company of India Ltd. v. Birendra Bahadur Pandey, AIR 1984 SC 667

• Background: This case involved a consignment of allegedly pirated pre-recorded cassettes sent from Singapore to Nepal, which arrived at Calcutta port in transit. The issue was whether such goods in transit were imported into India, so that Indian copyright law could be applied to them.
• Role of International Law: The Supreme Court referenced the Convention on Transit Trade of the Land-Locked States (1965), holding that this Convention and the India-Nepal treaties left India free to restrict transit goods to protect copyright, and that rules of international law may be accommodated in Indian law without express legislation unless they conflict with an Act of Parliament.

2. Vellore Citizens' Welfare Forum v. Union of India, (1996) 5 SCC 647

• Background: This case addressed the environmental impact caused by tanneries in Tamil Nadu, focusing on sustainable development and pollution control. “Sustainable development” means development that meets present needs without damaging the environment for future generations.
• Role of International Law: The Supreme Court cited international environmental norms, particularly the Rio Declaration (1992), to strengthen sustainable development principles within Indian law.

3. Vishaka v. State of Rajasthan, AIR 1997 SC 3011

• Background: Vishaka, an NGO, filed public interest litigation addressing workplace sexual harassment in the absence of specific legislation in India.
• Role of International Law: The Court referenced the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) to create guidelines for workplace sexual harassment prevention, incorporating international standards into Indian law.

Role of Municipal Law in International Law - Municipal Courts' State Practice (USA and UK)

How national courts treat international law is itself a form of state practice. The United States and the United Kingdom are the two systems most often compared.

United States

• Constitutional Basis: International treaties are part of the “supreme law of the land” in the U.S., allowing them to override conflicting state laws once approved by the President and Senate. Here “state laws” means the laws of individual American states such as Texas.
• Judicial Application: In Medellin v. Texas, the U.S. Supreme Court clarified that treaties are not automatically enforceable unless “self-executing” or enacted by Congress, reflecting a dualist approach. A “self-executing” treaty is one that is meant to operate in domestic courts on its own, without any further law being passed.

United Kingdom

• Customary Law as Part of English Law: Customary international law is automatically part of English law without specific legislation, as established by Lord Denning and cases like R v. Keyn (1876).
• Role of Parliament: In the UK, treaties become national law only after Parliamentary approval, reflecting a dualist approach that requires domestic legislative action for treaty enforcement.

Nottebohm Case (Liechtenstein v. Guatemala)

• Background: Friedrich Nottebohm, a German national who acquired Liechtenstein nationality, was not recognized by Guatemala, which treated him as an enemy alien during WWII. An “enemy alien” is a national of a country with which the state is at war.
• ICJ's Decision: The ICJ ruled that nationality must reflect a “genuine link” between the individual and the state. Without a genuine connection, Liechtenstein could not claim diplomatic protection on Nottebohm's behalf. “Diplomatic protection” means a state taking up the claim of its national who has been wronged by another state.
• Significance: This case introduced the “effective nationality” principle, emphasizing a real bond between nationality and state protection, impacting diplomatic protection and dual nationality issues.

Recent Developments in Nationality Law

Nationality questions continue to come before international courts. The following recent decisions are useful for answers on current developments.

1. Armenia v. Azerbaijan (2024)

In November 2024, in Armenia v. Azerbaijan, the ICJ rejected the preliminary objections of Azerbaijan and held that it has jurisdiction under the Convention on the Elimination of All Forms of Racial Discrimination; the claims of ethnic discrimination remain to be decided on the merits. The Court recalled that distinctions based on current nationality, as opposed to national or ethnic origin, fall outside that Convention.

2. Afghan Women Asylum Cases (2024)

The European Court of Justice ruled that Afghan women could seek asylum in the EU based on gender and nationality, without needing to show specific persecution, recognizing the severity of Taliban-imposed restrictions on women's rights. “Asylum” is protection given by a state to a person who has fled persecution in their own country.

3. Anudo v. Tanzania (2018)

The African Court on Human and Peoples' Rights ruled that arbitrary deprivation of nationality violates international obligations, reinforcing protections against statelessness. A “stateless” person is someone whom no state recognises as its national.

Right to Innocent Passage

The right of innocent passage allows a vessel from one state to pass through another state's territorial waters as long as the passage does not harm the peace, order, or security of the coastal state. This right, generally recognized under international law and given by UNCLOS to ships of all States, permits navigation without requiring prior permission; some coastal states claim that warships need prior permission or notice, but this is disputed.

Broken into its elements, the right involves:

• a vessel of one state;
• passing through the territorial waters of another (coastal) state;
• in a manner that does not harm the peace, order or security of the coastal state; and
• without prior permission (some coastal states claim that warships need prior permission or notice, but this is disputed).

Portugal v. India (1960) - Right of Passage over Indian Territory Case

• Background: Portugal claimed a right of passage through Indian territory to access its enclaves in Dadra and Nagar Haveli, based on local customs of free movement. An “enclave” is a piece of territory completely surrounded by the territory of another state.
• Issue: The dispute centered on whether Portugal had the right to access its territories through India, particularly after India blocked passage in 1954.
• ICJ's Decision: The ICJ recognized a limited right of passage for Portugal for private individuals and civil officials, based on local custom, but denied the passage of armed forces, emphasizing that local custom can confer specific rights without formal treaties.

This case demonstrates the balance in international law between respecting a state's territorial sovereignty and recognizing a right of passage over its territory in favour of another state. It is also a leading authority for the point that a custom can exist between just two states (a “local custom”), and not only at the global level.

State Responsibility

State responsibility refers to a state's accountability when it violates international obligations or commits wrongful acts against another state. When a state breaks these obligations, it is expected to provide remedies, which may include compensating the affected party or restoring the situation as it was before the wrongful act.

Nature of state responsibility

• 1. Primary Rules: These are specific obligations that a state must follow, such as respecting other countries' borders and refraining from harmful activities against other states.
• 2. Secondary Rules: These rules define the consequences when a state violates its obligations, including the responsibilities of the violating state to address and remedy the breach.

Development and Codification of State Responsibility (ARSIWA)

The concept of state responsibility has been formalized in the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), created by the International Law Commission (ILC). These articles represent customary international law, establishing guidelines for when and how a state can be held responsible for internationally wrongful acts, including requirements for reparation to the injured state. “Codification” means writing down existing rules of law in a systematic, organised form, and “reparation” means making good the harm caused.

Key points in ARSIWA

• Article 1: Every internationally wrongful act of a state brings responsibility.
• Article 2: An internationally wrongful act is defined as one that violates an obligation and is attributable to the state under international law.
• Article 3: International law, not the domestic laws of a state, determines whether an act is wrongful.

The ARSIWA articles serve as a key reference in international law, guiding the process of addressing state responsibility to ensure fairness and accountability when states breach international norms.

Scope and the Prohibition of the Use of Force

The prohibition of the use of force is a foundational principle in international law, restricting states from using military force against each other, except in very specific cases such as self-defense. This principle is primarily governed by the United Nations Charter and is recognized as a core norm to maintain peace and security globally.

Scope

The prohibition covers any aggressive use of force by a state that could threaten another state's sovereignty or political independence. It is also considered a jus cogens norm, meaning it is a fundamental rule from which no state can deviate. (Jus cogens is Latin for “compelling law”.)

Legal nature

The prohibition on the use of force is both a binding international law and a peremptory norm (jus cogens). As a universally accepted norm, it mandates all states to adhere to it, essential for global peace and stability. “Peremptory” here means that the rule cannot be set aside, even by agreement between states.

State Responsibility

State responsibility refers to a state's accountability when it violates international obligations or commits wrongful acts against another state. When a state breaks these obligations, it is expected to provide remedies, which might include compensating the affected party or restoring the situation as it was before the wrongful act.

Nature of state responsibility

Development and Codification (ARSIWA)

The concept of state responsibility has developed over time and has been codified in the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). These articles were created by the International Law Commission (ILC) and represent customary international law. They establish guidelines for when and how a state can be held responsible for internationally wrongful acts, including the need for reparation to the injured state.

Key points in ARSIWA

The ARSIWA articles guide the process of dealing with state responsibility and have become a key reference in international law to ensure that states act fairly and take responsibility when they breach international norms.

Scope and the Prohibition of the Use of Force and Its Legal Nature

The prohibition of the use of force is a core principle in international law that restricts states from using military force against each other, except in very specific situations, like self-defense. This principle is largely governed by the United Nations Charter and is considered a fundamental norm to maintain peace and security among nations.

Scope

The prohibition covers any aggressive use of force by a state that could threaten the sovereignty or political independence of another state. This principle is also tied to jus cogens norms, meaning it is recognized as a fundamental rule from which no state can derogate. To “derogate” means to depart from or make an exception to a rule.

Legal nature

The prohibition on the use of force is both a binding international law and a peremptory norm (jus cogens). This means it is accepted universally by the international community as essential for the protection of global peace, making it mandatory for all states to follow, regardless of individual consent. Unlike a treaty obligation, therefore, a state cannot avoid this rule simply by refusing to agree to it.

General Principles on State Responsibility

The General Principles on State Responsibility cover the rules and obligations of states when they commit internationally wrongful acts. Here are the main aspects as per the International Law Commission's Articles on State Responsibility (ARSIWA):

1. Existence of an Obligation: For state responsibility to arise, there must be a binding international obligation that the state has failed to uphold.
2. Breach of Obligation: This occurs when an act or omission by the state does not meet its international responsibilities. The breach must be attributable to the state, meaning it is done by state officials or entities acting on behalf of the state. An “omission” is a failure to act when there is a duty to act.
3. Attribution of Conduct: Only actions by state organs or entities exercising governmental authority are generally attributable to the state, not private individuals unless under state direction.
4. Consequences: When a state breaches an obligation, it is expected to make full reparation for the damage caused, which may involve restitution, compensation, or satisfaction, depending on the situation. In simple terms, restitution means restoring the earlier position, compensation means paying money for the loss, and satisfaction usually means acknowledging the wrong, for example through a formal apology.

Attribution of Conduct to a State - Articles 4-7

A state is an abstract entity; it can act only through human beings and bodies. “Attribution” answers the question: whose acts count as the acts of the state? The attribution of conduct to a state is outlined in Articles 4-7 of the International Law Commission's (ILC) Articles on State Responsibility, which cover when a state's actions can be considered its responsibility under international law:

Article 4 - Conduct of State Organs

• The actions of any state organ are attributed to the state itself. This applies regardless of whether the organ is part of the legislative, executive, judicial, or any other government function.
• It includes individuals or bodies that act with authority from the state, but excludes actions done by officials when they are “off-duty” or not acting in an official capacity.

Article 5 - Entities Exercising Governmental Authority

• States are responsible for the actions of non-state entities or individuals only if they are empowered by domestic law to exercise governmental authority.
• For example, if a private company is given specific authority by the state to manage certain tasks like border security, its actions in that role may be attributed to the state.

Article 6 - Organs on Loan to Another State

• When one state lends its organs (like military or police forces) to another state, the conduct of these “loaned” organs is attributed to the state receiving them if they are under its control.
• This means if a foreign organ operates under the receiving state's command, the latter state is accountable for its actions.

Article 7 - Acts Beyond Authority

• Even if an entity or individual with government authority acts outside their instructions (ultra vires acts), their actions may still be attributed to the state if done within their role. Ultra vires is Latin for “beyond the powers”.
• For instance, a government official who oversteps instructions but still acts under their authority may bind the state to their conduct.

Attribution of Conduct to a State under Articles 8-11

The earlier Articles on attribution (Articles 4-7) mainly cover a State's own organs and officials. Articles 8 to 11 go one step further. They explain when the acts of people or groups who are not official organs of the State can still be treated as the State's own acts. Attribution simply means linking an act to a State, so that the State can be held legally responsible for it.

1. Article 8 - Conduct Directed or Controlled by the State

The actions of persons or groups may be attributed to the State if they act under its direction or control. In other words, if a State controls an entity, such as a group, the group's actions can be legally treated as actions of the State itself.

2. Article 9 - Conduct in the Absence of Official Authorities

Sometimes private individuals carry out tasks that would normally be the government's job, especially when government authority is missing. In such cases, their actions can be attributed to the State. This may happen during times of crisis or rebellion, when the regular authorities are not functioning.

3. Article 10 - Actions of Insurrectional Movements

An insurrectional movement is a rebel group that rises up against the existing government. If such a movement succeeds in forming a new government or a new State, its actions before and after taking control are considered actions of the State. This includes any conduct that led to its establishment.

4. Article 11 - Conduct Acknowledged and Adopted by the State

If a State acknowledges and adopts the actions of individuals or groups as its own, those actions become attributable to the State, even if the State did not control them at the start. As a general rule, merely acknowledging that the conduct happened or expressing verbal approval of it is not enough; the State must clearly accept the conduct as, in effect, its own.

Articles 12-15 on Breach of an International Obligation

Once an act is attributed to a State, the next question is whether that act actually breaches an international obligation. Articles 12 to 15 answer this question.

1. Article 12 - Existence of a Breach

A State breaches an international obligation when its actions or omissions (failures to act) do not conform to the duty imposed by that obligation. This applies regardless of the obligation's source or character. So it does not matter whether the obligation comes from a treaty, from custom or from some other source; the test is the same.

2. Article 13 - Time Factor in Breach

A State's conduct can be considered a breach only if it violated an obligation that was in force for that State at the time of the act. This is known as the "contemporaneity principle". "Contemporaneous" means "existing at the same time", so the obligation and the act must exist at the same time. There is no retroactive liability for obligations that were not in effect at the time.

3. Article 14 - Continuing Acts

Some breaches are continuous, which means they stretch over a period of time. For example, if a State unlawfully occupies another State's territory, it remains in breach for as long as the occupation lasts. Every day of occupation is part of the same ongoing wrong.

4. Article 15 - Composite Acts

Certain wrongful acts are made up of a series of actions that together amount to a breach, even though each act on its own might not. Examples include systematic discrimination or human rights violations. The breach occurs when the act or omission takes place which, taken with the others, is sufficient to constitute the wrongful act, and it then extends over the entire period starting with the first act in the series.

Circumstances Precluding Wrongfulness - Articles 20-25

These Articles work like defences. Even if a State's act would normally break an international obligation, the act is not treated as wrongful if one of these circumstances is present. To "preclude" means to prevent or rule out, so these circumstances rule out wrongfulness.

1. Article 20 - Consent

If a State gives permission for another State's actions on its territory or concerning its interests, those actions are not considered wrongful. For example, if a State allows foreign troops to be stationed within its borders, it cannot later claim that their presence is a wrongful act.

2. Article 21 - Self-Defense

Actions taken in self-defence, as permitted by the UN Charter, are not wrongful. However, even self-defence must respect international principles of human rights and humanitarian law.

3. Article 22 - Countermeasures

A State may take countermeasures, which are steps taken in response to another State's wrongful act. These steps must be proportional (not excessive compared with the wrong suffered) and must not violate fundamental human rights or humanitarian norms. The Gabčíkovo–Nagymaros Project case is an example that highlights the proportionality requirement.

4. Article 23 - Force Majeure

Force majeure is a French term meaning "superior force". If a State cannot fulfil its obligations because of unforeseen events beyond its control, such as natural disasters or severe emergencies, it may be excused from responsibility. In the Rainbow Warrior case, this doctrine required "absolute and material impossibility" before it could apply as a valid excuse. Mere difficulty in performing an obligation is not enough.

5. Article 24 - Distress

Actions taken by a State under extreme distress, such as to save lives, may also prevent responsibility. This usually applies when no other option exists to prevent grave harm.

6. Article 25 - Necessity

An act may be exempt from wrongfulness if it is the only means to safeguard an essential interest from severe and immediate danger, and it does not seriously impair the essential interests of other States. This principle has strict requirements, so that it is applied only in cases of extreme urgency and necessity.

Articles 34-39 on Reparation for Injury

Reparation means making good the harm caused by a wrongful act. Articles 34 to 39 explain the forms reparation can take and how it is measured.

1. Article 34 - Forms of Reparation

Reparation can take three main forms:

• restitution;
• compensation; and
• satisfaction.

The goal is to remedy the damage caused by the wrongful act as far as possible.

2. Article 35 - Restitution

Restitution aims to restore the situation that existed before the wrongful act, provided this is not materially impossible or excessively burdensome. The Chorzow Factory case is cited here, stating that restitution should "wipe out all the consequences of the illegal act" as far as possible.

3. Article 36 - Compensation

When restitution is not feasible, compensation is required. Compensation covers damage that can be measured in money ("financially assessable damage"), including lost profits. It seeks to make up for the loss in measurable terms.

4. Article 37 - Satisfaction

If neither restitution nor compensation fully addresses the injury, satisfaction may be required. Satisfaction is a non-financial remedy and could include an acknowledgment of the wrong, an apology or other forms of redress. It must be proportionate and must not be humiliating to the responsible State.

5. Article 38 - Interest

Compensation may include interest from the date of the injury until the date of payment, where this is required to achieve full reparation. Interest is added when necessary to make the injured State whole, because money paid late is worth less than money paid on time.

6. Article 39 - Contribution to Injury

If the injured party contributed to the harm, that contribution must be taken into account. This principle of contributory fault may reduce the amount of reparation owed.

General Provisions under Articles 55-59

The final part of the Articles on State Responsibility contains general provisions. They explain how these rules fit with other rules of international law.

1. Article 55 - Lex Specialis

Lex specialis is Latin for "special law". This principle states that if a specific rule applies to a particular situation, it takes precedence over the general rules. So a specialised agreement between States would prevail over general principles of international law in the relevant cases.

2. Article 56 - Questions Not Regulated by the Articles

Questions of State responsibility that are not regulated by these articles continue to be governed by the applicable rules of international law. (The rule against retroactive responsibility, that an act is a breach only if the obligation was in force when it occurred, is found in Article 13.)

3. State Sovereignty Over Certain Claims

The articles on State responsibility do not interfere with a State's ability to waive (give up) or limit its right to make certain claims. This respects State sovereignty, because a State may choose not to pursue certain claims even when it is entitled to do so under international law.

4. Article 58 - Individual Responsibility

The articles are without prejudice to any question of the individual responsibility under international law of any person acting on behalf of a State. In other words, the responsibility of the State does not affect any personal responsibility of individuals acting for it, for example criminal responsibility for international crimes.

5. Article 59 - Charter of the United Nations

This article states that the Articles are without prejudice to the Charter of the United Nations. Separately, note that the Articles are not a treaty; they serve as guiding principles rather than legally binding rules. They provide a framework for understanding State responsibility rather than imposing strict legal obligations.

Together, these general provisions help ensure flexibility and respect for State sovereignty within the framework of international law. They make clear that special rules, other applicable rules of international law, questions of individual responsibility and the UN Charter are not displaced by the Articles.

Rainbow Warrior Arbitration (France v. New Zealand)

This case concerned France's responsibility for breaching an agreement with New Zealand about two French agents who had attacked the Greenpeace vessel Rainbow Warrior.

• The tribunal addressed force majeure and defined it as a situation of "absolute and material impossibility", not merely a situation in which performance becomes difficult.
• The tribunal found France in breach of its obligations.
• It declined the request of New Zealand for an order returning the agents to the island of Hao, because the obligation of France to keep them there had expired on 22 July 1989.

Nottebohm (Liechtenstein v. Guatemala)

This case dealt with nationality in the context of diplomatic protection, which is the right of a State to take up a claim on behalf of its national who has been harmed by another State. Liechtenstein sought to protect Nottebohm, who had become its national by naturalization (acquiring nationality after birth through a legal process).

• The ICJ ruled that nationality must reflect a "genuine link" between the person and the State.
• Since Nottebohm's connection with Liechtenstein was minimal, Guatemala was not obliged to recognise his Liechtenstein nationality.
• The case set a precedent for the genuine link test in nationality matters.

Barcelona Traction, Light, and Power Co. Ltd. Case

This case dealt with the nationality of companies for the purpose of diplomatic protection. Belgium sought to protect its nationals who were shareholders in a Canadian company. The ICJ ruled that diplomatic protection generally applies according to the company's nationality and not that of individual shareholders. The case thus reinforced the principle that corporations are nationals of the State where they are incorporated (legally registered).

Corfu Channel Case (United Kingdom v. Albania)

This case centred on State responsibility after British warships struck mines in Albanian waters. The ICJ found that Albania had a duty to warn other States about the danger, because it was aware of the mines. The ruling reinforced a State's obligation not to allow its territory to be used in a way that harms other States.

Nicaragua Case (Nicaragua v. USA)

The ICJ ruled that the United States had violated international law by supporting the contra forces in Nicaragua, thereby breaching Nicaragua's sovereignty.

• The case introduced the effective control test for attributing the actions of non-State actors (such as rebel groups) to a State.
• The Court concluded that support alone is not enough; it must be shown that the State had effective control over the actions of those groups.

This links directly to Article 8 above, which deals with conduct directed or controlled by a State.

LaGrand Case (Germany v. United States)

This case concerned the Vienna Convention on Consular Relations. Consular access means the right of a foreign national who is arrested to contact the consulate (the official office) of his own country for help.

• The ICJ ruled that the U.S. had violated the rights of the LaGrand brothers, who were German nationals, by not informing them of their right to consular access.
• The case reinforced the binding nature of provisional measures ordered by the ICJ. Provisional measures are temporary orders that the Court issues to protect the rights of the parties while the case is still pending.

Case Concerning Avena and other Mexican Nationals (Mexico v. United States)

Like the LaGrand case, the Avena case dealt with the U.S.'s failure to notify Mexican nationals of their right to consular assistance under the Vienna Convention. The ICJ ruled that the U.S. must review and reconsider the convictions, and it emphasised that the Vienna Convention is a binding obligation.

Kulbhushan Jadhav Case (India v. Pakistan)

India argued that Pakistan breached the Vienna Convention by not informing Jadhav of his consular rights.

• The ICJ ruled that Pakistan had violated international law.
• It required effective review and reconsideration of Jadhav's case.
• The Court emphasised Pakistan's obligation to comply with Article 36 of the Vienna Convention.

Legality of the Threat or Use of Nuclear Weapons (ICJ 1996)

In this advisory opinion (a non-contentious legal opinion given by the ICJ at the request of an authorised body, rather than a judgment in a dispute between States), the ICJ recognised that although the UN Charter does not specifically outlaw nuclear weapons, their use must comply with the principles of international humanitarian law. These include proportionality and the need to avoid unnecessary suffering. However, the ICJ refrained from declaring a definitive prohibition because of a lack of consensus.

Certain Expenses of the United Nations (ICJ 1962)

This advisory opinion addressed whether the costs of UN peacekeeping operations were "expenses of the organization" under Article 17 of the UN Charter. The ICJ ruled that these expenses were indeed within the scope of the UN, and it affirmed that all member States were obliged to contribute towards them.

Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosovo

In this advisory opinion, the ICJ affirmed that Kosovo's declaration of independence did not violate international law. The Court emphasised that general international law does not prohibit declarations of independence, and that the scope of the principle of territorial integrity is confined to relations between States.

Territorial Sea

The Territorial Sea is a maritime zone extending from a State's coastline up to a limit of 12 nautical miles (one nautical mile is about 1.852 km). Within this zone, the coastal State exercises full sovereignty, much like its rights on land. However, this sovereignty is subject to certain rules of international law, such as the right of innocent passage. This right allows foreign ships to sail through the territorial sea as long as they do not threaten the security or peace of the coastal State.

The rules governing the territorial sea establish that:

• 1. Sovereignty: The coastal State has sovereignty over the air space above the territorial sea and over the seabed and subsoil beneath it.
• 2. Limit: The maximum limit of the territorial sea is generally 12 nautical miles from the baseline. The baseline is the starting line for measuring sea zones and is typically the low-water line along the coast.
• 3. Innocent Passage: Foreign vessels have the right of innocent passage through the territorial sea. The passage must be continuous and expeditious (without unnecessary stopping or delay) and must not involve any activity that would harm the coastal State.

These principles balance the coastal State's rights with the freedom of navigation that is essential for international trade and relations.

Contiguous Zone

The Contiguous Zone ("contiguous" means "touching" or "next to") is a maritime zone that lies beyond a State's territorial sea and extends up to 24 nautical miles from the baseline. In this area, the coastal State has limited control to enforce specific laws, in order to prevent or punish violations within its territory or territorial sea.

Key Points of the Contiguous Zone:

• 1. Enforcement Rights: The coastal State can exercise control to:
  • prevent the infringement of its customs, fiscal, immigration or sanitary laws within its territory or territorial sea;
  • punish infringements of these laws committed within its territory or territorial sea.
• 2. Limited Sovereignty: Unlike in the territorial sea, the coastal State does not have full sovereignty in the contiguous zone. Its authority here exists only for specific enforcement purposes and does not extend to full jurisdiction over all activities.
• 3. International Passage: Vessels of other States enjoy freedom of navigation through the contiguous zone, as it is part of international waters. However, they must respect the regulatory rights of the coastal State in this area.

This framework helps coastal States maintain law and order near their borders while respecting international navigation rights.

Continental Shelf

The Continental Shelf is the natural extension of a State's landmass under the sea, stretching from the coastline to the outer edge of the continental margin.

Definition

The continental shelf includes the seabed and subsoil beyond the territorial sea, up to the limit allowed under international law. The coastal State exercises sovereign rights over it (not full sovereignty, as in the territorial sea) for the purpose of exploring it and exploiting its natural resources.

Outer Limit to Continental Shelf

The outer limit of the continental shelf typically extends up to 200 nautical miles from the baseline, or further if the natural extension of the continental margin goes beyond that distance. However, it cannot exceed:

• 350 nautical miles from the baseline; or
• 100 nautical miles beyond the 2,500-metre depth contour (isobath). An isobath is an imaginary line joining points of equal depth on the seabed.

These limits are defined under the United Nations Convention on the Law of the Sea (UNCLOS). They give coastal States rights to resources on and beneath the seabed within this zone, promoting resource management while balancing international navigation rights.

Rights of the Coastal State

1. Sovereign Rights for Resource Exploration and Exploitation

The coastal State has exclusive rights to explore and exploit the natural resources of the continental shelf, including minerals, oil and gas. These rights are inherent, which means they do not need to be actively claimed or exercised to be valid.

2. Jurisdiction Over Structures

Coastal States may construct, maintain and regulate installations such as oil rigs and other structures needed for the exploration and exploitation of resources.

3. Protection of the Marine Environment

The coastal State has the duty to protect and preserve the marine environment in the continental shelf area, so that exploration and exploitation activities do not cause undue harm.

Duties of the Coastal State

1. Respect for Freedom of Navigation

Although the coastal State has exclusive rights over continental shelf resources, it must still respect other States' freedom of navigation in the waters above the continental shelf, because those waters remain part of international waters.

2. Duty to Avoid Overlap of Rights with Neighboring States

Where the continental shelves of neighbouring States overlap, the coastal States are expected to reach agreements to prevent conflicts. This ensures equitable (fair) sharing of resources based on distance or other negotiated principles.

United Nations Convention on the Law of the Sea (UNCLOS)

These rights and duties form part of the United Nations Convention on the Law of the Sea (UNCLOS). They are essential for maintaining a balance between the rights of coastal States and international interests in marine areas.

Exclusive Economic Zone (EEZ)

Definition

The EEZ extends up to 200 nautical miles from a State's baseline, beyond its territorial sea. Within this area, the coastal State has exclusive rights to explore, exploit, conserve and manage natural resources, both living (such as fish) and non-living (such as oil and minerals), in the waters, the seabed and the subsoil.

Legal Status

• 1. Sovereign Rights for Resource Management: The coastal State has exclusive rights to the natural resources within its EEZ. This includes the right to harvest fish, extract minerals and manage energy resources.
• 2. Jurisdictional Limitations: Although the coastal State has specific rights within the EEZ, it must also allow freedom of navigation and overflight for other States, as the EEZ remains part of international waters for these purposes.
• 3. Environmental Protection: The coastal State is responsible for protecting and preserving the marine environment within its EEZ, balancing resource extraction with environmental stewardship (careful management).

The EEZ provisions are part of the United Nations Convention on the Law of the Sea (UNCLOS), which provides a balanced framework for resource rights and navigation freedoms.

Exclusive Economic Zone (EEZ) - Rights and Duties of Coastal State

Rights of the Coastal State in the EEZ

• 1. Resource Rights:
  • The coastal State has exclusive rights to explore, exploit, conserve and manage both living and non-living resources in the waters, seabed and subsoil within the EEZ.
  • This includes the right to fish, to mine and to access oil, gas and mineral resources.
• 2. Jurisdiction for Certain Activities:
  • The coastal State has the authority to make and enforce laws for the protection and preservation of the marine environment.
  • The State can regulate marine scientific research within its EEZ, permitting or refusing research activities by foreign entities.
• 3. Economic Exploitation:
  • The coastal State can authorise the construction and use of artificial islands, installations and structures for resource extraction, scientific research or other economic purposes.

Duties of the Coastal State in the EEZ

• 1. Conservation of Resources:
  • The coastal State must ensure that resources, particularly living resources, are managed sustainably to prevent over-exploitation.
  • This includes the duty to adopt conservation measures, often in cooperation with other States, to maintain healthy fish stocks and biodiversity.
• 2. Respect for Rights of Other States:
  • Other States retain rights in the EEZ, particularly the freedom of navigation and overflight, and the right to lay submarine cables and pipelines.
  • The coastal State must not unduly interfere with these rights, as the EEZ is still treated as international waters for activities not related to resources.

These rights and duties in the EEZ balance the coastal State's economic interests with the international freedoms that are essential for global maritime activities.

High Seas

Definition of High Seas

The High Seas are the parts of the sea that lie beyond any nation's Exclusive Economic Zone (EEZ), Territorial Sea or any other maritime zone. Under international law, they are open to all States and are not subject to the sovereignty of any single country.

Freedom of High Seas

• 1. Freedom of Navigation: Ships of all States may travel through the high seas without interference.
• 2. Freedom of Overflight: Aircraft of all States may fly freely over the high seas.
• 3. Freedom to Lay Submarine Cables and Pipelines: States can lay cables and pipelines in accordance with international regulations.
• 4. Freedom of Fishing: All States have the right to fish on the high seas, provided they respect international conservation measures.
• 5. Freedom of Scientific Research: States may conduct research, although this is subject to certain regulatory conditions to protect marine life.

The table below brings together the maritime zones discussed above, as described in this article, for quick revision.

Jurisdiction on the High Seas

Jurisdiction over ships on the high seas generally lies with the flag State, which is the State in which a ship is registered and whose flag it flies. Under this principle of international law, only the flag State can exercise legal authority over its vessels on the high seas, except in certain circumstances.

S.S. Lotus Case (France v. Turkey), PCIJ, 1927

In the S.S. Lotus case, the Permanent Court of International Justice (PCIJ), the predecessor of the ICJ, considered whether a State could exercise jurisdiction over incidents on the high seas involving foreign vessels.

• Facts: The case arose after a collision on the high seas between a French ship and a Turkish ship, after which Turkey prosecuted a French officer.
• Holding: The PCIJ ruled that international law did not prohibit Turkey from exercising jurisdiction, because such jurisdiction was not explicitly forbidden by international law.
• Significance: The ruling highlights a degree of flexibility in jurisdiction on the high seas.

Duties of the Flag State

Because the flag State has primary authority over its ships on the high seas, it also carries important duties:

• 1. Ensuring Safety: Flag States must ensure that their ships meet international safety and environmental standards.
• 2. Supervising Crew and Equipment: They must regulate the qualifications and working conditions of crews and ensure that vessels are properly equipped.
• 3. Enforcing Legal Compliance: Flag States are required to enforce international conventions and laws on their ships, so that vessels comply with regulations on labour, safety and environmental protection.

Exceptions to Flag State Jurisdiction

A ship on the high seas is normally controlled by its flag State, the State whose flag the ship flies. International law, however, allows some exceptions where other States may also take action. These exceptions show that the freedom of the high seas is not unlimited. The four main exceptions are:

• 1. Piracy: Any state can capture and prosecute pirates, as piracy is a crime under universal jurisdiction. Universal jurisdiction means that every State has the power to deal with the crime. It does not matter which flag the pirate ship flies or where the pirates come from.
• 2. Unauthorized Broadcasting: States with a specified connection, such as the flag State, the State of nationality of the broadcaster, or a State where the transmissions are received or cause interference, can take action against ships broadcasting illegally from the high seas. These are radio or television transmissions sent from a ship on the high seas without proper permission.
• 3. Hot Pursuit: Coastal states may pursue a foreign vessel from their territorial sea onto the high seas if it is suspected of violating the coastal state’s laws. The term "hot pursuit" means a chase that starts within the coastal State's waters and continues onto the high seas.
• 4. Slave Trade and Illegal Drug Trafficking: Under UNCLOS, any warship may board (visit) a foreign ship suspected of engaging in the slave trade, while action against drug trafficking on the high seas depends mainly on cooperation between States, including requests by the flag State to other States.

These principles help balance the rights and responsibilities of states on the high seas, supporting freedom while maintaining international law and order.

Recognition of State and Government

Recognition of State and Government involves acknowledging a new state or government by existing states and is essential for establishing diplomatic and legal relations.

Put simply, recognition is the act by which an existing State formally accepts that a new entity is a State, or that a new group of people is the government of a State. Without recognition, it is difficult for the new State or government to build normal legal and diplomatic ties with others.

Recognition of State

Recognition of a state occurs when an entity shows the following features:

• a defined territory;
• a population;
• an effective government; and
• the capacity to enter into relations with other States.

States decide independently whether to recognize a new state. While deciding, they consider factors such as:

• the stability of the new entity;
• its control over territory; and
• its independence.

Recognition may be de facto (temporary, recognizing control) or de jure (permanent, acknowledging legitimacy). Both forms are explained in detail below.

Recognition of Government

Sometimes the State stays the same, but its government changes. When an existing state's government changes, especially through revolutions or coups, other states may need to decide whether to recognize the new government.

Recognition is based on the government’s:

• effectiveness;
• stability; and
• compliance with international norms.

De Facto and De Jure Recognition

The Latin term de facto means "in fact", that is, what exists in practice. The term de jure means "by law" or "as of right", that is, what is legally accepted.

De Facto Recognition

This is a provisional form of recognition granted to a state or government when it shows control over a territory and has some stability, but the situation may change. De facto recognition implies that the entity is recognized only for practical purposes, like maintaining limited relations without full diplomatic acceptance. It is usually applied when:

• the new government’s control appears temporary; or
• the recognizing state prefers a cautious approach.

De Jure Recognition

This is full and formal recognition that an entity is a legitimate state or government under international law. It indicates that the recognizing state acknowledges the permanent and lawful existence of the entity, with full diplomatic relations. De jure recognition is more durable and represents a complete acceptance of the entity’s sovereignty and legitimacy.

Types of Recognition

• 1. Premature Recognition: This occurs when a state recognizes a new state or government before it has clearly established effective control and stability over its territory. In other words, the recognition comes too early, which is why it is called "premature".
• 2. Implied Recognition: Recognition may be implied through actions that indicate a state accepts the existence or authority of another state or government. Here there is no formal announcement. The recognising State's conduct shows that it accepts the other entity.
• 3. Conditional Recognition: A state recognizes a new state or government only if certain conditions are met, such as commitments to human rights or democracy.
• 4. Collective Recognition: This occurs when a group of states acts together to recognize a state or government. The United Nations itself has no authority to recognize a state or government, although it may admit a new state to membership.

Withdrawal of Recognition

Recognition, once given, can sometimes be taken back. The main points to remember are:

• 1. Reasons for Withdrawal: Common reasons include loss of effective control, violation of international norms, or significant political changes in the recognized state, such as a regime's collapse.
• 2. Consequences: Withdrawal affects diplomatic relations, trade agreements, and legal standings, potentially isolating the affected state internationally.
• 3. Legal Implications: Withdrawal may impact relations and alignments within the international community, especially where multiple states maintain collective recognition or diplomatic stances.

Non-Recognition

Non-Recognition refers to the refusal by states to acknowledge the legitimacy of a particular entity or government as a state or lawful authority. This often happens because of violations of international norms, such as:

• illegal acquisition of territory;
• military aggression; or
• lack of democratic legitimacy.

Key Aspects of Non-Recognition

• 1. Application in International Disputes: Non-recognition is commonly used when an entity is established through actions contrary to international law, such as through aggression or occupation. For instance, states may refuse to recognize territorial acquisitions made by force.
• 2. Legal Basis: The principle of non-recognition is based on international legal norms, often codified in United Nations resolutions, which discourage recognition of entities that emerge through illegal means.
• 3. Effects of Non-Recognition: This can lead to isolation of the entity from international relations, trade, and membership in international organizations, effectively limiting its legitimacy and influence on the global stage.

Non-recognition helps enforce international law by discouraging unlawful behavior and maintaining a consensus on legitimate statehood and government.

Legal Effects of Recognition

The legal effects of recognition relate to how a state's recognition of another state or government impacts its legal relationships and international standing. Recognition can lead to several consequences:

• 1. Establishment of Diplomatic Relations: Recognition opens the door for diplomatic and consular relations. Recognized states can set up embassies and consulates, which facilitate international dialogue and cooperation.
• 2. Engagement in International Agreements: Recognized states and governments gain the ability to enter into treaties and agreements, allowing for formal economic, political, and military alliances.
• 3. Legal Standing in International Courts: Recognition enables a state to have standing in international courts and arbitration bodies, which is essential for resolving international disputes. "Standing" means the right to bring a case or appear as a party.
• 4. Property and Asset Protection: Recognition generally allows the recognized state to claim or protect property and assets located in foreign jurisdictions. It also lets the State benefit from immunity and other international legal protections. Immunity here means protection from being sued in the courts of another State.
• 5. Reciprocal Rights and Obligations: Recognized states and governments are expected to adhere to the rights and obligations outlined under international law. These include respect for diplomatic immunities, treaty commitments, and customary international norms. "Reciprocal" means that the rights and duties apply on both sides.

These legal effects make recognition a significant step in establishing a state or government’s functional and formal presence in the international system.

State Practices in Recognition for the USA, UK, and India

Each country follows its own practice when it grants recognition. Three important examples are given below.

1. United States

• The U.S. recognizes states and governments based on practical control, stability, and alignment with international norms. Recognition is often conditional on factors like democratic governance and respect for human rights.
• U.S. law allows for the President to recognize or withhold recognition based on foreign policy interests, reflecting both de facto and de jure considerations.

2. United Kingdom

• The UK’s recognition policy traditionally relies on effective control and stability of a government. It often gives de facto recognition first and upgrades to de jure recognition once the government establishes lasting control.
• Parliament plays a significant role, as treaties and formal recognitions often require legislative approval, aligning the recognition process with national interests and public opinion.

3. India

• India’s recognition of states and governments is based on both political and legal principles, often weighing regional stability and bilateral relations.
• The Indian government follows a pragmatic approach, using recognition as a tool of foreign policy. The practice involves both executive decisions and parliamentary oversight, especially for treaties, ensuring that international commitments align with domestic laws.

Each approach to recognition reflects its political values, historical context, and foreign policy priorities, highlighting different ways in which states can navigate international legal principles of recognition.

Conclusion

This one-shot revision has covered the major areas of Public International Law. These include its historical development and its sources under Article 38(1) of the ICJ Statute, as well as the law of treaties and the relationship between international law and municipal law. The revision has also dealt with nationality, State responsibility under ARSIWA, the law of the sea and, finally, the recognition of States and governments.

Many of these topics are connected. For example, the rules on the high seas show how freedom and control are balanced, and the rules on recognition decide who may take part in the international legal system in the first place. While revising, focus on the basic rules, the exceptions and the leading cases discussed in each part. Understanding why a rule exists will help you remember it and apply it in exam answers.