Public International Law: Complete Notes

About this subject

▶ Watch this part of the lecture (00:00)

Public International Law is studied in seven units: from how a law between nations was born to how a new State or government is accepted by other States. Rules made between States work quietly in daily life, when a parcel is sent abroad, a flight goes to Singapore, or fish is caught in the Indian Ocean. Linking each rule to daily life makes it easy to understand and remember.

Unit 1: History, Nature and Development of International Law

The law between nations

▶ Watch this part of the lecture (01:25)

Inside India, Parliament and the State legislatures make the law, courts apply it and police enforce it. Between States there is no world parliament, no world police and no court that can summon a State against its will. Yet States sign treaties, exchange ambassadors, share rivers and fish in the same seas. The rules governing these dealings form public international law, also called the law of nations.

Point	Public international law	Private international law
Other name	Law of nations	Conflict of laws
Nature	Law between States	Really a part of each country's own law
Deals with	Mainly the rights and duties of States and international organisations	Which country's law applies, and which court may hear a private dispute that crosses borders

Early origins

▶ Watch this part of the lecture (02:15)

The modern system is about four hundred years old, but its seeds are much older.

• Lagash and Umma (ancient Mesopotamia, over four thousand years ago) fixed their boundary by a treaty inscribed on stone, calling on their gods to punish any breach.
• After the battle of Kadesh (over three thousand years ago), Ramesses II of Egypt and the Hittite king Hattusili III made a treaty of peace and alliance that even provided for the return of fugitives.
• Ancient India: the Arthashastra of Kautilya describes the mandala, a circle of kingdoms in which your neighbour is your natural rival and your neighbour's neighbour your natural friend; envoys must not be killed. The Mahabharata and Manusmriti lay down rules of righteous war, dharmayuddha: no striking an enemy who has surrendered, is unarmed or is fleeing, and no poisoned weapons. These ideas are close to today's international humanitarian law.
• Greece: city-states often settled quarrels by arbitration and respected heralds and ambassadors.
• Rome: the jus fetiale was a set of religious rules, applied by priests called fetials, for declaring war and making treaties. The jus gentium (law of peoples) was the law Roman courts applied to foreigners, since Rome's civil law applied only to citizens. It was not international law in the modern sense, but later writers borrowed from it the idea of a law common to all peoples.

The Middle Ages

• The Pope and the Holy Roman Emperor both claimed authority over all Christian rulers.
• The Church developed the idea of a just war and limited fighting through rules such as the Truce of God, which banned fighting on certain days.
• The lex mercatoria (law merchant) governed trade between merchants of different lands; sea codes like the Consolato del Mare governed shipping.
• In the Islamic world, jurists such as al-Shaybani (eighth century) set out the siyar: rules on war, treaties, envoys and the treatment of foreigners.

One essential condition was missing: independent and equal sovereign States. Power was shared among the Pope, the Emperor, kings and feudal lords, and modern international law could arise only when this structure broke down.

The birth of modern international law

From the sixteenth century, strong national States emerged in Europe and the Reformation broke the Pope's authority. The voyages of discovery asked whether Europeans could simply take the lands of the peoples of the Americas; the Spanish theologian Francisco de Vitoria, in his lectures of 1539, argued that the native peoples had real rights.

Hugo Grotius and the Peace of Westphalia

▶ Watch this part of the lecture (05:25)

• Mare Liberum (1609), "the free sea": no nation can own the open sea.
• De Jure Belli ac Pacis (1625), on the law of war and peace: law binds nations even in war, and natural law, based on human reason, would bind people even if one wickedly supposed that there is no God.
• Grotius brought natural law, Roman law, history and the practice of nations into one system, and is called the father of international law.

The Peace of Westphalia (1648) ended the Thirty Years' War. It is treated as the starting point of the Westphalian system of sovereign States, each supreme over its own territory and dealing with others as equals.

School after Grotius	Writers	International law comes from
Naturalists	Samuel Pufendorf	Natural law: reason and justice
Positivists	Richard Zouche, Cornelius van Bynkershoek	What States actually do and agree to, through custom and treaties

Emer de Vattel (Swiss, 1758) wrote a handbook diplomats used for a century, stressing the equality and independence of States. Jeremy Bentham gave us the word international.

Hague Conferences, the League and the UN Charter

▶ Watch this part of the lecture (06:55)

• 1815, Congress of Vienna: fixed the ranks of diplomats and condemned the slave trade.
• 1899 and 1907, Hague Peace Conferences: codified the laws of war and created the Permanent Court of Arbitration.
• 1920, League of Nations; 1922, Permanent Court of International Justice, the first standing world court.
• 1928, Kellogg-Briand Pact: renounced war as an instrument of national policy.
• The League could not prevent the Second World War, so the United Nations was born. Its Charter (signed 26 June 1945, in force 24 October 1945) banned the threat or use of force and created the International Court of Justice.

India was a founding member of both the League and the United Nations, even before independence. Decolonisation brought dozens of new States into the system, and the law spread to human rights, the environment, trade, the sea and outer space.

Definition of international law

▶ Watch this part of the lecture (08:05)

• Oppenheim (1st edition, 1905): the body of customary and conventional rules which are considered legally binding by civilised States in their intercourse with each other. Three features: the rules come from custom and treaties; they are legally binding; only States are its subjects. The 9th edition (1992) still speaks of rules legally binding on States, but adds that international organisations and, to some extent, individuals may also have rights and duties. The word civilised is gone.
• J. G. Starke (wider): that body of law composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and therefore do commonly observe, in their relations with each other. It also includes rules on the functioning of international institutions, and certain rules relating to individuals and non-State entities so far as their rights or duties concern the international community. Feel themselves bound is the psychological element of custom (Unit 2).
• Philip Jessup (American jurist, later a judge of the International Court), 1948: law applicable to States in their mutual relations and to individuals in their relations with States. He later spoke of transnational law, covering all law regulating events that cross national frontiers.
• Marjorie Whiteman (Digest of International Law for the US Department of State): the standard of conduct, at a given time, for States and other entities subject thereto. International law is not frozen; it changes as State practice changes.

The consent-based view and the Lotus principle

▶ Watch this part of the lecture (10:22)

The Permanent Court of International Justice gave the classic consent-based statement: international law governs relations between independent States; the rules binding upon States emanate from their own free will, as expressed in conventions or by usages generally accepted as expressing principles of law; and restrictions upon the independence of States cannot be presumed.

Combined definition: international law is the body of rules made mainly by the consent of States, through treaties and custom, governing the relations of States with one another, the working of international organisations and, in some matters, the rights and duties of individuals.

Is international law really law?

▶ Watch this part of the lecture (12:05)

When a powerful State breaks a treaty, often nothing seems to happen, so critics call international law weak law or no law at all.

The critics

• John Austin: law properly so called is a command of a sovereign backed by a sanction (threat of punishment). A sovereign is one whom the bulk of society habitually obeys and who habitually obeys no one else. No such sovereign stands over States and no organised sanction exists, so the law of nations is only positive morality, rules backed by general opinion.
• Thomas Erskine Holland: the vanishing point of jurisprudence, since there is no judge over nations except public opinion.
• Law without sanction: there is no world police, and the International Court can hear a case only with the consent of the States concerned.

Why it is true law, though a weaker kind

1. Austin's test is too narrow. It does not explain much domestic law either: a constitution binds the sovereign itself, and a custom recognised by courts is nobody's command, yet both are law.
2. H. L. A. Hart: a mature system combines primary rules (imposing duties) and secondary rules (how rules are recognised, changed and applied). International law has plenty of primary rules but lacks secondary rules: no legislature, no court with compulsory jurisdiction, no organised sanctions. Hart compared it to a simple, less developed system: law, but not yet a complete legal system.
3. Sanctions exist, mostly decentralised. Under Chapter VII of the Charter, the Security Council can impose economic sanctions and even authorise force, as against Iraq in 1990. Under Article 94, if a State ignores a judgment of the International Court, the other party may go to the Security Council. States also use self-defence, lawful countermeasures and world opinion.
4. States obey it most of the time (the most important reason). Louis Henkin: almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time. A State breaking a rule rarely denies that the law binds it; it argues that its conduct is lawful or that an exception applies, which itself shows States treat it as law.
5. Constitutional recognition. Article 51 of the Indian Constitution directs the State to foster respect for international law and treaty obligations, and Indian courts apply it (Unit 4).

It is weak in one sense: enforcement depends on the will of States, and the powerful can sometimes escape it, for example through the veto. But weak enforcement does not deny the existence of law; an unpunished murder does not abolish the law of murder.

The communist (Soviet) approach

▶ Watch this part of the lecture (15:35)

Karl Marx taught that law serves the ruling class. After the Russian Revolution of 1917, Soviet jurists asked whether a socialist State could accept a law made by capitalist States. Their answers changed over time:

• Evgeny Korovin: an international law of the transition period, a temporary compromise between the socialist and capitalist worlds.
• Evgeny Pashukanis: all law would wither away under communism.
• Grigory Tunkin (leading Soviet scholar): international law is created by agreement, a concordance of the wills of States with different social systems, for the purpose of peaceful coexistence.

The Soviet school therefore preferred treaties (express consent) and distrusted custom, much of which Western powers had made. Its darker side: in 1968 the Soviet Union and its allies invaded Czechoslovakia under the Brezhnev Doctrine, a claimed right to intervene to protect socialism in any socialist country, which most States saw as a plain breach of sovereignty. With the end of the Cold War, the class-based view largely faded.

China at first followed the Soviet view and moved closer to generally accepted international law only after its economic reforms of the late 1970s. It stresses sovereignty, non-interference and consent, and often prefers negotiation to courts. A key statement is the Five Principles of Peaceful Coexistence, known in India as Panchsheel, first set out in the India–China agreement of 29 April 1954 on trade with the Tibet region:

1. mutual respect for each other's territorial integrity and sovereignty;
2. mutual non-aggression;
3. mutual non-interference in each other's internal affairs;
4. equality and mutual benefit;
5. peaceful coexistence.

The Third World approach (TWAIL)

This approach of Asia, Africa and Latin America starts from history. Modern international law grew up in Europe in the age of colonialism and divided the world into civilised nations, full members of the law, and the rest. Doctrines like terra nullius (land belonging to no one) let European powers take inhabited lands, and the Berlin Conference of 1884–1885 set the rules for dividing Africa.

After independence, new States did not reject international law but tried to reshape it. R. P. Anand (India), Georges Abi-Saab (Egypt) and Mohammed Bedjaoui (Algeria) argued that new States must be equal makers of the law, not mere receivers. From this movement came the Bandung Conference (1955), General Assembly resolutions on decolonisation (1960) and permanent sovereignty over natural resources (1962), and the call for a New International Economic Order (1974).

A second generation in the 1990s gave the movement its present name: Antony Anghie, Makau Mutua and the Indian scholar B. S. Chimni. Chimni's manifesto argues that recolonisation is under way: international law is being reshaped to weaken the autonomy of Third World States and protect international property rights, and economic power is shifting to international financial and trade institutions. He calls for a theory of resistance and for making international institutions and transnational corporations accountable to the poor and marginalised peoples of the world.

The New Haven School

Also called policy-oriented jurisprudence, it comes from Yale Law School, New Haven. Its founders, the lawyer Myres McDougal and the political scientist Harold Lasswell, began writing together in 1943. Law is not just rules in books but a continuing process of authoritative decision by people with both authority and effective control, whose choices should serve a world order based on human dignity. A lawyer must ask what the rule says, and also who decides, for what purposes and with what results.

Criticism: it makes law too flexible, since a powerful State can justify almost anything in the name of human dignity, and during the Cold War it was sometimes used to support American policy. Strength: realism; rules live through the decisions of real people.

Approach	Sees international law through	Stresses
Communist (Soviet)	Class struggle	Peaceful coexistence
Third World (TWAIL)	The history of colonialism	Justice for weaker peoples
New Haven School	A process of decision-making	Policy goals like human dignity

Unit 2: The Sources of International Law

The meaning of a source

▶ Watch this part of the lecture (21:35)

With no world parliament, the question of sources is: how do we know that a rule of international law exists?

Formal source	Material source
The method by which a rule becomes law, like a treaty or a custom	Where evidence of the rule's content is found, like a diplomatic letter, a court decision or a scholar's book

Nineteenth-century positivists said the basis of the law of nations is the consent of States: a sovereign State can limit its freedom only by agreeing to do so, and once it agrees it must keep its word. This is pacta sunt servanda, agreements must be kept.

Article 38 of the ICJ Statute

Article 38 is the most authoritative list of sources. It first appeared in the Statute of the Permanent Court of International Justice (1920) and was carried almost word for word into the Statute of the present Court, signed with the UN Charter in 1945. Under Article 38(1), the Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

• (a) international conventions, whether general or particular, establishing rules expressly recognised by the contesting States;
• (b) international custom, as evidence of a general practice accepted as law;
• (c) the general principles of law recognised by civilised nations;
• (d) subject to Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

Order of priority? Not formally. Treaties, custom and general principles are the three main sources; decisions and writings are only subsidiary means, aids for finding the law. In practice, the Court looks first for a treaty binding the parties (the most specific proof of consent), then custom, then general principles. But a later custom can modify a treaty, and a treaty can codify a custom. Mario Prost argues that this lack of formal order hides real, unspoken hierarchies among sources and law-makers. The only formal hierarchy comes from jus cogens and Article 103 of the Charter.

International conventions

Treaties, whatever their name (charter, covenant, protocol, pact). Under the words establishing rules expressly recognised by the contesting States, a treaty binds only States that consented to it, so the Court first checks that both parties are bound. Today treaties are the most frequent and most precise source (Unit 3).

Point	Law-making treaty	Treaty contract
Nature	General rules of conduct for many States, like a statute	Made for a particular purpose, like a contract
Examples	UN Charter; the four Geneva Conventions of 1949 on the laws of war; UN Convention on the Law of the Sea	A trade agreement, an extradition treaty, a boundary treaty
Parties	Usually many	Two or a few
Obligations	General and lasting rules	Specific obligations, often ending once performed
Link with custom	May codify an existing custom or generate a new one binding even non-parties	A long series of similar treaty contracts may be evidence of custom

Strictly, every treaty binds only its parties, so the distinction is useful but not rigid.

International custom

▶ Watch this part of the lecture (26:35)

Custom is the oldest source; the immunity of ambassadors and the freedom of the high seas began as custom. Article 38 calls it international custom, as evidence of a general practice accepted as law. It has two elements: a general practice and its acceptance as law.

Usage	Custom
Habitual practice without any sense of legal duty	Practice followed because States feel legally bound
First stage	Mature stage

The International Law Commission's conclusions of 2018 on identifying customary international law confirm that both elements are needed and each must be separately proved.

State practice: the material element

The material (objective) element is almost anything a State does or says officially: diplomatic letters and protests, official statements, laws, national court decisions, military manuals, conduct of armed forces, votes on resolutions and treaties. Even inaction counts, but only if the State deliberately chose not to act. Three tests:

1. Duration: no fixed period. Continental shelf rules grew within little more than a decade of the Truman Proclamation of 1945.
2. Consistency: substantially uniform, not perfect. In the Nicaragua case, the Court said conduct inconsistent with a rule should generally be treated as a breach of it, not as the start of a new rule.
3. Generality: widespread and representative, not universal; the practice of specially affected States carries special weight (for a fishing rule, the great fishing States).

Writers debate how much to rely on what States do and how much on what they say. The traditional approach builds custom from actual practice, from the ground up; the modern approach relies more on statements, declarations and resolutions, top down. Anthea Roberts argues they can be reconciled by weighing practice and statements together in the light of the values a rule protects.

The persistent objector

▶ Watch this part of the lecture (29:15)

A new custom generally binds every State, even one that never took part in forming it, such as a new State. The exception: a State that clearly and consistently objects to a rule while it is being formed is not bound.

Strict conditions: the objection must be clearly expressed, made known to other States and maintained persistently. A subsequent objector (objecting only after the rule is formed) remains bound. No State can be a persistent objector to jus cogens; no State can exempt itself from the ban on genocide.

Opinio juris: the psychological element

Opinio juris sive necessitatis is the belief that a practice is required by law or by necessity. This psychological (subjective) element separates custom from mere habit or courtesy. In the North Sea cases, the Court said the States concerned must feel that they are conforming to what amounts to a legal obligation. Evidence: official statements that something is legally required, protests against a breach, views of government legal advisers, national court decisions, and State attitudes to General Assembly resolutions.

Local and regional custom: custom need not be universal. A regional custom may bind a group of States (for example Latin America); a local custom may bind only two States.

Leading cases on custom

North Sea Continental Shelf cases

▶ Watch this part of the lecture (31:15)

When a treaty rule passes into general law, according to the Court:

1. the provision must be of a fundamentally norm-creating character;
2. very widespread and representative participation in the convention might suffice, if it includes specially affected States;
3. even a short time may be enough, but within it practice, including that of specially affected States, must be extensive and virtually uniform;
4. the practice must show a general recognition that a rule of law is involved.

Article 6 failed: it was subject to agreement and special circumstances, and reservations to it were allowed, casting doubt on its norm-creating character. Above all, the acts must show a belief that the practice is rendered obligatory by a rule of law. Frequency or even habitual character is not enough, since acts like ceremonial and protocol are done only out of courtesy, convenience or tradition.

Asylum case

▶ Watch this part of the lecture (34:15)

Right of Passage case

▶ Watch this part of the lecture (36:05)

The Lotus case on custom

Treaty and custom compared

Point	Treaty	General custom
Form	Written	Unwritten
Binds	Only its parties	All States except persistent objectors
Formation	Quickly, by express consent	Usually slowly

They constantly interact: a treaty may codify, crystallise or generate a custom, and both may exist side by side with the same content. In the Nicaragua case (Unit 6), the Court could not apply the Charter, so it applied the customary rule against force existing alongside it.

General principles of law

▶ Watch this part of the lecture (40:35)

Treaties and custom cannot cover everything. Facing a gap, a court should not declare non liquet (the law is not clear) and refuse to decide; it may borrow principles common to the main legal systems:

• good faith and estoppel;
• res judicata: a matter finally decided cannot be reopened;
• no one may be a judge in his own cause;
• reparation: in the Chorzow Factory case, the Permanent Court said any breach of an engagement involves an obligation to make reparation, calling it a principle of international law and even a general conception of law.

Some principles arise within international law itself, such as elementary considerations of humanity. The words civilised nations are now seen as a colonial relic; every State counts. The International Law Commission's recent work speaks of principles recognised by the community of nations. A general principle is not copied from domestic law wholesale but adapted to relations between States.

Corfu Channel case

▶ Watch this part of the lecture (41:45)

Temple of Preah Vihear: acquiescence and estoppel

▶ Watch this part of the lecture (44:05)

Judicial decisions and teachings of publicists

• Under Article 38(1)(d) they are only subsidiary means: they do not create law but help find it.
• Under Article 59, the Court's decision has no binding force except between the parties and in respect of that particular case. There is no binding precedent (stare decisis) in the International Court, though in practice it follows earlier decisions for consistency; decisions of other tribunals and national courts also help identify the law.
• Teachings of publicists are writings of leading scholars, like Grotius, Vattel and Oppenheim earlier. Today the work of expert bodies, especially the International Law Commission, carries great weight.

Emerging sources

1. Soft law: instruments not legally binding but guiding State conduct, such as declarations, guidelines and codes of conduct; for example, the Universal Declaration of Human Rights (1948). States accept it more easily, and over time it can harden into custom or be written into treaties. The Indian jurist P. Sreenivasa Rao wrote on this role of soft law.

2. Unilateral acts

▶ Watch this part of the lecture (47:55)

A State may bind itself by a public declaration, without any treaty.

3. Equity: under Article 38(2), the Court may decide ex aequo et bono (according to what is fair and good) only if the parties agree; no case has yet been decided this way. Equity within the law is common, as in the North Sea cases, where boundaries had to follow equitable principles.

Jus cogens and obligations erga omnes

▶ Watch this part of the lecture (49:05)

These two ideas give international law a kind of hierarchy.

Jus cogens (compelling law)

• Article 53, Vienna Convention on the Law of Treaties, 1969: a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law, that is, a norm accepted and recognised by the international community of States as a whole as one from which no derogation is permitted, and which can be modified only by a subsequent norm of general international law having the same character.
• Article 64: if a new peremptory norm emerges, any existing conflicting treaty becomes void and terminates.
• Example: a treaty between two States to trade in slaves would be void.
• The International Law Commission (2022) listed prohibitions of aggression, genocide, crimes against humanity, racial discrimination and apartheid, slavery and torture; the basic rules of international humanitarian law; and the right of self-determination.

Obligations erga omnes (owed towards all)

In the Barcelona Traction case (Unit 6), the Court distinguished obligations owed to a particular State from obligations towards the international community as a whole, in whose protection all States have a legal interest. Examples: outlawing acts of aggression and genocide, and the basic rights of the human person, including protection from slavery and racial discrimination. The East Timor case added the right of peoples to self-determination.

Point	Jus cogens	Erga omnes
Concerns	Rank of a norm	Standing
Question	Can States contract out of this rule? No.	Who may complain of a breach? Every State.

International comity

Comity (comitas gentium) means rules of goodwill and courtesy between States followed without any sense of legal duty, like the salute exchanged between warships at sea. Breaking it is not a wrongful act, though it may invite an unfriendly but lawful response called retorsion. Comity can grow into law: exemption of diplomats' belongings from customs duties was once a courtesy, and the Vienna Convention on Diplomatic Relations, 1961, made it a legal rule.

Comity	Custom
Repeated practice	Repeated practice
Rests only on courtesy	Carries opinio juris, a sense of legal duty

Resolutions of international organisations

▶ Watch this part of the lecture (52:35)

• The UN General Assembly is not a world legislature: under Articles 10 to 14 of the Charter it can only make recommendations to States. Under Article 17, its decisions on internal matters, like the budget, bind members.
• Under Article 25, members agree to accept and carry out Security Council decisions, so a Chapter VII decision, like sanctions, binds every member.
• Under Article 103, if Charter obligations conflict with obligations under any other international agreement, the Charter prevails.

General Assembly Resolutions and the Making of Law

General Assembly resolutions can still shape the law in two ways.

1. Evidence of opinio juris. In the Nicaragua case, the Court found opinio juris for the rule against force partly in the attitude of States towards the Friendly Relations Declaration of 1970. In the Nuclear Weapons opinion, it said resolutions, even if not binding, may sometimes have normative value, depending on their content and the conditions of their adoption. A series of resolutions may show the gradual evolution of the opinio juris required for a new rule.
2. Hardening into custom. Some declarations were so widely accepted that their principles became custom, as with much of the Universal Declaration of Human Rights.

The International Law Commission and Codification

Article 13 of the UN Charter asks the General Assembly to initiate studies and make recommendations for encouraging the progressive development of international law and its codification. So in 1947 it set up the International Law Commission (ILC): now 34 members, elected for five years, serving as independent experts.

Codification	Progressive development
More precise formulation and systematisation of rules in fields where there already has been extensive State practice, precedent and doctrine.	Preparing draft conventions on subjects not yet regulated, or where the law is not yet sufficiently developed.
Writes down old law.	Builds new law.

Both definitions come from the ILC Statute; in reality most of its work mixes both.

Treaties produced from ILC drafts: the Geneva Conventions on the Law of the Sea, 1958; the Vienna Convention on Diplomatic Relations, 1961; the Vienna Convention on the Law of Treaties, 1969. Other texts, such as the Articles on State Responsibility, 2001, are not treaties, yet courts cite them as reflecting custom.

Unit 3: Law of Treaties

▶ Watch this part of the lecture (56:30)

Treaties are the most frequent and most precise source of international law today. This unit covers how a treaty is born, lives and ends.

Meaning of a treaty

The main law is the Vienna Convention on the Law of Treaties, 1969 (VCLT), in force from 27 January 1980. Much of it codifies customary law. India is not a party, but Indian courts treat its main rules as customary law, so in practice they guide India too.

Five elements:

1. an international agreement;
2. between States;
3. in writing;
4. governed by international law;
5. under any name: treaty, convention, covenant, charter, protocol or exchange of notes.

Not treaties: a contract between the Government of India and a foreign oil company; a joint statement that the parties never intended to be legally binding.

Must a treaty be written?

▶ Watch this part of the lecture (57:55)

For the VCLT, yes. But Article 3 preserves the legal force of other agreements, so an oral promise can still bind a State under customary law.

Treaties made by international organisations are covered by a separate Vienna Convention of 1986. It closely follows the 1969 Convention but is not yet in force, for lack of enough ratifications.

Content of a Treaty

1. Title.
2. Preamble: names the parties and states the aims. It creates no obligations but helps find the object and purpose.
3. Operative articles: the rights and duties.
4. Final clauses: signature, ratification, entry into force, reservations, amendment, withdrawal and authentic languages.
5. Annexes or schedules: part of the treaty, e.g. the Schedule to the Whaling Convention.

Conclusion of Treaties

Article 6: every State possesses capacity to conclude treaties. A person binds the State if he produces full powers, a document from the competent authority authorising him to negotiate or sign. Article 7: heads of State, heads of government and ministers for foreign affairs need no full powers, because of their office.

Stages

1. Negotiation.
2. Adoption of the text (Article 9): consent of all States taking part; at an international conference, a two-thirds majority of States present and voting, unless they decide otherwise.
3. Authentication (Article 10): fixes the text as final, usually by signature or initialling.
4. Expression of consent to be bound: the most important stage.

Consent to be bound (Article 11)

By signature, exchange of instruments, ratification, acceptance, approval, accession, or any other agreed means.

• Signature alone binds only if the treaty says so or the parties so intended.
• Ratification: the international act by which a State, after signing, establishes its consent to be bound. It gives the government time to study the treaty, consult its legislature where required, and pass any laws needed.
• Accession: how a State that did not sign joins later, e.g. India acceded to the International Covenant on Civil and Political Rights in 1979.

Treaty-making in India

Treaty-making is an executive function: the Union Government signs and ratifies without a vote in Parliament. Where a treaty changes the law or affects citizens' rights, Parliament must legislate under Article 253 (Unit 4).

Between signature and ratification (Article 18)

A signatory must refrain from acts which would defeat the object and purpose of the treaty, until it makes clear that it will not become a party.

Entry into Force and Registration

▶ Watch this part of the lecture (1:01:45)

• Article 24: a treaty enters into force as it provides or as the negotiating States agree. Multilateral treaties usually need a fixed number of ratifications; the Convention on the Law of the Sea came into force twelve months after the sixtieth ratification.
• Article 25: a treaty may be applied provisionally before that.
• Article 102, UN Charter: every treaty entered into by a member must be registered with the Secretariat and published, to end the secret treaties blamed for the First World War.

Observance and Application of Treaties

• Article 26 (pacta sunt servanda): every treaty in force is binding upon the parties and must be performed by them in good faith. This is the foundation of the law of treaties.
• Article 27: a party may not invoke its internal law as justification for failure to perform a treaty. A State cannot say its Parliament has not passed the law. Narrow exception, Article 46: consent given in manifest violation of a fundamental internal rule on the power to make treaties.
• Article 28 (non-retroactivity): unless a different intention appears, a treaty does not bind a party in relation to any act or fact which took place before its entry into force for that party.
• Article 29: a treaty binds each party in respect of its entire territory.

Belgium v. Senegal

▶ Watch this part of the lecture (1:03:25)

Reservations

▶ Watch this part of the lecture (1:06:10)

A State objecting to one article need not reject the whole treaty; it may make a reservation.

Reservations help more States join, at the cost of uneven application; the law balances a treaty's integrity against its universality. The old rule was unanimity: valid only if every other party accepted.

Article 19: when a reservation is barred

1. the treaty prohibits it;
2. the treaty allows only specified reservations, and this is not one;
3. it is incompatible with the object and purpose.

The Rome Statute of the International Criminal Court permits no reservations at all.

Acceptance and objection

• Article 20: an expressly authorised reservation needs no acceptance. Otherwise parties may accept or object; no objection within twelve months counts as acceptance.
• Article 21: between the reserving and an accepting State, the provision applies as modified for both (reciprocity). If an objecting State does not oppose entry into force between them, the provisions concerned do not apply between the two to the extent of the reservation.

Reservation	Interpretative declaration
Changes the legal effect of a provision for the reserving State.	Only explains how the State understands the provision.

Substance, not label, decides. Article 22: a reservation may be withdrawn at any time.

Treaties and Third States

Article 34: a treaty creates neither obligations nor rights for a third State without its consent: pacta tertiis nec nocent nec prosunt (treaties neither harm nor benefit third parties).

• Article 35: an obligation arises only if the third State expressly accepts it in writing.
• Article 36: a right arises if the third State assents; assent is presumed unless it says otherwise.
• Article 38: a treaty rule may bind a third State if it has become customary law.
• Article 30 (conflicting treaties): between the same parties, the later treaty generally prevails (lex posterior derogat priori); between a State party to both and a State party to only one, the treaty they share governs.

Interpretation of Treaties

▶ Watch this part of the lecture (1:10:25)

School	Focus
Textual	Ordinary meaning of the words
Intention	Real intention of the parties
Teleological	Object and purpose of the treaty

The VCLT combines all three, but starts with the text.

• Context: the text, preamble and annexes, and related agreements made by all the parties.
• Also taken into account: any subsequent agreement on interpretation; any subsequent practice showing agreement; relevant rules of international law applicable between the parties.
• A term has a special meaning if the parties are shown to have so intended.

Article 32 (supplementary means): preparatory work (travaux preparatoires) and circumstances of conclusion, used to confirm the Article 31 meaning, or to determine it where Article 31 leaves it ambiguous or obscure, or leads to a manifestly absurd or unreasonable result.

Article 33 (several languages): each authentic text is equally authoritative and terms are presumed to mean the same in each; if texts differ, adopt the meaning which best reconciles them, having regard to object and purpose. Applied in the LaGrand case (Unit 6).

Effectiveness: provisions should be read to have some effect rather than none. Evolutionary interpretation: general terms may change meaning over time where the parties intended the treaty to develop.

Whaling in the Antarctic

▶ Watch this part of the lecture (1:13:05)

Pulp Mills on the River Uruguay

▶ Watch this part of the lecture (1:14:45)

The Jadhav case

▶ Watch this part of the lecture (1:16:35)

Amendment and Modification

▶ Watch this part of the lecture (1:19:35)

Amendment	Modification
A change for all the parties.	Agreement between only some parties to change the treaty among themselves (Article 41).
Article 39: by agreement between the parties. Article 40: every party to a multilateral treaty must be notified of a proposal and may join negotiations.	Allowed if the treaty permits it; otherwise it must not be prohibited, must not affect other parties' rights, and must not defeat the object and purpose.
Does not bind a party that does not join; between it and the others the old treaty continues.	Operates among the modifying parties only.

Many treaties have their own procedure. The UN Charter is amended under Article 108 by a two-thirds vote of the General Assembly and ratification by two-thirds of members, including all five permanent members. That is how the Security Council grew from 11 to 15 members in 1965.

Termination and Suspension of Treaties

Article 42: termination or withdrawal only by applying the treaty itself or the VCLT, protecting the stability of treaties.

1. Under the treaty or by consent

Article 54: in accordance with the treaty's provisions, or at any time by consent of all parties. Article 59: when all parties conclude a later treaty on the same subject meant to replace it or incompatible with it.

2. Treaty silent on termination (Article 56)

No denunciation (formal leaving) unless the parties intended it or the nature of the treaty implies such a right; even then, twelve months' notice. A boundary treaty, for example, is meant to be permanent.

3. Material breach (Article 60)

• Bilateral treaty: the other party may invoke the breach to terminate or suspend.
• Material breach: a repudiation not allowed by the VCLT, or violation of a provision essential to the object or purpose.
• Multilateral treaty: the other parties may act together; a specially affected party may suspend against the defaulter.
• Not applicable to provisions protecting the human person in humanitarian treaties.

4. Supervening impossibility (Article 61)

Termination if an object indispensable for execution permanently disappears or is destroyed, like an island that sinks; not if the impossibility results from the party's own breach.

5. Rebus sic stantibus (Article 62)

▶ Watch this part of the lecture (1:22:05)

Fundamental change of circumstances (rebus sic stantibus, "things standing thus") may be invoked only if:

1. the change was not foreseen;
2. the circumstances were an essential basis of consent; and
3. the change radically transforms the obligations still to be performed.

It never applies to a treaty establishing a boundary, or where the change results from the invoking party's own breach.

6. New peremptory norm (Article 64)

If a new rule of jus cogens emerges, any existing treaty conflicting with it becomes void and terminates.

Events that do not end a treaty; procedure

• Article 63: severing diplomatic relations does not by itself affect treaty relations.
• War does not automatically end all treaties; some, like the Geneva Conventions, are made precisely for war.
• Article 65: a party claiming a ground must notify the others and, if they object, seek a peaceful settlement.

The Indus Waters Treaty dispute

▶ Watch this part of the lecture (1:23:55)

• The Indus Waters Treaty, 1960, between India and Pakistan divides the rivers of the Indus system and has no clause allowing either party to end it alone.
• In 2024 India formally sought a review, citing fundamental and unforeseen changes in circumstances.
• On 23 April 2025, after the terrorist attack at Pahalgam, India held the treaty in abeyance (paused) with immediate effect, until Pakistan credibly and irrevocably abjures (gives up) support for cross-border terrorism.
• A Court of Arbitration set up at Pakistan's request held that this did not affect its competence, and on 31 August 2026 ruled unanimously that the treaty remains fully in force: none of India's grounds, such as material breach by Pakistan or fundamental change of circumstances, could justify suspending or ending it.
• India rejects these rulings, calling that court illegally constituted.

Unit 4: International Law and Municipal Law

▶ Watch this part of the lecture (1:26:00)

Municipal law means the internal law of a State, such as the law of India; it has nothing to do with municipalities. The relationship raises two questions:

1. Before an international court, what is the place of a State's own law?
2. Before a national court, what is the place of international law?

Monism and Dualism

Monism

International law and municipal law form a single legal order, because both ultimately regulate human conduct.

• Hans Kelsen: all legal norms form one pyramid with international law at the top, since it fixes the limits of each State's legal order.
• Hersch Lauterpacht: international law, which protects human rights, should prevail over the will of States.

So international law applies inside a State directly and prevails in case of conflict.

Dualism

Led by Heinrich Triepel (Germany) and Dionisio Anzilotti (Italy), dualists treat the two as separate systems:

Basis	Municipal law	International law
Subjects	Individuals	States
Sources	Will of a single State	Common will of States
Subject matter	Relations within a State	Relations between States

So international law operates inside a State only if the State's own law adopts it; in a conflict, a national court applies national law.

Three Specific Theories

• Specific adoption theory: national courts cannot apply international law until the State specifically adopts it as its own law.
• Transformation theory (mainly treaties): a treaty must be transformed into national law, usually by legislation, before it binds people inside the State.
• Delegation theory (the monist reply): international law delegates to each State the power to decide when and how a treaty takes effect inside it, so a law carrying out a treaty merely completes a single process of law-making.

Middle view (Gerald Fitzmaurice): the two systems work in different fields and rarely collide. When they do, a national court follows its own law, and the State answers internationally for any breach.

The Role of Municipal Law in International Law

Before an international court, international law prevails over a State's own law:

• Article 27, Vienna Convention on the Law of Treaties: for treaties, a State cannot plead its own law to escape a treaty.
• Article 3, Articles on State Responsibility: whether an act is wrongful is governed by international law, and is not affected by the act being lawful under internal law.
• Draft Declaration on Rights and Duties of States (International Law Commission, 1949) lists four rights and ten duties of States. Article 13: every State must carry out in good faith its obligations under treaties and other sources of international law, and may not invoke its constitution or laws as an excuse for failing to do so. Article 14: the sovereignty of each State is subject to the supremacy of international law.

Decisions of Courts and Tribunals

▶ Watch this part of the lecture (1:29:45)

• Permanent Court, 1932: a State cannot adduce as against another State its own Constitution with a view to evading obligations under international law.
• Permanent Court, 1926: from the standpoint of international law, municipal laws are merely facts. An international court examines national law only as a fact, to see whether the State has kept its obligations.

Municipal law is still relevant: it is evidence of State practice for custom, a source of general principles, and international law sometimes refers back to it, e.g. to decide whether a person is a national of a State or whether a company was validly formed.

International Law Before the Courts of the United Kingdom

▶ Watch this part of the lecture (1:31:35)

The UK approach shaped India's own.

Custom: Doctrine of Incorporation

Custom is automatically part of the common law, unless it conflicts with a statute or a binding decision.

• Lord Mansfield (eighteenth century): the law of nations, in its full extent, is part of the law of England.
• Trendtex case: Lord Denning said the rules of international law, as existing from time to time, form part of English law. So English law changes when international law changes.

But a statute prevails:

Treaties: Transformation

The Crown makes treaties, but only Parliament makes law, so a treaty changes English law only through an Act of Parliament.

International Law Before the Courts of the United States

▶ Watch this part of the lecture (1:33:05)

The United States follows a mixed approach.

• Article 6 of the US Constitution makes treaties the supreme law of the land.
• Courts distinguish self-executing treaties (operate directly) from non-self-executing treaties (need an Act of Congress). Chief Justice John Marshall drew this line in Foster v. Neilson (1829).
• A later Act of Congress prevails over an earlier treaty inside the country, though the country remains liable internationally.

International Law in the Indian Legal System

▶ Watch this part of the lecture (1:34:15)

India broadly follows the English model.

• Article 51 (Directive Principle): the State shall endeavour to promote international peace and security; maintain just and honourable relations between nations; foster respect for international law and treaty obligations in the dealings of organised peoples with one another; and encourage settlement of international disputes by arbitration.
• Article 73: the executive power of the Union extends to all matters on which Parliament can make laws.
• Entry 14, Union List: entering into treaties and agreements with foreign countries and implementing them.
• Article 253: Parliament may make any law for implementing any treaty, agreement or convention, or any decision made at an international conference, for the whole or any part of India, even on a State List subject.

So a treaty that changes the law or affects private rights needs a law made by Parliament.

Jolly George Varghese v. Bank of Cochin

▶ Watch this part of the lecture (1:35:55)

Gramophone Company of India Ltd. v. Birendra Bahadur Pandey

▶ Watch this part of the lecture (1:37:05)

Vellore Citizens' Welfare Forum v. Union of India

▶ Watch this part of the lecture (1:39:05)

Vishaka v. State of Rajasthan

Chairman, Railway Board v. Chandrima Das

▶ Watch this part of the lecture (1:41:45)

Other Recent Cases

Nationality

▶ Watch this part of the lecture (1:45:00)

• Permanent Court, 1923: nationality falls, in principle, within the reserved domain of a State.
• Article 1, Hague Convention of 1930: each State determines under its own law who are its nationals, but other States need recognise that law only so far as it is consistent with international conventions, international custom and the principles of law generally recognised with regard to nationality.

Acquisition

• By birth: jus soli (law of the soil: birth in the territory gives nationality) or jus sanguinis (law of blood: the child takes the parents' nationality).
• After birth: registration, naturalisation, or incorporation of territory.

Differing rules create dual nationality or statelessness. Article 15, Universal Declaration: everyone has the right to a nationality, and no one shall be arbitrarily deprived of it.

India

• Citizenship Act, 1955, Sections 3 to 7: citizenship by birth, descent, registration, naturalisation and incorporation of territory.
• Section 6A (certain migrants to Assam) was upheld by a Constitution Bench in October 2024.
• Section 9: an Indian who voluntarily acquires another country's citizenship ceases to be an Indian citizen. India does not allow dual citizenship, but offers Overseas Citizen of India status.

Unit 5: Law of the Sea

▶ Watch this part of the lecture (1:49:32)

The law of the sea decides who may use the sea and how far a coastal State may control it.

Development

• India's maritime past: the ancient dockyard traditionally identified at Lothal in Gujarat is more than four thousand years old; in the eleventh century the Chola king Rajendra Chola I sent a naval expedition across the Bay of Bengal. But the modern law grew up in Europe.
• Grotius, Mare Liberum: the sea is free to all. John Selden, Mare Clausum (the closed sea): a State could own the sea. The compromise was a narrow coastal belt under the coastal State and a free sea beyond.
• Bynkershoek: the power of the land ends where the force of its weapons ends. This cannon-shot rule later settled into a three-nautical-mile limit.
• 1945: President Truman claimed the resources of the continental shelf off US coasts; many States followed.
• 1958: the first UN conference adopted four Geneva Conventions on (1) the Territorial Sea and the Contiguous Zone, (2) the High Seas, (3) Fishing and Conservation of the Living Resources of the High Seas, and (4) the Continental Shelf. Neither it nor the second conference (1960) could fix the breadth of the territorial sea.
• The third conference produced the United Nations Convention on the Law of the Sea, 1982, the "constitution for the oceans". In force from 16 November 1994; India ratified it in 1995.
• India had already set out its zones in the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976.

Baselines and the Maritime Zones

▶ Watch this part of the lecture (1:51:25)

Every zone is measured from the baseline, normally the low-water line. Where a coast is deeply indented or fringed with islands, a State may draw straight baselines joining suitable points, as the International Court allowed Norway in the Fisheries case.

Zone	Extent	Coastal State's power
Internal waters (e.g. ports)	Landward of the baseline	Full sovereignty
Territorial sea	Up to 12 nautical miles	Sovereignty
Contiguous zone	Up to 24 nautical miles	Control
Exclusive economic zone	Up to 200 nautical miles	Resources
Continental shelf	The seabed	Resources of the seabed
High seas and deep seabed	Beyond all these	Freedom

The Territorial Sea

▶ Watch this part of the lecture (1:52:25)

• Article 2: coastal State sovereignty extends to an adjacent belt of sea, the territorial sea, and to the air space over it and its seabed and subsoil.
• Article 3: breadth up to a limit not exceeding twelve nautical miles from the baselines.
• Section 3, India's 1976 Act: territorial waters of twelve nautical miles, where Indian law applies fully, subject to innocent passage.

The Right of Innocent Passage

Foreign ships may cross because the oceans are highways of trade.

• Article 17: ships of all States enjoy the right of innocent passage through the territorial sea.
• Article 18: passage means navigation to cross the territorial sea or to go to or from a port. It must be continuous and expeditious. Stopping is allowed only when incidental to ordinary navigation, needed because of force majeure (superior force) or distress, or to help those in danger.
• Article 19: passage is innocent so long as it is not prejudicial to the peace, good order or security of the coastal State. Passage is not innocent if it involves: threat or use of force; weapons practice; spying; propaganda; launching aircraft or military devices; loading or unloading goods, money or persons against customs, fiscal, immigration or sanitary laws; wilful and serious pollution; fishing; research; interfering with communications; or any other activity not directly connected with passage.
• Article 20: submarines must navigate on the surface and show their flag.

Coastal State's Powers and Limits

• Article 21: may make laws on navigation safety, fisheries, pollution, customs and immigration, which passing ships must obey.
• Article 25: may prevent non-innocent passage, and temporarily suspend innocent passage in specified areas if essential for its security, after publishing notice.
• Article 24: must not hamper innocent passage or discriminate between ships.
• Article 27: should not exercise criminal jurisdiction on board a passing foreign ship except in limited cases, e.g. where a crime's consequences extend to the coastal State, the master asks for help, or drug trafficking must be suppressed.

Warships

Whether warships enjoy innocent passage is disputed. The Convention gives the right to ships of all States, and major naval powers say this includes warships, but many coastal States require prior notice or permission. Section 4 of India's Act gives innocent passage to foreign ships other than warships; foreign warships, including submarines, may pass only after prior notice to the Central Government. In straits used for international navigation, the Convention gives a stronger right of transit passage, which cannot be suspended. In the Corfu Channel case, the Court held that warships may pass innocently through such straits in peacetime without prior authorisation.

The Contiguous Zone

▶ Watch this part of the lecture (1:56:35)

It exists because smugglers can wait just outside the territorial sea and slip in at night. Article 33: in a zone contiguous to its territorial sea, the coastal State may exercise the control necessary to (1) prevent infringement of its customs, fiscal, immigration or sanitary laws within its territory or territorial sea, and (2) punish such infringements committed there. It may not extend beyond twenty-four nautical miles from the baselines.

The Continental Shelf

The gently sloping seabed next to the land, before it drops into the deep ocean, holding oil, gas and minerals. In the North Sea cases, the Court called it the natural prolongation of the land under the sea, so the coastal State's rights exist ipso facto and ab initio (automatically and from the beginning).

Outer Limit

Where the margin extends beyond 200 nautical miles, the State may claim more, using technical formulas based on sediment thickness and the foot of the slope. But the outer limit must lie within either 350 nautical miles from the baselines, or 100 nautical miles beyond the 2,500-metre depth line. Data is submitted to the Commission on the Limits of the Continental Shelf; limits fixed on its recommendations are final and binding.

Rights and Duties

• Article 77: sovereign rights to explore and exploit natural resources. They are exclusive (no one may exploit without express consent) and do not depend on occupation or proclamation. Resources include minerals and sedentary species, such as oysters.
• Article 78: these rights do not affect the status of the waters or air space above, and must not unjustifiably interfere with navigation.
• Article 79: all States may lay submarine cables and pipelines on the shelf.
• Article 82: a State exploiting minerals beyond 200 nautical miles must share part of the value through the International Seabed Authority.
• Article 83: boundaries between opposite or adjacent States are settled by agreement on the basis of international law, aiming at an equitable solution, as the North Sea cases required.

The Exclusive Economic Zone

▶ Watch this part of the lecture (2:00:25)

The most important new idea of the Convention. Article 55: an area beyond and adjacent to the territorial sea, subject to a specific legal regime. Article 57: not beyond 200 nautical miles from the baselines. Section 7 of India's Act declares a 200-nautical-mile zone.

• Article 56: sovereign rights for exploring, exploiting, conserving and managing natural resources, living or non-living, of the waters, seabed and subsoil, and for other economic activities such as producing energy from water, currents and winds; jurisdiction over artificial islands and installations, marine scientific research, and protection of the marine environment.
• Article 58: all other States enjoy freedoms of navigation, overflight, and laying submarine cables and pipelines. Each side must pay due regard to the other's rights.
• Article 61: the coastal State must fix the allowable catch and prevent over-exploitation.
• Article 62: it must promote optimum use of fish and give other States access to any surplus it cannot harvest.
• Article 73: it may board, inspect and arrest foreign fishing vessels to enforce its laws, but an arrested vessel and crew must be promptly released on a reasonable bond, and fishing offences may not be punished with imprisonment unless the States concerned agree otherwise.

Point	Exclusive economic zone	Continental shelf
Covers	Waters, seabed and subsoil	Only seabed and subsoil
How rights arise	Must be claimed	Exist automatically
Extent	Stops at 200 nautical miles	May extend beyond 200
Resources	Fish in the water	Minerals and sedentary species

Within 200 nautical miles, the seabed is governed by the rules on the shelf.

The High Seas

▶ Watch this part of the lecture (2:03:15)

• Article 86: covers all parts of the sea not in the EEZ, territorial sea, internal waters or archipelagic waters; open to all States, coastal or landlocked.
• Article 87: freedoms of navigation, overflight, laying submarine cables and pipelines, building artificial islands permitted by international law, fishing and scientific research, each exercised with due regard for others' interests.
• Article 88: reserved for peaceful purposes. Article 89: no State may validly claim sovereignty over any part.

The Flag State

• Article 91: a ship has the nationality of the State whose flag it is entitled to fly; there must be a genuine link between State and ship.
• Article 92: one flag only; on the high seas, exclusive jurisdiction of the flag State, save in exceptional cases. A ship using two flags as convenient may be treated as a ship without nationality.
• Article 94: the flag State must effectively exercise jurisdiction and control in administrative, technical and social matters; keep a register; ensure safety at sea (seaworthiness, manning, training and labour conditions of crews, collision prevention); and inquire into serious accidents.
• Article 98: require masters to help anyone in danger at sea, where they safely can.
• Article 99: prevent transport of slaves; any slave taking refuge on any ship is free.

The weak point is flags of convenience: States register foreign-owned ships cheaply and control them poorly.

Exceptions to Flag State Jurisdiction

1. Piracy

Pirates are hostis humani generis, enemies of all mankind. Article 105: every State may seize a pirate ship on the high seas, arrest those on board and try them in its own courts (universal jurisdiction). India's Maritime Anti-Piracy Act, 2022 gives its courts this power; in March 2024, thirty-five pirates captured by the Indian Navy were brought to Mumbai for trial under it.

2. Right of Visit

Article 110: a warship may stop and board a foreign merchant ship on reasonable suspicion of piracy, slave trade or unauthorised broadcasting, or where the ship has no nationality or is really of the warship's own nationality though flying a foreign flag. For drug trafficking, Article 108 only requires cooperation, so boarding needs the flag State's consent.

3. Hot Pursuit (Article 111)

1. The coastal State must have good reason to believe the ship violated its laws.
2. Pursuit must begin while the ship is within its internal waters, territorial sea or contiguous zone (or the EEZ, for breaches of EEZ rules).
3. It must be continuous.
4. Only by warships, military aircraft or clearly marked government ships.
5. It must begin with a signal to stop.

It ends as soon as the ship enters the territorial sea of its own or another State.

The Deep Seabed and the BBNJ Agreement

▶ Watch this part of the lecture (2:08:25)

Beyond the continental shelf lies the Area, rich in minerals like polymetallic nodules. Article 136: the Area and its resources are the common heritage of mankind; mining is organised through the International Seabed Authority.

In June 2023, States adopted a new agreement under the Convention on marine biological diversity in areas beyond national jurisdiction, covering protected areas on the high seas and benefit-sharing from marine genetic resources. It came into force in January 2026. India has signed but not yet ratified it.

Law of the Sea: Leading Cases

South China Sea Arbitration

▶ Watch this part of the lecture (2:09:05)

The Enrica Lexie Incident

▶ Watch this part of the lecture (2:11:35)

Unit 6: State Responsibility – Nature, Kinds and Codification

▶ Watch this part of the lecture (2:14:43)

Nature of State Responsibility

State responsibility answers the question every legal system must face: what happens when a rule is broken? In domestic law, if Prince damages Farhan's car, the law of torts makes him pay. In international law, when a State breaks an international obligation, the law of state responsibility applies.

The reason: States are sovereign and equal. If one State could break its promises freely, the rights of all others would mean nothing. Responsibility is the other side of sovereignty.

Primary and secondary rules

• Primary rules – what a State must or must not do (e.g. not to use force; to give consular access to arrested foreigners).
• Secondary rules – what happens when a primary rule is broken: when conduct is attributed to a State, when a breach is excused, and what reparation is due.

Is fault necessary?

Objective theory	Fault theory
A State is responsible for any breach, careless or not.	Some intention or negligence is needed.

Modern law has no general requirement of fault; it depends on the primary rule.

Kinds of State Responsibility

• Original responsibility – for acts of the government and its organs.
• So-called vicarious responsibility – for acts of private persons; the State really answers for its own failure to prevent or punish them.
• Direct injury to another State (e.g. an attack on its embassy) or injury to its nationals, taken up through diplomatic protection.
• Breach of contractual obligations, or of non-contractual obligations, traditionally called international delinquencies.

Development and Codification

The International Law Commission (ILC) worked on the subject for almost fifty years:

• F. V. Garcia-Amador (first Special Rapporteur) – focused on injuries to foreigners.
• Roberto Ago – turned the work towards general secondary rules applying to every breach.
• James Crawford – completed it.

In 2001 the ILC adopted the Articles on Responsibility of States for Internationally Wrongful Acts; in December 2001 the General Assembly took note of them and commended them to governments. An earlier draft's idea of international crimes of States was replaced by rules on serious breaches of peremptory norms.

Third World critique – Professor B.S. Chimni

• The Articles present the rules as neutral while hiding their colonial history.
• The attribution rules ignore the close links between States and multinational corporations.
• They give no special treatment to developing States.
• Real reform, not mere supplements, is needed to deal with responsibility shared among several actors.

Scope and Prohibition of the Use of Force

▶ Watch this part of the lecture (2:18:35)

Article 2(4) of the UN Charter

The most important primary rule: all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations. Four points:

1. It bans the threat of force, not only its use.
2. Force means armed force, not mere economic pressure.
3. The closing words cover every use of force against UN purposes – no loopholes.
4. It governs relations between States.

The Charter allows only two clear exceptions: self-defence and Security Council action.

Exception 1: Self-Defence (Article 51)

Nothing in the Charter impairs the inherent right of individual or collective self-defence if an armed attack occurs against a UN member, until the Security Council has taken measures necessary to maintain international peace and security. Self-defence measures must be immediately reported to the Council.

Matthew Waxman explains that this modest raid became famous almost by chance. It is now invoked in debates on force against threats not yet materialised, though it really answered attacks that had already begun.

Exception 2: Security Council Action

▶ Watch this part of the lecture (2:20:45)

• Article 39 – determines any threat to the peace, breach of the peace or act of aggression.
• Article 41 – measures not involving force (e.g. sanctions).
• Article 42 – military action.

In practice, the Council authorises member States to use force.

Uniting for Peace – Resolution 377 A (3 November 1950)

Adopted by the General Assembly during the Korean War to meet a Council paralysed by the veto:

• Applies where there appears to be a threat to the peace, breach of the peace or act of aggression.
• If the Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility, the Assembly shall consider the matter immediately.
• It may recommend collective measures, including armed force for a breach of the peace or act of aggression.
• Used in the Suez crisis (1956) and in 2022 after Russia invaded Ukraine.

Disputed Exceptions

• Humanitarian necessity (Kosovo, 1999) – in 1999 NATO (North Atlantic Treaty Organization) bombed Yugoslavia over Kosovo without Council authorisation, claiming humanitarian necessity; many States called it unlawful.
• Responsibility to protect – accepted by the 2005 World Summit for protecting populations from atrocities, but collective force was left to the Security Council.

Legal Nature of the Prohibition – Is It Obeyed?

The prohibition is a treaty rule, a customary rule and jus cogens. In 2022 the ILC listed the prohibition of aggression among peremptory norms.

Scholar	View
Thomas Franck (1970)	"Who killed Article 2(4)?" – repeated wars and a paralysed Council had eroded the rule.
Louis Henkin	Reports of its death were greatly exaggerated: States still accept the rule and try to justify their conduct within it.
Thilo Marauhn (2021)	Asked how many deaths the rule can die; urged lawyers to defend it as a cornerstone of international law even when States break it.

The Russian invasion of Ukraine shows both sides: the veto blocked the Council, but the General Assembly deplored the aggression and the International Court ordered Russia to suspend its military operations.

Leading Decisions on Force and UN Powers

Nicaragua v. United States of America

▶ Watch this part of the lecture (2:24:35)

Certain Expenses of the United Nations (Advisory Opinion)

▶ Watch this part of the lecture (2:27:05)

Nuclear Weapons Advisory Opinions

Kosovo Declaration of Independence (Advisory Opinion)

General Principles of Responsibility (Articles 1–3)

• Article 1 – every internationally wrongful act of a State entails its international responsibility.
• Article 2 – two elements: (1) conduct, an action or omission, attributable to the State under international law; (2) that conduct constitutes a breach of an international obligation of the State.
• Article 3 – wrongfulness is governed by international law and is not affected by characterisation as lawful by internal law.

Attribution of Conduct to a State (Articles 4–7)

▶ Watch this part of the lecture (2:32:15)

A State acts only through human beings; these Articles decide whose acts count as its acts.

• Article 4 – State organs: conduct of any organ exercising legislative, executive, judicial or other functions, whatever its position, in the central government or a territorial unit.
• Article 5 – persons or entities, not organs, empowered by law to exercise elements of governmental authority (e.g. a private company running a prison).
• Article 6 – the receiving State answers for an organ lent by another State and placed at its disposal.
• Article 7 – excess of authority: conduct of an organ or empowered person acting in that capacity is an act of the State even if it exceeds authority or contravenes instructions.

Attribution of Conduct to a State (Articles 8–11)

Article 8 – Instructions, direction or control

Private acts are normally not State acts, but they are if the persons are in fact acting on the State's instructions, or under its direction or control.

Effective control (ICJ)	Overall control
Control of the particular operations – required in Nicaragua; reaffirmed in the Bosnian Genocide case (2007).	Looser test used by a criminal tribunal for the former Yugoslavia – rejected by the ICJ in Bosnian Genocide.

Articles 9 to 11

• Article 9 – persons exercising governmental authority in the absence of official authorities (e.g. during a revolution).
• Article 10 – conduct of an insurrectional movement that becomes the new government, or creates a new State, is attributed to that State. Otherwise a State is not responsible for rebels, though it may answer for its own lack of due care.
• Article 11 – conduct not otherwise attributable becomes the State's act if the State acknowledges and adopts it as its own.

Breach of an International Obligation (Articles 12–15)

• Article 12 – breach occurs when a State's act is not in conformity with what an obligation requires, regardless of the obligation's origin or character.
• Article 13 – the obligation must be in force for the State when the act occurs.
• Article 14 – a completed act (a single shooting) differs from a continuing wrongful act (unlawful detention or occupation), whose breach extends over the whole period it continues.
• Article 15 – composite acts: a series of actions or omissions that together amount to a wrong (e.g. genocide, systematic discrimination).

Circumstances Precluding Wrongfulness (Articles 20–27)

▶ Watch this part of the lecture (2:37:15)

Six circumstances excuse conduct that would otherwise be wrongful:

1. Consent (Article 20) – valid consent by a State precludes wrongfulness so long as the conduct stays within it.
2. Self-defence (Article 21) – in conformity with the Charter.
3. Countermeasures (Article 22) – lawful measures against a wrongdoing State to induce compliance. Under Articles 49–54 they must be proportionate, reversible where possible and preceded by a demand, and may never involve force or violate human rights, humanitarian rules, diplomatic inviolability or jus cogens.
4. Force Majeure (Article 23) – an irresistible force or unforeseen event, beyond the State's control, making performance materially impossible.
5. Distress (Article 24) – the author has no other reasonable way of saving his own life or the lives of persons in his care.
6. Necessity (Article 25) – only if the act is the only way to safeguard an essential interest against a grave and imminent peril, and does not seriously impair an essential interest of the other State or the international community. Barred if the obligation excludes it or the State contributed to the situation.

Limits common to all six

• Article 26 – none excuses a breach of a peremptory norm.
• Article 27 – they do not prevent compliance once the circumstance ends, nor rule out compensation for material loss.

Rainbow Warrior Arbitration (New Zealand v. France)

▶ Watch this part of the lecture (2:39:45)

Reparation for Injury (Articles 30–39)

▶ Watch this part of the lecture (2:42:05)

• Article 30 – cessation of a continuing wrongful act, and assurances of non-repetition if circumstances require.
• Article 31 – full reparation for the injury, including any damage, material or moral.

Article 34: full reparation takes the form of restitution, compensation and satisfaction, singly or in combination.

Form	Article	Meaning and limits
Restitution	35	Re-establishing the situation before the wrongful act (e.g. releasing a detainee, returning seized property). Not owed if materially impossible or out of all proportion.
Compensation	36	Any financially assessable damage, including loss of profits.
Satisfaction	37	Injury money cannot repair (e.g. insult to the State): acknowledgment of breach, expression of regret or formal apology – never humiliating.

Article 38 provides for interest; under Article 39 the injured party's own wilful or negligent contribution to the injury is taken into account.

Remedy for Breach of Consular Rights

LaGrand (Germany v. United States of America)

▶ Watch this part of the lecture (2:43:45)

Avena and Other Mexican Nationals (Mexico v. United States of America)

Jadhav (India v. Pakistan) – remedy

Responsibility for Breach of Contractual Obligations

▶ Watch this part of the lecture (2:48:15)

1. Breach of a treaty – an internationally wrongful act; the injured State may claim reparation and may suspend or terminate the treaty for material breach (Unit 3).
2. Breach of a contract with a foreign private person (e.g. a concession to a foreign company, a loan from foreign bondholders) – a mere commercial breach is not by itself a breach of international law. It becomes one if the State abuses its sovereign power, e.g. cancelling the contract through arbitrary or confiscatory legislation, or denying the foreigner justice in its courts.

Latin American doctrines

• Calvo clause – the foreign investor agrees to use only local courts and not seek his own government's protection. Tribunals upheld it only as a duty to exhaust local remedies first, since an individual cannot waive his State's right to protect him.
• Drago Doctrine (1902) – force may not be used to collect public debts; a Hague Convention of 1907 accepted this, unless the debtor refuses arbitration.

Expropriation

Taking foreign-owned property is lawful if it serves a public purpose, is non-discriminatory and is accompanied by compensation.

Western States	Developing States
Hull formula – prompt, adequate and effective compensation.	Appropriate compensation – the phrase in the General Assembly's 1962 resolution on permanent sovereignty over natural resources.

Responsibility for International Delinquencies

Breaches of non-contractual obligations arising from general international law, like torts in domestic law, were called international delinquencies; the most common are injuries to foreigners and their property.

Standard of treatment of foreigners

National treatment	International minimum standard
Latin American States: same treatment as nationals, no better.	Western States: applies even if a State treats its own people badly. Widely accepted today.

Denial of justice

A special form of delinquency: courts refuse a foreigner access, delay his case unreasonably, or give a manifestly unjust judgment.

Acts of private persons – due diligence

The State answers only for its own failure to exercise due diligence to prevent or punish them.

Claims and Diplomatic Protection

A claim for injury to a foreigner is brought through diplomatic protection, codified in the ILC's Articles on Diplomatic Protection (2006).

Three conditions

1. Nationality of claims – a State may, as a rule, protect only its nationals, and the person must generally have been its national continuously from the date of injury to the date of presenting the claim.
2. Exhaustion of local remedies – the foreigner must first use the wrongdoing State's courts, unless they offer no reasonable possibility of redress or are unduly delayed.
3. Discretion – the State decides whether to take up the claim.

Barcelona Traction (Belgium v. Spain)

▶ Watch this part of the lecture (2:53:45)

General Provisions (Articles 55–59)

• Article 55 – lex specialis: the Articles give way to special rules (e.g. World Trade Organization remedies).
• Article 56 – other rules of international law govern questions not covered.
• Article 57 – excludes responsibility of international organisations (dealt with separately by the ILC in 2011).
• Article 58 – preserves individual responsibility of persons acting for a State: a leader may be tried personally while the State also answers.
• Article 59 – the Articles are without prejudice to the UN Charter.

Unit 7: Recognition – Meaning and Criteria of Statehood

▶ Watch this part of the lecture (2:56:48)

Recognition concerns how a new State, or a new government, enters the family of nations. After the Second World War, decolonisation produced dozens of new States, but no general treaty told older States how to deal with them. The law of recognition therefore grew out of State practice and remains more political than most branches of international law.

Criteria of statehood: Article 1, Montevideo Convention, 1933

Article 1 of the Montevideo Convention on the Rights and Duties of States lists four qualifications:

1. Permanent population – need not be large (Nauru, Tuvalu).
2. Defined territory – boundaries need not be settled if there is a stable core of territory.
3. Government – must exercise effective control.
4. Capacity to enter into relations with other States – really means independence.

Modern practice adds that an entity created by the unlawful use of force, or in violation of self-determination, is generally not accepted as a State, however effective it may be.

Theories of Recognition

▶ Watch this part of the lecture (2:58:35)

Does recognition create a State, or merely admit a State that already exists?

Constitutive theory	Declaratory theory
An entity becomes a State, with rights and duties under international law, only when other States recognise it.	Statehood is a matter of fact; an entity meeting the criteria is a State and recognition simply acknowledges the fact.
Supported by Oppenheim, Anzilotti and Kelsen.	Dominant today.
Problem: an entity recognised by some States and not others would be a State for some and not for others; an unrecognised State would be free from rules like the ban on force, which no one accepts.	Problem: hard to explain why recognition matters so much in practice, especially in borderline cases.

Support for the declaratory theory

• Article 3, Montevideo Convention: the political existence of the State is independent of recognition by the other States.
• Badinter Commission (Arbitration Commission set up by the European Community in 1991 for the break-up of Yugoslavia): the existence or disappearance of a State is a question of fact, and the effects of recognition are purely declaratory. It later added that recognition is nonetheless a discretionary act.
• Hersch Lauterpacht argued that States have a duty to recognise an entity meeting the criteria, but States have never accepted such a duty.

Recognition of States and of Governments

▶ Watch this part of the lecture (3:01:05)

Recognition of a State is distinct from recognition of a government. The question of recognising a government arises when an existing State gets a new government through a revolution or military coup. A change by constitutional means, like an election in India, raises no question of recognition. Recognition of a State continues even when its governments change.

Tests for recognising a new government

• Effective control (traditional test): the regime must control the territory, and the people must generally obey it.
• Legitimacy – Tobar Doctrine (1907): proposed by Carlos Tobar, former foreign minister of Ecuador; governments coming to power by unconstitutional means should not be recognised until a freely elected assembly approves them. President Woodrow Wilson followed a similar policy in 1913 towards a Mexican regime that had seized power by force.
• Estrada Doctrine (1930) – the opposite approach: named after Mexican foreign minister Genaro Estrada; Mexico would not pass judgment on foreign governments at all, but simply decide whether to keep or withdraw its diplomats.

De Facto and De Jure Recognition

▶ Watch this part of the lecture (3:03:05)

De facto (recognition in fact) is provisional, given when a new authority has effective control but its permanence is doubtful or the recognising State is not yet ready to accept it fully. De jure (recognition in law) is full and final.

Point	De facto	De jure
Nature	Provisional; more easily withdrawn	Final
Relations	May mean only limited contacts	Usually brings full diplomatic relations
Acts within territory (older English cases)	Given effect in the territory controlled	Given effect in the territory controlled
State property abroad	Could not be claimed	Only a de jure government could claim it

Other Types of Recognition

Premature recognition

Given before an entity has clearly met the criteria of statehood, especially while the parent State is still fighting to keep the territory. It is treated as unlawful intervention.

Implied recognition

Article 7, Montevideo Convention: recognition may be express or tacit; tacit recognition results from any act which implies the intention of recognising the new State, e.g. establishing formal diplomatic relations or concluding a bilateral treaty on general relations. Taking part in a multilateral conference or treaty, or keeping informal trade contacts, does not imply recognition.

Conditional recognition

Granted on condition that the new State will do something. At the Congress of Berlin, 1878, the independence of Serbia, Montenegro and Romania was recognised on condition that they respected religious freedom. In 1991 the European Community required the new States of Eastern Europe and the former Soviet Union to respect the Charter, the rule of law, democracy, human rights, minority rights and existing frontiers. A later breach of the promise does not automatically cancel recognition; the breach is a separate wrong.

Collective recognition

By a group of States acting together, as at the Congress of Berlin or by the European Community in January 1992. Admission to the United Nations is strong evidence of statehood but does not oblige every member to recognise the new State individually.

Withdrawal of Recognition

• De facto recognition can be withdrawn if its conditions disappear, e.g. the authority loses control.
• De jure recognition of a State is generally irrevocable; Article 6 of the Montevideo Convention says recognition is unconditional and irrevocable. It lapses only if the State ceases to exist, as East Germany did on joining West Germany in 1990.
• Recognition of a government is withdrawn when another government is recognised in its place: when the United States recognised the People's Republic of China from 1 January 1979, it withdrew recognition from the government in Taiwan as the government of China.

Non-Recognition

Sometimes States have a duty not to recognise. The doctrine began with the Stimson Doctrine: in 1931 Japan occupied the Chinese region of Manchuria and later set up a puppet State, Manchukuo. In January 1932 US Secretary of State Henry Stimson declared that the United States would not recognise any situation, treaty or agreement brought about by means contrary to the Kellogg-Briand Pact, which had renounced war. The League of Nations adopted the same principle, and Article 11 of the Montevideo Convention forbids recognising territory acquired by force.

The principle today

• Friendly Relations Declaration, 1970: no territorial acquisition resulting from the threat or use of force shall be recognised as legal.
• Article 41, Articles on State Responsibility: States must not recognise as lawful a situation created by a serious breach of a peremptory norm.
• Security Council: declared Iraq's annexation of Kuwait null and void; called on States not to recognise the Turkish Republic of Northern Cyprus.
• General Assembly: called on States not to recognise changes in the status of Crimea and other regions of Ukraine.

Legal Effects of Recognition

▶ Watch this part of the lecture (3:09:26)

Recognition matters mostly for its effects in the courts of the recognising State. A recognised State or government can sue there, claim immunity from their jurisdiction, have its laws and decrees given effect, and claim State property located there. An unrecognised authority traditionally could not sue and its acts could be ignored, but modern courts sometimes give effect to them in private matters, such as marriages, to avoid injustice to ordinary people.

State Practice: United States, United Kingdom and India

United States

The United States long recognised governments in effective control, though Wilson and Stimson added tests of legitimacy and lawfulness.

United Kingdom

The United Kingdom used the de facto/de jure distinction heavily in the 1920s and 1930s. In April 1980 it announced that it would no longer formally recognise governments, but would decide from the facts whether to deal with a regime. Its courts now consider the regime's constitutional position, its control over the territory and the British Government's dealings with it. The United Kingdom still formally recognises States.

India

▶ Watch this part of the lecture (3:12:25)

India follows a pragmatic approach, guided by effectiveness and by its own interests and principles.

• Recognised the People's Republic of China on 30 December 1949, among the first non-communist States to do so.
• Recognised Israel in 1950, but established full diplomatic relations only in 1992.
• In 1988 was among the first to recognise the State of Palestine.
• Has not recognised Kosovo, in keeping with its firm support for the territorial integrity of States.
• In October 2025 India upgraded its mission in Kabul to an embassy, but has still not formally recognised the Taliban regime.

Recognition: law or realpolitik?

Kosovo has been recognised by more than a hundred States, but not by many others, including India, Russia and China. After the 2008 war between Russia and Georgia, Russia recognised Abkhazia and South Ossetia, but only a handful of States followed. Cedric Ryngaert and Sven Sobrie asked whether recognition is governed by international law or by realpolitik (power politics). They showed that recognition once rested on clear factual criteria, but after the break-up of Yugoslavia new moral conditions, such as respect for human rights and minorities, were added, bringing great uncertainty revealed by the discord over Kosovo, South Ossetia and Abkhazia.

In July 2025 Russia became the first State to formally recognise the Taliban government. In September 2025 the United Kingdom, Canada, Australia, France and others recognised the State of Palestine, which is now recognised by more than 150 States.

Problem Illustration

▶ Watch this part of the lecture (3:14:25)

Quick revision

• In every problem, first ask which source creates the rule, and whether it binds the State in question.
• Always name the article, and support it with the leading case.
• Whenever two concepts look similar, such as jus cogens and obligations erga omnes, or de facto and de jure recognition, write their differences clearly, with an example.