1​ .

0 The Foundational Debate: The Nature of​

​International Law​
​ he very concept of public international law rests on a foundational jurisprudential​
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​debate: Is it, in fact, ‘law’? This question is far from a mere academic exercise; the​
​answer shapes the authority, perception, and efficacy of the global legal regimes that​
​govern relations between states. The modern framing of this debate was crystallized​
​when jurists like Jeremy Bentham coined the term “international law.” He sought to​
​differentiate the “positive legal relations” between states from the older, more​
​philosophical tradition of the “Law of Nations,” which was rooted in natural law. This​
​intellectual shift toward a positivist, state-centric view of law directly created the​
​conditions for the enduring criticisms that followed. By framing international law in a​
​manner analogous to domestic law, it invited a comparison that would highlight its​
​lack of the coercive, institutional hallmarks of a state legal system—such as a​
​sovereign legislature, a global police force, or compulsory courts—thus fueling​
​skepticism about its status as ‘true law.’​

​Arguments Challenging the Legal Status of International Law​

​ ritics have long argued that international law lacks the essential characteristics of a​
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​‘true’ legal system. A primary contention is the absence of an effective legislative​
​authority comparable to a state's parliament. There is no global body with the power​
​to create universally binding laws for all nations. Furthermore, the judicial framework​
​is perceived as weak. The International Court of Justice (ICJ), the principal judicial​
​organ of the United Nations, lacks compulsory jurisdiction in the true sense; it can​
​only adjudicate disputes when states consent to its authority. Moreover, the ICJ​
​possesses no independent power to enforce its decisions, relying instead on the​
​political will of the parties or the Security Council.​

​ nother significant challenge is the inherent uncertainty within the rules​

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​themselves. International legal instruments, particularly treaties, are often framed in​
​a manner that provides states with wide options and interpretive latitude, diluting​
​their binding force. This perceived lack of clarity is compounded by a perceived lack​
​of effective sanctions. When rules are violated, particularly by powerful states, the​
​international community often fails to impose meaningful penalties, leading to the​
​argument that international law is frequently breached without consequence.​
​ ltimately, critics point to its failure in many cases to maintain international peace​
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​and order as evidence that it cannot be considered a true legal system.​

​The Affirmation of International Law's Legal Character​

I​ n response to these criticisms, jurists such as Hall and Lawrence have forcefully​
​affirmed the legal character of international law. Their counter-argument posits that​
​international law is habitually treated and enforced as law by the states themselves.​
​Foreign offices, national courts, and international tribunals consistently refer to it as​
​law and operate on the assumption of its binding nature. Like certain forms of​
​positive municipal law, much of international law is derived from custom and​
​precedent—the consistent practices of states undertaken out of a sense of legal​
​obligation. From this perspective, the absence of a centralized legislature or a global​
​police force does not negate its legal character; it simply highlights that its structure​
​is different from that of a domestic legal system.​

​The Thesis of International Law as 'Weak Law'​

​ ven among those who accept its legal status, a prevalent thesis holds that​
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​international law is, at best, a ‘weak law’. This characterization stems from several​
​practical realities. The rules created through international treaties and customs are​
​not comparable in efficacy to the output of a state's legislative machinery. The​
​consent-based jurisdiction of the ICJ means that states can evade judicial scrutiny of​
​their actions. Perhaps most critically, the mechanisms for enforcement are​
​inconsistent and often ineffective. While a domestic legal system can reliably enforce​
​judgments against its citizens, the international system struggles to compel​
​powerful states to comply with rules that conflict with their perceived national​
​interests. For instance, no enforcement action was taken against the United States​
​after its invasion of Grenada or against NATO for its actions against Serbia, illustrating​
​the difficulty of applying the law equally to all actors.​

​Holland's "Vanishing Point of Jurisprudence"​

​ he analytical jurist Holland famously dismissed international law as the "vanishing​

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​point of jurisprudence." His reasoning was that it lacked two essential features of law:​
​a sovereign political authority to issue commands and an impartial arbiter for​
​disputes whose judgments could be enforced. In the absence of these, international​
​law relied on little more than "public opinion." Holland argued that as international​
​law became more like 'true law'—for instance, within a federal government where a​
​central authority could create and enforce binding rules on its constituent states—it​
​would cease to be​​international​​law and would instead​​be transmuted into public​
​law. He saw it as a system perpetually on the edge of law, but never fully arriving.​
​ hile historically influential, this argument is no longer considered tenable. The​
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​modern international system, with its vast network of treaties, international courts,​
​and organizations, demonstrates a complexity and legal character that far exceeds​
​Holland's narrow, state-centric definition of law.​

​ his examination of the theoretical nature of international law naturally leads to a​

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​consideration of the practical mechanisms that have been developed to give it​
​greater force, clarity, and authority in the modern era.​

​ .0 The Operative Framework: Sanctions and​

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​Codification​
​ o address the foundational criticisms regarding its lack of enforceability and clarity,​
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​the international legal system has developed operative frameworks centered on​
​sanctions and codification. These mechanisms are crucial for lending structure,​
​authority, and systematic coherence to the body of international rules, thereby​
​providing a practical response to the charge that it is a ‘weak law’. Sanctions provide​
​a tool for enforcement, while codification aims to reduce uncertainty and promote​
​the systematic development of the law.​

​2.1 Sanctions in the International Legal System​

I​ n the context of international law, a​​sanction​​is​​a penalty imposed to ensure​

​obedience to a rule of law or to restore international peace and security. These​
​measures serve not only to punish violations but also to change the behavior of the​
​target state. Sanctions in the international legal system take two primary forms.​

​ irst, states may apply sanctions individually through​​self-help​​. Historically, this was​
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​the primary method of enforcement. However, this right is now heavily constrained​
​by the United Nations Charter. Specifically, Article 2(4) prohibits the use of armed​
​force against the territorial integrity or political independence of another state,​
​severely limiting the scope of permissible military self-help.​

​ econd, and more significantly in the modern era, are​​collective sanctions​​taken by​
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​international organizations. The UN Charter, under Chapter VII, grants the Security​
​Council the authority to take necessary actions—including economic, financial,​
​political, and military measures—to maintain or restore international peace and​
​security when it identifies a threat to peace, a breach of the peace, or an act of​
​aggression. Furthermore, the decisions of the International Court of Justice are​
​binding on the parties to a dispute. As stipulated in Article 94 of the UN Charter, if a​
​ arty fails to comply with an ICJ judgment, the other party may have recourse to the​
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​Security Council, which can take measures to ensure the decision is implemented.​

​ .2 The Codification and Progressive Development of International​

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​Law​

​ o address the criticism that international law is vague and uncertain, significant​
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​efforts have been made toward its codification.​​Codification​​is defined as the "more​
​precise formulation and systematization of rules of international law on subjects that​
​have already been extensively covered by State practice, precedent and doctrine." It​
​is a process of clarifying and writing down existing customary law.​

​ his is distinct from the concept of​​progressive development​​,​​which involves the​

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​formulation of new legal rules and principles in areas where the law is inadequate,​
​incomplete, or non-existent. While codification is largely a consolidating exercise,​
​progressive development is a forward-looking process aimed at addressing​
​emerging global issues.​

​ he principal body tasked with this work is the​​International​​Law Commission (ILC)​​,​

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​which was established by the General Assembly under Article 13(1) of the UN Charter​
​to promote the progressive development of international law and its codification.​
​The ILC’s work has been instrumental in creating a more systematic and accessible​
​body of international law. Its key achievements include the drafting of foundational​
​multilateral treaties such as the​​Vienna Convention​​on Diplomatic Relations (1961)​​,​
​which governs diplomatic intercourse; the​​Vienna Convention​​on the Law of​
​Treaties (1969)​​, which sets out the rules for creating​​and interpreting treaties; and​
​the​​Rome Statute of the International Criminal Court​​(1998)​​, which established the​
​first permanent international tribunal to prosecute individuals for genocide, crimes​
​against humanity, and war crimes.​

​ aving established the general framework of international law, it is essential to​

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​examine its complex and varied interaction with the domestic legal systems of the​
​sovereign states that are its primary subjects.​

​ .0 The Interface with Domestic Law: International​

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​Law and Municipal Law​
​ he relationship between public international law and municipal (domestic) law is of​
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​critical practical importance. It is this interface that determines how international​
​obligations, such as those established by human rights treaties or trade agreements,​
​are translated into enforceable rights and duties within a state. Whether a citizen can​
i​nvoke an international treaty in a domestic court, or whether a national law that​
​violates an international rule is valid, depends entirely on the theoretical approach​
​and state practice governing this relationship.​

​3.1 Theoretical Frameworks​

​ wo principal theories have been developed to explain the relationship between the​
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​international and domestic legal spheres: dualism and monism.​

​●​ D ​ ualism​​: The dualist theory posits that international​​law and municipal law​
​are two distinct and separate legal systems. They operate in different spheres,​
​regulating different subjects (international law governs states, while municipal​
​law governs individuals within a state), and arise from different sources​
​(international law from the collective will of states, municipal law from the will​
​of a single state). From a dualist perspective, the domestic legal system is​
​superior. For a rule of international law to be applicable within a state, it is not​
​enough for the state to have ratified a treaty; the rule must be expressly​
​transformed or adopted into domestic law through an act of the national​
​legislature.​
​●​ ​Monism​​: In contrast, the monist theory views international​​law and municipal​
​law as parts of a single, universal legal order. They are two interrelated aspects​
​of one unified system of law. Under this view, international law is directly​
​applicable within the domestic sphere without any need for transformation.​
​While there are variants of monism—some asserting the supremacy of​
​international law, others (like Kelsen's "pure theory") seeing them as co-equal​
​parts of a global​​Grundnorm​​—the practical consequence​​is that domestic​
​courts are obligated to apply international law directly, and in cases of conflict,​
​international law often prevails.​

​ third view, the​​Delegation Theory​​, serves as a critique​​of the strict transformation​

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​requirement of dualism. It suggests that constitutional rules of international law​
​essentially "delegate" to each state the authority to determine for itself how​
​international treaties will become applicable within its domestic legal system. This​
​provides a more flexible framework that reflects the diverse constitutional practices​
​of states.​

​3.2 State Practice in Applying International Law​

​ tate practice is often a pragmatic blend of these theories, with different rules​
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​applying to different sources of international law.​

​3.2.1 United Kingdom Practice​

​ ritish practice makes a clear distinction between customary international law and​
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​treaties. Customary international law is treated according to the​​"incorporation​
​doctrine,"​​which holds that it is automatically part​​of the common law, provided it​
​does not conflict with an act of Parliament. Treaties, however, do not have direct​
​effect. The negotiation and ratification of treaties are prerogative powers of the​
​Crown (the executive). For a treaty's provisions to become enforceable in UK courts,​
​Parliament must pass legislation to transform it into domestic law.​

​3.2.2 United States Practice​

​ he U.S. Constitution, in Article II, Section 2, provides that the President has the​
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​power to make treaties with the "advice and consent of the Senate," requiring a​
​two-thirds majority for ratification. U.S. practice distinguishes between​
​self-executing treaties​​(which become domestically​​applicable upon ratification​
​without further legislation) and​​non-self-executing​​treaties​​(which require an act of​
​Congress to be implemented). A further distinction is made between formal treaties​
​and​​'executive agreements'​​, which are entered into​​by the President using​
​executive power and do not require Senate approval, though their domestic legal​
​status can be more complex.​

​3.2.3 Indian Practice: A Detailed Examination​

I​ ndia's practice is complex, lacking a clear constitutional directive, and has therefore​
​evolved through judicial interpretation, drawing on both dualist and monist​
​principles.​

​●​ C ​ ustomary International Law​​: The Indian judiciary​​has largely adopted the​
​doctrine of incorporation for customary international law. The Supreme Court​
​articulated this principle clearly in the case of​​People's Union of Civil Liberties​
​v. Union of India (PUCL)​​, stating that:​
​●​ ​Harmonious Interpretation​​: Indian courts strive to​​interpret domestic law in a​
​way that avoids conflict with international law, a principle supported by Article​
​51 of the Constitution, which directs the state to "foster respect for​
​international law." In​​ADM Jabalpur v. Shivakant Shukla​​,​​the Supreme Court​
​noted the principle that if a municipal law is open to more than one​
​interpretation, the court should adopt the one that avoids conflict with​
​international law. A practical application of this doctrine is seen in​​Jolly George​
​Varghese v. Bank of Cochin​​, where the Court interpreted​​Section 51 of the​
​Code of Civil Procedure (regarding imprisonment for debt) in a manner​
​consistent with India's obligations under the International Covenant on Civil​
​and Political Rights.​
 ​●​ A ​ pplication of Treaties​​: With respect to treaties, Indian practice leans heavily​
​towards dualism. Treaties are not self-executing and require parliamentary​
​legislation to become part of domestic law. In the​​Gramophone Company of​
​India Ltd. v. Birendra Bahadur​​, the Supreme Court​​acknowledged the two​
​schools of thought (incorporation and transformation) but concluded that in a​
​case of direct conflict, courts are bound to apply the domestic statute over the​
​international treaty.​
​●​ ​Judicial Use of International Conventions​​: A landmark​​development in​
​Indian jurisprudence is the​​Vishaka v. State of Rajasthan​​case. In this​
​judgment, the Supreme Court addressed the absence of domestic legislation​
​on the issue of sexual harassment in the workplace. To fill this legislative​
​vacuum, the Court drew upon international conventions, specifically the​
​Convention on the Elimination of All Forms of Discrimination against Women​
​(CEDAW), to formulate legally binding guidelines. This case stands as a​
​powerful example of the judiciary using international law to inform and shape​
​domestic legal norms in the absence of statutory law.​

​ he discussion of how states apply international law leads naturally to the question of​
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​who, or what, constitutes a subject of that law.​

​ .0 Actors on the Global Stage: The Subjects of​

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​International Law​
​ he concept of 'international legal personality' refers to the capacity of an entity to​
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​possess rights and obligations under international law. Historically, the prevailing​
​view was that sovereign states were the sole subjects of international law. However,​
​the modern international legal system has evolved significantly, expanding its scope​
​to confer legal personality on other entities, recognizing that actors beyond the state​
​play a crucial role on the global stage.​

​4.1 The State as the Primary Subject​

​ he traditional realist theory holds that only states are subjects of international law. In​
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​this view, individuals are merely objects of the law, whose rights are held and​
​asserted on their behalf by their respective states. While this view is now considered​
​outdated, states remain the primary and most powerful subjects of the international​
​legal order.​

​ he essential criteria for statehood are authoritatively set out in​​Article 1 of the​
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​Montevideo Convention (1933)​​. According to this instrument,​​a state as a person of​
​international law should possess the following four qualifications:​
 ​1.​ A ​ Permanent Population​​: This refers to a stable community​​of people. There​
​is no minimum requirement for the size of the population; micro-states are as​
​much states as those with over a billion inhabitants.​
​2.​ ​A Defined Territory​​: A state must exercise effective​​control over a defined​
​piece of territory. The existence of border disputes does not negate statehood,​
​so long as a core territory is definitively controlled by the government.​
​3.​ ​A Government​​: There must be an effective government​​that exercises​
​independent authority over the population and territory. This is crucial as​
​international law lacks a central executive body and relies on states​
​themselves to enforce international obligations within their borders.​
​4.​ ​Capacity to Enter into Relations with Other States​​:​​This criterion is​
​intrinsically linked to the concept of independence. It signifies that the entity​
​is not legally subject to the authority of any other state in its ability to conduct​
​foreign relations.​

​ crucial element that underpins these qualifications is​​sovereignty​​. Sovereignty has​

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​two dimensions:​​internal sovereignty​​, which is the​​supreme power of the state to​
​regulate all activities within its territory, and​​external sovereignty​​, which refers to the​
​state's complete independence from external control and its freedom to formulate​
​its own foreign policy.​

​4.2 International Organizations and Legal Personality​

​ longside states, public international organizations are now recognized as subjects​

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​of international law. They possess rights, powers, and duties that are conferred​
​directly upon them by international law, allowing them to function independently on​
​the international plane.​

​ he legal personality of international organizations was decisively established by the​

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​International Court of Justice in its 1949 advisory opinion on​​Reparation for Injuries​
​Suffered in the Service of the United Nations (the UN Reparations case)​​.​
​Following the assassination of a UN mediator in Jerusalem, the Court was asked​
​whether the United Nations had the capacity to bring an international claim against​
​the responsible government for damages caused to the organization and to the​
​victim. The ICJ's landmark finding was that the UN is an international person and a​
​subject of international law. It held that the UN is capable of possessing international​
​rights and duties and has the capacity to maintain its rights by bringing international​
​claims. The Court reasoned that while the UN Charter does not explicitly confer legal​
​personality, this status is a​​"necessary implication"​​arising from the functions and​
​purposes laid out in the Charter. For the UN to effectively carry out its mission, it​
​must possess the legal personality to act independently and protect its agents on​
​the international stage.​
​4.3 The Evolving Status of the Individual​

​ he traditional theory that individuals are merely objects of international law has​
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​been rendered obsolete by modern developments. A significant body of​
​contemporary international law now directly regulates the activities of individuals​
​and, crucially, confers rights and imposes duties directly upon them.​

​ or example, treaties such as the​​International Covenant​​on Human Rights​​bestow​

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​a wide range of rights directly upon individuals, which they can, in some cases, seek​
​to vindicate before international bodies. Conversely, international humanitarian law,​
​such as the​​Geneva Convention on Prisoners of War​​(1949)​​, grants protections and​
​rights to individuals during armed conflict. Furthermore, international criminal law​
​imposes direct duties on individuals. The​​Genocide​​Convention (1948)​​and the​
​Rome Statute of the ICC establish individual criminal responsibility for the most​
​serious international crimes, bypassing the traditional shield of state sovereignty.​

​ his evolution from a law of states to a law that also governs and protects individuals​
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​leads to the final foundational topic: the process by which a new state is formally​
​accepted into the community of nations.​

​ .0 The Creation of States: The Doctrine of​

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​Recognition​
​ ecognition in international law is the formal process by which an existing state​
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​acknowledges that a new political entity meets the criteria of statehood, or that a​
​new government is the effective ruling power of an existing state. This​
​acknowledgment is of profound political and legal significance, as it is a precondition​
​for establishing diplomatic relations, concluding treaties, and fully participating as a​
​sovereign equal in the international community.​

​5.1 Core Theories of Recognition​

​Two competing theories attempt to explain the legal effect of recognition:​

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​ he Declaratory Theory​​: This theory posits that statehood​​is a matter of fact.​
​An entity becomes a state once it fulfills the objective legal criteria laid out in​
​the Montevideo Convention (population, territory, government, and capacity to​
​enter into relations). According to this view, recognition by other states is​
​merely a formal, political act that "declares" or acknowledges a pre-existing​
​legal reality. The state's existence is not dependent on the consent of other​
​states.​
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​ he Constitutive Theory​​: In contrast, this theory​​argues that recognition is​
​what "constitutes" or creates a state in the eyes of international law. An entity​
​may meet all the factual criteria of statehood, but it does not become a​
​subject of international law until it has been recognized as such by existing​
​states. This view elevates the political act of recognition to a necessary legal​
​requirement, implying that statehood is dependent on the acceptance of the​
​international community.​

​5.2 Forms and Modes of Recognition​

​ ecognition can be granted in several forms, each with different legal and political​
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​implications.​

​●​ D ​ e Jure and De Facto Recognition​​: A distinction is​​often made between​

​these two modes.​​De Jure​​recognition is the final,​​complete, and legally​
​definitive acknowledgment of statehood or governmental authority. It signifies​
​that the recognizing state is satisfied that the new entity is permanent and​
​capable of fulfilling all its international obligations.​​De Facto​​recognition is a​
​more provisional and tentative acknowledgment. It is often granted when the​
​new state or government is in effective control, but its long-term permanency​
​or legitimacy is still in doubt. De Facto recognition is frequently a preliminary​
​step towards full De Jure recognition.​
​●​ ​Other Forms of Recognition​​:​
​○​ ​Express Recognition​​: This involves a formal, explicit​​statement, either​
​through a public declaration, a diplomatic note, or a treaty, that a state​
​is recognized.​
​○​ ​Implied Recognition​​: This occurs when recognition​​is inferred from​
​actions that clearly indicate an intention to treat the new entity as a​
​state, such as entering into a formal bilateral treaty or establishing full​
​diplomatic relations.​
​○​ ​Conditional Recognition​​: This occurs when a recognizing​​state​
​attaches specific conditions that the new entity must fulfill before​
​recognition is granted, such as respecting human rights, protecting​
​minority rights, or adhering to the rule of law.​

​ he issue of recognition is closely tied to the legal effects of the acts of unrecognized​
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​governments, a matter addressed in the​​Tinoco concessions​​case​​. This case​
​explored whether the obligations of a prior, unrecognized government were binding​
​on its successor, reinforcing the principle that the legal existence and acts of a​
​government are distinct from its recognition by other states.​
​ he principles and practices discussed—from the theoretical nature of law to the​
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​practicalities of statehood and recognition—form the bedrock of the modern​
​international legal order.​

​6.0 Summary of Landmark Cases​

​ his section provides a consolidated summary of the key principles derived from​
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​landmark judicial and quasi-judicial decisions discussed throughout this study​
​material. These cases are essential for grounding the theoretical concepts of public​
​international law in practical, authoritative jurisprudence.​

​6.1 The Corfu Channel Case (United Kingdom v. Albania)​

I​ n this case, the International Court of Justice (ICJ) addressed Albania's responsibility​
​for explosions caused by mines in its territorial waters, which heavily damaged British​
​warships and resulted in loss of life. The Court's key findings established two crucial​
​principles:​

​1.​ S ​ tate Responsibility for Territory​​: The Court established​​the principle that​
​every state has an obligation​​not to knowingly allow​​its territory to be used​
​for acts contrary to the rights of other states.​​While​​there was no direct​
​proof that Albania laid the mines, the Court concluded that the minefield​
​could not have been laid without the knowledge of the Albanian government​
​and thus held Albania responsible for the damage.​
​2.​ ​Right of Innocent Passage​​: The Court also affirmed​​the right of innocent​
​passage for warships through international straits used for international​
​navigation between two parts of the high seas, concluding that the United​
​Kingdom did not violate Albanian sovereignty by sending its warships through​
​the channel without prior authorization.​

​ .2 Reparation for Injuries Suffered in the Service of the United​

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​Nations (UN Reparations Case)​

I​ n this seminal advisory opinion, the ICJ was asked whether the United Nations had​
​the capacity to bring an international claim for reparations for damages caused to​
​both the organization and its agents. The Court's central finding was that:​

​●​ T
​ he United Nations possesses​​objective international legal personality.​​This​
​means it is a subject of international law capable of possessing international​
​rights and duties.​
 ​●​ A ​ s a subject of international law, the UN has the capacity to maintain its rights​
​by​​bringing an international claim​​against a state​​(whether a member or not)​
​to obtain reparation for damages caused to itself and its agents.​
​●​ ​This capacity is not explicitly stated in the UN Charter but is a​​necessary​
​implication​​essential for the performance of the organization's​​functions and​
​for ensuring the independence and protection of its agents.​

​6.3 ADM Jabalpur v. Shivakant Shukla​

​ his case from the Supreme Court of India is a critical examination of the rule of law​
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​and its relationship with constitutional provisions during a state of emergency. A​
​Presidential Order had suspended the right to move any court for the enforcement​
​of fundamental rights, including the right to personal liberty under Article 21.​

​●​ T ​ he Majority View​​: The majority of the Court held​​that in light of the​
​Presidential Order, no person had the legal capacity (locus standi) to challenge​
​the legality of a detention order by filing a writ of habeas corpus. This decision​
​represented a significant deference to executive action during a declared​
​emergency.​
​●​ ​Justice Khanna's Dissent​​: Justice H.R. Khanna's powerful​​dissenting opinion​
​argued that the rule of law and the right to life and personal liberty were not​
​creations of the Constitution but pre-existed it. He contended that even in the​
​absence of Article 21, the state has no power to deprive a person of life or​
​liberty without the authority of law. His dissent is celebrated as a profound​
​defense of the principle that the rule of law is a basic norm that cannot be​
​entirely suspended, even in an emergency.​

​6.4 Indian Jurisprudence on International Law​

​●​ G ​ ramophone Company of India Ltd. v. Birendra Bahadur​​:​​This case clarified​

​the Indian judiciary's approach to conflicts between domestic law and​
​international law. The Supreme Court affirmed the principle that while courts​
​should endeavor to interpret statutes consistently with international​
​obligations, a domestic statute will prevail in the event of a direct conflict.​
​●​ ​People's Union for Civil Liberties (PUCL) v. Union of India​​: This case affirmed​
​the doctrine of incorporation for customary international law in India. The​
​Supreme Court held that rules of customary international law that are not​
​contrary to a domestic statute shall be deemed to be incorporated into​
​domestic law and are enforceable by Indian courts.​
​●​ ​Vishaka v. State of Rajasthan​​: This case is a landmark example of judicial​
​activism where the Supreme Court, in the absence of domestic legislation on​
​workplace sexual harassment, drew upon international conventions to create​
 l​egally binding guidelines. It demonstrated the judiciary's willingness to use​
​international law as a direct source for shaping legal norms to fill a vacuum in​
​the domestic legal system.​

Corfu Channel​
​

​​
- ​st judgment of ICJ​
1
-​
​ Greece and Albania channel​
​
-​
​ Explosion of 2 naval destroyer ships​
​
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​ 44 British sailors killed​
​
-​
​ 2 questions​
​
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​ Albania resp? | Did the UK violate Albanian sovereignty​
​
-​
​ Albania did not put the mines (no navy)​
​
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​ Court said who should have known about the mines​
​
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​ Mines in albanian water, they were vigilant, they visited the​
​
site and realised the mine laying would have taken time.​
​
-​ ​
​ Albania should have informed​
-​ ​
​ Innocent passaged declared for UK ship​
-​ ​
​ Mine sweeping by UK NOT RIGHT (soverignity)​

​ his response is an End-Term Examination designed to cover the entirety of the provided​
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​syllabus document, reflecting the academic style and demanding the level of detail (sections,​
​case laws, holdings) required for a 50-mark paper.​
​Public International Law: End-Term Examination​
​Maximum Marks: 50 | Time Allotted: 3 Hours​

​Instructions:​
​ .​ A
1 ​ ttempt​​all​​five questions.​
​2.​ ​All questions carry equal marks.​
​3.​ ​Answers must be framed to provide comprehensive legal analysis, including relevant​
​principles, sections of conventions (where applicable), and detailed holdings of landmark​
​cases discussed in the syllabus.​

​ uestion 1: The Foundational Jurisprudence of International Law (10​

Q
​Marks)​
​ ritically analyze the long-standing jurisprudential debate regarding the true legal nature​
C
​of Public International Law (PIL). In your answer, you must systematically present both​
​the arguments challenging and the arguments affirming its legal status. Furthermore,​
​explain Holland's influential but now less tenable "Vanishing Point of Jurisprudence"​
​thesis, connecting it to the modern structure of PIL.​

​Answer to Question 1​
​The foundational debate in jurisprudence is whether Public International Law (PIL) is, in fact,​
​1​
​'law'​ ​. This is not a mere academic exercise, as the​​answer fundamentally shapes the authority​
​2​
​and efficacy of the global legal regime​ ​. The debate​​was sharpened by Jeremy Bentham's​
​coining of the term "international law" to differentiate positive legal relations from the older,​
​3​
​natural law-rooted "Law of Nations," inadvertently inviting a comparison with domestic law​ ​.​

​A. Arguments Challenging the Legal Status of International Law​

​Critics contend that PIL lacks the essential characteristics of a 'true' legal system, primarily by​
​4444​
​comparison to a state legal system​ ​.​

​1.​ ​Absence of an Effective Legislative Authority:​​There​​is no global body equivalent to​

​5​
​a state's parliament with the power to create universally binding laws for all nations​ ​.​
​2.​ W
​ eak Judicial Framework and Consent-Based Jurisdiction:​​The International Court​
​of Justice (ICJ) lacks compulsory jurisdiction; it can only adjudicate disputes when​
​6666​
​states consent to its authority​ ​.​
 ​3.​ L
​ ack of Effective Enforcement Power and Sanctions:​​The ICJ has no independent​
​power to enforce its decisions, relying on the political will of the parties or the Security​
​7​
​Council​ ​. When rules are violated, especially by powerful​​states, the international​
​community often fails to impose meaningful penalties, leading to the argument that​
​8888​
​breaches are frequently without consequence​ ​. Examples​​include the lack of​
​enforcement action against the US after the Grenada invasion or NATO after its actions​
​9​
​against Serbia​ ​.​
​4.​ ​Inherent Uncertainty of Rules:​​International legal​​instruments, like treaties, are often​
​10​
​framed with wide interpretive latitude, diluting their binding force and clarity​ ​.​
​5.​ F
​ ailure to Maintain Peace and Order:​​Critics ultimately​​point to its failure in many​
​cases to maintain international peace and order as evidence that it cannot be​
​11​
​considered a true legal system​ ​.​

​B. The Affirmation of International Law's Legal Character​

​Jurists like Hall and Lawrence affirm PIL's legal character, arguing that its structure is simply​
​12121212​
​different from a domestic one​ ​.​

​1.​ ​Habitual Treatment and Enforcement by States:​​International​​law is habitually treated​

​13​
​and enforced as law by states themselves​ ​. Foreign​​offices, national courts, and​
​international tribunals consistently refer to it as law and operate on the assumption of its​
​14​
​binding nature​ ​.​
​2.​ B
​ asis in Custom and Precedent:​​Much of international​​law is derived from​​custom​
​and precedent​​—the consistent practices of states undertaken​​out of a sense of legal​
​15​
​obligation, a source common to certain forms of positive municipal law​ ​.​
​3.​ D
​ ifference in Structure, Not in Status:​​The absence​​of a centralized legislature or​
​global police force does not negate its legal character; it merely highlights that its​
​16​
​structure is adapted to a decentralized system of sovereign states​ ​.​

​C. Holland's "Vanishing Point of Jurisprudence" Thesis​

​The analytical jurist​​Holland​​famously dismissed international​​law as the​​"vanishing point of​
​17​
​jurisprudence"​ ​.​

​●​ R
​ easoning:​​His position was rooted in a narrow, state-centric definition of law, arguing​
​that PIL lacked two essential features: a​​sovereign​​political authority​​to issue​
 ​18​
​commands and an​​impartial arbiter​​with enforceable judgments​ ​. He claimed PIL​
​19​
​relied on little more than "public opinion"​ ​.​
​●​ T
​ he Vanishing Point:​​He argued that if PIL ever became​​more like 'true law' (e.g., in a​
​federal system with a central, enforcing authority), it would cease to be international law​
​20​
​and would be​​transmuted into public law​ ​. He saw​​it as perpetually on the edge of​
​21​
​law, but never fully arriving​ ​.​
​●​ ​Modern Relevance (or lack thereof):​​While historically​​influential, Holland's argument​
​22​
​is​​no longer considered tenable​ ​. The vast modern​​network of treaties, international​
​ ourts, and organizations demonstrates a complexity and legal character that far​
c
​exceeds his narrow, command-based definition, proving its status as a distinct, yet​
​23​
​authentic, legal order​ ​.​

​ uestion 2: The Operative Framework: Sanctions and Codification (10​

Q
​Marks)​
​ he international legal system has developed operative frameworks of 'Sanctions' and​
T
​'Codification' to address foundational criticisms regarding its lack of enforceability and​
​clarity. Discuss these two frameworks in detail, explaining their respective forms and​
​purposes. In your answer on Codification, you must clearly distinguish it from​
​'Progressive Development' and cite the foundational multilateral treaties drafted under​
​the auspices of the International Law Commission (ILC).​

​Answer to Question 2​
​The frameworks of sanctions and codification provide a practical response to the charge that​
​24​
​international law is a 'weak law' by lending structure and systematic coherence​ ​.​

​A. Sanctions in the International Legal System​

​A​​sanction​​is a penalty imposed to ensure obedience​​to a rule of law or to restore international​
​25​
​peace and security, serving to punish violations and change the target state's behavior​ ​.​

​1.​ ​Individual Sanctions (Self-Help):​

​○​ ​Historically the primary method of enforcement, this involves states applying​
​26​
​sanctions unilaterally​ ​.​
 ​○​ T
​ his right is now heavily constrained by the​​UN Charter​​.​​Article 2(4)​​specifically​
​prohibits the use of armed force against the territorial integrity or political​
​27​
​independence of another state, severely limiting military self-help​ ​.​
​2.​ ​Collective Sanctions by International Organizations:​
​28​
​○​ ​This is the more significant form in the modern era​ ​.​
​○​ U
​ N Security Council (Chapter VII):​​The Security Council​​has the authority​
​under​​Chapter VII of the UN Charter​​to take necessary​​actions—including​
​economic, financial, political, and military measures—to maintain or restore​
​international peace and security upon identifying a threat to or breach of peace,​
​29​
​or an act of aggression​ ​.​
​30​
​○​ ​ICJ Judgments (Article 94):​​Decisions of the ICJ are​​binding on the parties​ ​.​
​ s stipulated in​​Article 94 of the UN Charter​​, if​​a party fails to comply with an​
A
​ICJ judgment, the other party may have recourse to the Security Council, which​
​31​
​can take measures to ensure the decision is implemented​ ​.​

​B. Codification and Progressive Development of International Law​

​These mechanisms address the criticism that international law is vague and​
​32323232​
​uncertain​ ​. The principal body tasked with​​this work is the​​International Law​
​Commission (ILC)​​, established under​​Article 13(1)​​of the UN Charter​​by the General​
​33​
​Assembly​ ​.​

​Concept​ ​Definition/Nature​ ​Purpose​

​Codification​ ​ he "more precise formulation and​

T ​ ​​consolidating​
A
​systematization of rules of international​ ​exercise​​aimed at​
​law on subjects that have already been​ ​reducing uncertainty​
​extensively covered by State practice,​ ​and promoting​
​34​ ​systematic​
​precedent and doctrine"​ ​. It is a​
​363636​
​process of​​clarifying and writing down​ ​coherence​ ​.​
​35​
​existing customary law​ ​.​
 ​ rogressive​
P ​ he formulation of​​new legal rules and​
T ​ ​​forward-looking​
A
​Development​ ​principles​​in areas where the law is​ ​process​​aimed at​
​inadequate, incomplete, or​ ​addressing emerging​
​37​ ​global issues and filling​
​non-existent​ ​.​
​38​
​legal vacuums​ ​.​

​C. Key Achievements of the ILC (Foundational Treaties)​

​39​
​The ILC's work has been instrumental in creating a systematic and accessible body of law​ ​.​
​Key achievements include the drafting of foundational multilateral treaties:​
​1.​ ​Vienna Convention on Diplomatic Relations (1961):​​Governs diplomatic​
​40​
​intercourse​ ​.​
​2.​ ​Vienna Convention on the Law of Treaties (1969):​​Sets​​out the fundamental rules for​
​41​
​the creation, interpretation, and termination of treaties​ ​.​
​3.​ R
​ ome Statute of the International Criminal Court (1998):​​Established the first​
​permanent international tribunal to prosecute individuals for the most serious crimes:​
​42​
​genocide, crimes against humanity, and war crimes​ ​.​

​Question 3: The Interface of International and Municipal Law (10 Marks)​

​ laborate on the theoretical frameworks—Dualism and Monism—that explain the​
E
​relationship between Public International Law and Municipal Law. Subsequently,​
​undertake a detailed examination of the Indian state practice in applying international​
​law, focusing specifically on the distinction between the application of Customary​
​International Law and Treaties, and concluding with a discussion of the significance of​
​the​​Vishaka v. State of Rajasthan​​case.​

​Answer to Question 3​
​The interface between international and municipal (domestic) law determines how international​
​43​
​obligations become enforceable rights and duties within a state​ ​.​

​A. Theoretical Frameworks​

​44​
​The two principal theories are dualism and monism​ ​:​

​1.​ ​Dualism:​
 ​○​ ​Concept:​​Posits that international law and municipal law are two​​distinct and​
​45​
​separate legal systems​ ​.​
​○​ S
​ phere and Source:​​They operate in different spheres,​​regulating different​
​subjects (international law governs states, municipal law governs individuals),​
​and arise from different sources (collective will of states vs. will of a single​
​46​
​state)​ ​.​
​47​
​○​ ​Applicability:​​The domestic system is superior​ ​.​​International rules are​​not​
​directly applicable​​; they must be​​expressly transformed​​or adopted​​into​
​48​
​domestic law through an act of the national legislature​ ​.​
​2.​ ​Monism:​
​○​ ​Concept:​​Views international law and municipal law​​as parts of a​​single,​
​49​
​universal legal order​ ​.​
​○​ ​Applicability:​​International law is​​directly applicable​​within the domestic​
​50​
​sphere without any need for transformation​ ​. In cases​​of conflict, international​
​51​
​law often prevails (especially in variants asserting its supremacy)​ ​.​
​3.​ D
​ elegation Theory:​​A critique of strict dualism, it​​suggests that international law's​
​constitutional rules​​"delegate"​​to each state the​​authority to determine how treaties​
​52​
​become applicable within its domestic system, allowing for flexible state practice​ ​.​

​B. Indian Practice: A Detailed Examination​

​India's practice is complex, having evolved through judicial interpretation and drawing on a​
​53​
​pragmatic blend of dualist and monist principles​ ​.​

​1.​ ​Customary International Law (CIL):​

​54​
​○​ ​The Indian judiciary largely adopts the​​doctrine of​​incorporation​​for CIL​ ​.​
​○​ P
​ rinciple of Harmonious Interpretation:​​Indian courts​​strive to interpret​
​domestic law in a way that avoids conflict with international law, supported by​
​Article 51​​of the Constitution, which directs the​​state to "foster respect for​
​55​
​international law"​ ​.​
​○​ ​Case Law:​
​■​ ​People's Union of Civil Liberties v. Union of India (PUCL)​​: The​
​Supreme Court articulated the principle that customary international law​
​that is not contrary to a domestic statute shall be deemed to be​
 ​incorporated into domestic law​​and is enforceable by Indian​
​56565656​
​courts​ ​.​
​■​ A
​ DM Jabalpur v. Shivakant Shukla​​: The Court noted​​the principle that​
​if a municipal law is open to more than one interpretation, the court​
​57​
​should adopt the one that​​avoids conflict with international​​law​ ​.​
​■​ J
​ olly George Varghese v. Bank of Cochin​​: The Court​​interpreted​
​Section 51 of the Code of Civil Procedure​​(imprisonment​​for debt)​
​consistent with India's obligations under the​​International​​Covenant on​
​58​
​Civil and Political Rights​ ​.​
​2.​ ​Application of Treaties:​
​59​
​○​ ​Indian practice leans heavily towards​​dualism​ ​.​
​○​ ​Transformation Requirement:​​Treaties are​​not self-executing​​and require​
​60​
​parliamentary legislation to become part of domestic law​ ​.​
​○​ ​Case Law:​
​■​ ​Gramophone Company of India Ltd. v. Birendra Bahadur​​:​​The​
​Supreme Court affirmed that while courts should endeavor to interpret​
​statutes consistently with international obligations, in a case of​​direct​
​conflict​​, courts are​​bound to apply the domestic statute​​over the​
​61616161​
​international treaty​ ​.​
​3.​ ​Judicial Use of International Conventions (The​​Vishaka​​Precedent):​
​○​ ​Vishaka v. State of Rajasthan​​: This is a landmark​​example of judicial​
​62​
​activism​ ​.​
​○​ H
​ olding:​​In the absence of specific domestic legislation​​on​​sexual harassment​
​in the workplace​​, the Supreme Court​​drew upon international​​conventions​​,​
​specifically the​​Convention on the Elimination of​​All Forms of​
​Discrimination against Women (CEDAW)​​, to​​formulate​​legally binding​
​63​
​guidelines​ ​.​
​○​ S
​ ignificance:​​This case demonstrates the judiciary's​​willingness to use​
​international law as a​​direct source for shaping and​​informing domestic​
​64646464​
​legal norms​​and to fill a​​legislative vacuum​ ​.​

​Question 4: Subjects of International Law and Statehood Criteria (10 Marks)​

​ he traditional view of states as the sole subjects of international law has significantly​
T
​evolved. In this context, discuss the concept of 'international legal personality' and the​
​ ssential criteria for statehood as set out in Article 1 of the Montevideo Convention​
e
​(1933). Furthermore, analyze how the International Court of Justice, in the seminal​
​Reparation for Injuries Suffered in the Service of the United Nations​​case, established​
​that International Organizations also possess this personality, and briefly discuss the​
​modern status of the individual as a subject of international law.​

​Answer to Question 4​
​International legal personality​​is the capacity of​​an entity to possess rights and obligations​
​65​
​under international law​ ​. While historically states​​were considered the sole subjects, the​
​modern system recognizes that other entities also play a crucial role and possess this​
​66​
​personality​ ​.​

​A. The State as the Primary Subject: Montevideo Criteria​

​67​
​States remain the primary and most powerful subjects​ ​.​​The essential criteria for statehood​
​68​
​are authoritatively set out in​​Article 1 of the Montevideo​​Convention (1933)​ ​:​

​69​
​1.​ ​A Permanent Population:​​A stable community of people​​is required​ ​. There is no​
​70​
​minimum requirement for size​ ​.​
​2.​ ​A Defined Territory:​​The state must exercise effective​​control over a defined​
​71​
​territory​ ​. The existence of border disputes does​​not negate statehood, provided a​
​72​
​core territory is definitively controlled​ ​.​
​3.​ ​A Government:​​There must be an effective government​​exercising independent​
​73​
​authority over the population and territory​ ​. This​​is crucial for enforcing international​
​74​
​obligations domestically​ ​.​
​4.​ C
​ apacity to Enter into Relations with Other States:​​This criterion is intrinsically linked​
​to​​independence​​, signifying that the entity is not​​legally subject to the authority of any​
​75​
​other state in conducting foreign relations​ ​.​

​ nderpinning these qualifications is​​sovereignty​​,​​comprising:​​internal sovereignty​​(supreme​

U
​power to regulate all activities within its territory) and​​external sovereignty​​(complete​
​76​
​independence from external control and freedom to formulate foreign policy)​ ​.​

​B. International Organizations and the UN Reparations Case​

​Public International Organizations (IOs) are now recognized as subjects of international law,​
​77​
​possessing independent rights, powers, and duties​ ​.​

​●​ R
​ eparation for Injuries Suffered in the Service of the United Nations (1949​
​Advisory Opinion)​​: This seminal case decisively established​​the legal personality of​
​78​
​IOs​ ​.​
​●​ F
​ acts and Question:​​Following the assassination of​​a UN mediator, the ICJ was asked​
​if the UN had the capacity to bring an international claim against the responsible​
​79797979​
​government for damages caused to the organization and the victim​ ​.​
​●​ ​ICJ's Central Finding and Holding (Objective Legal Personality):​
​○​ ​The ICJ held that the​​UN possesses objective international​​legal personality​
​and is a​​subject of international law​​capable of possessing​​international rights​
​80808080​
​and duties​ ​.​
​○​ ​The capacity to maintain its rights by bringing an international claim (against a​
​81818181​
​member or non-member state) was affirmed​ ​.​
​○​ D
​ octrine of Necessary Implication:​​The Court reasoned​​that while the UN​
​Charter does not explicitly confer legal personality, this status is a​​"necessary​
​implication"​​arising from the functions and purposes​​laid out in the Charter.​
​This capacity is essential for the UN to effectively carry out its mission and​
​ensure the independence and protection of its agents on the international​
​82828282​
​stage​ ​.​

​C. The Evolving Status of the Individual​

​83​
​The traditional view that individuals are merely objects of international law is now obsolete​ ​.​
​84​
​Modern PIL directly regulates individual activities, conferring rights and imposing duties​ ​.​

​●​ C
​ onferral of Rights:​​Treaties like the International​​Covenant on Human Rights bestow​
​a wide range of rights directly upon individuals, which they can sometimes seek to​
​85​
​vindicate before international bodies​ ​.​
​●​ I​mposition of Duties:​​International criminal law imposes​​direct duties​​on individuals,​
​establishing​​individual criminal responsibility​​for​​the most serious crimes (e.g.,​
​genocide, war crimes) via instruments like the​​Genocide​​Convention (1948)​​and the​
​Rome Statute of the International Criminal Court (1998)​​,​​bypassing the traditional​
​86​
​shield of state sovereignty​ ​.​
​ uestion 5: Recognition and State Responsibility in Landmark Cases (10​
Q
​Marks)​
​ . Recognition in international law involves two competing theories regarding its legal​
A
​effect: the Declaratory Theory and the Constitutive Theory. Contrast these two theories.​
​(5 Marks)​

​ . Discuss the two crucial principles of international law established by the International​
B
​Court of Justice (ICJ) in the​​Corfu Channel Case​​(United​​Kingdom v. Albania), ensuring​
​you detail the Court’s reasoning regarding State Responsibility for acts on its territory. (5​
​Marks)​

​Answer to Question 5​
​A. Competing Theories of Recognition​
​Recognition is the formal process by which an existing state acknowledges a new political​
​87​
​entity's statehood or a new government's effective ruling power​ ​.​

​Feature​ ​Declaratory Theory​ ​Constitutive Theory​

​Core Posit​ ​Statehood is a​​matter of​ ​ ecognition is what​​"constitutes"​

R
​88​ ​or creates​​a state in the eyes of​
​fact​ ​.​
​89​
​international law​ ​.​

​ ffect of​
E ​ ecognition is merely a​
R ​Recognition is a​​necessary legal​
​Recognition​ ​formal, political act​​that​ ​91​
​requirement​ ​.​
​"declares" or acknowledges a​
​90​
​pre-existing legal reality​ ​.​

​ egal​
L ​ n entity becomes a state​
A ​ n entity does not become a​
A
​Existence​ ​once it fulfills the objective​ ​subject of international law until it​
​criteria (Montevideo​ ​has been​​recognized by existing​
​92​ ​94​
​Convention)​ ​. Its existence is​ ​states​ ​. Statehood is dependent​
 ​not dependent on the​ ​on the acceptance of the​
​93​ ​95​
​consent​​of other states​ ​.​ ​international community​ ​.​

​Related Case​ ​ rinciples reinforced in the​

P ​-​
​Tinoco Concessions​
​96969696​
​case​ ​.​

​B. The​​Corfu Channel Case​​(United Kingdom v. Albania)​

​This case, the first judgment of the ICJ, addressed Albania's responsibility for mines in its​
​979797979797979797​
​territorial waters that damaged British warships and caused loss of life​ ​.​
​The Court established two crucial principles:​
​1.​ ​State Responsibility for Territory (Obligation not to knowingly allow harmful acts):​
​○​ ​Principle:​​Every state has an​​obligation not to knowingly​​allow its territory​
​98989898​
​to be used for acts contrary to the rights of other states​ ​.​
​○​ ​Holding and Reasoning:​​While there was no direct proof​​that Albania itself laid​
​99999999​
​the mines (Albania had no navy)​ ​, the Court​​concluded that the​
​minefield​​could not have been laid without the knowledge​​of the Albanian​
​100100100100​
​government​ ​. Given that the mines were​​in Albanian waters, the​
​Court found Albania responsible for the damage for its failure to inform shipping​
​101101101101​
​of the danger​ ​. The Court validated the​​use of​​circumstantial​
​102​
​evidence​​to establish a state's knowledge​ ​.​
​2.​ ​Right of Innocent Passage:​
​○​ ​Principle:​​The Court affirmed the right of​​innocent​​passage for warships​
​through international straits used for international navigation between two parts​
​103103103103​
​of the high seas​ ​.​
​○​ ​Holding:​​The UK did not violate Albanian sovereignty​​by sending its warships​
​104104104104​
​through the channel without prior authorization​ ​.​
​○​ C
​ ounter-Principle (No Intervention):​​The Court also​​rejected the UK's​
​subsequent mine-sweeping operation as an infringement on Albanian​
​sovereignty, rejecting any right of unilateral military intervention on another​
​105105105105​
​state's territory​ ​.​