Public International Law — Comprehensive Study Notes

PUBLIC INTERNATIONAL
LAW
Comprehensive Study Notes for Viva
Covering all class sessions — January to April 2026

UNIT I: NATURE, DEFINITION AND

FOUNDATIONS OF INTERNATIONAL LAW
1.1 What Is Public International Law?
Public International Law (PIL) is a rule-based order that lays down the rules
governing the conduct between states in the international sphere. Unlike Private
International Law — which governs individuals across different legal systems — PIL
is primarily concerned with the conduct of states in relation to each other, and
increasingly with international organisations and non-state actors as well.
The primary subject matter of PIL is the regulation of conduct between states.
However, PIL also guides the conduct between states and non-state actors, and it
operates alongside domestic legal systems rather than in complete isolation from
them.

1.2 Distinction Between Municipal Law and International

Law
Sources: Municipal law (also called domestic or internal law) draws its sources
from legislation, judicial decisions, encyclopedias and other flexible sources.
International Law, by contrast, is very rigid with respect to sources — it is confined
to treaties, customs, general principles and what is enumerated in Article 38 of
the ICJ Statute. Any argument in PIL cannot go beyond the ambit of these
authorised sources.
Subject: Municipal law deals primarily with individuals or non-state actors,
whereas PIL deals primarily with the state. States have a central and dominant role
in PIL that they do not occupy in domestic legal systems.
Enforcement: Enforcement is considerably weaker in PIL compared to domestic
law. The primary enforcement body in PIL is the United Nations Security Council
(UNSC). As Christopher Greenwood argues in his video "Can International Law
Change the World?", the tendency is to highlight failures and declare international
law "dead," but there are in fact many success stories. The distinction between weak
and strong enforcement is a one-sided perspective that focuses only on international
law's failures.
Rule of Law vs Rule of Power: Domestic law is often described as the "rule of
law," whereas International Law is sometimes characterised as the "rule of power."
This tension is central to the study of PIL.

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1.3 Sources of International Law — Article 38 of the ICJ

Statute
The sources of International Law are set out in Article 38 of the ICJ Statute. These
are: (1) Treaties, (2) Customary International Law (CIL), (3) General Principles of
Law, and (4) Judicial decisions and teachings of scholars as subsidiary means. There
is no formal internal hierarchy between these four primary sources, although within
each source there may be debates about hierarchy.
It is important to note that all sources enumerated in Article 38 operate through
consent at different levels. In treaties, consent is expressed through signature,
ratification, or accession. In CIL, it operates through state practice and opinio juris.
General Principles embody a form of indirect consent given domestically. The
International Law Commission (ILC) — which functions like a parliament at the
international level — is not itself listed in Article 38 because its functioning is not
directly based on consent.

1.4 The Five Salient Documents of PIL

Five key documents are essential reading for any student of PIL: (1) the UN Charter,
(2) the ILC Statute, (3) the ICJ Statute and Rules of Court, (4) the Draft Articles on
State Responsibilities (ARSIWA), and (5) the Vienna Convention on the Law of
Treaties (VCLT). All original treaties can be accessed through the UN Audiovisual
Library.

1.5 Government, Command and Enforcement in IL

The three ideas that generate the most debate in International Law are government,
command, and enforcement. Unlike domestic law, PIL operates without an
overarching sovereign or centralised government. There is no certainty in how
international law is enforced. International law replaces these features with
consent, making consent the fundamental pillar of the system.
Two exceptions significantly disturb the consent requirement. First, jus cogens or
peremptory norms are norms so fundamental that states cannot derogate from them
— codified in Article 53 of the VCLT. For example, two states cannot enter into a
treaty to carry out genocide. Second, UNSC resolutions can bind states without
their consent — as illustrated by the UNSC resolution against Libya, which was not
consented to by Libya but nonetheless bound it.
Key cases: SS Lotus Case (PCIJ) — States can act freely within their
sovereign domain; if IL is silent on a matter, the act is permissible (the
"Lotus Principle"). UN Charter Article 2, Para 7 upholds this principle.
Hobbes argued that no one can truly create international law because it is a highly
fragmented system. HLA Hart contended that PIL only has primary rules of conduct
but lacks secondary rules of adjudication and enforcement. Consent dominates
international law, and states respect it primarily because it is in their interest to be
part of the international legal system rather than withdraw from it.

1.6 Why Do States Respect International Law?

Predictability: International law provides a common platform with ethics, morality,
and a standardised structure. Once a precedent is created that certain
repercussions follow a particular act, states become more cautious about similar
conduct.

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International Cooperation: Areas such as trade and civil aviation require

international cooperation. IL facilitates this cooperation among states.
Reciprocity: The principle of reciprocity balances sovereign interests and places a
check on violations. While IL suffers from structural inconsistencies, this element of
reciprocity gives assurance to states that violations can be restricted. This is why
every rule of IL has an exception — the use of force has the exception of self-
defence. An author in the 1990s proclaimed that Article 51 (self-defence) has
become the rule and Article 2(4) (prohibition of force) the exception.
National Interests: States also pick and choose international law depending on
their national interests.

1.7 Contemporary Issues in International Law

Multiplication of Dispute Resolution Bodies: The UN Charter establishes six
organs. The question of which organ's decision prevails creates confusion — for
example, in Venezuela, both the UNGA (Article 11) and the UNSC (Article 24) have
power. Climate change disputes have been decided by both Human Rights Courts
and the ICJ. This fragmentation is a structural loophole that makes it difficult for IL
to change the world.
Compliance vs. Enforcement: There is a crucial distinction: if states comply with
IL, the question of enforcement does not arise. The very problem IL faces today is
compliance.
Regionalisation of International Law: Indian, Chinese, Asian, and American
approaches to IL have developed, each featuring prominently in their respective
regions. This can be treated as an alternative approach to IL rather than merely a
perspective on it.
Politicisation: International law has today become more politicised and not
humanised due to the presence of extraneous political components (refer:
Humanisation of International Law).

UNIT II: APPROACHES TO INTERNATIONAL

LAW — TWAIL, HISTORY, AND POLITICS
2.1 Approaches to Studying International Law
MILS (Mainstream International Law Scholars): The positivist, state-centric
tradition. One must understand mainstream IL in order to critique it.
Critical Approaches (TWAIL, CAIL): These critique IL for being western-centric.
TWAIL (Third World Approaches to International Law) encompasses caste critiques,
feminist critiques, and Marxist critiques, all challenging the dominant western
narrative. (Read: Makua Mutua, "What is TWAIL?")

2.2 The History of International Law

There are two broad approaches to the history of PIL: the Traditional (Western)
narrative and the Third World challenge to that narrative.

Ancient Period

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Treaties were not originally signed by nation-states but by city-states and

civilisations. The Egyptian-Nubian Boundary Treaty (1850 BCE) demarcated the
boundary at the First Cataract of the Nile. Treaties were engraved in stone.
Agreements were also made between Greek cities and Persia.

The Treaty of Hudaybiyah

This treaty was signed between the Prophet Mohammed representing the Muslim
community and the Qureshi Tribe, allowing the people of Medina to perform certain
prayers at Mecca. It contained elements found in the VCLT today — cession of
hostility, return of parties, and obligations of good faith. This treaty predates the
Treaty of Westphalia and demonstrates that Arab states played a role in the
development of IL. The mainstream erasure of this treaty from IL history is an
example of the erasure of non-Western contributions.

The Middle Ages and the Treaty of Westphalia (1648)

The Middle Ages were not fertile for the development of nation-states. All laws were
controlled by monarchs, and there was no distinction between state law and
transnational law. Two power centres competed — the Holy Roman Empire and the
Pope. The long-drawn conflict between Protestant and Catholic sects led to the
Treaty of Westphalia, which: (1) created the idea of the nation-state, (2) conferred
freedom of religion, (3) introduced the diplomatic profession, (4) established
freedom of trade, and (5) replaced war with negotiation and diplomacy. The Lotus
case decision is a manifestation of the Westphalian principle.

Natural Law to Positive Law

The first imprint of IL appeared in natural law theory. Jean Bodin argued a
sovereign is technically answerable only to God or Nature. Hugo Grotius explored
when a state may legitimately wage war, giving rise to modern ideas of use of force
and self-defence. Natural Law could never support colonialism, so the Europeans
developed Positive Law as a tool to justify colonialism. The sovereign in natural law
is God or nature; in positive law it is the state.

19th Century — Balance of Power and Congress of Vienna

The 19th century was defined by the concept of Balance of Power — no European
state could endanger the territory of another. This was briefly disrupted when
Napoleon took over France. The Congress of Vienna (1815) restored the old
European order. The Crimean War (1853) saw Russia defeated by France and other
countries, illustrating that no country could achieve outright dominance.
The Congress of Berlin divided Africa into 54 parts allotted to European states, with
no African representative. This is a story absent from the mainstream history of PIL.
IL does not apply retrospectively — colonial harms cannot be remedied unless a law
then in force prohibited them. Terra Nullis was the core principle used to justify
colonialism.

The League of Nations

The League of Nations was the first attempt to consolidate principles of IL. The US
was not part of the League because of the conflict between Article 10 of its
Covenant and the Monroe Doctrine. Articles 12 and 15 of the Covenant should be
compared with Article 51 of the UN Charter. Article 12 provided for arbitration, and
if the Council could not decide within three months, states had the right to go to
war. When Japan intervened in Manchuria, the League condemned Japan but the
process took two years. The League failed primarily because its Covenant was weak
in protecting states from aggression.

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2.3 TWAIL — Third World Approaches to International Law

TWAIL I: Critiqued IL for its colonial nature, focusing on decolonisation, self-
determination, and economic/social development.
TWAIL II: Focused on internal transformation in Third World countries,
challenging elites who were given powers by earlier colonial powers.

Checklist of TWAIL
1. Notion of Development: During colonialism, the distinction was between
civilised and uncivilised. With institutions like the League of Nations, it became
developed vs. underdeveloped.
2. Counter-Hegemony: TWAIL opposes the hegemonic forces that dominate
international law.
3. Universality: Professor Makua Mutua argues against universal creeds of IL.
Ideas such as democracy often subjugate and erase Third World approaches.
4. Coalition Movement: TWAIL is a coalitionary movement. Alongside Critical
Race Theory and other movements, it opposes European domination.
TWAIL emerged from the Bandung Conference, spearheaded by Egyptian leader
Gamal Nasser. Its key ideas include the right to self-determination, decolonisation,
promotion of cultural and economic cooperation, and an end to racial
discrimination.
TWAIL is both reactive (to injustices and hierarchies) and proactive (reforming
internal structures). It promotes intersectionality and focuses on lived experiences
— the poverty, discrimination, and exploitation that mainstream IL ignores.
Tehran Hostage Case: Iran questioned why the ICJ did not look into
large-scale US espionage. The ICJ can only look at the legal issue
presented before it, not surrounding disputes. Third World scholars
raised TWAIL as being anti-hierarchical in response.
UNGA Resolutions 1514 (XV) and 2625: These played a pivotal role in ensuring
the right to self-determination was realised for Third World countries. However,
UNGA resolutions cannot be directly regarded as CIL because state practices must
reflect practices of states, not IOs. Whether a resolution is adopted unanimously is
an indicator of whether it constitutes state practice. The Namibia Advisory Opinion
discusses the bindingness of UNSC resolutions.
Persistent Objector: European states argued that resolutions like No. 1514 were
not binding as they were brought without European consent. This is the doctrine of
persistent objector.
Inter-Temporal Law: Law does not operate retrospectively. This is used by
western countries alongside Terra Nullis and the mandate system as counter-
weapons against Third World voices.
Resolution 1803 on permanent sovereignty over natural resources can be used by
TWAIL scholars to argue against interventions like the US attack on Venezuela.
How IL plays into neo-colonialism: (a) Reparations are blocked by inter-temporal
laws. (b) State immunity protects former colonial powers. (c) Sustainable Impact of
CIL relies on practices of so-called "developed states." (d) Universalisation of
Human Rights Law reflects a natural law tradition originally preached by the West.
(e) Sources of IL are exclusionary — soft laws are not given source status, many of
which could be used against Western countries.

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2.4 The Caste Critique of International Law (Srinivas Burra)

TWAIL tries to articulate the concerns of those not represented in IL. However,
certain sections of society, like caste minorities, are excluded from even TWAIL's
ambit. The exclusion of caste from IL means that caste discrimination does not
become a "mainstream" subject of law.
India's position during drafting of the UDHR was to proactively argue for the
inclusion of caste. However, by the time of the Durban Conference, India actively
argued against NGOs seeking recognition of caste, claiming caste is not the same as
race and cannot be traced to descent. The West rejected this argument wanting the
UDHR to be a universal document.
CERD General Recommendation 29 (2002): Brought caste within the
ambit of international law. The binding value of General
Recommendations: the ICJ in the Ahmad Diallo Case held that General
Recommendations and Comments are binding (with respect to ICCPR).

2.5 Russia-Ukraine Conflict and Exceptionalism (Srinivas

Burra)
Exceptionalism: Putin argued the intervention was under Article 51 to prevent
genocide, relying on a broad interpretation of Article 1 of the Genocide Convention.
Exceptionalism is used to impose the agenda of Western countries. Vitoria argued
colonialism was an exception to combat the "uncivilised nature" of these countries.
Unlawful Enemy Combatant (AUMF): Introduced by Bush to ensure Geneva
Conventions do not apply to prisoners. This is one technique used to ensure that
prisoners in notorious detention facilities are tortured.
Hamdan v. Rumsfeld: The court held that Common Article 3 of the
Geneva Conventions applies.
Nihilistic International Law (Richard Falk): Geopolitical actors must be
replaced, not international law itself.

2.6 IL and Politics

Marty argues that politics is like a beast, and what law does is regulate the beast
through certain rules. IL lawyers have not engaged with international politics,
having secluded themselves from it. He uses a "rabbit analogy" — if you look into
something, there are multiple dimensions. IL can be read from the dimension of
politics.
Law is used as a mask to justify political decisions. Putin made the argument that he
intervened in Ukraine to prevent genocide — using law as a shield for political acts.
Article 65 of the ICJ Statute: Restricted to legal matters. The League of Nations
Covenant Article 14 used the broader term "any dispute or question." This
narrowing from the League to the ICJ reflects international law's hesitation to
engage with political questions.

UNIT III: THE INTERNATIONAL LAW

COMMISSION (ILC)

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3.1 Role and Function of the ILC

The UN, as per Article 13 of the UN Charter, has delegated the authority of
lawmaking and codification to the International Law Commission. The ILC is
regulated by the ILC Statute and consists of working groups. The UNGA has a legal
committee with a drafting sub-committee.
Codification vs. Progressive Development: Codification involves recording
existing laws — mainly state practices. Progressive Development involves emerging
state practices which need to be systematised. ARSIWA (Draft Articles on State
Responsibility) is a classic example of progressive development.
Why ILC is not in Article 38: ILC's functioning is not based on consent. All other
sources in Article 38 are based on consent, arranged in decreasing order of consent.

3.2 Procedure
As per Article 16 of the ILC Statute, the UNGA refers a matter to the Commission,
which appoints a Special Rapporteur to draw a plan of action. The Rapporteur's
background reflects their country of origin and state practices — an interesting
point of critique. Once the report is finalised, it is shared with the UNGA for a vote.
The draft becomes a convention only through the procedure in Article 23, requiring
a 2/3 majority in the General Assembly.
The ILC can only produce draft articles; they can only be finalised by the General
Assembly. For example, ARSIWA remains a draft because the countries have not yet
received approval.
Some conventions will not emerge directly from ILC reports — the Rome Statute is
one example.

3.3 Key ILC Contributions

The ILC's most prominent works include the VCLT and the several conventions on
the Laws of the Sea that culminated in UNCLOS. Without ILC reports, many areas
of IL would remain vague and unexplained.
North Sea Continental Shelf: The ILC gives a response to what
constitutes state practice in its report.
Key ILC documents for viva: Draft Articles on Subsequent Agreement and Practice
(2018); ILC Report on Identification of CIL; ILC Guide to Reservations (2011); ILC Report
on Jus Cogens (2022); Draft Guidelines on Provisional Application of Treaties (2021).

UNIT IV: THE UNITED NATIONS CHARTER

4.1 Legal Nature of the UN Charter
The UN Charter entered into force in 1945. Its legal nature is debated across two
characterisations:
Contract: Countries enter into the Charter through processes of signing,
ratification, and entry into force.
Constitution: The aims and principles of the UN are normative in nature; Article
103 gives the Charter supremacy over other international obligations.

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Article 108: Amendment requires approval of P5 countries. Since this is practically

impossible, the Charter is instead interpreted through implied powers and
subsequent practice.

4.2 Subsequent Practice and Implied Powers

Subsequent Practice — Article 31, Para 2 of VCLT: UNGA Resolution 2625 is an
example of subsequent practice that clarifies practices like self-determination. UN
resolutions are subsequent practices of the UN, particularly given the near-
impossibility of amending the Charter.
Doctrine of Implied Powers: When something is implied from the Charter, it must
be in consonance with the functions and objectives of the UN Charter. The
Peacekeeping Force is not mentioned in the Charter but is implied from Chapters VI
and VII. The doctrine cannot be used to make any interpretation that would be ultra
vires the Charter.
Southern Rhodesia (Zimbabwe): UN passed a resolution condemning
violations of the right to self-determination. The question arose whether
the ICJ can review UNSC decisions. One side is reflected in Erica Wet's
"Threat to Peace" article; minority judgments have upheld ICJ's power of
review.
Kadi Judgment (European Court of Justice): Post-9/11 UNSC resolutions
controlled property of individuals, raising human rights concerns. Article
103 protects the UN Charter. The Board of Peace is a document
potentially violative of Article 103.

4.3 UN Membership
Only one country has ever withdrawn from the UN: Indonesia — for less than a year
before rejoining. UN membership grew from 51 to 193 through a "package deal" —
UNGA and UNSC agreed not to block the entry of any country, ending use of the
veto power to block admissions. The second reason was the end of colonialism and
the resulting north-south divide.
Admissions Case (ICJ Advisory Opinion): The World Court said that the
criteria in Article 4 are exhaustive and no additional criteria can be
added. Palestine's admission was blocked because the Admissions
Committee found it was not a "peace-loving country" due to the presence
of Hamas.

4.4 UNSC Veto Power — Article 27

Chapter VI, VII, and "threat to peace" matters are substantive questions that can be
subjected to veto power. The procedural questions do not require the use of veto
power. However, there is no clear demarcation between substantive and procedural
questions.
Uniting for Peace Resolution (Resolution 377(V)): This is a procedural
question, which is why it was not subject to veto. It was established as a mechanism
to bypass UNSC paralysis. The UNGA can recommend on "threat to peace"
measures, but a resolution under Chapter VII can only be made by the UNSC.
Checking the Veto: (1) Article 24, Para 2 — veto must be exercised in accordance
with the purposes and principles of the UN; (2) Peremptory norms/Jus cogens can
be used to check UNSC powers; (3) States have an obligation not to exercise veto
power in cases of gross harm.

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Libya (UNSC Resolutions 1970 and 1973): NATO's intervention to protect

people was authorised. The resolution used "to take all necessary
measures," providing broad interpretive ambit. However, this was
interpreted by the US to facilitate a regime change, which the resolution
never provided for — an example of potential abuse of process.
R2P (Responsibility to Protect): The international community repackaged the
"threat to peace" programme as R2P. First Pillar: the state has the responsibility to
protect its people. Second Pillar: if the state fails, the international community steps
in. R2P requires a Security Council resolution. It is a façade of the "Threat to Peace"
with a humanitarian cover and represents a de facto amendment of the UN Charter
through dynamic interpretation.

4.5 Regionalisation and Regional Organisations

Universalisation and Regionalism were aimed to ensure that all powers are not
centred on UN bodies, with some delegated to regional organisations. Articles 52,
53, and 54 of the UN Charter provide a check on powers.
States can impose countermeasures including sanctions, and this power extends to
regional organisations. However, the power to direct use of force lies exclusively
with the UNSC. Regional organisations cannot use force without UNSC
authorisation. Article 52, Para 3 shows clear hierarchy: UNSC has higher powers
and can seize any matter taken up by regional organisations.

UNIT V: THE INTERNATIONAL COURT OF

JUSTICE (ICJ)
5.1 Jurisdiction and Types of Cases
The ICJ, as per Article 92, can only decide on legal questions. It can decide on
contentious cases (cases between two states) and advisory opinions.
Article 34: Only states can be parties before the ICJ. An international organisation
can supply evidence but cannot be a party to a matter. ICJ decides cases based
purely on international law (Article 38).
Article 59: The decision of the ICJ is binding only between the parties and not
between different parties. However, the reasoning of the court creates de facto
precedent.
Criteria of Res Judicata: Same party, same subject matter, and same cause of
action.
Overlap of Functions: A country that has proceedings pending before the UNSC
can still bring them before the ICJ. This also holds when the ICJ is rendering
provisional measures.

5.2 Jurisdictional Bases

Article 36(1) — Treaty-Based Jurisdiction: Any party to a treaty can approach
the ICJ if the treaty has a dispute settlement clause. Before approaching the ICJ
under the CERD Convention (Article 22), a state must exhaust the remedy of
negotiation.

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Article 36(2) — Optional Clause / Compulsory Jurisdiction: A country can

submit a declaration before the World Court without any treaty, submitting to
voluntary compulsory jurisdiction. India's declaration specifies excluded matters:
domestic jurisdiction, disputes with Commonwealth Nations, and (after 2019)
matters of national security.
Erga Omnes Partes: The court favours erga omnes partes as this is covered under
Article 36(1). Gambia was not directly injured by the genocide in Myanmar but still
took Myanmar to the ICJ. The important point is that both countries must be parties
to the Genocide Convention.
Article 36(6) — Inherent Jurisdiction: The ICJ has the ultimate power to decide
its own jurisdiction.

5.3 Stages of ICJ Proceedings

1. Provisional/Interim Measures: Considering the gravity of a situation (like a
human rights breach or death penalty), the ICJ can give a preliminary judgment.
Jurisdiction, harm caused, etc., can be taken up here. Provisional measures
violations akin to a merits judgment. In the Kulbhooshan Jadav Case, cessation was
awarded at this stage.
2. Preliminary Objections: The respondent state can object to the contentions
placed before the court, including jurisdiction issues under Article 36(1) and (2). In
Ukraine-Russia, the court eliminated aggression as a ground; merits will only look at
genocide. The doctrine of clean hands may be clubbed with merits.
3. Merits: Leads to the judgment. From Article 31 of ARSIWA onwards, the
remedies which will be given by the court are laid down. ICJ delivers a civil
judgment carrying civil remedies like reparation.
4. Reparation/Compensation Phase: The state can request compensation
provided there is no prior agreement. In the Armed Activities Case, the
compensation phase emerged much after the judgment phase.

5.4 Third Party Intervention

Article 62: If a state is not party to a dispute but is covered by the border/interests,
the state can make a specific, individualised intervention. This is a high threshold —
this is one of the modes by which states can bypass consent.
Article 63: States not parties to a dispute but parties to the relevant convention can
intervene when there is a question of interpretation. The World Court recently
refused a US application to intervene in an Article 9 Genocide Convention dispute
(Sudan-UAE dispute).

5.5 Advisory Jurisdiction

Advisory opinions are not binding and Article 59 of the ICJ Statute does not apply.
However, when an advisory opinion is given, the UNGA typically makes a resolution
based on it, pressuring states to make changes.
Wall Advisory Opinion — Paragraph 46: The court specifically mentions
the consent of Israel and its absence. However, in advisory opinions,
consent is often bypassed.
Chagos Advisory Opinion: Prompted the UK to change its position. Once
an advisory opinion is given, the UNGA makes a resolution based on it,
which pushes states to make changes.

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Judicial Propriety: When a matter is being argued before 3 or 4 forums

simultaneously, the state might argue that judicial propriety is affected.

5.6 Key ICJ Cases

Lockerbie Case: Libya was alleged to have bombed flights. UK and US
requested extradition, Libya refused based on Article 14 of the Montreal
Convention (which gives states the option to prosecute or extradite).
UNSC then passed Resolution 748 under Chapter VII. The court ruled
that per Article 103, the UNSC resolution prevails over the Montreal
Convention. The Western judges were unhappy — the ICJ should have
interpreted the convention first, not simply applied a supremacy clause.
Kosovo Advisory Opinion: A group in Kosovo unilaterally declared
independence. ICJ ruled that as long as IL does not prohibit a declaration
of independence, there is nothing invalid about it. ICJ here used narrow
interpretation, whereas in Lockerbie it used broad interpretation —
showing no uniformity in ICJ's interpretation of UNSC resolutions.
Marshall Islands v. India: The ICJ created an "awareness" requirement
for dispute. Unlike Article 36(1), there is no requirement for prior
negotiations in 36(2). The ICJ developed the "objective awareness test" —
the other state must be aware of the dispute. India argued that
statements by the Marshall Islands were too generic. This departed from
existing jurisprudence. The dispute must be decided on the day the
application is filed.
Nuclear Test Case (Australia v. France): This is the first case before the
ICJ defining good faith and setting a yardstick for interpreting unilateral
declarations. Paragraph 60 provides an option for the state to approach
the court in case of any further violations. Became basis for Chile v.
Bolivia.
Tehran Hostage Case — Paragraph 44: The World Court held it is
competent to decide on a matter even when it is pending before the
UNSC.
Reparations Advisory Opinion: In the 1940s, sovereignty was bestowed
only on states. This case for the first time recognised the international
personality of an IO. Legal personality is functionally provided and
depends on the nature of the IO and the tasks performed. Two layers of
protection: diplomatic protection and functional protection.
Certain Expenses Advisory Opinion: Maintenance of peace and security is
not the exclusive function of the UNSC — Primary is NOT exclusive
responsibility. UNGA can also involve itself in maintenance of peace and
security.
Namibia Advisory Opinion: Clarified how to interpret UNSC resolutions.
The only advisory opinion requested by the UNSC.
Israel-South Africa Case (Provisional Measures): Dissenting Judge Julia
Sebutinde argued that the issue between Palestine and Israel is a
political issue already decided by many treaties — widening the ambit of
the World Court is problematic.

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UNIT VI: TREATIES AND SOURCES OF

INTERNATIONAL LAW
6.1 Treaties as a Source of IL
A treaty is like a contract between two or more states. Treaties are important for
ending wars (peace accords), dispute settlement, territorial acquisition, and the
establishment of IOs. There is no hierarchy between treaties — human rights
treaties are not on a higher pedestal than trade law treaties. VCLT does not make a
distinction between any type of treaty.
Different nomenclature — a treaty may be referred to as protocol, charter, covenant,
pact, minutes of meeting, etc. These are mere differences in title; the only
requirement for proving whether a document is a treaty is intention.
Qatar v. Bahrain: An MoU was used to show intention, and the court
accepted it as a treaty.
VCLT applies only prospectively: (Article 4). But it can apply retrospectively in
case of CIL (link to Article 28 of VCLT). India signed VCLT in 1969, ratified in 1973,
and the treaty came into force in 1980.
Law-making treaties vs. treaty-contracts: The UN Charter is a law-making
treaty.
Non-Legally Binding International Agreements: Per the ILC Second Report,
these can also create binding effects if certain criteria are met — form and
nomenclature, authorities having negotiated, circumstances under which the text
was adopted.

6.2 Consent to Be Bound — Signatures, Ratification,

Accession
Consent to be bound means agreeing to the provisions of the treaty. This can be
done through signature, ratification, accession, approval, etc. (Article 18 covers
interim obligations between signing and ratification).
Article 25 of VCLT — Provisional Application: Entry into force is the period
between signing and ratification. This article discusses the obligations during the
interim period.
India's mechanism: The head of the government signs, the bill is placed before
Parliament, 2/3 majority is required, and the ratified treaty is sent to the Secretary-
General. Article 73 of the Constitution — some treaties can be made through
executive acts, raising the question of bypassing the legislature.

6.3 Reservation to Treaties

A reservation is defined in Article 2(1)(d) of VCLT as a unilateral act which excludes
certain provisions of a treaty.
Article 19 — Three Exceptions to Reservation: (a) When the treaty prohibits
reservations (e.g., Rome Statute); (b) When the treaty only permits specific
reservations (e.g., Refugee Convention); (c) When the reservation is incompatible
with the object and purpose of the treaty — this was added as a result of the
Genocide Reservation Case.

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Genocide Reservation Case: Many multilateral treaties do not have a

provision for reservation. VCLT provisions on reservation have attained
the status of CIL, so even non-members of VCLT are bound by them. The
earlier rule of unanimity (all contracting states had to consent to the
reservation) was replaced with a more flexible standard to encourage
universal participation. Opinion of Judge Alvarez: no reservation must be
made to the genocide convention.
Temeltasch v. Switzerland: The court found that a very specific
interpretative declaration does not hit Article 57 of the European
Convention (which prohibits general reservations). A declaration must be
general in nature to constitute an impermissible reservation.
Human Rights Treaties and Reservations — General Comment 24 to ICCPR:
The Committee identified problems with applying interstate reciprocity to human
rights treaties. Since individuals, not states, are the subject matter in human rights
treaties, states should not be the only bodies with power to determine validity of
reservations.

6.4 Interpretation of Treaties — Articles 31 and 32 of VCLT

Article 31: Text of the treaty — object, purpose, context; subsequent practice,
subsequent agreement; relevant rules of international law; terms established by
parties.
Article 32: Supplementary means of interpretation including preparatory works.
Article 31 is applied first; Article 32 applies only if ambiguity remains. Article 32 is
subsidiary to Article 31.
Hierarchy within Article 31: There is no hierarchy within Article 31 (Wall
Advisory Opinion). However, Article 31(4) is an exception to the other paras and has
superiority over them.
Static vs. Evolutionary Interpretation: In boundary treaties, static
(contemporaneity) interpretation is important. In human rights treaties, dynamic
(evolutionary) interpretation applies.
Kulbhooshan Jadav Case: Pakistan argued terrorism is an exception to
consular access under Article 36 of the VCCR. The court adopted a literal
interpretation and held in India's favour. The courts could have ruled
that, based on subsequent practice, terrorism is today an exception — but
did not.
Oil Platforms Case (Iran v. US): Iran invoked Article X (freedom of
navigation and commerce) of the Treaty of Amity. US relied on Article
XX(1)(d) exception clause to include self-defence. This was upheld in
DRC v. Uganda. Judge Higgins' separate opinion: the interpretation was
so broad that it displaced the treaty itself. Reliance on Article 51 would
have found that a single attack didn't reach the threshold.
Loizidou v. Turkey: Whether Turkey had control over Northern Cyprus?
The European court highlighted Turkey's effective control. The right to
property was given a dynamic interpretation. Example of evolutionary
interpretation in human rights law.
Japan Alcoholic Beverages Case: An additional element of consistency of
practice was incorporated for subsequent practice.

6.5 Suspension and Termination of Treaties

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Article 56 of VCLT: When the treaty has no express provision, the possibility of
denunciation should be reflected in the intent of the parties, or be implied in the
treaty. Reasons must be provided for withdrawal (Article 65, Para 1).
Grounds of Termination/Suspension: (a) Termination by consent — Article 62(2);
(b) By conclusion of later treaty — Article 59(1); (c) For breach — Article 60(1)/(2),
VCLT: states can come together and terminate in whole or in part; (d) Supervening
Impossibility of Performance — Article 61(1), e.g., submergence of an island; (e)
Fundamental Change of Circumstances — Article 62; (f) Severance of
diplomatic/consular relations.
Fundamental Change of Circumstances: Must not have been foreseen by the
parties at the time of the treaty. The existence of the circumstances must constitute
the essential basis of the consent of the parties. Political change/economic change
cannot be valid grounds. Two exceptions: (a) territorial treaties, where doctrine of
frontier integrity applies, and (b) if the party invoking the change caused it.
Gabcikovo-Nagymoros Case: The court imposed high thresholds for
invoking the doctrine of fundamental change of circumstances. The
political intent must be closely linked to the object and purpose of the
treaty. This is to delink politics from treaty performance.
Fisheries Jurisdiction Case (Iceland): Iceland wanted to expand to 50
nautical miles. ICJ said fundamental change of circumstances cannot be
a ground for extending territorial water limits. The general practice of
the World Court is to recommend negotiations.
CIL can never be suspended: Even when treaties are validly suspended, the CIL
provisions will continue to bind the countries.
Indus Water Treaty: India decided to keep the treaty "in abeyance" — whether this
equals "suspension" or is "informal non-performance" is debated. As per the
Nagymoros case (strict interpretation), India's claim may not fall within VCLT
language. Even if the suspension were valid, fair and equitable sharing of water is
CIL and cannot be bypassed.

6.6 Invalidation of Treaties

Grounds: (a) Error — Article 48; (b) Fraud and corruption; (c) Coercion; (d)
Mistake of municipal law — Article 46(1), e.g., the person who signed was not
competent to do so.
Suspension is interpreted strictly by courts because of the need to protect treaty
stability. Article 26 (good faith/stability of treaty) is in tension with Article 60
(termination for breach).

UNIT VII: CUSTOMARY INTERNATIONAL LAW

(CIL)
7.1 The Two Elements of CIL
CIL develops more organically compared to treaties and is not expressly codified.
The ILC lays down that CIL must be determined through two elements: (1) State

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practice — the practice of all states, and (2) Opinio juris — the acceptance of a
practice as law within the state.
Opinio juris: A state can have many practices, but not all practices have the
expectation of being recognised as law. There is a difference between opinion juris
(assessment of a single state) and opinio juris communis (based on the position of
several states).
North Sea Continental Shelf Case: Considered the sui generis of CIL.
Germany argued fair and equitable distribution for the continental shelf.
Other countries relied on the equidistance rule from the 1958
convention. Germany was not party to the convention — the court held
the equidistance rule was not CIL because there was no opinio juris to
prove it. If there are minor deviations in state practice, they will be
ignored.
Asylum Case (Colombia v. Peru): Whether diplomatic asylum can be
regional CIL? Regional custom was not accepted as there was no opinio
juris on this in Peru (Peru did not sign the Havana Convention).

7.2 Approaches to Identifying CIL

Inductive Approach: State practice → Opinio juris → CIL. Adopted by ILC, which
followed the North Sea Continental Shelf case.
Deductive Approach: The court looks at the practice of the majority of states
without looking at each individual state.
Assertive Approach: The court suddenly declares a practice is CIL. The Supreme
Court of India always uses this approach (e.g., Vellore Citizens' Case — sustainable
development is CIL, relying on Stockholm Declaration and Brundtland Commission
soft law).
Vellore Citizens' Welfare Case: The court observed that sustainable
development is CIL. The court's justification was that the Stockholm
declaration and Brundtland convention are soft law measures which led
to the recognition of sustainable development as CIL — example of the
assertive method.
Jurisdictional Immunity Case: Examined the state practice mostly of
European states to arrive at the conclusion that there is no exception to
state immunity — example of the inductive approach.
Important: In a question on CIL, when arguing that a practice is CIL, also mention the
approach used.

7.3 ILC Report on Identification of CIL

The ILC adopted the inductive approach — clearly following the North Sea
Continental Shelf case. Conclusion 4 (Points 4, 5, 6) — earlier, only state practice
was recognised for CIL.
The ILC cautions against excessive reliance on domestic judicial decisions for
identifying CIL. An example is Jeeja Ghosh v. Union of India, where the court
referred to VCLT and derived an incorrect principle that internal laws must comply
with international commitments.
Can practice of IOs contribute to state practice? Yes, given in ILC report.
Applied in the Chagos case, where UNGA resolutions were used. However, ILC
cautions against excessive reliance on IO practice. If the WHO comes up with a

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resolution about weapons, it cannot be general practice as it is beyond WHO's

mandate.
Limitation of the ILC Report: It is limited to the identification of CIL and does not
talk about the relations between CIL and other sources of IL.

7.4 Persistent Objector

When CIL is forming, states can object to a rule. States that have consistently
objected to the rule can be exempted from it — but this is a persistent objector and
not a subsequent objector rule.
Anglo-Norwegian Fisheries Case: Classic case for the persistent objector
rule.
Jus Cogens Override: This rule does not apply to peremptory norms. When a state
is a persistent objector to a norm that becomes CIL, the state is not bound — but
when this norm becomes a peremptory norm, the country becomes bound to it
again.
Chimini's Critique: By the time many countries were decolonised, most rules of
CIL had already been formed. These states were forced to be part of the
international community as they never had a chance to object to these rules. The
persistent objector rule was "created" to fulfill the needs of capitalist states.

7.5 Significance of CIL

CIL serves as: (1) A source of IL; (2) Direct application by domestic courts; (3)
Invocation by proliferating international tribunals; (4) Application to matters
predating entry into force of a treaty; (5) An important role in state immunity, use of
force, and interpretation of treaties — filling gaps in treaties.
Formal vs. Material Source: Anything grounded in law is a formal source.
Material source includes historical, sociological, and political factors. Chimini
criticises the delinking of the history of CIL when dealing with it.
Traditional vs. Modern Approach: The traditional approach emphasised only
state practice. Post-North Sea Continental Shelf, the subjective element of opinio
juris was added. This came partly because Western states were worried about being
challenged by Third World countries with growing numbers.
Caroline Case: A single decision led to the development of CIL on
anticipatory self-defence. Can one ICJ decision lead to CIL?
Belgium-Senegal Case: The crime of torture was conferred the jus cogens
character, on the ground that this practice is CIL. When something is
CIL, there is a higher chance of it being jus cogens.

UNIT VIII: JUS COGENS AND ERGA OMNES

OBLIGATIONS
8.1 Jus Cogens — Peremptory Norms
Article 53 of VCLT: Peremptory norms are those from which no derogation is
allowed — lex superior or highest laws. They are so fundamental that states cannot

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contract out of them. Article 53 is a reflection of natural law. If a treaty violates a

peremptory norm, it becomes void as a whole.
Will it apply retrospectively? It applies prospectively — the treaty becomes void
from the date on which the norm is recognised as peremptory. It will not be treated
as void ab initio.
Article 64 of VCLT: If a new peremptory norm emerges, any existing treaty
conflicting with it becomes void.
Article 66 of VCLT: Dispute settlement clause invokable in case of violation of
Article 53. However, the court held that Article 66 is not CIL and therefore cannot
be applied retrospectively.
CIL vs. Jus Cogens: Both need widespread practice. Jus cogens is often described
as "CIL+" — it has an additional element of non-derogability. Jus cogens does not
need state practice and opinio juris as its emergence is from natural law.
Examples of peremptory norms: prohibition of genocide, slavery, aggression, racial
discrimination, torture, right to self-determination (now also declared jus cogens).
DRC v. Rwanda: Rwanda had submitted a reservation to Article 9 of the
Genocide Convention. 11 instruments were used to show jurisdiction but
this was insufficient. Article 66 was held not to be CIL and therefore
could not be applied retrospectively to the Genocide Convention (1949).
Dugard in his separate opinion argued it is within the court's mandate to
violate consent principles to uphold jus cogens norms.
Oscar Chinn Judgment (PCIJ): Any treaty going against public policy
must be void — reiterated by Sir Lauterpacht.

8.2 Erga Omnes Obligations

Obligations in IL can be classified into: (1) Unilateral obligations, (2) Bilateral
obligations, and (3) Erga Omnes obligations — obligations owed to the community
as a whole.
Erga Omnes obligations are attracted in cases of piracy, genocide, terrorism, etc.,
which impact all states. Any state can take another state engaging in these acts.
This is similar to Public Interest Litigation in domestic law.
Barcelona Traction Case: The first case where this concept emerged — the court
highlighted four obligations: crime of genocide, slavery, racial discrimination, and
aggression. What started as obiter dicta developed into a major concept of IL. Any
state can sue another state engaging in these acts.
East Timor Case: ICJ held that the right to self-determination comes
under erga omnes obligations. Australia and Indonesia signed a treaty
regarding the continental shelf of East Timor without the consent of the
Timorese people. The court applied the Monetary Gold principle and,
given Indonesia's non-participation, declared it lacked jurisdiction. Even
if there is a grave violation of erga omnes obligations, there should be
jurisdiction for the court to hear the matter.
Monetary Gold Principle: A dispute cannot be heard without all
concerned members being made parties to it — applied in both the
Monetary Gold and East Timor cases.
Erga Omnes Partes: Erga omnes obligations deriving legitimacy from a treaty
framework. The parties must be parties to the treaty. Can there be erga omnes
obligations from CIL? This issue has never been definitively raised.

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Enforcement: Through judicial bodies (ICJ or dispute settlement mechanisms) and

countermeasures (sanctions). Declaratory relief alone can be sought in erga omnes
obligations — a state cannot seek compensation for erga omnes obligations.
Erga Omnes vs. Jus Cogens: Jus cogens is more substantive, erga omnes is more
procedural. All jus cogens norms are technically erga omnes, but not vice versa. ILC
work on jus cogens was published in 2022; there is no ILC work on erga omnes.
South West Africa Case: The World Court decided not to hear the matter
as the interests of Ethiopia and Nigeria were not directly affected. This
formalistic interpretation was corrected in the Barcelona Traction case.

UNIT IX: USE OF FORCE AND SELF-DEFENCE

9.1 Historical Development of Use of Force
Rules governing the use of force are called jus ad bellum (justification of going to
war), while jus in bello governs conduct during war (IHL).
Use of force was not regulated until the League of Nations. The theory that
preceded was the "just war" theory — war can be conducted as long as it was
justified.
Drago Doctrine: European states should not use force to collect contractual debts.
The first incarnation of use of force regulation was the 1907 Hague Convention II.
Article 16 of the League of Nations: Regulated war by providing that states
should not use force when negotiations are ongoing for a period of 6 months.
Kellogg-Briand Pact (Pact of Paris): The first document to prohibit war in all its
forms. Many Western countries joined as they feared Germany's rising use of force.
This failed because of World War II.
The UN Charter does not use the term "war" as it would be a recollection of the
horrors of World War.

9.2 Article 2(4) — Prohibition on Use of Force

Article 2(4): A state cannot use even a threat which would have coercive intent
(per the Nicaragua case). This is CIL and applies to every state, whether or not
party to the UN Charter.
Territorial integrity and political independence: These are the two criteria in
Article 2(4). Can a state use force to protect human rights? This is an additional
criterion discussed but not settled.
Article 2(4) vs. Article 51: Article 2(4) uses "force" (broader term), while Article
51 uses "armed attack" (higher threshold). Even if Article 2(4) is violated with minor
incursions, that does not necessarily invoke Article 51.
Aggression: Aggression is an aggravated use of force and a peremptory norm.
Once elevated to aggression, there can be no exception — no state can use Article
51 or any other defence.
Exceptions to Article 2(4): (1) Article 42 — UNSC authorisation; (2) Article 51 —
self-defence; (3) Lex specialis (e.g., UNCLOS allowing force against pirate ships); (4)
Article 107 (now largely outdated); (5) Invitation by consent.

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Nicaragua Case: US supporting Contras will not amount to violation of

non-use of force but will amount to a violation of the principle of non-
intervention. Direct force was accepted, but indirect force was rejected as
there was no effective control. Resolution 2625 was approved
unanimously — used to interpret use of force.
Oil Platforms Case: Self-defence argument of US was rejected because
only minor attacks were carried out. A very strict interpretation was
given to grounds of necessity and self-defence.

9.3 Article 51 — Self-Defence

Individual vs. Collective Self-Defence: There has to be a proper request in case
of collective self-defence. Collective security networks like NATO also operate here.
The claim of joint state responsibility can be triggered against countries providing
bases.
Anticipatory vs. Preemptive Self-Defence: The threshold for proving imminent
threat in preemptive self-defence is even higher, because nothing has occurred yet.
Daniel Bethlehem (British Foreign Minister, 2004) published 10 criteria for what
constitutes "imminent and actual armed attack." The threshold of evidence is very
high.
Use of Force Against Non-State Actors: Article 51 does not specify against whom
self-defence is exercised — applying the Lotus principle, silence can be interpreted
to mean it is allowed. Article 2(4) specifies "one state against another state," so
there is a tension.
Caroline Case: Pre-emptive self-defence was argued against US vessel
that supported the Carolines. The West claimed this is CIL, and Article
51 should be broadly interpreted to accommodate it.
UNSC Resolution 1368 (2001): A state can use force against non-state
actors — "all necessary measures against terrorist attacks." Subsequent
resolutions ensure this power does not lead to mass HR violations.
Wall Opinion: Israel argued the wall was constructed as self-defence. ICJ
held that Palestine is not a state, and self-defence can only be exercised
against states. Judge Higgins disagreed — just because Israel is an
occupying power does not mean it cannot exercise self-defence.
Unable and Unwilling Doctrine: If a host state is unable or unwilling to stop non-
state actors that pose a threat to another victim state, the victim state can use self-
defence against those NSAs. Teena Zohra argues this test is put into operation
against the Global South, creating a legal hierarchy where "civilised" states
intervene in "uncivilised" states.
India's Position: India argued on grounds of national security for the surgical
strikes and Balakot strike, calling them "pre-emptive non-military strikes." However,
it argued Geneva Convention while asking for the return of Abhinandan — showing
India's selective reliance on international law.

9.4 Principle of Non-Intervention

Coercion is the primary test for distinguishing intervention from interference.
Anything that falls short of non-use of force can amount to a violation of the
principle of non-intervention.
Nicaragua Case: US supporting Contras did not amount to violation of non-use of
force but did violate the principle of non-intervention.

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UNGA Resolutions 2625 and 1514: These established that one state helping
another to fight occupation is not intervention.
If US funds a UN-based organisation in Delhi and revokes humanitarian aid, this is
not coercion because the US is not legally obligated to give the aid — confirmed in
the Nicaragua case (import of sugar cane).

UNIT X: RIGHT TO SELF-DETERMINATION

10.1 Historical Development
International law uses the term "self-determination" rather than "independence" or
"autonomy." In the League of Nations, RSD was not present due to the mandate
system under Article 22 of the League's Covenant. When the UN Charter was
drafted, Articles 1(2) and 55 made reference to self-determination — what was
political became legal under the Charter. Today, RSD has become a peremptory
norm.
UNGA Resolution 1514: For the first time discussed that people under colonial
rule must be given the right to self-determination. More than 50 countries gained
independence due to this resolution.
UNGA Resolution 2625: Gave substance to Resolution 1514.

10.2 Internal vs. External Self-Determination

Internal RSD: Within the state — a community targeted by its own government can
claim this right. Not against an alien player but against one's own government.
External RSD: Against colonial powers. This concept is largely outdated except in
the case of Palestine.
Sovereignty flows from the state, whereas RSD does not emerge from the state.
India does not favour internal RSD, fearing large-scale secession.
West Sahara Case: Was Western Sahara terra nullis? The World Court
held it was not, as the people had their own social and cultural systems
before Spanish annexation. The court emphasised the will of the people
must be understood through a referendum.
African Court on Human Rights — Katanga's Congress v. Zaire (1995):
The loss of human rights for cession must be so serious that separate
statehood has to be the only remedy. The threshold is extremely high.
Re Berubari Case (Indian Supreme Court): Whether the executive can
cede territory or whether there should be a constitutional amendment.
Held: the Constitution must be amended. The 9th Amendment was
introduced.
External self-determination is much appreciated in the international law sphere,
whereas internal self-determination is argued to go against the Doctrine of
Territorial Integrity (Uti Possidetis).
Double Standards: Indira Gandhi ceded Kachathi (a small island) to Sri Lanka
through executive action with no constitutional amendment, while the Supreme
Court held that ceding territories to Pakistan would require a constitutional
amendment.

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10.3 Chagos Archipelago Advisory Opinion

In 2018, the matter came before the ICJ presenting a unique problem on the
vestiges of colonialism. Mauritius was under the UK. In 1968, Mauritius became
independent, but the island of Diego Garcia continued to be under sovereign
exercise of the UK. The UK-US agreement on Diego was set for renewal in 2016.
The question was whether the process of decolonisation was complete. The
Lancaster House Agreement, where ministers representing Mauritius signed over
Diego to the UK, was found not to be based on the free and genuine consent of the
people — Mauritius was still a colony with less bargaining power.
Conclusion: (a) The free and genuine will of the people was not considered; (b)
Resolutions 1514 and 2625, which were CIL, were not respected. Therefore, the
process of decolonisation was not complete.
CIL Identification: ICJ relied on Resolutions 1514 and 2625 as constituting opinio
juris and CIL, using the assertive method — without examining even a single state
practice. 89 countries accepted the resolutions and none rejected.
Mauritius v. Maldives (ITLOS, 2023): The tribunal gave de facto
sovereignty to Mauritius based on the Chagos advisory opinion. This
added to mounting pressure on the UK.
The 2025 Mauritius-UK Agreement: The UK paid reparation called "satisfaction" (an
apology for past wrongs). Mauritius will be the sovereign, but rights will be
exercised by the UK. This is a success story of the ICJ.

UNIT XI: TERRITORY IN INTERNATIONAL

LAW
11.1 Nature of Territorial Claims
In PIL, the state is the subject matter and sovereignty is crucial. Territory is one
way in which sovereignty is expressed. Unlike in municipal law, territory in IL is not
absolute — title over property is inchoate because of the dispute that exists.
Legal title vs. Effective control: Legal title is a claim made by a state through a
boundary award or treaty. The question of effective control kicks in only when there
is a lack of clarity or disagreement over the boundary treaty.
Inter-Temporal Laws: If territory has been under multiple controls over centuries,
no country may have a valid title and the court has to go into extra-legal factors.
Island of Palmas Case (US v. Netherlands): Spain had ceded the territory
to the US. The rule of contiguity (mere location near the territory) was
argued by the US — rejected by the court. Effective control test:
Netherlands was exercising administrative control (taxation) over
Palmas. Therefore Netherlands had effective control despite not being
adjacent.
Clipperton Arbitration (France v. Mexico): Rule of contiguity argued
here. Even passing a law in the Gazette can be sufficient for effective
control in a remote island (lower threshold than Island of Palmas).

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Cameroon v. Nigeria: The effective control test was applied. The disputed
territory went to Cameroon based on effective control.
Boatswalla v. Namibia: Border demarcated by an Anglo-German treaty.
When the river channel shifted, the Court interpreted the 1890
agreement, used Article 50 of the ICJ Statute (reliance on experts), and
relied on subsequent practice.

11.2 Critical Date Doctrine

The ICJ can only determine the legal title based on evidence presented. A critical
date is the date on which the title crystallises — it could be a treaty signing date,
the date of a plebiscite, or the date of the ICJ judgment.
Critical date can change only when another incident occurs that is capable of
changing it. If territory is decided based on a treaty and there is no further
development, we apply Uti possidetis and the critical date does not change.

11.3 Modes of Acquiring Territory

Occupation: If some land is terra nullis, discovering and occupying it becomes
occupation or prescription. Spain argued Western Sahara was terra nullis because
they did not consider tribes as inhabitants.
Cession: Transfer of certain territories through treaties — from one sovereign to
another. Does not consider the will of the people.
Conquest/Annexation: Outlawed by the UN Charter. Countries today use the
terminology of "occupation" to justify their acts.
When territory is acquired by force in 1790, laws cannot be applied retrospectively
to render the act invalid by a later law. This is why many acts of European
colonisation, including annexation, have not been declared invalid.
Self-Determination vs. State Rights: RSD is a people's right, whereas occupation
or cession are rights of the state. There is constant friction between the right of the
state and the right of the people.

UNIT XII: STATE AND GOVERNMENT

RECOGNITION
12.1 Recognition of States
Declaratory Theory: When a state has fulfilled the criteria of the Montevideo
Convention, it will be duly recognised. Fulfilment of criteria is the only requirement.
Constitutive Theory: Recognition is dependent on recognition conferred by other
states.
Crawford argued recognition should be based on a combination: when declaratory
obligations are fulfilled, the constitutive recognition process kicks in. Recognition is
ultimately a political question, not grounded purely in law.
Functionalism vis-à-vis Statehood: An entity is recognised as a state for the
purpose of a specific treaty or convention. ICC recognises Palestine as a state for

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purposes of the Rome Statute, but the UN does not. Statehood of Palestine changes
depending on the deciding entity.

12.2 Recognition of Government

Once a state is recognised, the recognition cannot be withdrawn. But recognition of
government is different. When the US left Afghanistan, Taliban II captured power —
several states were not forthcoming in recognising its legitimacy.
Doctrines to determine legitimacy: (1) Effectiveness — if the people are loyal to the
government and it controls the territory and defence forces, it will be recognised
regardless of how it came to power; (2) Democratic Legitimacy — the mode by
which the government came to power.
The UNGA Credentials Committee vets applications of contending states and
governments before deciding who will represent the state before the UN.
Tinoco Arbitration Case and Luther v. Scgor: Read for recognition of
government doctrine.

UNIT XIII: STATE RESPONSIBILITY (ARSIWA)

13.1 Nature and Scope
ARSIWA discusses remedies for violations committed by states, not non-state actors.
It talks about civil remedies, not criminal acts — because states as artificial persons
cannot be subjected to criminal liability. Even when a state commits genocide, it will
only have to pay reparations.
Primary vs. Secondary Obligations: ARSIWA does not provide what a state has to
do (primary obligations). It only deals with the implications when the state does not
perform a specific function (secondary obligations).
Lex Specialis Exception: Some regimes (diplomatic, trade, human rights) have
both primary and secondary obligations. ARSIWA can be a fallback mechanism
when the special regime does not offer sufficient solutions.
ICJ Climate Change Advisory Opinion: The existing framework including
Paris Principles can be supplemented by general principles on state
responsibility (ARSIWA). The state responsibility document takes forward
remedies provided by the specific regime. There is no conflict between
general IL and specific climate change regime — both supplement each
other.

13.2 Elements of State Responsibility

Article 3 of ARSIWA: Characterisation of a wrongful act is done through
international law, not internal law. States cannot take the defence that genocide is
committed because internal law does not prohibit it.
Attribution: Only direct acts can be attributed to the state. But principles like
acting on behalf of the government, effective control, or overall control also
determine attribution. The conduct of organs of the state is directly attributable —
the state cannot take a defence that the act was ultra vires.

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Liability vs. Responsibility: Responsibility depends on the authorship of the act.

Liability comes into play when an internationally wrongful act has been committed
and can arise even without the breach of an obligation. International law deals with
responsibility, not liability.
Joint Responsibility: ARSIWA deals with joint responsibility — the level changes
with the conduct of the state. Article 16 of ARSIWA: what is the threshold when a
state aids and abets another state committing genocide? The level of responsibility
changes.

13.3 Circumstances Precluding Wrongfulness

ARSIWA provides that in certain circumstances, a state will not incur responsibility:
force majeure, distress, necessity, consent, self-defence, and countermeasures.
Necessity vs. Rebus Sic Stantibus: States choose which exception to argue,
which determines the success of their claim. If states want development, they use
the argument of necessity to violate environmental law obligations.

13.4 Forms of Reparation

From Article 31 of ARSIWA onwards, the remedies are laid down. Civil remedies
include:
Restitution: Re-establishing the situation as it existed before the breach.
Compensation: For any financially assessable damage.
Satisfaction: Acknowledgment of the breach, expression of regret, formal apology.
The UK's apology to Mauritius in the Chagos agreement is an example.

UNIT XIV: INTERNATIONAL ORGANISATIONS

AND LEGAL PERSONALITY
14.1 Criteria for International Organisations
An IO must be: (1) Established by a treaty; (2) Conferred legal personality — it can
sue and be sued.
Can ICRC be regarded as an IO? Can Harvard Law School? Refer to the criteria
given in the 2011 Draft Articles on Responsibilities of IOs. IOs are not always
intergovernmental — non-state actors are also part of IOs. An example of IO formed
through resolution is OPEC.

14.2 Reparations Advisory Opinion — International

Personality of IOs
In the 1940s, sovereignty was bestowed only on states. The Reparations Advisory
Opinion for the first time recognised the international personality of an IO (the UN).
Is IO personality the same as state personality? No. IOs are functionally
provided legal personality, depending on the nature of the IO and the tasks it
performs. Their personality is not all-encompassing. An organisation established
through a resolution can also possess international legal personality.

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Functional Protection vs. Diplomatic Protection: Diplomatic protection extends

to diplomats; functional protection is associated with functions performed by a
person as an agent of the UN. The problem with diplomatic protection is the
discretionary power resting with the state. Functional immunity is exercised widely
because the UN Secretary-General is more active in taking up matters.
Dato Cumaraswamy Advisory Opinion: The Malaysian government
instituted a case against a diplomat for making comments against the
government. The UN Secretary-General decided not to waive the
immunity of the diplomat. Functional immunity is a broad and abstract
term interpreted by the UN S-G.
Senthil Kumaran v. High Commission of Sri Lanka: A labourer working in
the High Commissioner's office. The immunity of the Sri Lankan High
Commissioner was waived off on the grounds that the office is covered by
the ID Act.

14.3 UN Administrative Tribunal (UNAT)

UNAT is a subsidiary body of the UNGA. In an advisory opinion, the ICJ clarified
that decisions made by UNAT are final and conclusive — the UNGA, being a political
body, cannot intervene in UNAT decisions. UNAT is the final authority, and its
decisions are binding.

UNIT XV: GENERAL PRINCIPLES OF LAW

AND EQUITY
15.1 Why General Principles Are Needed
General Principles of Law serve as a need-based framework, secondary to treaties
and CIL. When treaties and CIL are in place, general principles become less
important. They serve to fill gaps, supplement treaties, and form a fallback when
other sources are silent.
Two categories: (1) General Principles of International Law derived from other
sources (treaties and CIL); (2) General Principles of domestic law — formed
"accidentally," i.e., consent is given domestically without knowledge it will be used
in an international forum.
Article 38(1)(c) — "Recognised by law": This is different from the opinio juris
standard in Article 38(1)(b).
Curfew Channel Case: A UK vessel passing through Albanian territorial
waters was not warned about mines — leading to destruction. The World
Court relied on General Principles to recognise the transboundary harm
principle, which was not then in treaties or CIL.
Golder v. UK: Does the right to life include the right to a fair trial? The
court, relying on General Principles of Law, established that the right to
a fair trial is included in Article 6 of the European Convention of Human
Rights.

15.2 Limits of General Principles

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Can General Principles create a regime of itself? No. In domestic law, judicial
activism can create new regimes; in International Law, General Principles can be
used to expand the law to an extent but cannot replace the consent of states or
create a new regime in itself.
Judge McNair in the South West Africa Case: There must be some
transposition when GPL is borrowed. Unlike CIL (where the principle is
applied as-is), General Principles of Law will be modified depending on
the facts and circumstances.
Prabhakar Singh Article: The Drafting Committee of PCIJ followed common law
and civil law systems, excluding customs from Hindu law and indigenous laws. This
reflects the racial origins of General Principles. The fact that African and Asian
judges are also not highlighting this racial origin is itself a matter of concern.

UNIT XVI: MUNICIPAL LAW AND

INTERNATIONAL LAW
16.1 Monism and Dualism
Monism: International law and domestic law apply uniformly with no difference. US
(for self-executing treaties), Switzerland, Netherlands.
Dualism: International law must go through a process of "domestication"
(transformation) to become part of domestic law. India follows this system — there
should be an enabling legislation.
Incorporation: CIL automatically becomes part of domestic law.
Specific Adoption/Transformation: International law has to go through a process
before it becomes part of domestic law.
Article 27 of VCLT: A party may not invoke the provisions of its internal law as
justification for its failure to perform a treaty.
Lagrand Judgment — Paragraph 90: The US attempted to justify its act
through an internal procedural rule (rule of procedural default) and was
essentially violating international law. VCCR (Article 36) is treated as a
non-self-executing treaty by the US.
Creeping Monism: When the Indian Supreme Court directly applies international
law principles without an enabling legislation, it acts like a monist country, even
though India claims to be dualist.
Non-Refoulement in India: Since this is a CIL provision, even though India is not
a signatory to the Refugee Convention, this principle is still binding on India.
However, courts have used Article 19 to rule that non-citizens need to be sent back,
and the SC recently ruled non-refoulement does not apply to India because it
violates the Passport Act.
Section 86 of CPC (India): India relies on this for state immunity rather than
domestic legislation. Section 86 does not provide for the same exceptions as in the
UN Convention on State Immunity.

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Parliament Beige Case (1879, UK): Established the position vis-à-vis

treaties and law of the UK. If there is no enabling legislation for a treaty,
the international law obligation will not bind the courts.

16.2 India and International Law — Key Points

Article 51 of the Constitution: Uses the term "endeavour" — not mandatory. Why
was it changed? (Refer to Hegde's work.) Article 51(c) uses the term "organised
people" — including people under colonial rule who were not technically "states."
Article 73 and 253: Relevant for the executive's power to enter into treaties and
Parliament's power to legislate on international law matters.
Article 372 of the Constitution: All laws will remain in force unless repealed or
struck down. Many colonial-era laws persist — there is still a colonial hangover.
UAPA, Security Exception Law — these reflect the overarching influence of colonial
laws on post-colonial legislation.
Judicial decisions on international law in India: Indian courts treat IL as secondary
and supportive to the domestic stance. By contrast, the German Weimar
Constitution treats international law at par with domestic law.

UNIT XVII: INTERNATIONAL HUMANITARIAN

LAW (IHL)
17.1 Overview and Relevance
IHL emerged in the 1800s from a European war, not from the countless wars in
colonised countries. Belligerent occupation is premised on the civilised-uncivilised
distinction — Europe felt that if one state were occupying another, it could affect
sovereignty of the state under occupation (Hague Convention). Israel is occupying
Palestine but sovereignty is technically intact.
Common Article 3 of the Geneva Convention: Colonial conflict was deliberately
not added to the Geneva Convention in 1949. International armed or non-armed
conflict did not include colonial conflict. If colonial conflict was added, people
fighting against colonial powers would be protected — detrimental to the interests
of colonial powers.

17.2 India and IHL

India and the Geneva Convention: India is a signatory to the Geneva Convention
but not Additional Protocols 1 and 2. If India were party to Additional Protocols, it
would be answerable to fact-finding commissions' enquiries. India regards most
conflicts (including Kashmir) as law and order issues, not humanitarian conflicts.
Geneva Convention Act of 1960: Requires the permission of the central
government, largely limiting its ambit. No person can bring a case against military
personnel without the approval of the central government. The Army and Navy Act
— if armed personnel commit an offence, they are brought before a court-martial,
with no reference to the GC Act of 1960. These two legislations act in silos.
Fr. Francisco v. State of Goa: One of the few cases that delved into IHL in
detail. A Portuguese citizen sought renewal of his permit to live in India,

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arguing India is an occupying country and his citizenship will not be

affected as sovereignty is retained under IHL.

UNIT XVIII: EXTRADITION

18.1 Principles of Extradition
Doctrine: "Aut Dedere Aut Judicare": Either extradite or prosecute. If a state is
unable to extradite, it must prosecute in its own courts. This is seen in the Lockerbie
case, where Libya chose to prosecute rather than extradite.
Double Criminality: The act must be an offence in both states. This is a problem as
India has a unique socio-political environment — e.g., dowry harassment is only an
offence in India, so the UK will not extradite for it.
Political Offence Exception: Article 6 of extradition treaties — states cannot
extradite for political acts. There is no clear definition of "political offence," and it
becomes blurry — whether it is based on the nature of the act or the title the person
holds is unclear.
Human Rights Arguments: Human rights have become a primary argument in
extradition cases. The UN Model Extradition Treaty has provisions on human dignity
and human rights.
Abu Salem Case (Mumbai Attacks): Portugal extradited Abu Salem under
conditions — no death sentence and sentence below 20 years, no
additional charges. India did not comply, leading to rupture of India-
Portugal relations.
Chahal v. UK: He argued his human rights would be violated if extradited
to India. He appealed multiple times — UK courts accepted the human
rights argument.
Rainbow Warrior Case: Important for extradition principles.
India's challenges in extradition: (1) MEA is not trained to provide proper
evidence to the requesting state; (2) India's prison system is poor — a violation of
human rights. That is why India enacted the Fugitive Offenders and Economic
Offenders Act.
Conflict between bilateral and multilateral treaties: Bilateral treaty is always
lex specialis — bilateral will prevail unless the bilateral treaty says the multilateral
treaty must be kept. Priority conceding clauses (Article 20 of India-Bangladesh
treaty) are key.

QUICK REFERENCE — KEY CASES SUMMARY

The following is a rapid-review list of the most frequently cited cases and their key
holdings:
SS Lotus Case (PCIJ): If IL is silent on a matter, it is permissible (Lotus Principle).
Consent-based, pro-state.

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North Sea Continental Shelf: Classic CIL case; equidistance rule held not to be
CIL; opinio juris required.
Nicaragua v. US: Non-intervention principle; use of force threshold; indirect force
rejected.
Tehran Hostage Case: ICJ competent even when matter pending before UNSC.
Reparations Advisory Opinion: First recognition of international personality of
IOs; functional vs. diplomatic protection.
Lockerbie Case: Article 103 supremacy; UNSC resolution prevails over Montreal
Convention.
Kosovo Advisory Opinion: Unilateral declaration of independence valid if not
prohibited by IL.
Marshall Islands v. India: Objective awareness test for existence of dispute;
controversial departure from earlier jurisprudence.
Nuclear Test Case (Australia v. France): First case defining good faith; yardstick
for unilateral declarations; intention required.
Chagos Advisory Opinion: Process of decolonisation incomplete; Lancaster House
agreement lacked genuine consent; RSD is CIL.
Gabcikovo-Nagymoros Case: High threshold for fundamental change of
circumstances; narrow interpretation.
East Timor Case: RSD is erga omnes; Monetary Gold principle applied; Indonesia's
absence led to lack of jurisdiction.
Barcelona Traction Case: Foundation of erga omnes doctrine; four key obligations
identified.
Island of Palmas (US v. Netherlands): Effective control prevails over contiguity;
Netherlands wins despite distance.
Kulbhooshan Jadav Case: Consular access under VCCR; literal interpretation;
cessation as provisional measure.
DRC v. Rwanda: Article 66 VCLT not CIL; reservation to Genocide Convention
allowed; 11 jurisdiction bases insufficient.
Belgium v. Senegal: Prohibition of torture recognised as jus cogens; erga omnes
obligation from treaty framework.
Vellore Citizens' Welfare Case: Sustainable development declared CIL through
assertive approach by Indian SC.
Oil Platforms Case (Iran v. US): Strict interpretation of necessity and self-
defence; high threshold for armed attack.
Admissions Case: Article 4 criteria for UN admission are exhaustive; no additional
political criteria allowed.

VIVA PREPARATION — COMMON QUESTIONS

AND TIPS
Based on class discussions, the following topics are likely to appear in the viva:

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1. What are the different dimensions of "command" in International Law? Can

criticisms be raised against the idea of command?
2. International Law is based on pre-conceived notions — elaborate with examples.
(Use TWAIL here.)
3. What is the role of the ILC in codification? How has the ILC codified CIL?
(Mention the ILC Report on Identification of CIL and Draft Conclusion 4.)
4. Are UNGA Resolutions sources of International Law?
5. What are the criticisms against the persistent objector rule? (Use Chimini here.)
6. ICJ has a negative stance against UNSC resolutions — explain. (Use Lockerbie
and Kosovo cases.)
7. What is the contribution of the ICJ to maintaining peace and security? (Use
Chagos here.)
8. Interpretation in relation to division of competencies between principal organs —
answer with 5-6 cases.
9. Is India violating any principle of IL by buying Russian oil? Are unilateral
sanctions valid?
10. What is the method used by ILC to identify CIL?
11. Court considers the Marshall Islands' argument that the filing of the application
is sufficient to establish the existence of a dispute — explain.
12. Non-legally binding agreements — will they create binding instruments?

Key tip from class: In exam answers, bring in a lot of principles together to show
the interplay between everything discussed in class. Be creative. For questions on
self-defence, bring in Nicaragua, Oil Platforms, and DRC Rwanda together.

— End of Study Notes —

Public International Law — Study Notes