CLASS NOTES - PIL
1. Treaties
2. International Cutoms - Two elemetns - objective (provable by evidence, for eg:
state practise) and subjective (different in countries)
3. Opinio Juri - Mental element of the state, difficult to prove, an obligation of the
state, is following the custom/ practise, becaue it recognizes that practise as rule of
lawor as its own legal obligation, not as a courtesy (principle of commety) - it
becomes custom when it is a bound by legal obligations
CASE LAW: Continental Shelf Case: Germany vs Denmark and Netherlands 1956
UNCLS: 12 nautical miles from the baseline/ coastline - that is the dominion -
territorial waters; + 12 nautical, whcih means it is an exonomic zone
200 nautical miles -
Coming back to the case: Equi Distance Principle - shape of the shore decides the
territorial waters; germany contends - must be decided on the principle of equity -
even though not equal, but should meet the ends of justice
Point 1: Article 6, Geneva Convention, 1958 - Germany not a party - the article
provides for equity, and it was not applicable on germany.
Case goes to the ICJ - Whether equidistance principle has become a customary
practise of law; findings - Hisotrically nations ;have supported equidistance
principle,, however, Germany has been a persistent objector - persistent Objector
Rule:
Duration need not be as important as widespread and representative participation.
CASE LAW France vs Turkey: SS Lotus Case 1927
Two merchant ships of France and Turkey collided in High seas (not in any nations'
territorial waters); Turkish ships drowns, French survives and rescues, the ship then
headed back to turkey, where it was seized by Turkish authorities, and arrested for
manslaughter and negligence.
CASE LAW: Asylum Case, Columbia vs Peru (1950)
Events in peru, 1949, when a Peruvian citizen revolts against the peruvian gov, and
peruvian gov arrested him for violenece.
Convention on Asylum, article 1 and 2, of 1928, Mr Torre has sought political asylum
of columbia, and sought safe passage from Columbia to another nation,
This case is relevant for regional customs, rule of asylum not applicable anywhere
else.
NEXT TOPICS
Relation between treaties and customs:
1. Many forums exist, which aim to codify the customary international principles as
laws, much precisely, treaties.
2. Continental shelf case, the convention became an international custom
3. There are certain essentials: it should not be a - procedural treaty or contractual
treaty. Those can become custoom which are laws of treaties; the treaty should have
widespread acceptance of various states, eg; ICCPR, UNCLS, third parties are have
no applicability of treaty
4. SOME OTHER IMP ESSENTIALS: Treaty can codify custom, It can clarify a
custom
5. Nicaragua v United States (very important case) - treaty and custom are different
CLASS NOTES PIL PART II
1. International Personality
International law - solves disputes between two nations;
The application of International law is on States
;
What is a state?
a. Montevedio Convention/ Montenegro Convetion (1933) - Traditional Criteria of
State - Permanent Population; Defined Territory (Not Fixed); Government; Capacity
to enter into relations with other states
b. Modern View - Recognition by other states is also a factor + state must not have
been made in violation of human rights, example, South Africa, the aparthied
population was being assigned another territory and called a state
c. Permanent Population - This includes, nomadic population, there is no minimum
criteria for a population; Vanautu Island, Vatican city,
d. Defined territories - Monaco has an area of 1.5 sq km
e. Government - Linked to the concept of sovereignty - concept of puppet states
CASE LAW: State of Manchuria Political Incident - Before Japan was losing world
war II, Japan Declared the conquered the state of manchuria and declared it as the
new japanese state, the Manchu Port. League of natons visited, - every offce held by
japanese over the Chinese people. The manchu state was declared a puppet state.
This is the traditional criteria.
Modern Criteria - Example - state must guarantee rights to minorities, the state must
accept the UN Charter,
International Law - applicable on states - SUBJECTS of PIL - Subjects of
International Law - THose who can seek relief under the International Law
COMPOSITE STATES
a. INDEPENDENT STATES
1. Federation - Two or more states unite to such an extent, that they abandon their
seperate statehood - example - United Nations, Germany, Switzerland, Austria,
USSR and Yugosalavia () see- has an intl personality
2. Confederation - Two or more states decide to unite for mutual welfare but do not
let go of their sovereignty - Switzerland from 1291 to 1848, USA 1776 to 1788, - it
depends
3. Personal Unions - When two or more states share same head of state but separate
sovereignties - example - GB and Hanover 1714 to 1837; - no international
personality
4. Real Union - Two or more states are actually merging the borders of State.
Austrio-Hungarian Empire is an example. - Has intl personality, but subject to
internal agreements
5. Commonwealth of nations - No international personality, all nations are
independent and sovereignty, no shared international
B. DEPEDENT STATES
1. Colonies - Colonies lose international personality - Right of self determination is a
human right, which allows a person to choose which country does he identify with or
choose to be a part of.
2. Protected Territories - African countries of Zamia, Malawi - No international
personality
3. Protected States - Morocco protected state of Spain and France 12th Centurty;
Afghanistan 2002 - 2020 - Has international Personality
4. Satellite States - Post World War II, small countries around Russia, who were
independent but for the formality, example, Czechoslovakia, Hungary, for Resources
- Has independent Personality
SOVEREIGN MILITARY HOSPITAL ORDER OF MALTA - An organisation that was
formed between crusade wars to provide hopital services, victims, of either christian
or muslim victims - recognized as subject of international law. Today's Red CROSS
IRCS - International Red Cross Society -
International Personality of Insurgents, Belligerents, and National Liberation
Movements
Armed Rebel of Seperationists - Insurgents and Belligerents
INSURGENTS = Rebels (INSUREGENCY = CIVIL WAR), people who willingly pick
up arms against their own governments
BELLIGERENT = Organised insurgent groups, and they have achieved such a
success, that they have become party to the war, example southern states of
American Civil War, confederate states in particular
1. De Facto Control and De Jure Control
De Facto is real control, on the ground control, actual control.
De jure Control is the control as per the law, for example, POK is subject to de jure
control of India
SOME RECOGNITION IS NECESSARY, EVEN IF ENTIRETY NOT GIVEN - NOT
FOR ALL THE PURPOSES BUT CERTAIN PURPOSES, THAT IS, THAT THEY ARE
BOUND BY INTERNATIONAL HUMANITARIAN LAW (LAW THAT IS
APPLICABLE DURING ARMED CONFLICT, BETWEEN/ WITHIN THE
COUNTRIES)
THey can conclude agreements, such as peace treaty, supply of necessities, such as
medicines, fodder
Common Article 3 of Geneva Convention - There are four Geneva Conventions,
article 3 is common though | Additional protocol to the geneva convention
a. Control of the territory
b. How people may perceive, how many people do they represent
c. Do they participate in the armed conflict
d. Are they expected to follow international humanitarian law
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GENERAL DISCUSSION POINTS
What are the subjects of IL - States, Composite States, National Liberation
Movements
International Law is politically contingent, nothing is specific
IL is soft law, mixture of multiple disciplines
Laws that are mandatory for INSURGENTS AND BELLIGERENTS to be recognised
as INTERNATIONAL PERSONALITY
INSURGENTS = Rebels (INSUREGENCY = CIVIL WAR), people who willingly pick
up arms against their own governments
BELLIGERENT = Organised insurgent groups, and they have achieved such a
success, that they have become party to the war, example southern states of
American Civil War, confederate states in particular
SOME POINTS ON ARTICLE 3 Geneva Convention
Prohibition of Torture
Passing sentence without trial
Execution without trial
Dual and degrading behaviour
OTHER LAWS
Additional protocol 2 adds certain other aspects such as - protection of children and
civilians, treatment of sick and wounded,
Customary International Law - Doctrine of Proportionality - proporitional military
response to obtain military objectives, Distinguishing between combatants and
non-combatants
National Liberation Movement - through peaceful and non-peaceful means
Liberation from Colonial powers, racist regimes, alien occupation, to exercise one's
right to self determination (which is a collective human right)
1960s - UN Declaration on granting of independence to colonial countries
Example: SWAPO (South west african people's organisation) A nigerian
organisation, UN recognised it, and provided as international personality; later
become NAMIBIA; Palestine seeking the same; 1974 PLO received observer status in
the United Nations; In many countries, PLO is a terrorist Organisation
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SUBJECTS OF INTL LAW:
1. International Government Organisation - Different Intl Personalities, For
Examples, OPEC, UN and not G7, G20
IGO must have permanent association of states
It must be tilted to attain certain objectives, example, peace, etc.
It msut have administrative organs, i.e., secretariat, etc
It must exercise some powers that are distinct from Sovereign powers of it's
members
Its competence to exercise power on an International level not confined to the level
of its member states
CASE LAW - Reparations for Injuries suffered in the service of United Nations -
Whether UN has legal personality or NOT? HELD (ICJ) - UN Possesses objective
international Personality, because of its universal membership. Article 104 of UN
Charter - UN has the power to endure such legal personality so as to necessitate its
functionsin sorrounding territory.
2. INDIVIDUAL Personalities of International Law
In history, Intl Law was almost the concept for the individuals as well, until the
concept of sovereignty arrived.
This was the status till 1945 - Legal Positivism - Individuals have no place in
international law; individuals are the beneficiaries, they are the objectives of the Intl
Law and not the subjects. This was the case before 1945.
Modern Status - All the laws existing, they were applicable on individuals.
International criminal law was not a concept. There was a lacuna.
THE NUREMBERG TRIALS OF 1946, ALSO KNOWN AS THE INTL MILITARY
TRIBUNAL
These tribunals were created by charter of intl military tribunal, August 8, 1945 -
three categories of Crime were established - Crime against peace which included
planning and waging of unnecessary war; Crimes against Humanity, which included
such crimes wh;ich exceeded the barbaric nature; Individual Responsibility, rather
than responsibility of State
No Crime without law - Crime against Peace - Criminal Law must always be
prospective. The acts back then were not criminal acts when they were committed.
Crimes Against Humanity - First time clearance on principle of non-interference -
One shold interfere in the sovereign matters of another state, this is a principal of intl
customary law. The pricniple was sidelined by the allied powers mutually, as the
crimes committed were against the humanity. Scholars are important. Lauter,
Raphael Lemking - Human rights must be protected even against one own state.
Defined the word Genocide; The nuremberg trials are informally called - the "Victor's
Justice" in the intl community.
Tokyo Trials - 1946 - Radhabinod Pal, the Indian Justice, condemned the TOKYO
Trial - Challenged the concept of Universalism. This was an attempt to assert western
dominance on other cultures.
Because of these criticisms, the laws such as UDHR, ICCPR, ICESCR others emerged.
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Case Law - CASE CONCERNING COMPETENCE OF COURT OF DAMZIG (POLISH
CITY)
Damzig wanted to be free city from poland post the world War II. Dealt with the
condition of employees in railway. Conditions breached.