PUBLIC INTERNATIONAL LAW

• Although the sovereign is not bound by the laws he is making, he is still bound by
the law of the divine
• Sovereign is the entity, individual who is free to make laws but is not bound by
them
• Sovereignty lies with the people of India
• Austin talks about divisible sovereignty
• Basic concept is that sovereignty cannot be divided - a sovereign will be completely
sovereign
• Social contract theory - where we have all the sovereignty but we surrender our
sovereignty, but it is we who are deciding who to give our power to
• Divisible S -
• Internal and external S -
• External sovereignty is that u aren't bound by any other,
• Is it possible to divide S -
• Difference between power and authority -
• Authority is power plus legitimacy
• Marty cortess
• Ultimately all the power comes with constitution - and constitution can be altered
so ultimate power is with constitution
• How can sovereignty be divided?
• It can be divided between institutions
• Trial of bahadur shah zafar -
• What is authority ?
• Can there be authority without power

• 02-08-24
• Christopher columbus
• Found the americas
• He discovered north america
• The land does not belong to anybody, so it is empty land, and it can be conquered
• The person who puts the labour in the land, owns the land
• When CC came to the land, he sees that the people are uncivilized, not wearing
clothes, slaves,
• CC has come with an army, it has support of the king, since there is an
army/soldiers with him, and the presence of the priest
• Letter of columbus on his first voyage to america, 1492
• He has support not only of the divine, but also of the royalty
• Doctrine of discovery (canada SC)
• When I have taken the possession, I have been sent by the divine, journey for the
purpose of the king
• Why columbus thinks that there is no opposition ? Shows that tehre was no
bloodshed, they were not in opposition, the people are without any belief that it is their
land, they have accepted CC
• There is no seperation of state and church here
• The aboriginals are more in awe, they are curious, it is not that they have
surrendered
 • It is a significant event that has happened in hsitory
• United nations charter

• Self determination - has two connotations, political and personal

• In UN charter it is political- how they want to be governed, by whom
• In india we do through elections - internal self determination

• 06-08-24
• Problems in international law
• Whether int law can be called law? Enforcement of int law ?
• Law is a set of guidelines, rules or - int law doesn’t have any such statute
• Is not easily enforceable, in the form of treaties
• There are hardly any repercussions
• Non-binding in nature

• Law from the positivist perspective

• Command of the sovereign backed by the sanctions - austin
• Int law won't fall under this definition, there is no sovereign, there is no command
coming, and
• From a strict positivist idea, int law is not a law
• Law of the nature
• Found or derived from law of the nature
• How do you define nature ? Morals, mores and customs of nature
• Morality of law- HLA Hart, he says int law is nothing but morals, how should one
behave with other nations, sense of right or wrong
• Int law is more related to the natural law
• Int law is mostly found and derived in the law of nature, different principles which
will be followed by other states,
• Are there any positivist laws in int law ?
• International law is positivist law
• If domestic laws aren't being followed, will u say that the
• Is enforceability the criteria for deciding whether law is law or not ?
• Enforceability is never a question when we make any laws
• Even in domestic laws, not everyone is going to adhere with it
• While comparing int law, they shouldn’t be compared to domestic laws
• Why is human rights act in india - india was forced by IMF to come up with the law
• Is social contract theory applicable to int law? Yes

• Is int law and domestic law, overlapping or different

• Depends on subjects of int law
• Subjects of int law - int law deals with the relationship it has with other nations
• Domestic laws deals with individuals and int law
• Criticism - how int law and domestic law is overlapping
• Domestic law is directly applicable on individuals, int law applies to nations, but
ultimately it is binding individuals

• Monism and Dualism

 • In dualist countries u have to bring
• Ratification happens when u merge that law in current domestic law
• Countries who have been colonized are usually dualist countries - their status is
different from first world countries
• 3rd world countries have just started using their resources, while 1st world
countries have already started misusing their resources, but they arent ready to share the
burden proportionately

• Bahadur shah zafars trial

• 08-8-24
• 1494 the treaty of tordesillas was an agreement between the monarchs of spain
and portugal
• 1400 they divided globe in 2 parts
• 1600
• Ships - image
• Dutch and the portugal
• Portugese ship - Sta Catarina
• 3 dutch vessels were there, and St. Catarina comes there, with women, children
and merchants, with large number of slaves to be traded
• SC was attacked by two vessels
• Booty of war
• They realized they should start focusing on trading with china and india
• Problem with attacking ship catarina and taking its belongings and selling all of it?
• Case was brought against dutch east india company, by portugals for looting and
capturing the ship
• It was not a ship of pirates but merchants
• DEC hires Hugo Grotius, a famous corporate lawyer
• In his defence - HG, justifying the position of DEC by claiming it as a 'just war' and
wrote an entire book for it
• He starts advertisiing about free trade and just war
• The ship was unclaimed for the ship can be taken by the DEC
• DEC won ultimately
• HG wrote the book Mare Libervm - where his whole defence is given for the DEC
• This event made the world focus on china and india and how law can be used to
justify the actions of the powerful - so that they can capture other countries, their
belongings and use it for their benefit
• The ship had spices from china and india, and in just one loot the DEC was able to
get a huge amount of wealth in one loot, that made the dutch focus on asia for trade
thinking that they would get more profits, since they could get so much in just one loot
• Historical background of every text, and the time it came in and why
• Usage of int law to justify their actions
• Utilizing free trade

• Reason for all events in PIL

09-08-24
• History of the events of happening
 • Issues in bangladesh, different views from the pers of int law
• Reservation quota
• Armed conflict
• Beligency and insurgency
• Riots and armed conflicts are different
• Refugee
• Corridors
• Violation of human rights convention
• Sovereignty
• Loss of democratic norms
• They have not been able to properly guard the diplomatic offices in bangladesh
• Although an internal matter, all of these things effect int relations
• It happens the politics and the peace in the other nations
• Intervention of foreign elements
- Role of USA
- India was growing in diplomatic relations, harming the hegemony of USA and China
- Stopping the growth of one country means creating problems around them 4;

• 14-08-24
• Theories of international law
• Conceptual theories/questions
• Whether international law is actually a law or not ?
• From positivist school, or in a strict manner it does not get into the concept of law
• Whether It is forming as law or not
• Normative theories
• Norms like statehood, legitimacy
• Whether we consider the things in international law as law or not
• Whetehr something has a binding force of law or not, we need to first see if its law
or not
• Whether it is answering questions of law or not
• Legitimacy in international law
• Int law is legitimate or not
• What gives legitimacy to law
- Global acceptance
- For domestic law, it can be source of law and procedure
- A law is said to be legitimate when both the content and the source & procedure is
accurate
- Even int law it Is imp to be seen the legitimacy of law, sorce and procedure and
content
• Absolute sovereignty - there is no use
• Right to self determination
• Sovereign equality
• Rather than putting absolute S they chose to put S equality in the UN charter -
which means all the members are equal in nature
• So int law is more about sovereign equality
• Because if u are absolute sovereign then the power cannot be diluted
 • All of this depends on state consent, so ever state is bound only by those laws to
which they have agreed to be bound by, you cannot force an state, so consent becomes
very imp in int law

16-08-24
• Empire and international order
• Picture of thomas Roe approaching Emperor Jahangir with a letter from the crown
to enter into trade with India
• In another picture when TR approaches E he came with a fox fur to gift the
emperor
• TR is bringing gifts to the E, a lot of jewels, thinking that the will be happy but
Jahangir laughs
• Charles henr wrtoe about thomas roe coming into india
• This is the first time east india compan is coming to establish trade with india
• And thomas roe receives the welcome of an ambassador already
• So diplomatic relations was not sth given to india b british, india already
understood the concept
Pic 2- the plum pudding in danger
• France was more capable of exploring oceans, but britain was able to capture and
colonize more than france, why?
• France had a lot of internal turmoil, so there was political instability in the country,
which led to the downfall of the french companies and british east india companies were
able to take over
• Then the british started maintaining their presidencies in india
• The maintained the presidencies through the concept of quasi-sovereignty or
divisible sovereignty
• So trade would be looked after b the british while the emperors can look after their
domestic affairs
• Henry Maine on divisible sovereignty
• How different thought processes have come to influence the polic and government
• Definition of S
• S is a result of a lot of powers coming together, an assembl of different powers,
until u culminate different powers, u wont be able to disseminate it
• Baroda court
• Trial of king of baroda, for tring to poison a british resident

• 20-08-24
• Profs of international law
• R P ANAND - his views are considered textbook on int law
• ALEXANDRO WITCH - started the discourse on int law
• B S CHIMINI
• JAMES GATHII -
• Critical understanding of int law
• Contemporary
• PRABHAKAR SINGH
• 2 OTHERS FROM SOUTH ASIAN UNIVERSITY
 • 21-08-24
• Britain playing the role of 'protecting sovereign"
• All powerful countries in europe, didn’t have a large amount of resources, so they
wanted to colonize as they wanted resources of other countries
• Britishers tried to act as protectors of the places they went to colonize
• Bangladesh example - how it formed an interim govt quickly,
• Article 1 - league of nations
• At the time of partition, some states were added to india by force, was this kind of
accesion justified under int law?
• P Singh from Narcissistic positive int law to universal natural int law
• Int law has been termed as a tool for justifying colonialism
• In april 1955, representatives from 29 govts of asian and african nations gathered
in bandung, indonesia to discuss peace and the role of the third world in the cold war,
economic development and decolonization
• 10 principles for peaceful co-existence
• Article 51, 253 of indian constitution
• Approaches to int law
• 4th world approach to int law
• Feminist approach to int law
• Marxist approach
• Liberal approach - 22
• Realist
• Policy oriented or new haven approach

22-08-24
• Morgenthau’s 6 Principles of Realism
• In his book “Politics Among Nations: The Struggle for Power and Peace,” Hans J.
Morgenthau identified six principles of political realism:
1. Politics, like society, is governed by objective laws rooted in human nature;
2. International politics are shaped by a state’s interests, especially in terms
of power;
3. Interest in power is objective and universal, but not fixed—there is room
for nuance;
4. Realism is aware of the moral significance of political action. In other
words, if a friendly country is being attacked, as much as we may want to help, it may be
unrealistic to believe that we can do so without unacceptable risks;
5. Realism does not liken the moral aspirations of a particular nation to the
moral laws which govern the universe. So, if one country invades another on the basis of
God’s will, realists don’t identify this as a justifiable cause of war;
- Working on more concrete reasons, morality cannot dictate all decisions
6. Realism is profoundly different from other schools of thought. Realists are
aware of the existence and relevance of other fields and the experts within, but sometimes
politics must be separated from economics, morality, and even law:
• Morgenthau says the realist “thinks in terms of interest defined as power, as the
economist thinks in terms of interest defined as wealth; the lawyer, of the conformity of
action with legal rules; the moralist, of the conformity of action with moral principles.”
 • Liberalism
• John locke - people who focus on theological or religious considerations
• Focuses on norms, values

• 23-08-24
• India and international law: formal dualism, functional monism - article by aparna
chandra
• India is on paper dualistic in nature, according to article 250
• AC says that india Is also functionally monistic
• Coop

• External and internal sovereignty

30-08-24
• Feminist approach is imp
• Approaches aren't imp from exam perspective
• International law is true or law or not - ?

• Sources of PIL - imp from exam perspective

• What is the significance of discussing the sources - to understand the authority and
from where do we derive the law. To understand what all is included in public international
law.
• Sources of domestic law - parliamentary debates, judicial conclusions, legislative
acts, executive regulations, constitution
• Under article 38 they list down the sources of international law
1. Treaties are the first source of int law
• Article 38 clause 1 of the statute lays down the sources:
• Treaty here is a law making treaty different from a contract treaty
• Bilateral and multilateral treaties - both of them are direct sources of public
international law, they tell you about 2 things - rights and obligations of the party, and they
represent source of international law.
• Treaties should be adhered to in the same manner as agreed to
• Principle of jus cogens
• Jus cogens - if you don’t sign an agreement you need to adhere to these customary
int practices
• So treaties are major sources of international law
2. Customs
• Whether customs can be source of international law
• There a lot of practices in law that are developed cause of customs
• Rules of int law have to have a long historical process to culminate into sth more
meaningful and concrete
• To make it a custom it must be practiced and accepted as an obligation in the
international context
• Customs - general and specific

02-09-24
• Liberation of Goa and the right to passage over indian territory
 • Pic of VDG delivering the lettter of king manuel of portugal to the samorim of
calicut
• Right of passage over indian territory 1960
• French vessel lotus hits the turkish vessel because of which the vessel tanks and
the people died
• The french vessel comes to turkey and is captured by the turkish authorites
• Did turkish courts violate international law by punishing the french national ?
• For an act that happened in the high seas
• ICJ held - Both of them have the jurisdiction to try the case since the subject matter
involves both the countries
• If it is not being specifically prohibited then it is allowed
• In all criminal cases, the countries can exercise jurisdictions outside their juris too

05-09-24
• OPINIO JURIS ET NECCESITATIS
• simply distinguished betwene any kind of customary rules laid down by any
international committee and when it is customary which is when it is legally binding on the
state and not merely an obligation
• It will be considered a custom only when it is legally binding
• Maybe state doesn’t consider it legally binding but it is still followed by state
• Jus cogens - even if the state doest have it legally binding but it is still followed -
like criminal acts
• Proof of customs
3. Uniformity of state practice
4. Generality of state practice
5. The sense that state practice have it mandated or compelled by law, which may be
reduced to 2 primary components:
• Statute of ICJ through article 38 allows the general principle of laws recognized by
civilized countries
• The principle for incorporation into int law, has to follow 3 principles:
a. It must be a general principle of law as distinct from a legal rule for a more limited
purpose like those specific rules for a specific purpose
b. It must be recognized by civilized and peace loving nations as distinct from
barbaric or savage communities
c. Any principle that supports Common law principles is fair
d. Judicial decisions or writing of jurists or publicists
• The above sources are known as hard law
• Other sources of int law - they are known as soft law - Resolutions,
recommendations by the UNGA
• Ex - Nicaragua v. USA 1986
• The nuclear test case - australia and USA v France

• 06-09-24
• Who are the actual subjects of int law?
• Int encompasses other subjects which are committees etc
• Int personality refers to the capacity of the bearer of the rights
• Wherever there is a bearer of right, there will be duty and with duty there will be
 • Any entity to become int subject or int legal personality needs to fullfill the
following:
1. Entity must have duties and hence they should incur responsibility for any
behaviour which is a variant prescribed by int legal system
2. The entity must be capable of claiming the benefits of rights
• If there is no person to claim right then there is no point of having the duty
3. =They must possess the capacity to enter into contracts
4. They must possess the capacity to enjoy some or all of the privileges and
immunities from the jurisdiction of the municipal courts as being an attribute of int legal
system
• Who are considered int legal persons ?
a. Independent sovereign states - population, sovereignty, territ, govt etc
b. Political settlements - which are not states but carved out of treaties of
multilateral or bilateral
c. Condominium - int legal persons which have been made by treaty between 2 govts, this is
more for adjustment of some kind of rift between people
d. Billigertens also get a personality in int law, not normally recognized, why int
personalitv is given to these - they can form states
• Taliban is recognized as a belligerent group
• Individuals as subjects of int law - there are debates about it

• 09-09-24
• The holy see of pope
• The pope Is the head of the catholic church, and at one time he was also the head
of the state
• It is because of certain treaties
• Law of guarantee - 1871 - passed by italian parliament, this has given pope
international recognition, the rights include, the right to represent in int organization, the
sovereignty from the pope was take away.
• Lateran treaty 1929 - until 1929 the position of the holy see was clarified, apart
from representing in italy, after 1929 its powers were limited to papal state which was later
renamed as vatican city. Through this treaty vatican city was created.
•
International organizations
• Are also subjects of int law
• Three conditions to be satisfied for an int body to be considered a subject of int
law
• Permanent association of states to attain a common objective having its own
administrative organization
• Exercise some power that is distinct from sovereign power of its member state
• One example can be - European union
• Its competency must be exercisable on an international front or level - should not
be limited to jurisdiction of one state, but should have an int character.
• Case - advisory opinion by ICJ on the legality of the threat or use of nuclear weapon
1996 - ICJ report page 90, para 25
•
• Some of the privileges which it gets:
 • Right and capacity to enter into int agreements
• The right to enjov immunities and privileges
• The right to protection for all their agents
• They have a right to bring an international claim
• What is the difference between standing of a company, individual and state ?
• The main difference between locus standi of these is that the states have a wider
locus, while others have limited, usually for a limited purpose.

• 10-09-24
• UN CHARTER
• Article 3
• The original Members of the United Nations shall be the states which, having
participated in the United Nations Conference on International Organization at San
Francisco, or having previously signed the Declaration by United Nations of 1 January 1942,
sign the present Charter and ratify it in accordance with Article 110.
• Article 4
• Membership in the United Nations is open to all other peace-loving states which
accept the obligations contained in the present Charter and, in the judgment of the
Organization, are able and willing to carry out these obligations. The admission of any such
state to membership in the IJnited Nations will be effected by a decision of the General
Assembly upon the recommendation of the Security Council.
• Montevideo Convention on the Rights and Duties of States, 1933
• Article 3
• The political existence of the state is independent of recognition by the other states.
• Even before recognition the state has the right to defend its integrity and
independence, to provide for its conservation and prosperity, and consequently to organize
itself as it sees fit, to legislate upon its interests, administer its services, and to define the
•urisdiction and competence of its courts. The exercise of these rights has no other
{imitation than the exercise of the rights of other states according to international law.
• Article 6
• The recognition of a state merely signifies that the state which recognizes it
accepts the personality of the other with all the rights and duties determined by
international law. Recognition is unconditional and irrevocable.
• Article 7
• The recognition of a state may be express or tacit. The latter results from any act
which implies the intention of recognizing the new state.
•
• The writing of calsen has motivated or isnpired the montevideo conbention
• It hsould be a political organization - coming together of people
• Reason for not ratifying this convention
• Effective control should be there - unlike somalia where control isnt with govt
• State created by kailasha isnt recognzied
• Once u recognize a state, It is very difficult to derecognize, recognition is known as
a bullter
• Art 3 6 and 7 of M c
• Art 3 of MC
• It helsp the people going for self determination
 • To preserve the integrity of state it is imp that state can protect the liberalizing
movement

• 11-09-24
• Whether international pure law? / is int law soft law?
• Book by gurdeep singh
• Intro public int law - swati singh
• Malcolm shaw book - not good for critical analysis
• There is no certain guidelines
• Case of cosowo - read the implications, how it is considered a major issue
• Int law is called into picture when there is succession, or secession,
• Do u recognize the new state, which can declare independently that they are
seceded.
• Seceding is separating from a particular entity.
• Succession Is amalgamation
• After decolonization, succession to other part, but there is also a secession.
• Failed state - not able to provide basic amenities to its people
• Critique of whether state recognition is a part of int law or not '
• 2 theories of state recognition:
• Constituted theory - state is recognized as state only when it gets recognized by
any other states, and even if u fulfill all the other criterias then also u wont be considered till
u recognized, since there is no international relations
• And declaratory theory - there is no requirement of a state to be recognized by
another state, it is upon the state to decide whether it will be a state or not, just by
declaration it is enough
• 12-09-24
• Forms of recognition -
• De facto recognition - recognition done just by actions of other states, there is no
requirement of any active law to be passed. Entering into treaties with that state,
establishing of embassies in that state, diplomatic relations, u don’t recognize them by
passing a law in parliament, but by mere actions
• Recognition of state de jure - israel
• Is there a duty to recognize a state ? There is a responsibility to protect
• If there is a right to self determination of state, should there be a corresponding
duty?
• Why should there be a duty to recognize?
• It threatens the sovereignty of the nation to be recognized and the state which is
recognizing
• It threatens the inherent basic tentaments of law
• What is the need for a state to be recognized as a treaty?
• Diplomatic relations, int relations,
• Premature recognition
• USA - Israel - even before israel had a defined territory, it was recognized as a state
by USA
• Explicit and implicit recognition
• Article 7 of montenedo convention talks about this
 • Art 7 - the recognition of a satte may be express or tacit. The latter results from any
act which implies the intention of recognizing a new state.
• Conditional recognition
• Can there be sucha recognition ?
• The general rule in art 6 of montenedo convention is that recognition is
unconditional
• But some of the states have given the condition for recognition of a new state
• 1822 british had to give recognition to latin america, so british put certain
condition that if LA stopped doing certain acts
• Collective recognition
• If organizations come together to recognize a state
• Like UN, EU, NATO etc
• If a state gets recognition in UN, then others don’t need to recognize
• Art 2 para 4 and 7 of UN charter - read on collective recognition

• Retroactivity of recognition
• Once u recognize any state, the recognition dates back to the time whenever that
state had claimed to be a state, so ab initio recognition
• So u recognize all the past activities too
• Western Sahara case - ICJ judgement
• Whenever a state is recognized it is recognized ab initio
• There is no particular form, which says that the state should follow a set form for
recognition

• Recognition of insurgence and belligerents

• Insurgency is by citizens of that state against its own govt, many a times there is
also a recognition of these insurgent groups
• Belligerency is when other forces - from outside the state, the uses force against
the state to get a portion of the territory of India
• Rohingyas would be belligerent group if they do act against the state
• Civil war would be insurgents
• Legal effect of recognition - passport, int relations, embassies, atrocities or crimes
against the citizens of that state can be passed, the right to sue in other courts.
• Withdrawal of recognition
• Article 6 of MC, says that the recogntion is irreversible
• Once given recognition cannot be withdraw, but in practice it can be
• If there is any premature recognition given then it may be withdrawn
• They de factor recognized the conquest of ethopia by italy in 1936 - de jure
recognition later 1938 - and then withdrew recognition in 1940
• Conquest of taiwan by china - was more of a belligerent effect

• De-recognition / non-recogniiton of state

• There is no law, it is a political act
• Boycotting relations with that state
• Article 41 (2) of ILC on responsibility of states on not recognition of states which
have been created out of a serious breach of any int law.