MODULE - 1

Meaning, Evolution, Definitions, Development and Codification of Public International Law

International Law: An Overview
Definition and Distinction
The term International Law, also known as the Law of Nations, is often discussed in contrast to National Law or Municipal
Law, which pertains to the legal framework governing a specific country. International Law encompasses a broader set of legal
principles that operate above and beyond the national laws of individual States, influencing their interactions on a global scale.
While there is ongoing debate about whether International Law can be deemed a superior form of law, its increasing recognition
among member States signifies a growing respect for its authority.
Scope and Application
International Law addresses States as legal and political entities, applying equally to all, regardless of their size or power. However,
it is noteworthy that powerful States often exhibit a tendency to interpret international principles to serve their interests. This
tendency raises questions about the equitable application of these laws.
Recent advancements in science, technology, and industry have highlighted the interdependence of nations, making isolation an
untenable option for any country. Increased collaboration among individuals across borders, along with the rise of multinational
corporations, has broadened the scope of International Law. Today, it extends beyond the maintenance of peace to regulate various
global activities, including:
• Space expeditions
• Ocean floor explorations
• Protection of human rights
• Environmental conservation
• Management of international financial systems
These developments underscore the pressing need for a robust framework of International Law in contemporary society.
The Necessity of Definitions in International Law
Despite its importance, International Law lacks a universally accepted definition, although there have been notable attempts to
define it. The earliest usage of the term can be traced back to Jeremy Bentham, a British jurist, in 1780, who sought to describe
the body of rules governing relations among States.
Oppenheim’s Definition
One of the prominent definitions came from Professor Oppenheim, who defined International Law as follows:
"Law of Nations or international law is the name for the body of customary and conventional rules which are considered legally
binding by civilized States in their intercourse with each other."
However, this definition has faced criticism for several reasons:
1. Limited Scope: Oppenheim's definition focuses solely on the relations of States. Today, international organizations and
institutions also hold rights and responsibilities under International Law. Furthermore, certain activities of multinational
corporations are now regulated by this branch of law.
2. Rights of Individuals: The evolution of International Law has introduced rights and duties for individuals, particularly
following the establishment of the United Nations. Documents like the Universal Declaration of Human Rights and
various International Covenants affirm that individuals are not only subjects of International Law but can also claim
rights and remedies therein.
3. Outdated Terminology: The term "civilized States" used by Oppenheim is criticized for being exclusionary. Historically,
Western nations considered only Christian States as 'civilized.' Today, the UN comprises 185 member States, representing
a diverse array of cultures and religions, leading to the removal of this term in later editions of Oppenheim’s work.
4. Ambiguity of Legality: The phrase "legally binding" suggests a positive obligation, but is diluted by the phrase "by
civilized States," indicating that such rules are only considered binding rather than unequivocally so.
5. Narrow Sources: Oppenheim suggests that the rules of International Law derive only from customs and treaties. However,
Article 38 of the Statute of the International Court of Justice identifies "General Principles of Law recognized by
civilized nations" as a third source of International Law.
6. Static Perception: The description of International Law as a "body of rules" implies a static nature. In contrast,
International Law is dynamic, evolving over time in response to changing global circumstances and experiences.
In the ninth edition of Oppenheim’s work (1992), he redefined International Law, acknowledging the changing landscape:
"International Law is the body of rules which are legally binding on States in their intercourse with each other. These rules primarily
govern the relations of States, but States are not the only subjects of international law. International organizations and, to some
extent, individuals may be subjects of rights conferred and duties imposed by international law."
This definition aligns closely with those proposed by Starke and Fenwick, though it remains deficient in not addressing the "general
principles of law."
Other Definitions
• Brierly: "The law of nations or international law may be defined as the body of rules and principles of action which are
binding upon civilized States in their relations with one another."
• Fenwick: "International law may be defined in broad terms as the body of general principles and specific rules which are
binding upon the members of the international community in their mutual relations."
• Whiteman: "International law is the standard of conduct, at a given time, for States and other entities subject thereto."
Development of International Law
Dynamic Nature
International Law is characterized by its dynamic nature, evolving continuously since its inception. It often reflects current trends
and values, anticipating changes in international relations. For instance, the United Nations Environment Programme (UNEP)
highlighted the issue of global warming as early as June 1989 with the slogan “Global warming: Global warning.” Similarly, the
Rio Conference in 1992 underscored the necessity of safeguarding the environment, marking significant qualitative shifts in
international law at crucial historical junctures.
New International Law
The term "new international law" refers to the evolving norms and values established since the Second World War. This paradigm
shift emphasizes the law of social interdependence, indicating that no State can act entirely independently without considering the
broader international community's interests. Today, States are increasingly accepting restrictions on their sovereignty for the greater
good.
Key Factors Contributing to Development:
1. International Organizations: The establishment of universal organizations like the United Nations (UN), International
Labour Organization (ILO), and International Court of Justice (ICJ) has played a pivotal role in developing and
clarifying International Law. These organizations address various social, cultural, and economic issues, enhancing the
significance of International Law. For example, the World Health Organization (WHO) has contributed to International
Sanitary Regulations, while the International Civil Aviation Organization (ICAO) has set international standards for air
navigation.
2. Individuals as Subjects: The evolving nature of International Law has increasingly recognized individuals as subjects of
international rights and responsibilities. This marks a significant shift from a State-centric focus to one that includes
individual rights, allowing individuals to petition before international forums.
3. Codification: In the 20th century, previously ambiguous rules of International Law have been systematically codified,
leading to clearer legal standards that apply uniformly to many States. This process has facilitated better compliance and
enforcement of international norms.
4. Multilateral Treaties: The conclusion of multilateral treaties has expanded the breadth of International Law, governing
areas previously unimagined, such as outer space and the ocean floor.
Crisis in International Law
Despite its advancements, International Law faces significant challenges compared to domestic law. According to Brierly, one
major shortcoming of International Law is its tendency to stabilize rather than adapt to the evolving needs of the international
community. The absence of a centralized legislative body leads to a cumbersome treaty-making process, which depends on the
consent of diverse States with varying ideologies and interests.
Key Challenges:
1. Concept of Sovereignty: The decentralized nature of International Law poses challenges, particularly regarding the
sovereignty of States. The fast-paced changes in international relations have created a sense of crisis, necessitating
adaptability in legal frameworks.
2. Emerging Ideologies: The rise of new ideologies and systems of governance, including militant communism, alongside
the emergence of numerous new States with diverse cultural backgrounds and developmental stages, complicates the
landscape of International Law.
3. Technological Advancements: The rapid progress in science and technology presents new legal challenges, such as those
related to cybersecurity and biotechnologies.
4. Global Issues: Issues such as environmental pollution, nuclear proliferation, and public health crises (like the AIDS
epidemic) necessitate robust and responsive international legal mechanisms.
 Nature of International Law

Is International Law really a law?

It is one of the most controversial questions that has been debated and on which jurist’s opinions hugely differ. One view considers
International law not a true law, rather, a code of rule of conduct backed by morality. On the other hand, International law is
considered to be a true law and is regarded as a law, similar to that of ordinary laws of a state, binding upon the citizens.
Austin’s View – International law is not a true law
According to Austin, law is the command of the sovereign punished by sanctions in case the command is violated by the individual.
There must be a legislative authority enacting the rule of conduct and enforcing physical sanction. So based on what he said, it can
be concluded that any rule which is not enacted by any superior or legislative authority, cannot be regarded as a law and moreover,
if laws are violated, sanctions must be imposed.
Based on that, it can be said that rules are only morally and ethically valid if they aren’t issued by any sovereign authority. If we
apply this theory to International law, we will see there is no legislative power over the society, based on which Austin concluded
that International laws are merely based on ethics and morality and are not true law.
Oppenheim’s View – International law
According to him, laws are nothing but a body of rules for human conduct within a community, which can be enforced by an external
power if there’s a common consent of the community for the same. Based on what he said, we can conclude that, firstly, there must
be a community, secondly, a body of rule of conduct governing the community must be there and thirdly, common consent among
the community for the rules to be enforced power must be present. From this, we can conclude that it’s not necessary that rules
should be enacted by a legislative authority within the community for them to be legally binding.

Can International Law be termed as a true law?

There has been a lot of controversy regarding this question. Some answered the question in negative while others in the affirmative.
Some feel that International Law lacks the element of certainty, stability and predictability.
Not a true law
• John Austin, a leading English writer on Jurisprudence supports the view that International Law is not a law. As per him,
International Law is a code of moral force and rules of conduct only. In his opinion, International Law does not have any
sanction behind it and it doesn’t emanate from a law giving authority. He described International Law as the one consisting
of positive International morality and opinions or sentiments which are followed by the nations as per their own wish.
Hobbes and Pufendorff are also of the view that International Law is not a true law as the law is not truly invested with
true legal force and it is not backed by the command of a superior.
• Holland is of the view that International Law is extremely different from ordinary laws as it is not supported by the State’s
authority. As per him, the private law is writ large. He describes International Law as the vanishing point of Jurisprudence.
He is of the view that as International Law lacks sanction (which is the most important element of Municipal Law) it can
not be kept in the category of true law.
A true Law
• Hall And Lawrence consider International Law as true law. According to them, International Law is derived from custom
and precedents which are a source of law and it is habitually treated like a certain kind of positive law.
• Sir Frederick Pollock observed that for International Law to be binding upon the members, the only essential conditions
are the existence of a political community and the recognition by its members of settled rules binding upon them in that
capacity. International Law wholly satisfies these conditions.

International Law Is Weak Law

• Starke has expressed the view that international law is a weak law. Existing international legislative machinery, operating
mainly through lawmaking conventions, is not comparable in efficiency to State legislative machinery.

Some other weaknesses of international law are as follows:

• There is no effective executive authority to enforce the rules of international law.

• The International Court of Justice lacks compulsory jurisdiction in the true sense of the term. The court does not have
jurisdiction to decide the disputes of all the States since the court acts with the consent of the States only. Further, the court
does not have any real power to enforce its decisions.

• As compared to rules of State law, the rules of international law suffer from greater uncertainty. Further, rules expressed in
treaties, etc. are sometimes formulated in such a way so as to give wide options to the State parties.

• Due to lack of effective sanctions, rules of international law are frequently violated. Further, to compel the strong' States
for the observance of the rules of international law becomes difficult on a number of occasions.

• International law has, in many cases, failed to maintain order and peace in the world.
• A great limitation of international law is that it cannot intervene in the matters which are within the domestic jurisdiction
of States. Thus, international law is a weak law in comparison to the municipal law. However, it must be noted that, unlike
municipal law, international law operates in a purely decentralised system. All States consider themselves independent and
sovereign. International law must be understood and appreciated in the peculiar system in which it operates.
 • It is as good and effective as it can be under the circumstances and peculiar system under which it operates. It is really
creditable that rules of international law are considered binding upon the States because either through treaties or otherwise
States have consented to surrender a part of their sovereignties.

Subjects of International Law

Subjects of international law are entities capable of possessing rights and duties under international law, as well as the ability to
bring and be held accountable in international legal proceedings. The main subjects of international law are:
1. States
o Primary Subjects: States are the principal and most important subjects of international law. They possess full
legal personality, which means they have the capacity to enjoy rights, undertake obligations, and engage in
international relations.
o Characteristics of Statehood:
§ Defined Territory: The state must have a specific geographical area.
§ Permanent Population: There must be a group of people living permanently within the territory.
§ Effective Government: A functioning government must exercise control over the territory and
population.
§ Capacity to Enter into International Relations: The ability to engage diplomatically and enter into
treaties with other states.
o Sovereignty: States are sovereign, meaning they have supreme authority within their territory and independence
from external control. This sovereignty allows them to be equal under international law.
2. International Organizations
o Derived Subjects: International organizations, such as the United Nations, World Health Organization, and
International Monetary Fund, derive their legal personality from the states that create them.
o Limited Legal Personality: Unlike states, international organizations have a limited legal personality. Their rights
and duties are defined by their constitutive treaties, which specify their functions and powers.
o Examples:
§ United Nations: Has legal personality to enter into treaties and take legal action internationally.
§ European Union: Can enact binding regulations and engage in international agreements.
3. Individuals
o Direct Subjects: Individuals have become recognized as subjects of international law, particularly in areas like
human rights, international humanitarian law, and international criminal law.
o Rights and Duties under International Law:
§ Human Rights Law: International treaties, such as the International Covenant on Civil and Political
Rights (ICCPR), grant individuals specific rights against states.
§ International Criminal Law: Individuals can be held responsible for crimes such as genocide, war
crimes, and crimes against humanity under international tribunals, such as the International Criminal
Court (ICC).
o Access to International Courts: In some cases, individuals can bring claims before international bodies, such as
the European Court of Human Rights or the Inter-American Court of Human Rights.
4. Non-Governmental Organizations (NGOs)
o Limited Legal Personality: NGOs are not traditionally recognized as full subjects of international law, but they
play an influential role in the development and implementation of international law.
o Participatory Role: NGOs contribute to the drafting of treaties, monitor compliance with international
obligations, and advocate for changes in international law. For example, Amnesty International and Human Rights
Watch influence human rights law and policy.
o Consultative Status: Some NGOs have consultative status with international organizations, such as the UN
Economic and Social Council (ECOSOC), which allows them to participate in discussions and provide input on
various issues.
5. Multinational Corporations (MNCs)
o Emerging Subjects: While MNCs do not have full legal personality in international law, they are increasingly
recognized as having certain responsibilities and obligations.
o Influence on International Law:
§ Corporate Social Responsibility (CSR): MNCs are expected to adhere to international standards, such
as the UN Guiding Principles on Business and Human Rights.
§ International Arbitration: MNCs can engage in international legal disputes, especially in investment
arbitration under treaties like the International Centre for Settlement of Investment Disputes (ICSID).
6. Peoples and National Liberation Movements
o Right to Self-Determination: Under international law, peoples have the right to self-determination, allowing
them to determine their political status and pursue economic, social, and cultural development.
o Recognition in International Law:
§ National liberation movements, especially in contexts of decolonization or occupation, may have legal
standing to represent the interests of people seeking independence.
§ The United Nations has recognized the right of colonized peoples to seek independence and has
supported liberation movements in this context.
 7. Insurgents and Belligerents
o Limited Legal Personality: In cases of internal conflicts or civil wars, insurgent groups or belligerents may gain
limited recognition under international law, especially when they control territory and act like a de facto
government.
o Application of International Humanitarian Law (IHL): These entities can have rights and obligations under
IHL, such as the Geneva Conventions, which regulate the conduct of hostilities and protect individuals in armed
conflict.
8. The Holy See and the Sovereign Order of Malta
o Unique Legal Entities: The Holy See (the jurisdiction of the Catholic Church) and the Sovereign Order of Malta
are recognized as subjects of international law despite not being states.
o Diplomatic Relations and Legal Acts:
§ The Holy See engages in diplomatic relations with states and participates in international organizations.
§ The Sovereign Order of Malta carries out humanitarian activities and maintains diplomatic relations with
some states.
Rights and Duties of Subjects of International Law
The rights, powers, and duties of different subjects change according to their status and functions. For example, an individual has
the right of freedom from torture under international law. States have a duty under international law not to torture individuals or to
send them to a country where there is a likelihood of that person being tortured. This right exists under treaty law, for example,
under the International Covenant on Civil and Political Rights and under customary international law. The Convention against
Torture and Cruel, Inhuman and Degrading Treatment places obligations on States not to torture and to extradite or prosecute those
who commit torture.[7]
Legal personality also includes the capacity to enforce one’s own rights and to compel other subjects to perform their duties under
international law. For example, this means that a subject of international law may be able to:
• bring claims before international and national courts and tribunals to enforce their rights.
• have the ability or power to come into agreements that are binding under international law (for example, treaties).
• enjoy immunity from the jurisdiction of foreign courts (for example, diplomatic immunity).
• be subject to obligations under international law (for example, obligations under international humanitarian law).

Theories regarding the subjects of International Law

There are 3 theories of subjects of public international law. They are:
• Realist Theory of International Law
• Fictional Theory of International Law
• Functional Theory of International Law

1. Realist Theory of International Law:

The Realistic theory reflects the traditions views of international law that were propounded by the likes of Bentham in the
18th century. This theory suggests that only nation states are exclusively to be considered as subjects of public international law.
According to this theory, international law regulates the conduct of states and hence states alone can be given the status of a subject.
The nation states, irrespective of the individuals that they consist of, are separate entities having rights, duties and obligations and
possess the capacity to maintain their right under international law, therefore nation states are the ultimate subjects of international
law.
According to the Article 1 of the Montevideo Convention on the Rights and Duties of States, a state as a person of international law
should possess the following qualifications:[8]
• a permanent population;
• a defined territory
• a government; and
• capacity to enter into relations with other states
The state as a subject is endowed with rights and duties like; the right to equality, right to coexistence and self-determination, right
to independence, right to respect, dignity etc,. Similarly under the ILC draft declaration on Rights and Duties of states,1949 lays
down rights that states are entitled to like; the right to independence, right to jurisdiction, duty of non-intervention, right to equality,
duty to protect Human rights and fundamental freedoms, duty to maintain peace and security , etc.[9]
Criticism:
The realistic theory is very similar to the legal positivism approach to international law. The positivist definition of international law
has had an enormous impact on modern perceptions concerning the subjects of public international law. With few exceptions, the
theory rejects the notion individuals are proper subjects of international law.[10] While it may sound prudent to categorize law on
the basis of subjects, in practice international law is concerned not just with legal rights of states but also other subjects.
A prominent example of the realistic theory’s failure to describe adequately the reality of the individual as a subject of international
law can be seen right from the time of Bentham himself. In the case of Respublica v. DeLongchamps,[11]an American municipal
court indicted the defendant for assaulting the Consul General of France to the new United States. It was held that the case must be
determined on the principles of the laws of nations. This case was instrumental in reiterating Blackstone’s view that, an individual
could be guilty of an infraction of international law.
Similarly in the Paquete Habana case,[12] the United States Navy had seized two Cuban fishing smacks in the opening days of the
Spanish-American War. A lower federal court condemned the boats as prizes of war. The masters for themselves, their crews, and
their owners, argued before the Supreme Court that peaceful fishing craft were exempt from seizure under the rules of international
law.
These cases clearly showcase the fact that to view nation-states as the only subject of international law does not fulfill the purpose
of the law, and is found to be wanting when there are circumstances concerning individuals who cannot be seen isolated from the
state or organization that they are a member of, as seen above in the Nuremberg trials. Further, many of the rules of international
law are are directly concerned with regulating the position and activities of individuals, and many more indirectly affect them. It is
now generally recognized that besides States, public international organizations, individuals and certain other non-State entities are
also the subjects of international law.

2. Fictional Theory of International Law:

There are certain jurists who ascertain that in the ultimate analysis of international law it will be evident that only individuals are
the subjects of international law. Professor kelson is the chief proponent of this theory, he states that an individual alone is entitled
to be the subject of international law. The duties and rights of the states are in reality the duties and rights of the men who compose
them. Many modern treaties do bestow rights and impose duties upon individuals. From time to time certain treaties have been
entered into which have conferred certain rights upon individuals. Although the statute of the ICJ adheres to the traditional view
that only states can be parties to international proceedings, a number of other international instruments have recognized the
procedural capacity of the individual. Various international treaties, judicial tribunals and courts have recognized individual
personality under international law.
A compelling case that highlights the modern approach to international law and provides credibility to the fundamental aspect of
the fictional theory is the case of Filartiga v. Peha-Irala.[16] This case was adjudicated by the United States Court of Appeals for
the Second Circuit; in this case both parties to the dispute were individuals and the court found international law dispositive on the
fundamental question of jurisdiction. The plaintiffs who were Paraguayan citizens were related to another Paraguayan, who, they
contended had been tortured and killed in Paraguay by the defendant who was also a Paraguayan. Though all the elements in this
case were foreign or alien, the plaintiffs based their claim on a provision from the Judicial Act of 1789, which provided the federal
district courts of USA with ‘original jurisdiction’ for any civil action by an alien for a tort only, committed in violation of the law of
nations. This statutory provision is an example of the eighteenth century view of the relationship between individuals and the
international law.
The court concluded that “an act of torture committed by a state official against one held in detention violates established norms of
the international law of human rights, and hence international law.” Moreover, the court overruled dictum from an earlier decision
and held that “international law confers fundamental rights upon all people vis-a-vis their own governments.”
Criticism:
The chief criticism of the fictional theory is that it considers only individuals as the subject of international, it theorizes that though
States are the main actors, they are composed of individuals and hence only they are entitled to be called subjects of international
law. The fictional theory’s attempt to portray individuals as the subjects of international law proves futile because in reality even
individuals derive their rights from a state, and the role of a state in international law is of paramount importance . There is no doubt
that states are still the main subject of international law and most of the part of international law concerns with the conducts and
relationship of states with each other, therefore states cannot be isolated from being a subject of international law.

3. Functional Theory of International Law:

Both the Realist and Fictional theories adopted the extreme course of opinions. But Functional theory tends to meet both the
extremist theories at a road of new approach. According this theory neither states nor individuals are the only subjects; both are an
inseparable part of international law and therefore, both are considered to be subjects of international law. States being primary and
active subject of international law have recognized rights, duties and obligations under international law and are capable to maintain
the same by bringing international claim. At the same time in modern international law individuals have also been granted certain
rights, duties and obligations under international law and can maintain the same by bringing international claims. The increasingly
inclusive approach of international law has widened the ambit and scope of the field, with international organizations and non-state
entities also finding a place and acquiring the status of subjects.
There is very little to criticize in this theory as it rightly includes, not just states and individuals, but also international organizations
and non-state entities as subjects of international law. The functional theory truly reflects the inclusive approach of modern
international law. The widening scope of modern international law has led to an increase in the subjects of international law, there
are many actors in international law, which have been granted rights, duties and obligations, and also to secure their rights, they
have been provided with capacity to bring international claims, hence along with states and individuals certain other entities which
have been given international personality shall be treated as subjects of international law.

Sources Of International Law

The sources of international law are the materials and processes through which international legal rules are created and recognized.
Article 38(1) of the Statute of the International Court of Justice (ICJ) provides a widely accepted list of sources, which includes:
1. Primary Sources
These are the most authoritative and direct sources of international law.
o Treaties and International Conventions:
§ Definition: Treaties are formal agreements between states or international organizations that are legally
binding. They can be bilateral, multilateral, or regional.
§ Role: Treaties are considered the most direct source of international law because they are negotiated and
explicitly consented to by the states or parties involved.
§ Types:
§ Bilateral Treaties: Agreements between two states, such as trade or defense pacts.
 § Multilateral Treaties: Agreements between multiple states, like the United Nations Charter or
the Paris Agreement on climate change.
§ Examples: The Geneva Conventions (1949) regulating humanitarian treatment during war, and the
Vienna Convention on Diplomatic Relations (1961).
o Customary International Law:
§ Definition: Customary international law consists of practices and customs that are accepted as legal
obligations by states over time.
§ Requirements:
§ State Practice (Usus): A consistent and general practice among states.
§ Opinio Juris: The belief by states that this practice is legally obligatory.
§ Examples: The prohibition of genocide, diplomatic immunity, and the principle of non-refoulement in
refugee law.
o General Principles of Law Recognized by Civilized Nations:
§ Definition: These are principles common to major legal systems worldwide and serve as a source of
international law when there is no specific treaty or customary rule on the issue.
§ Role: General principles help fill gaps in international law and provide a foundation for legal reasoning.
§ Examples: Principles such as "pacta sunt servanda" (agreements must be kept), good faith in legal
dealings, and the prohibition of bias in judicial proceedings.; Res Judicata, etc
2. Subsidiary Sources (A.59)
Subsidiary sources are not binding by themselves but play an important role in determining the content and development
of international law.
o Judicial Decisions:
§ Role: Decisions of international courts (such as the ICJ or International Criminal Court) and national
courts can be used as evidence of existing legal rules and principles.
§ Persuasive Authority: While judicial decisions are not binding as sources of law, they can influence the
interpretation of international legal norms.
§ Example: ICJ rulings on territorial disputes, such as the Nicaragua v. United States case (1986), which
clarified principles of non-intervention.
o Writings of Highly Qualified Publicists:
§ Role: Scholarly writings and expert legal opinions contribute to understanding and developing
international law.
§ Persuasive Authority: They are considered subsidiary means for determining legal rules and can provide
interpretations or explanations of complex legal issues.
§ Examples: Works by renowned jurists such as Hugo Grotius, Emer de Vattel, and contemporary scholars
like Ian Brownlie.
3. Other Sources Recognized in Practice
Although not mentioned explicitly in Article 38(1) of the ICJ Statute, other sources contribute to the formation and
development of international law.
o Resolutions and Declarations of International Organizations:
§ Non-Binding Nature: Resolutions by bodies like the United Nations General Assembly are not legally
binding, but they may reflect the consensus of the international community.
§ Influence: Such resolutions can contribute to the development of customary international law or be
referenced in treaty negotiations.
§ Example: The Universal Declaration of Human Rights (1948), which, though not legally binding, has
significantly influenced international human rights law.
o Soft Law:
§ Definition: Soft law refers to non-binding norms, principles, or practices that can influence the behavior
of states or guide the development of binding law.
§ Examples: Guidelines, codes of conduct, or declarations issued by international organizations, such as
the UN Guiding Principles on Business and Human Rights.
o Unilateral Acts of States:
§ Binding Nature: In some cases, states can create binding legal obligations through unilateral
declarations, especially if there is an intention to be legally bound.
§ Example: France's declaration regarding nuclear testing in the South Pacific, which was recognized as
creating legal obligations.

Relationship between International Law and Municipal Law

Definition
• International Law: Governs relationships between states and other international actors. It includes treaties, customary
international law, and principles recognized by states.
• Municipal Law (Domestic Law): Refers to the legal system governing the internal affairs of a state. It includes
constitutional law, statutory law, and case law applicable within the state.

Theories of the Relationship between International Law and Municipal Law

1. Monism
o Unified Legal System: The monist theory views international law and municipal (domestic) law as a single,
integrated legal system. Both legal orders are seen as part of the same hierarchy.
o Automatic Incorporation: In monist systems, international law automatically becomes part of the domestic legal
system without the need for separate legislative action. International treaties, customary international law, and
other international norms are directly applicable in domestic courts.
o Primacy of International Law: Monism often suggests that international law has a higher status than domestic
law. If a conflict arises, international law takes precedence. This is based on the belief that international law serves
as a higher legal authority or reflects universal values.
o Examples: Countries such as France and the Netherlands follow a monist approach, where international
agreements are directly enforceable domestically upon ratification.
2. Dualism
o Separate Legal Systems: Dualism treats international law and municipal law as entirely distinct and separate
legal systems. Each system operates independently, and the rules of one do not automatically apply to the other.
o Requirement for Incorporation: In dualist systems, international law does not have legal effect within the
domestic legal framework unless it is explicitly incorporated through national legislation. For instance, treaties
must be transformed into domestic laws through the legislative process before they become enforceable.
o Primacy of Domestic Law: Dualism maintains that domestic law takes precedence over international law within
a state's legal system. Courts cannot apply international law unless it has been formally adopted into the domestic
legal framework.
o Examples: The United Kingdom, Australia, and many other common law countries follow a dualist approach,
where domestic legislation is necessary to implement international obligations.
3. Harmonization Theory
o Intermediate Approach: The harmonization theory seeks to bridge the gap between monism and dualism. It
recognizes the distinct nature of international and domestic law but emphasizes the need for harmonization
between the two systems.
o Integration through Interpretation: Courts may interpret domestic laws in a manner that aligns with
international obligations, even if those obligations are not directly incorporated into domestic law. This approach
helps achieve consistency between international commitments and domestic legal standards.
o Balancing Interests: Harmonization theory attempts to balance the state's sovereignty in domestic matters with
its international legal obligations, facilitating a flexible relationship between the two legal systems.
4. Transformation and Incorporation Theories (Variants within Dualism)
o Transformation Theory:
§ This variant within dualism asserts that international law must be "transformed" into domestic law
through specific legislative action. For a treaty or international norm to have domestic effect, it needs to
be enacted by the national legislature in a form that fits the domestic legal framework.
§ Example: In the UK, treaties require an act of Parliament to be enforceable domestically.
o Incorporation Theory:
§ In contrast to transformation theory, incorporation theory holds that customary international law is
automatically considered part of domestic law without needing specific legislative transformation.
However, treaties still require formal incorporation through legislation.
5. Delegation Theory (Variants within Monism)
o Delegation by Municipal Law: According to this theory, the domestic legal system voluntarily delegates certain
legal authority to international law. The domestic legal system may permit the automatic application of
international law in specific areas, effectively delegating some of its sovereignty.
o Conditional Application: Delegation theory allows for international law to be applied domestically based on
conditions set by the municipal legal system. If the domestic legal framework permits the application of a
particular international law, it is applied.
6. Pluralism
o Co-Existence of Multiple Legal Orders: The pluralist approach recognizes that both international law and
municipal law can co-exist independently without one necessarily taking precedence over the other.
o Legal Fragmentation: It accepts that conflicts may arise between different legal systems and may not always be
resolvable by giving one system priority. Instead, conflicts are addressed on a case-by-case basis through
negotiation or judicial interpretation.
o Emerging Global Norms: Pluralism allows for the recognition of emerging global norms that may not fit neatly
within traditional monist or dualist frameworks.
7. Specific Adoption Theory(Variants within Dualism)
o Definition: The Specific Adoption Theory is a variant of the dualist approach in the relationship between
international law and municipal law. According to this theory, international law is not automatically part of domestic law.
Instead, it requires specific legislative action by the state to adopt or implement international legal norms into the domestic
legal system.
o Mechanism of Adoption:
o For an international treaty, custom, or other international legal norm to have legal effect within a country, it must
be specifically adopted through national legislation or another formal legal process.
o Each international legal norm must be evaluated and incorporated individually. There is no automatic
transformation of international law into domestic law.
 o Example:
o The United States follows the Specific Adoption Theory regarding treaties. While the U.S. Constitution recognizes
treaties as the "supreme law of the land" once ratified, many treaties require enabling legislation by Congress to
be directly applicable in the domestic legal system.

MODULE – 2
Recognition of States under International Law
Introduction
A new state is born out from an existing State or an old State which disappeared and comes with a new name or by splitting an
existing State into two States. If a new state enjoys certain rights, privileges and obligations then it must get recognition as a state,
which is very essential. However, there are some minimum criteria required before a State is considered to be a State. A State must
get the De Jure (when a state is legally recognized) recognition for considering a State as a sovereign State. Political thought plays
an important role in this decision whether to grant recognition or not. For recognition as a State, it must enter into relations with the
other existing States. The elements, theories, and processes are reflected in this article.
Meaning of State Recognition in Public International Law
The term “Recognition” means ratification, confirmation, acknowledgment that something done by any other person in one name
had one’s authority.
Recognition of State
“In recognizing a state as a member of international community, the existing states declare that in their opinion the new state fulfills
the conditions off statehood as required by International law” (Oppenheim)
According to Kelsen
The country to be recognized as an international person must be:-
1. Politically organized
2. Have control over a definite territory.
3. Which tends towards permanence.
4. And must be independent.
Essentials for recognition as a state under Public International Law
Under the International Law, Article 1 of the Montevideo Conference, 1933 defines the state as a person and lays down following
essentials that an entity should possess in order to acquire recognition as a state:
• Population;
• Territory;
• Government;
• Sovereignty;
• Control should tend towards permanency.
If these conditions are fulfilled, then the State can be recognized.
Legal effects of state recognition in Public International Law
When a state acquires recognition, it gains certain rights, obligations and immunities such as.
1. It acquires the capacity to enter into diplomatic relations with other states.
2. It acquires the capacity to enter into treaties with other states.
3. The state is able to enjoy the rights and privileges of international statehood.
4. The state can undergo state succession.
5. With the recognition of state comes the right to sue and to be sued.
6. The state can become a member of the United Nations organisation.
Theories of recognition in international law
The recognition of a new entity as a sovereign state is based on two main theories:
• Consecutive Theory
 • Declaratory Theory
1. Consecutive theory of state recognition in International Law
The main exponents related to this theory are Oppenheim, Hegal and Anziloti.
According to the consecutive theory of state recognition in International Law, for a State to be considered an international person,
its recognition by the existing states as a sovereign required. Consecutive theory of state recognition in International Law is of the
view that only after recognition a State gets the status of an International Person and becomes a subject to International Law. So,
even if an entity possesses all the characteristics of a state, it does not get the status of an international person unless recognised by
the existing States.
Consecutive theory of state recognition in International Law does not mean that a State does not exist unless recognised, but
according to this theory, a state only gets the exclusive rights and obligations and becomes a subject to International Law after its
recognition by other existing States.
Criticism of the consecutive theory of state recognition in International Law
This theory has been criticised by several jurists. Few of the criticisms of this theory are:
• This theory is criticised because unless a state is recognised by other existing states, rights, duties and obligations of
statehood community under International Law is not applicable to it.
• This theory also leads to confusion when a new state is acknowledged and recognised by some of the existing states and
not recognised by other states.
2. Declaratory theory of state recognition in International Law
The main exponents of the Declaratory Theory of Statehood are Wigner, Hall, Fisher and Brierly. According to this theory, any
new state is independent of the consent by existing states. This theory has been laid down under Article 3 of the Montevideo
Conference of 1933. This theory states that the existence of a new state does not depend on being recognised by the existing state.
Even before recognition by other states, the new state has the right to defend its integrity and independence under International law.
The followers of theory consider the process of recognition as merely a formal acknowledgement of statehood by other states.
Criticism of the declaratory theory of state recognition in International Law
The declaratory theory of statehood has also been criticised. This declaratory theory of state recognition in International Law has
been criticised on the ground that this theory alone cannot be applicable for recognition of a state. When a state having essential
characteristics comes into existence as a state, it can exercise international rights and obligations and here comes the application
of declaratory theory, but when other states acknowledge its existence and the state gets the legal rights of recognition, the
consecutive theory comes into play.
Modes of Recognition of State in International Law
1. De facto Recognition.
2. De jure Recognition.
These are the two modes of recognition of State in International Law.
De facto Recognition of States under International Law
It is the process of acknowledging a new state by a non-committal act.
• De facto recognition is a provisionally grant.
• It is the first step to the next mode of recognition.
• It is a temporary and factual recognition as a state
• It can either be conditional or without any condition.
• A test of control for newly formed states.
When the other existing countries have an opinion that the new state does not have enough capacity but the new state holds a
sufficient territory and control over a particular territory.
Example: The Soviet Union was de facto recognized by the government of the UK in 1921.
De jure recognition of States under International Law
When the other existing countries have an opinion that the new state has all the eligible capacity then such state will be recognized
by the de jure recognition. To grant recognition under the de jure method there is no need for the fulfillment of the first mode.
• It is granted when the newly formed state acquires permanent stability and statehood.
• It grants the permanent status of a newborn state as a sovereign state.
Example: The Soviet Union was given de jure recognition Soviet Union was in 1924.
In conclusion, there is no distinction between de facto and de jure as it is for the states to give effect to the internal acts of the
recognized authority. This was held in the case Luther v. Sagar [3]. [(1921)3 KB 532]
The distinction between De Facto and De Jure Recognition of State in International Law

[Link]. De facto Recognition of State De jure Recognition of State

De facto recognition is a provisional and factual

1. De jure recognition is legal recognition.
recognition.

De jure recognition is granted when the state fulfils all the

De facto recognition is granted when there is the
2. essential condition of states along with sufficient control and
fulfilment of the essential conditions of statehood.
permanency.

De facto recognition is a primary step towards grant De jure recognition can be granted either with or without grant of
3.
of de jure recognition. de facto recognition.

De facto recognition can either be conditional or

4. De jure recognition is a final and non-conditional recognition
non-conditional.

5. De facto recognition is revocable in nature. De jure recognition is non-revocable.

The states recognised under this mode have only a The state recognised under this mode have the absolute right and
6.
few rights and obligations against other states. obligations against other states.

The state with de facto cannot undergo state

7. The state with de jure recognition can under state succession.
succession.

The state with de facto recognition cannot enjoy The state with de jure recognition enjoys full diplomatic
8.
full diplomatic immunities. immunities.

As soon as the de facto recognition under International Law is given, the Government acquires sovereign immunity from being sued
in the courts of a foreign State which so recognizes it. It does not matter in such cases, whether de facto or de jure recognition is
given, because a de facto recognition dates back in the same manner as a de jure recognition.
This rule has been applied in a number of cases viz. Bank of Ethiopia v. National Bank of Egypt & Ligouri (1937) 3 All ER 8.
The Arantzanu Mendi (1939) 1 All ER 719. So far as conflict of authority takes place between a displaced de jure government and
a newly recognized de facto government, concerning matters in the territory ruled by the de facto government, the rights and status
of de facto government will prevail.
Forms of Recognition of State in International Law
When a newly formed state is recognised, its declaration can be made in two forms:
1. Expressed Recognition
2. Implied Recognition
1. Expressed Recognition of State
When an existing state recognises a new state expressly through official declaration or notification, it is considered to be the
expressed form of recognition. Express recognition can be made through any express or formal means such as sending or publishing
declaration or statement to the opposite party. When a state is recognised by expressed ways, it is a de jure recognition unless
provided otherwise by the recognising state in the declaration.
2. Implied Recognition of State
When the existing state recognises a newly formed state through any implied act, then it is considered as an implied
recognition. Implied recognition can be granted through any implied means by which a current state treats the newly formed state
as an international person. The implied credit not granted through any official notification or declaration. The recognition through
implied means varies from case to case.
Conditional recognition of State in International Law
The recognition of state with which certain conditions are attached in order to obtain its status as a sovereign state is conditional
recognition in International Law. The conditions attached varies from state to state such as religious freedom, the rule of law,
democracy, human rights etc. The recognition of any state is already associated with the essential conditions to be fulfilled for the
status of a sovereign state but when an addition condition is attached it is conditional recognition in International Law.
Criticism
Many jurists criticise conditional recognition. The conditional recognition is criticised on the ground that recognition is a legal
procedure, and no additional conditions should be attached with it other than the conditions recognised by law. Another reason for
criticism is that the recognised state if it does not fulfil the condition attached for its recognition, recognition is not extinguished and
it should still be valid.
An example is Palestine Liberation Organization (P.L.O.), recognized by many States including India. In contrast to de facto
government, governments-in-exile lack effective control over the territory of a State and have been accorded de jure recognition.
Withdrawal of Recognition of State in International Law
1. Withdrawal of De facto recognition in International Law
Under international law when a state having de facto recognition fails to fulfil the essential conditions of statehood, its recognition
can be withdrawn. The recognition can be withdrawn in International Law by the recognizing state through declaration or through
communicating with the authorities of the recognized states. The withdrawal can also be done by issuing a public statement.
2. Withdrawal of De Jure recognition in International Law
Withdrawal of de jure recognition is a very debatable issue under the International Law. Withdrawal of a de jure recognition in
International Law is a very exceptional event. If strictly interpreted, the de jure recognition can be withdrawn.
Even though the process of recognition is a political act, de jure recognition is of legal nature. Jurists who consider de jure
recognition as a political act considers it revocable. Such revocation of de jure recognised states can be withdrawn only when a state
loses the essential characteristics of statehood or any other exceptional circumstances. This type of revocation can be done expressly
by the recognising state by issuing a public statement.
Recognition of government
For any statehood, the government is an important element. When a state is formed, its government changes from time to time.
When the government changes as an ordinary course of political action, the recognition of government by the existing state is not
required but when the government changes due to any revolution, then its recognition by the existing state is required.
For recognising the new government established out of revolution, the existing states need to consider that:
1. The new government have sufficient control over the territory and its people or not.
2. The new government is willing to fulfil the international duties and obligations or not.
When the existing states are satisfied that the new government resulting out of the revolution is capable of fulfilling the conditions
as mentioned above, then the new government can be recognised by the existing states.
Conclusion
The recognition of the state is an essential procedure so that it can enjoy all the privileges of statehood community under international
law. There is a controversy between Consecutive Theory and Declaratory theory of Recognition by different jurists, but we can
conclude that the theory followed for recognition is in between the consecutive and declaratory theory.
The recognition being either de facto or de jure, it provides rights, privileges and obligations. When a state gets its de facto
recognition, the rights, privileges and obligations are less but when it is recognised de jure, it gets absolute rights, liabilities and
privileges. The recognition of the state is too much politically influences on the International platform.
There have been many instances where the powerful states create obstructions in recognition of a newly formed state. It can even
be withdrawal when the recognising state feels that the new state is not fulfilling the prerequisites for being a sovereign state. The
recognition can be done either by express form or implied form and its mode, i.e., de facto and de jure recognition varies from case
to case basis.

Basis and concept of State Responsibility

Meaning
State responsibility, in simple terms, means the responsibility or accountability that arises for the state after committing wrongful
acts against other states. Where a state infringes on the rights of another state or fails to perform its duties towards the other state.
Under these circumstances, the state shall be held liable or responsible for its act.
This responsibility is rooted in the legal maxim coined by Hugo Grotius:Every fault creates the obligation to make up for the losses.
The primary point of reference in relation to the law of state responsibility is the Articles on the Responsibility of States for
Internationally Wrongful Acts (the ILC Articles), adopted by the International Law Commission (ILC) in 2001, which constitute the
fruit of the ILC’s attempt to codify and progressively develop the law in this area. Also, Article 2(4) of the UN Charter prohibits
dictatorial non-intervention by stating that every state is under a legal obligation not to use or threaten to use force against others.
Where do we find a law on state responsibility
We can finds it in various precedents, in state practice, in customs, but you don’t find it directly as such in a treaty, but there is one
instrument where we find the principles of state responsibility, that instrument is the draft articles on state responsibility, which is
drafted by the international law commission.
International law commission is the most respected value of international lawyers, it is a value which continues to consider the areas
where international law has to develop, and they produce the draft of some formulation which makes it convenient, for the analyst
for the practitioner, for the state to apply and understand law in that area.
Trail smelter arbitration
Trail Smelter Arbitration took place between the USA and Canada, under which the Canadian company began smelting lead and
zinc located in Trail, on the banks of the Colombian River, which is about 10 miles from the border of the two countries.
The USA claimed that the fumes from the plant were carried down by the Colombian river valley, which caused significant damage
to crops, forests, and properties in the State of Washington.
In 1938, both countries decided to resolve the dispute through arbitration. The panel of the arbitration tribunal consisted of three
arbitrators, where each country appointed its own arbitrator and a neutral arbitrator who heard the case.
In 1941, the tribunal issued its award, which is called the Trail Smelter Arbitration Award, under which Canada was held responsible
for the pollution caused by the Trail Smelter and that it had violated its duty to prevent emissions that would cause harm and damage
to the property and interests of other countries. Canada was ordered to pay compensation amounting to $78,000 for the damage
caused.
United States of America vs. Iran (1980)
On November 4, 1979, the US Embassy situated in Teheran, Iran, was seized by Iranian militants. They damaged the embassy as
well as the documents. Also, 52 American diplomats and citizens were held hostage for 444 days. The US was angry that, despite
repeatedly requesting it, the Iranian military force did not arrive on time at the location and failed to prevent the violence by not
exercising the necessary preventive steps. It was also alleged that Iran violated international law, specifically the Vienna Convention
on Diplomatic Relations. It was Iran’s duty to protect the US Embassy in its territory.
The International Court of Justice held Iran responsible for its acts, stating that Iran has breached its obligations under international
law.

State responsibility has attributed two theories-

a. Risk theory:-it says that state is strictly, responsible if any of the organ of the state commit any wrongful act, state may be
directly or indirectly responsible for the act.
b. Fault theory:-in this theory it state that the state shall responsible, if any intention or negligence will be shown.

Types of state responsibility

State responsibility can be categorised primarily into two types, which are discussed below:
A. Direct responsibility
In international law, state responsibility refers to the legal consequences arising from a state’s wrongful acts or omissions that violate
international obligations. It encompasses a range of legal principles and mechanisms that govern the responsibility of states for their
actions, both domestically and internationally.
1. Breach of international obligation:
o It occurs when a state does not fulfil an obligation enshrined in international treaties, conventions, or customary
international law.
o Examples include failure to protect diplomatic personnel or engaging in armed aggression against another state.
2. Denial of justice:
o Refers to the failure of a state to provide fair and impartial judicial proceedings to individuals or entities within
its jurisdiction.
o Examples include arbitrary detention, lack of due process, or denial of access to courts.
3. Abuse of rights:
o It arises when a state exercises its sovereign rights in a manner that infringes upon the rights of other states or
individuals.
o Examples include excessive use of force, pollution of the environment, or illegal exploitation of natural resources.
4. Failure to prevent:
o It occurs when a state fails to take the necessary measures to prevent harm caused by activities within its territory
or jurisdiction.
o Examples include failure to prevent cross-border pollution or transnational crimes.
5. Complicity in wrongful acts:
o It involves aiding or assisting another state in committing a wrongful act, even if the complicit state does not
directly participate.
o Examples include providing military support or financial assistance to a state engaged in aggression.
Consequences and enforcement of state responsibility:

1. Reparations:
o Aim to restore the situation to the state that would have existed had the wrongful act not occurred.
o Common forms include restitution, compensation, or satisfaction.
2. Non-material remedies:
o Involve measures such as apologies, expressions of regret, or symbolic acts aimed at acknowledging and
addressing the harm caused.
3. International dispute settlement:
o States can seek resolution of disputes related to state responsibility through diplomatic negotiations, mediation,
arbitration, or adjudication before international tribunals.
4. Countermeasures:
o Legitimate measures taken by an injured state in response to a wrongful act committed by another state.
o Must be proportionate and aimed at inducing compliance with international law.
 5. Collective security measures:
o In cases of serious violations, the United Nations or regional may take collective measures, such as sanctions or
peacekeeping operations, to address state responsibility.
Understanding the principles and mechanisms of state responsibility is crucial to maintaining international order, promoting respect
for international law, and ensuring accountability for wrongful acts committed by states. It also contributes to the peaceful resolution
of disputes and the protection of the rights of individuals and entities in the international arena.
The Executive, Legislature, Judiciary, local authorities, central authorities, etc. represent the state, and hence any acts that cause
violations of international obligations by these organs shall be regarded as acts of that specific state.

Following are the acts that make the state directly responsible
Executive acts
The executive branch manages the state’s day-to-day operations. Thus, when an act is committed by the Head of Government or
any official or any individual authorised or commanded by the Head of State, the State shall be directly responsible for the injury to
the aggrieved party.
Acts of judiciary
The main function of the judiciary is adjudication. But when the court of a state passes any order, decree, or judgement that violates
any convention, treaty, or international obligation, the state’s responsibility will be involved. It will be directly responsible.
Acts of armed forces
A state shall be held directly responsible for injurious acts committed by its armed forces under the authority or command of the
state. If such acts are committed without the authorization or command of the state, the state will not be held responsible. But if the
soldiers commit any acts mistakenly, show recklessness in their conduct, or act under negligence, the state will be held responsible
for such acts. The best example of responsibility arising from mistaken but culpable action is the shooting down of a Korean
commercial aircraft in 1983.

B. Indirect responsibility
When an act is committed by an individual or by a group of individuals that infringes on the rights of another state or is a breach of
any international obligation, the state to which they belong will be held responsible.
Article 5 of the Draft Articles prepared by the International Law Commission states that if any person or entity empowered by the
law of that state commits any act that causes damage to the other state or violates the international obligation, such acts shall be
regarded as acts of that state.
It is the indirect responsibility of the state only when there are any omissions or lack of due diligence by its organs to prevent such
acts. Oppenheim has rightly stated that if the state has not exercised reasonable care to prevent such injurious acts, it can be made
responsible and held liable to pay damages. This implies that the state will be held responsible only when the organs of the state
have not exercised sufficient care in preventing the offences.
The wrongful acts of individuals that may give rise to state responsibility are as follows:
• Mob violence:- When damages are caused because of the mob violence and the state fails to prevent the violence by not
exercising due diligence or by omissions of it’s duty to prevent such acts, the state will be made indirectly responsible for
the damages that occurred.
• Violence in insurrections and civil wars: injury caused to an alien in the state as a consequence of civil strife makes the
state indirectly responsible because it’s its duty to prevent violent acts of revolution on its own territory.

State Succession under International Law

Introduction
State succession under international Law is indeed a perplexing topic to discuss. After world war 2, state succession has become an
extremely essential subject. As more than 100 new state came into existence due to decolonisation. Despite of failure to codify state
succession law, there seems to be an emerging consensus in the recent practice among the learned scholars suggesting the state
should try to manage legal relationship at all level.
As the Act is not codified, this topic is not governed by any specific method or rule and because of this complexity arises a lot. This
topic takes into consideration various issues with respect to rights, duties, nationalities of the people and also issues related to
properties, treaties, relation with international organisations and debts of the new successor state.
Historical background
Before 20th Century the political situation of the world was completely different. So as the method of government differed too along
with rules and regulations. Those were the era of kings and kingdoms and annexation of the state was very common. There was no
rules or treaties as to how the relation between the state will be governed. One king would dominate another’s kingdom out of
power, thus resulting in the formation of new state continuously. This situation resulted in the creation of various problems like
frequently changing rules and regulations, nationality, political and economic agendas and so on.
Now, as we live in an organised society an organised rule is necessary to regulate the political and legal situation between the states.
Role of UN in regulating the state succession Act
UN being an intergovernmental organisation looks after the peace and security between the states. The international Law
commission (ILC) being the head of the sate succession matters yet, failed to codified laws as how to govern state succession issues,
the UN has established certain guidelines to be followed when the new state comes into existence. These guidelines are basically to
maintain peace and harmony and to deal with the situation arising out of new state formation, like internal problems of rights and
duties and external issues related to membership of international organisation, debts and credits etc.
State succession under International Law
State succession can be defined as “The replacement of one state by another in the responsibility for the international relation of
territory” Article 2(1)(b) of the Vienna convention act, 1978 . In another word when the state loose whole or part of its territory
which results in the formation of one or more new states, and the relation of the new emerged state with the international state .
The parent state is called the predecessor state the new state formed out of it is called successor state.
Types of state succession
Partial: When one or more state is formed, from the predecessor state along with the predecessor state still in existence, is known
as partial succession.
Example: a. separation of India from British
a. separation of Pakistan from India
b. separation of Bangladesh from Pakistan
Universal: When the predecessor state is completely dissolve and vanished and one or several successor state forms out of it, is
known as universal succession.
Example: a. Dissolution of Czechoslovakia
b. Division of USSR.

Theory of State Succession

a. Universal succession/ Popular continuity theory: Both this theory are identical to one another. This is the oldest form
of succession theory given by Grotius, Fiore and Fradie. According to this theory, the right and duties of the predecessor
state transfer automatically to the succession state without any obstruction and alteration. Both these theories were largely
criticised by other scholar due to its Roman law analogy and unclear explanation of state succession.
b. Organic Substitution theory: Scholers like Von gierke and Max Huber supported this theory. According to the theory the
new state that comes into existence continues with the old rule and regulations without any alteration. But, this theory too
have been criticise because of invalid practical application.
c. Self- Abnegation theory: This theory was advocated by Jellinek in 1900. It is known as another version of universal
continuity [Link] to this theory the successor state morally agrees to follow the rules of the international law
and follow the obligation towards other state.
d. Negative Theory: This theory was established in the mid- 19th century. According to the theory the successor state is
absolutely free from the right and obligation of the predecessor state. The Successor state can form their own rules and
regulations, political, economic and social laws and also can create their own international relations.
e. Communist theory: According to this theory, the successor state is bound by certain rules and regulations, internal treaties
debts and duties with the predecessor state. This theory is completely contradictory to the negative theory. When the
successor state come into existence, they are bind by certain political and economic agendas. For instance, the issues related
to paying of debts, agreements of war and peace, treaties etc.
Matters of state succession
a. Treaties
b. Membership of International Organisation
c. Debts and loans
d. Private and Public property
e. Other rights and Duties
Treaties
The Vienna convention of state succession in respect of Treaties, 1978; was passed to deal with the laws related to treaties between
the states. While discussing matter relating to treaties, whether the newly formed state shall be bind with all the treaties which the
predecessor state has signed. well, answering to this question a codified customary principal have evolved which says that the
treaties related to the boundary is binding to the succeeding state and cannot be altered. Secondly, while discussing treaties related
to Human rights the general discussion is that the successor state is not bound to follow, the successor state should have the right to
decide if they want to continue with the treaty or not. Similarly, other treaties with respect to international states and organisation
are not binding and the successor state can go for a fresh new treaty.
Membership of International Organisation
Being as a member of international organisation has its own significance, own political visibility and diplomatic benefits. While
dealing with the questions if the newly formed state is entitled to be the member of the International Organisation, it is said that the
successor state have to fresh apply for the membership. A good example of India and Pakistan, when Pakistan separated from India
the UN said that they have to again apply for the membership. Another example, when USSR got divided and various state came
into existence along with Russia, complication raised as to whom the membership of UN security council should be given, finally
the issue was resolved through “Almaty declaration” and Russia was given the membership
Debts and Loans:
Issues related to debts and loans also arises as who will repay it. The best way to resolve this issue is by making agreement of
bilateral nature between the predecessor state and the successor state as to how the loan will be paid back to the donor agencies or
any other entities. But the rules related for the same is not codified and hence complexity arises.
Public and private Property: Public properties which includes movable and immovable properties like houses, lands, railways,
buses, planes, golds, embassies, Infrastructure etc., comes into question as what to do with those property. If the successor state are
enjoying the property they should have the binding obligation to repay it. Well, in such case the new state is bound to repay to the
parent state.
While dealing with the personal property, the successor state have to make a rule and regulation as to how the properties should be
distributed among the citizens.
Other rights and Duties: Other rights and duties like nationality of the citizen, obligations towards new authority and the state are
taken into consideration. According to the guidelines laid by UN the newly formed state have the right to choose their nationality,
but he reality speaks something else.