SAMRIDDHI

1. Critically examine the traditional and modern sources of International Law with relevant case laws.
- Article 38(1), ICJ statute
- 2 fold scope of Art 38 : a) sources ; b) functions & means
- Traditional sources (Art 38) – not an exhaustive list but most authoritative
 Customs derived from state practice
 Treaties b/w states
 General principles of law recognised by civilised nations
 Judicial decisions and writings of highly qualified publicists
- CIL –
 The oldest source, most binding, not written
 2 elements - a) consistent state practice ; b) opinion juris (a belief in legal obligation) (North
Sea Cont Shelf)
 North Sea Cont Shelf, 1969 – the concerned act must be a settled practice and there must be
evidence of a belief that this practice is rendered obligatory by the existence of a rule requiring
it. The States concerned must feel that they are conforming to what amounts to a legal
obligation.
 SS Lotus – practice alone is not enough
 Nuclear Weapons – rule cannot be created by opinion juris alone w/t practice
 Critique (State Practice) – So far as practice is concerned, this includes not just the practice of
the government of a State but also of its courts and parliament. It includes what States say as
well as what they do. Also practice needs to be carefully examined for what it actually says
about law. The fact that some States practise torture does not mean that there is not a sufficient
practice outlawing it. Nicaragua case: ‘In order to deduce the existence of customary rules, the
Court deems it sufficient that the conduct of States should in general be consistent with such a
rule; and that instances of State conduct inconsistent with a given rule should generally have
been treated as breaches of that rule, not as indications of the recognition of a new rule.’
 Critique (Opinio juris) - the normal definition of a belief in obligation (North Sea Continental
Shelf cases) is not entirely satisfactory. First, it ignores the fact that many rules are permissive
(eg regarding sovereignty over the continental shelf), for which the real opinio juris is a belief
not in obligation but in right. Secondly, and more fundamentally, there is something artificial in
talking of the beliefs of a State. It might be better to consider opinio juris as the assertion of a
legal right or the acknowledgment of a legal obligation. Once there is sufficient practice
together with opinio juris, a new rule of custom will emerge. Subject only to what is known as
the “persistent objector” principle the new rule binds all States. The persistent objector principle
 allows a State which has persistently rejected a new rule even before it emerged as such to avoid
its application.
 Two element approach – SP + OJ – where there is general practice as law but no acceptance
among States that it may be considered to be a legal right – no CIL. In Asylum case – ICJ
considered the alleged existence of a rule of CIL regarding diplomatic asylum. The Court did
not find any constant and uniform usage accepted as law. there was much inconsistency in the
rapid succession of conventions on asylum, ratified by some States and rejected by others and
the practice has been influenced by considerations of political expediency. (*separate note on
two-element approach)
- Treaties –
 As source of obligation
 Binding only on signatory states – a rule of CIL – pacta sunt servanda .
 Treaties codify CIL. Eg- VCLT 1969. Less than half the States in the world are parties to it but
every court which has considered the matter has treated its main provisions as codifying
customary law and has therefore treated them as applying to all States whether they are parties
to the Convention or not.
 where a treaty provision codifies a rule of customary law the source of law is the original
practice and opinio juris – the treaty provision is merely evidence. But that overlooks the fact
that writing down a rule which was previously unwritten changes that rule. From that time on, it
is the written provision to which everyone will look and debates about the extent of the rule will
largely revolve around the interpretation of the text rather than an analysis of the underlying
practice.
 where a treaty provision is not intended to be codificatory but rather is an innovation designed
to change the rule, it can become part of customary law if it is accepted in practice. ( N.S.C )
 NSC – although passage of short period of time is not necessarily, or of itself, a bar to the
formation of a new rule of customary international law on the basis of what was originally a
purely conventional rule, an indispensable requirement would be that within the period in
question, short though it might be, State practice, including that of States whose interests are
specially affected, should have been both extensive and virtually uniform in the sense of the
provision invoked; - and should moreover have occurred in such a way as to show a general
recognition that a rule of law or legal obligation is involved.
 a large number of States agreeing upon a treaty provision is itself an important piece of State
practice.
 If those and other States subsequently apply the treaty provision – especially where they are not
parties to the treaty – then it can quickly become part of customary international law.
- General Principles :
  applied when tribunal wants to adopt a concept such as the legal personality of corporations
which is widely accepted in national legal systems (eg in the Barcelona Traction Co. case
(1970))
- Judicial Decisions
 Art 59 - judicial decisions of ICJ not binding on anyone except the partiers to the case in which
that decision is given and even then only in respect of that particular case
 a mistake to assume that “subsidiary” indicated a lack of importance.
 Article 38(1)(d) does not distinguish between decisions of international and national courts. The
former are generally considered the more authoritative evidence of international law on most
topics (though not those which are more commonly handled by national courts, such as the law
on sovereign immunity). But decisions of a State’s courts are a part of the practice of that State
and can therefore contribute directly to the formation of customary international law.
- Writings
 The writings of international lawyers may also be a persuasive guide to the content of
international law but they are not themselves creative of law and there is a danger in taking an
isolated passage from a book or article and assuming without more that it accurately reflects the
content of international law.
- Modern Sources -
- UNGA - the positions which States take in the United Nations is part of their practice and a resolution
(or sequence of resolutions) which commands a sufficiently widespread acceptance and which is
regarded by the States as embodying a rule of international law can have an important effect on the
development of customary international law, so long as it is not contradicted by what States actually do
elsewhere (see, e.g., the discussion of the resolutions on nuclear weapons in the Advisory Opinion on
Nuclear Weapons (1996)).
- UNSC - Decisions taken by the Council under Chapter VII of the Charter and framed in mandatory
terms are legally binding on all States (Article 25 of the Charter). Moreover, under Article 103 of the
Charter the duty to carry out a decision of the Council prevails over obligations under all other
international agreements (see the Lockerbie cases (1992)). However, the Council does not create new
laws but rather obligations in relation to specific issues and it is not a legislature (see the decision of the
ICTY in Tadic (1995)).
Hierarchy of Norms (*separate note ) –
Article 38 makes no reference to such a hierarchy but it is possible to discern elements of a hierarchy in
certain respects. It is now generally acknowledged that a few rules of international law are of such
fundamental importance that they have the status of jus cogens, that is peremptory norms from which no
derogation is permitted. Whereas States can always agree to depart (as between themselves) from ordinary
rules of customary international law, they are not free to depart from or vary a rule of jus cogens. Thus, a
 treaty which conflicts with a jus cogens rule is void (Vienna Convention on the Law of Treaties, 1969,
Article 53) and such a rule will prevail over inconsistent rules of customary international law.

However, it is important to bear in mind that (a) there are very few rules which possess the status of jus
cogens (e.g. the prohibitions of aggression, genocide, torture and slavery) and the criteria for achieving
such status are strict – near universal acceptance not merely as a rule but as a rule from which no
derogation is permitted; (b) cases of conflict are very rare and the suggestion that such a conflict exists
should be carefully scrutinised (see, e.g. the rejection both by the ICJ – Arrest Warrant case (2002) – of the
suggestion that the law on sovereign immunity conflicted with the prohibition of torture).
A treaty prevails over customary law as between the parties to the treaty but a treaty will not affect the
rights of States not party to that treaty. There is, therefore, no strict sense of hierarchy between treaty and
customary law, contrary to what is sometimes alleged.
2. Examine the role played by “Declaration” and “Reservation” in multilateral treaties
DECLARATION :
Unlike reservations, declarations merely clarify the state's position and do not purport to exclude or modify the
legal effect of a treaty. Usually, declarations are made at the time of the deposit of the corresponding
instrument or at the time of signature.
The term "declaration" is used for various international instruments. However, declarations are not always
legally binding. The term is often deliberately chosen to indicate that the parties do not intend to create binding
obligations but merely want to declare certain aspirations. An example is the 1992 Rio Declaration.
Declarations can however also be treaties in the generic sense intended to be binding at international law. It is
therefore necessary to establish in each individual case whether the parties intended to create binding
obligations. Ascertaining the intention of the parties can often be a difficult task. Some instruments entitled
"declarations" were not originally intended to have binding force, but their provisions may have reflected
customary international law or may have gained binding character as customary law at a later stage. Such was
the case with the 1948 Universal Declaration of Human Rights. Declarations that are intended to have binding
effects could be classified as follows:
a. A declaration can be a treaty in the proper sense. A significant example is the Joint Declaration between the
United Kingdom and China on the Question of Hong Kong of 1984.
b. An interpretative declaration is an instrument that is annexed to a treaty with the goal of interpreting or
explaining the provisions of the latter.
c. A declaration can also be an informal agreement with respect to a matter of minor importance.
d. A series of unilateral declarations can constitute binding agreements. A typical example are declarations
under the Optional Clause of the Statute of the International Court of Justice that create legal bonds
between the declarants, although not directly addressed to each other. Another example is the unilateral
Declaration on the Suez Canal and the arrangements for its operation issued by Egypt in 1957 which was
considered to be an engagement of an international character.
RESERVATION :
A reservation is a declaration made by a state by which it purports to exclude or alter the legal effect of certain
provisions of the treaty in their application to that state. A reservation enables a state to accept a multilateral treaty
as a whole by giving it the possibility not to apply certain provisions with which it does not want to comply.
Reservations can be made when the treaty is signed, ratified, accepted, approved or acceded to. Reservations must
not be incompatible with the object and the purpose of the treaty. Furthermore, a treaty might prohibit reservations
or only allow for certain reservations to be made.
[Arts.2 (1) (d) and 19-23, VCLT 1969]

3. Certain States have maintained a view that “human rights are essentially within the domestic jurisdiction of
a country”- critically examine this attitude of States in the light of contemporary developments in
international human rights law.

4. Critically evaluate whether “anticipatory self defence” is excluded from the ambit of Article 51 of the UN
Charter or not.
Art 51 (What?) - Nothing in the present Charter shall impair the inherent right of individual or collective self-
defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security.
Art 2(4) – prohibits the use of armed force.
Art 51 as CIL – Nicaragua & Legal Consequences of the Construction of a Wall in the Occupied Palestinian
Territory - use of force (UOF) as incorporated in the Charter reflects CIL. Gen Res 2625 – Decleration on
Principles of International Law concerning Friendly Relations and Co-operation among States” emphasised – “no
territorial acquisition resulting from the threat or UOF shall be recogniosed as legal.”
Caroline Test – necessity of self dfence, instant, overwhelming , leaving no choice of means and no moment for
deliberation. (Criteria for Necessity & Proportionality).
Criteria for Necessity & Proportionality – measures taken are proportional to the armed attack and necessary to
respond to it. Nicara , Nuclear Weapons advisory, Oil Platforms .
Oil Platforms – Iran & USA – attack by US vessel struck a mine. Held neither necessary nor a proportionate
response. The Court went on to hold that even if Iran was held responsible for all of the attacks – a) it did not amnt
to an armed attack by Iran , b)neither necessary not proportionate . Interpretation of ‘Necessary’ – US attack was
not necessary bcs there was no prior complaint by the US military. The attack on the Oil Platforms was a taegeted
opportunity. Disproportionate – destruction of number of Iranian vessels and mines along with Oil Platforms. “A
strict & objective test”.
Requirement of Necessity – a) immediacy, instancy. B) UOF is the only way to repulse the attack
Requirement of Proportionality – intensity must be same (Nicar, Platforms). However to import such a requirement
of equivalence would be erroneous. The main aim of the prop requirement is not to equate the UOF in self def and
original UOF, rather the self-defence must be proportionate to the legitimate aim of self def , should not be
excessive or punitive (dissenting opinion of [Link] in Nuclear Weapons Advisory Opinions). Geographical
dimension – self def confined to the area of the original attack (Armed activities case b/w democratic republic of
congo and Uganda)
To what extent the right to Self def provided in Art 51 an exception to Art 2(4) –
Art 2(4) prohibits the UOF, while Art 51 says self defence if an armed attack occurs. The language indicates that
they are not essentially two sides of the same coin. Self def is not available as a response to all illegal uses of force.
Self def is only available to those UOF which rises to the level of an armed attack. (what constitutes as armed
attack? Nicar – whether the giving of assistance by a state to irregular forces operating in another state constituted
an armed attack which entitled US to respond in collective self def ; no self defence needed in response to
assistance of logistical support of weapons). Hence the ICJ in Nicar implied that there are some instances where
the actions may breach Art 2(4) but they do not amnt to armed attack – distinguish ‘most grave forms of UOF’ vs.
‘less grave forms of UOF’. Gravity of UOF (there needs to be an armed attack for self defence whether indirect –
Nicar- or direct – Oil Platforms). But by not allowing states to defend themselves bcs it’s a lesser grave form of
UOF, we may encourage lower levels of terrorism ([Link] – dissent Nicar ). A gap b/w illegal UOF and armed
attack. Two policy decisions that support the majority in the Nicar , (essentially dismisses the dissent) :
A) Prevention of escalation
B) Internationalisation of Conflicts - Indirect UOF – assistance to non-state groups . to contain civil wars – if
all supply of weapons gives rise to an armed attack against the supplier, will internationalise every civil war
Period of time v. imp (3 situations) :
a) Armed attack ended - Nicar
b) Ongoing armed attack - Continued UOF – even if there is a prolonged gap where the armed attack
continues , self-defence may be necessary.

c) Armed Attack not begun – anticipatory - A pre-emptive strike embarked upon too early might constitute an
aggression. Armed attack is foreseeable. It becomes legitimate u/CIL and Art 51 where an armed attack is
imminent. Must shift away from the right to self defence expounded in Caroline.

- Pre-emptive self defence – used by US concerning Afghanistan,

- anticipatory selfdefence is allowed but under strict conditions relating to proof of the imminence of an
armed attack that would jeopardise the life of the target state and the absence of peaceful means to
prevent the attack. Cassese states that ‘it is more judicious to consider such action [anticipatory self-
defence] as legally prohibited, while admittedly knowing that there may be cases where breaches of the
prohibition may be justified on moral and political grounds and the community will eventually condone
them or mete out lenient condemnation .
- intention to attack – first gulf war b/w Iran & Iraq , ICJ suggested that for UOF to amnt to armed
attack against a particular state, the state using force must intend to attack. Oil Platforms – no evidence
of intention that the missiles of alleged Iran origin were directed at the US vessels.
 Conclusion –
- inconsistent SP
- Bush Doctrine
- 1967 Israeli strike on Arab neighbours - 1981 Israeli attack on Iraqi nuclear reactor à claimed
anticipatory self-defense à Israel acted to remove a nuclear threat à the under-construction Iraqi reactor
was designed to produce nuclear bombs to be used to attack Israel à Israel relied on scholarly literature
to support anticipatory SD, but could not prove State practice à the UNSC condemned it as a violation
of the Charter
-

5. Critically examine the statement: “A State which had abused its sovereignty by brutal and
excessively cruel treatment of those within its power was regarded as having made itself liable to any
action by any state which was prepared to intervene” – R2SD
6. Short note on TWAIL
TWAIL - It is a predatory system that legitimizes, reproduces and sustains the plunder and subordination of
the Third World by the West.2 Neither universality nor its promise of global order and stability make
international law a just, equitable, and legitimate code of global governance for the Third World.3 The
construction and universalization of international law were essential to the imperial expansion that
subordinated non-European peoples and societies to European conquest and domination.4 Historically, the
Third World has generally viewed international law as a regime and discourse of domination and
subordination, not resistance and liberation. This broad dialectic of opposition to international law is
defined and referred to here as Third World Approaches to International Law (TWAIL). TWAIL is not a
recent phenomenon. It stretches back to the decolonization movement that swept the globe after World War
II. Bandung was the symbolic birthplace of TWAIL, although the North-South confrontation draws heavily
from Latin American opposition to the domination of the Third World by the industrialized West.5 This
confrontation has its roots in the anticolonial movement. TWAIL is a response to decolonization and the
end of direct European colonial rule over non-Europeans. It basically describes a response to a condition,
and is both reactive and proactive. It is reactive in the sense that it responds to international law as an
imperial project. But it is proactive bcs It seeks the internal transformation of conditions in the Third
World.
TWAIL is driven by three basic, interrelated and purposeful objectives :
a. The first is to understand, deconstruct, and unpack the uses of international law as a medium for the
creation and perpetuation of a racialized hierarchy of international norms and institutions that sub ordinate
non-Europeans to Europeans.
b. Second, it seeks to construct and present an alternative normative legal edifice for international governance.
Finally, TWAIL seeks through scholar ship, policy, and politics to eradicate the conditions of
underdevelopment in the Third World.
c. Economy & neo-colonialism - by the Bretton Woods institutions?the World Bank, International Monetary
Fund (IMF), and General Agreement on Tariffs and Trade (GATT)?multinational corporations and the
Western states. In the eyes of all of these institutions, the newly emergent states remained marginal, and at
the mercy of Western capital. Julius Nyerere, the late President of Tanzania and an original TWAIL
statesman, defined "the meaning and practice of neo-colonialism"as the inability of Third World states to
change their dependency upon and exploitation by the former imperial powers.27 Crushing debt, which the
West advanced to corrupt, undemocratic regimes, now ensures that many countries in Africa, Asia, and
Latin America cannot create meaningful development programs. Yet the international financial institutions
refuse to do the right thing and either write off or forgive the debt. It was these realities that gave rise to the
twailian Group of 77 and its proposals for, among others, the ill-fated New International Economic Order
(NIEO). Today, globalization and the ubiquity of free markets, and the push for a single global market,
simply underscore these evil imbalances which characterize the international order. The World Trade
Organisation (WTO), which is an opaque undemocratic bureaucracy, is the latest in a series of international
institutions perpetuating Western hegemony over the rest of the world. Calvo Doctrine , unfair BITs.
d. CRS - WAIL Is a Coalitionary Movement The globalization of injustice is closely linked to the
phenomenon of globalization. TWAIL believes that forming coalitions with like-minded movements in all
societies, including in the West, is an essential strategy for combating powerlessness and the victimization
of the Third World and marginalized communities in the West. In this respect, TWAIL seeks deliberate
complicity and alliances with a number of scholarly communities, particularly those advocating critical race
theory (CRT) and new approaches to international law (NAIL). CRT, which is a response to American
racist and sexist subordination, employs multidimensionality and intersectionality to understand and
challenge white power in America. Its understanding of the use of law and the exercise of power as tools of
domination and exclusion mirrors TWAIL. Its authors have identified national parallels that are really a
microcosm of the international legal order. White supremacist hierarchies dominate both the national and
international legal orders. CRT is driven by two basic interests: The first is to understand how a regime of
white supremacy and its subordination of people of color have been created and maintained in America,
and, in particular, to examine the relationship between that social structure and the professed ideals such as
the "rule of law" and "equal protection." The second is a desire to not merely understand the vexed bond
between law and racial power but to change it. The challenge for writers in CRT, NAIL, and other Western
movements that oppose white supremacist and Eurocentric hierarchies is to realize that domination is
global. They must work in an international idiom, and connect subordination of particular groups in the
United States to the exploitation of the Third World. For its part, TWAIL would be well served to study the
CRT method to inform its own struggle. In other words, CRT and TWAIL must hatch deliberate
conspiracies and cross-fertilize in their struggles against entrenched Eurocentric power structures both at
 the national and the international levels. Twailers are committed to the project of "decentering" the
European-North American alliance in the calculus of all political, cultural, legal, and economic phenomena.
This is the global struggle that TWAIL hopes CRT will join.

Criticism - TWAIL has only paradoxes to offer, and this is evident in our approach to pedagogy. When lecturing, for
example, TWAIL scholars lament international law for being a handmaiden to just about every brutality Europe
could conceive of since Vitoria sauntered onto the scene. In the same course, sometimes in the same lecture, we
rescue international law, declaring it a fantastic(al) “means of constraining power” and thus vital in “the fight for
global justice.”
TWAIL is a form of embryonic critique. It is inchoate because its scholars have yet to settle on a
conceptual frame, appearing discursively disjointed from article to article, scholar to scholar. And so, those
of us with an anti-colonial disposition come to practise an equally disjointed pedagogy. Committed to using
international law to achieve more equitable outcomes, no doubt, but almost always within the confines of
Eurocentric legality, or at least European epistemology, a critique that cannot be subversive. Despite our
anti-colonial credentials, we’ve practically essentialised international law, implying throughout our
scholarship that even colouring within the lines is emancipatory.

7. Custom as a source of law. Explain through Nicaragua Merits case, Nuclear Weapons and Fisheries case

8. Short note on Art 51 UN Charter

9. Critically trace the evolution of the right of anticipatory self-defence in international law from the time of
the Caroline Case to the present day.

AISHWARYA

10. “It is contrary both to the contemporary juristic thought and the state of present day International
Law, with its increasing corpus of substantive rules on matters of common concern to the
international community, to deny its legal character.” Discuss.

Law in its essence is what binds members of a given community together as accountable to the same
recognised rules, values and standards, facilitating all the rights and duties that come along with the
existence of resulting legal relations – such as the ability to enter into enforceable contracts – alongside the
coercive element of punishment for infringers. It would be oversimplistic to blindly equate domestic law,
with citizens as subjects, to international law with states as the subjects of regulation instead. Considering
the legal character of public international law as opposed to private international law/conflict of laws only
complicates the matter further. There is no one legislature, judiciary, or executive branch. Many would
argue that international law, specifically because of how consent-based it is, is more a game of international
politics acting behind the meaningless veneer of legal language and instruments, both of which lack a real
enforcement mechanism – there is no accepted version of compulsory jurisdiction. After all, what is the
point of the ICJ if it cannot rule on disputes involving states who have not consented to its jurisdiction, and
what is the point of an ICJ decision that does not have a material way of ensuring it is complied with (the
ignored provisional measures for Russia come to mind)? The UNSC, the only organ of the UN empowered
to make binding resolutions and take on a regulatory role, is famously constrained by P5 veto powers.
Resolutions by the UNGA, meant to represent the voice of the “international community,” are not binding.
In many ways, the international community creates the law and then adjudicates on whether it has complied
with it or not.

DOES COERCION DETERMINE THE VALIDITY OF A LEGAL ORDER?

“the English philosopher John Austin elaborated a theory of law based upon the notion of a sovereign
issuing a command backed by a sanction or punishment. Since international law did not fit within that
definition it was relegated to the category of ‘positive morality’” before being brought back into the fold by
those like Grotius. “This concept has been criticised for oversimplifying and even confusing the true nature
of law within a society and for over emphasising the role of the sanction within the system by linking it to
every rule.” Violations of a system and difficulty of sanction does not render a system non-existent. Often,
international law is a useful tool for rhetoric, allowing states to speak the same language within the same,
comprehensible framework. The language of international law may also work as an accountability system
in and of itself, allowing for violations of say, natural law principles, to be identified and brought into legal
and social discourse. Claims that make reference to international rules and obligations may help rally
support better than domestic law, especially if domestic law is lacking. Even if violations of international
law do not have legal consequences for the state, they hence may have harmful social ones, where the State
loses the faith of the people and thus its legitimacy. IL hence acts as a strong deterrence mechanism. This
analysis can also be applied to how and why reciprocal tolerance builds between states.

Doctrine of Consent v. Consensus

South-West Africa on the separation between politics and IL – “‘It is a court of law, and
can take account of moral principles only in so far as these are given a sufficient expression in
legal form. Law exists, it is said, to serve a social need; but precisely for that reason it can do so
only through and within the limits of its own discipline. Otherwise, it is not a legal service that
would be rendered.”
“International law cannot be a source of instant solutions to problems of conflict and confrontation because
of its own inherent weaknesses in structure and content. To fail to recognise this encourages a utopian
approach which, when faced with reality, will fail.’

What supports its existence as a legal system?

1. States communal interests, as expressed via the UN – refer to Charter of the United Nations, 1945,
Articles 1, 2, and Declaration on Principles of International Law concerning Friendly Relations and Co-
operation among States in accordance with the Charter of the United
Nations, 1970, United Nations General Assembly Resolution 2625 (XXV) of 24 October 1970.
2. Existence of legal rules and standards
3. “”of intl law subjects
4. How Intl law interacts with domestic law

Different arguments:
1. Enforcement argument
“(1) The fact that some states disobey periodically some rules of international law does
not itself mean that those rules are not rules of ‘law,’ because even in domestic society
some people (e.g., criminals) break the law from time to time. (2) On the other hand, the
fact that most states obey most rules of international law most of the time is not enough
to call those rules ‘legal’ because we are especially concerned with ‘important’ cases
where states may get away with violating rules of international law. If states can violate
rules with impunity when it is in their national interest to do so, how can we call those
rules ‘law’? (3) We recognize, even though it makes us somewhat uncomfortable, that
international law is more properly analogized to domestic cases where the state is a party
than to domestic cases where one citizen sues another. Under this conception, we
concede that our usual notions of ‘enforcement’ are not appropriately applied to the
state. But because we recognize as ‘law’ those domestic cases involving the state as a
party, we should also recognize as ‘law’ those international controversies involving
states as parties. [pg1301] (4) We further concede that physical coercion is not a
necessary component of ‘law.’ However, we are reluctant to conclude that it is totally
unnecessary, because we have seen too many cases where a nation violates international
law and gets away with it because of the lack of an effective enforcement mechanism.
(5) Hence, we are somewhat, though not totally, persuaded that international law can
properly be labelled ‘law’ for most purposes. But we may remain unconvinced, at this
point, that it is really ‘law.’”
2. The verbal argument
 Most interstate communication is grounded in legal language, making it questionable that
constant references to some higher legal order is not implicitly relying on IL’s legal character
and value.
3. Reciprocal Entitlements
“The violation may be of the same entitlement or, more likely these days, of a different
entitlement. But it is on the whole an effective process—as effective for the international legal
system as is the enforcement of most laws in domestic systems via the statesanctioned
deprivation of one or more entitlements held by individual citizens or corporations.
Occasionally people or states will break laws despite the presence of enforcement machinery,
but that does not mean that there were no laws to begin with. Nor, as I have tried to argue,
should be swing to the opposite side of the spectrum and say that enforcement has nothing to do
with whether laws exist. We don't need to take such an extreme position with respect to
international law because there is, in fact, enforcement, resulting in a stable system of
international entitlements. It is impossible to understand why nations do or refrain from doing
the things they do without understanding what entitlements are included in the bundle and how
nations act to preserve their full complement of existing entitlements.”
Monica Hakimi: Why should we care about intl law?
“Realists”; intl law does not matter. Even if states use its language – cheap – animated by material
interests and power – compliance with IL if they have independent reasons for acting that way. If those reasons are
gone- no reason to comply – no centralised enforcement agency. Does intl law’s value depend only on the material
outcomes it prescribes?

Koh: “Once a state engages with international law, disparate actors within and outside of government can invoke it
to foster “institutional interaction whereby global norms are not just debated and interpreted, but ultimately
internalized by domestic legal systems.” 4 Internalized norms operate as domestic law; they establish “default
patterns of international lawobservant behavior,” which are “routinized and ‘sticky’ and thus difficult to deviate
from without sustained effort” (p. 7). So the reason that international law is effective is that the transnational legal
process pushes states toward obeying its mandates and thereby achieving its prescribed outcomes.”
Case study – Donald Trump’s admin – America First
Intl law’s ability to restrain the power of states and public power – potential to challenge dominance or hegemony
in the domestic system and in the way states interact with each other.

11. Is there any law, customary or conventional, which permits or prohibits the use of nuclear weapons?
Is the use of nuclear weapons justifiable on the grounds of self-defence? What is the legality of the
use of nuclear weapons in times of armed conflict as well as in times of peace? Discuss with the help
of the Advisory Opinion of the International Court of Justice on the Legality of the Use of Nuclear
Weapons of 8 July 1996. (*Accompany with relevant contemporary news)
 - Non-proliferation/nuclear prohibition only works in a context of mutual confidence,
- India – opposes NPT – becomes roadblock in India’s NSG bid
12. What are the pacific methods of settlement of disputes? Do States have a legal obligation to settle
their disputes by peaceful methods? When is a state bound by a treaty? What is the definition of jus
cogens according to the VCLT? Would a jus cogens norm that emerged after a treaty has been
concluded make such treaty void?
Considering how IL is primarily aimed at the maintenance of peace and security, it follows that
there is an expansive framework for peaceful settlement of dispute, as provided in Chapter VI of the
UN Charter. More broadly, it can be divided into two categories – diplomatic procedures and
adjudication. When a dispute arises, any mixture of dispute resolution mechanisms can be employed
– the Chad-Libya Joint Declaration withdrawing Libyan admin and forces is a good example of
peaceful mechanisms working in real time. Importance of them for peace emphasised in the 2015
UN World Summit.

What is a dispute? Mavrommatis Palestine Concessions - ‘a disagreement over a point of law or

fact, a conflict of legal views or of interests between two persons’ constitutes an authoritative
indication. A distinction is sometimes made between legal and political disputes, or justiciable and
non-justiciable disputes. ‘International’ disputes, however, are not restricted to those between states:
also applicable are those disputes involving other entities, including international organizations, ‘de
facto regimes, ethnic communities enjoying a particular kind of status under international law,
national liberation movements,’ and ‘peoples who are holders of the right of self-determination

Art.2(3) UN Charter – ‘[a]ll members shall settle their international disputes by peaceful means in
such a manner that international peace and security and justice are not endangered.”

Declaration on Principles of International Law Concerning Friendly Relations and Cooperation

among States - develops this principle and notes that: states shall accordingly seek early and just
settlement of their international disputes by negotiation, inquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies or arrangements or other peaceful means of their
choice. – imbibed in Art.33 of the UN Charter. The parties are to agree upon said peaceful means at
their discretion, based on the circumstances and nature of the dispute. There hence is no discernable
hierarchy between the methods. However, parties are required to look for a settlement by other
peaceful means agreed if one specific method fails. If pacific methods fail to resolve a dispute that
may escalate into a situation threatening international peace and security, the parties “shall refer it to
the UNSC” under Art.37(1).

NON BINDING METHODS

1. Negotiation – no third party involvement, most common, series of discussions between the
parties to resolve differences – usually a precursor to other methods. Suited to complex
situations where the need to clarify the other party’s position is critical. Georgia v. Russian
Federation, ICJ Reports, 2011, pp. 70, 132 - negotiations are distinct from mere protests or
disputations and require at the least, ‘a genuine attempt by one of the disputing parties to engage
in discussions with the other disputing party with a view to resolving the dispute’. Negotiation
would be compulsory ifl. For example, a treaty demands it – e.g. UNCLOS Art.283. In Nigeria
v Cameroon, it was held that it negotiations are not needed before approaching the court. North
Sea Continental Shelf cases - the parties are under an obligation to enter into negotiations with a
view to arriving at an agreement, and not merely to go through a formal process of negotiation
as a sort of prior condition ... they are under an obligation so to conduct themselves that the
negotiations are meaningful, which will not be the case when either of them insists upon its own
position without contemplating any modification of it.”
Where disputes are by their continuance likely to endanger the maintenance of international
peace and security, article 33 of the UN Charter provides that the parties to such disputes must
first partake in a negotiation, inquiry or mediation and use more complex forms as a last resort.

2. Good Offices and Mediation – use of third party – parties to reach terms of settlement alone –
good offices usually employed when a third party is trying to persuade the opposing party to
enter negotiations, mediation is when the opposing party is already participating. Tend to merge
together - e function performed by the USSR in assisting in the peaceful settlement of the India–
Pakistan dispute in 1965. UN Sec-Gen as a good office – Geneva Agreement 1988,
AFGHANISTAN. Not binding
3. Inquiry – used when facts are disputes – commission instituted – 1899 Hague Conference –
technique isn’t really a means of resolution bc the dispute would need to be solely about facts,
not situations where vital party interests are threatened. Often this is accompanied by judicial
exercises – Red Crusader inquiry, more of an arbitration
4. Conciliation – emerged from treaties that instituted permanent inquiry commissions – “a third-
party investigation of the basis of the dispute and the submission of a report embodying
suggestions for a settlement” – not widely used – flexible – rules in 1928 General Act on the
Pacific Settlement of Intl Disputes – “The function of the commissions was defined to include
inquiries and mediation techniques. Such commissions were to be composed of five persons:
one appointed by each opposing side and the other three to be appointed by agreement from
amongst the citizens of third states. The proceedings were to be concluded within six months
and were not to be held in public.” – UNCLOS , American Treaty of Pacific Settlement –
Iceland Norway dispute – not binding report
 Art. 52(4) – states to use regional arrangements or agencies before approaching UNSC – e.g. of
Regional Institutions – African Union, 1963 which tried to resolve the Western Sahara dispute –
organisation of American states
BINDING METHODS
1. Arbitration
a. 1899 Hague convention – ‘the settlement of differences between states by judges of their
own choice and on the basis of respect for law’
b. Binding award – PCA – Panel of judges nominated by the contracting states. – Eritrea
yemen arb. - Optional Rules for Arbitrating Disputes between Two States,270 Optional
Rules for Arbitrating Disputes between Two Parties of Which Only One is a State,271
Optional Rules of Arbitration Involving International Organizations. - Under the PCA
system, and in the absence of agreement to the contrary, each party selects two
arbitrators from the panel, only one of whom may be a national of the state. These
arbitrators then choose an umpire, but, if they fail to do so, this task will be left to a third
party, nominated by agreement. – if fails, drawing of lots. – Croatia v Slovenia. –
domestic laws can be applied with IL – trail smelter, where us law was applied
2. Judicial settlement
a. Binding method by means of permanent body. Intl and regional courts
b. ICJ
i. Refer to printed notes
‘Other Peaceful Means’ - Notwithstanding the extensive menu of measures listed in Article 33, the last item—
‘other peaceful means’—effectively lifts any bar on options for action by the parties to a dispute. The UN’s dispute
settlement manual describes three categories of measures: *the first category includes entirely original measures,
such as consultations and conferences, or the referral of a dispute to a political organ or non-judicial organ of an
international organization; *the second category features those cases in which states have adapted the methods
named in Article 33, including, for example, when parties agree in advance that the report of a conciliation
commission will be binding rather than non-binding; and * the third category contains instances in which a single
organ employs two or more of the listed measures, such as when a treaty may provide for the progressive
application of a range of methods.
Do states have legal obligation? Yes, Art. 33(1) - The responsibility to seek means of settling disputes
peacefully extends not only to the states directly involved in conflict but also to third party states that have
the right to bring any issue to the Security Council or the General Assembly. Likewise, it applies to all
entities that enjoy the protection of the ban on the use of force, such as national liberation movements and
de facto regimes. Their responsibility continues even after armed hostilities begin. Nevertheless, states are
not obliged to exhaust diplomatic options before approaching the International Court of Justice (ICJ) for
legal remedy
13. What is the definition of jus cogens according to the VCLT? Would a jus cogens norm that emerged
after a treaty has been concluded make such treaty void?
VCLT Art. 53 defines jus cogens – a peremptory norm of intl law which the international
community considers non-derogable, modifiable only by a subsequent norm of intl law of the same
character. A treaty would be void if, at the time of its conclusion, it conflicted with jus cogens
norm. Art. 64- if a new peremptory norm emerged, any existing treaty which is in conflict would be
void.

- What are the grounds for termination of a treaty?

VCLT – Art.54 – 68
Use clarification on the grounds from Gabcikovo Nagymoros

- According to the VCLT, what are the general rules for interpretation of treaties? Give examples.
Found in Part III – Section III – Art. 31 – 32
Examples - The main project in both of those articles is to tell us what materials other than the text are
relevant to interpretation, and how different materials are to be used—in other words, to tell us about the
‘sources for treaty interpretation’. Note that the question about ‘sources for treaty interpretation’ is not just
the traditional question about ‘sources of law’. The VCLT mentions as materials for treaty interpretation
things that never appear on any standard list (p. 1049) of the ‘sources of law’, such as subsequent practice
and the travaux préparatoires. Similarly, the VCLT tells us more about how various materials for
interpretation are to be used than does any standard list of ‘sources of law’. But the “ordinary meaning”
requirement can be misleading and more difficult than one may expect – “WTO case, EC—Asbestos. Article
III:4 of the GATT says that when a WTO Member has once admitted some product from another Member
into its internal economy, then the importing Member shall accord to the imported product ‘treatment no
less favorable than that accorded to like products of national origin’. A crucial question, obviously, is the
meaning of ‘like products’. In Asbestos, the Appellate Body told us that products are ‘like’, for purposes of
GATT III:4, if they are ‘in a competitive relationship’.8 This is not the ordinary meaning of ‘like’. It is not even
an ordinary meaning”

“the text of a treaty” – Nicargua example - Nicaragua had filed an application with the Hague Court
instituting proceedings against the Honduras for assisting the contras. Said that two articles of the Pact of
Bogota was to be to be read along with each other to award the court jurisdiction – absent textual link
netween the articles, no way to read them together based on the text of the treaty.

14. Countries A, B and C concluded an international treaty. There is no explicit ban to make
reservations. Country D wishes to join but, wants to make a reservation. Country A accepts the
reservation, country B accepts D as a party to the treaty but does not accept the reservation; country
 C does not accept such a reservation to the treaty. If D wants to enter the treaty it must withdraw the
reservation. Is there a treaty between A and D, B and D, C and D? If “yes” how is the reservation
affecting each of the treaty relationships between D and each of the others – A, B, C?

15. Are municipal legal systems obliged to recognize these sources while exercising a) domestic
jurisdiction, b) extraterritorial jurisdiction? Elucidate with case laws and examples.
Use notes

16. When is use of force and secession justified in the context of : i) self-determination ii) self-defence

17. What are the theories of creation of State? what is the current legal status of Palestine & Taiwan?
18. Write a short note on Kosovo case with reference to the legality of unilateral declaration of independence

19. What are the typical elements/characteristics of an international organization? Do they have legal
personalities? Who are the subjects of international law (affected fully or partially by PIL)?
20. ‘The possibilities of misconstruing treaty provisions laying down the law-making powers of international
organizations are further exacerbated by the interpretation technique codified in Art. 31 (3)(b) Vienna
Convention.’- Discuss using the doctrine of implied powers in case laws and interpretation of treaties.

21. How does international law define Statehood? Discuss relevant theories and conventions. Can Palestine
and Tibet be considered States?
22. What is the Tadic threshold for armed conflicts? What is the status of targeted killings under IHL? What
are asymmetrical armed conflicts? Does humanitarian law apply to asymmetrical armed conflicts? Discuss
each question with an example.
23. ‘International law is very clear on two basic principles: the inadmissibility of the acquisition of territory by
war and the prohibition of the transfer of civilians of the occupying Power to the occupied territory.’
Discuss the Israel-Palestine conflict and the legality of the continued occupation in light of international
law, ICJ jurisprudence and comments made by the UNGA and UNSC.
ILC DRAFT COMMENTARY ON CIL SUMMARY

During its sixty-fourth session, in 2012, the International Law Commission (ILC) decided to place the topic
“Formation and evidence of customary international law” on its current programme of work, and appointed
Michael Wood as Special Rapporteur. In his first report, Michael Wood outlined his proposed contribution. He
discussed earlier work of the ILC on the topic and identified the aim of the report, inter-alia, as a source of “…
guidance to those called upon to apply rules of customary international law on how to identify such rules in
concrete cases” and to describe the current state of international law on the formation and evidence of rules of
customary international law, without prejudice to developments that might occur in the future. He discussed
succinctly customary international law’s relationship to other sources listed in Article 38 of the Statute of the
International Court of Justice, including treaties and general principles of international law. An interesting
aspect is that he disputes arguments that treaties may be “a more important source of international law” than
custom. He argues that “such generalizations are neither particularly illuminating nor necessarily accurate.” He
argues that,

“Even in fields where there are widely accepted “codification” conventions, the rules of customary
international law continue to govern questions not regulated by the conventions and continue to apply in
relations with and between non-parties. Rules of customary international law may also fill possible lacunae in
treaties, and assist in their interpretation. An international court may also decide that it may apply customary
international law where a particular treaty cannot be applied because of limits on its jurisdiction (for example
in the Nicaragua case).”

While the above mentioned aspects, including various terminology used to describe customary international
law, its constituent elements and attitude of States would be expanded in successive reports, Wood gives an
overview of various jurisprudence of the ICJ and other international, regional and national courts and tribunals
on the formation of customary international law. Since we look at some of the ICJ’s jurisprudence in our class,
I extracted the section(paras 54 – 65) on the ICJ’s practice in deducing customary law below (minus the
footnotes, which are also informative).

The full report can be accessed here. Students are strongly encouraged to read pp 21 -41.

Extract:

54. The case law of the International Court of Justice and its predecessor, the Permanent Court of International
Justice, will be of great significance for the Commission’s work on the present topic. The Court’s primary
function in relation to customary international law is to identify and apply customary rules as necessary for
deciding the cases before [Link] judgments (including separate and dissenting opinions) shed much light on the
general approach to the formation and evidence of customary international law (when “[w]hat ‘is’ becomes
what ‘must be’”), including on specific aspects of these processes.

55. Examining the Court’s frequent application of Article 38.1 (b) of its Statute, by which it “perform[s] its
perfectly normal function of assessing the various elements of State practice and legal opinion adduced … as
indicating the development of a rule of customary law”, affords an overview of the Court’s approach to the
matter. As the judgments referred to below indicate, the Court has clearly and consistently held — as did its
predecessor — that customary international law is formed through State practice accompanied by opinio juris.

56. In the Lotus case, the Permanent Court of International Justice stated that international law emanates from
the free will of States as expressed in conventions or “by usages generally accepted as expressing principles of
law”. It emphasized the distinction between the two constitutive elements of customary international law,
stressing the need for both to be present in order to ground a finding of such law:
“Even if the rarity of the judicial decisions to be found among the reported cases were sufficient to prove in
point of fact the circumstances … it would merely show that States had often, in practice, abstained from
instituting criminal proceedings, and not that they recognised themselves as being obliged to do so; for only if
such abstentions were based on their being conscious of having a duty to abstain, would it be possible to speak
of an international custom.”

57. The classic statement of the International Court of Justice on the processes of formation and evidence of
rules of customary international law is to be found in the North Sea Continental Shelf cases:

“Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a
new rule of customary international law on the basis of what was originally a purely conventional rule, an
indispensable requirement would be that within the period in question, short though it might be, State practice,
including that of States whose interests are specially affected, should have been both extensive and virtually
uniform in the sense of the provision invoked; and should moreover have occurred in such a way as to show a
general recognition that a rule of law or legal obligation is involved.

… The essential point in this connection — and it seems necessary to stress it — is that even if these instances
of action by non-parties to the Convention were much more numerous than they in fact are, they would not,
even in the aggregate, suffice in themselves to constitute the opinio juris; — for in order to achieve this result,
two conditions must be fulfilled. Not only must the acts concerned amount to a settled practice [une pratique
constante, in the French text], but they must also be such or be carried out in such a way as to be evidence of a
belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a
belief i.e. the existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal
obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many
international acts, e.g. in the field of ceremonial and protocol, which are performed almost invariably, but
which are motivated only by considerations of courtesy, convenience or tradition, and not by any legal sense of
duty.”

58. The Court reaffirmed this in Military and Paramilitary Activities in and against Nicaragua, where it said
that in order to consider what rules of customary international law were applicable it “has to direct its attention
to the practice and opinio juris of States”, and that:
“… as was observed in the North Sea Continental Shelf cases, for a new customary rule to be formed, not only
must the acts concerned ‘amount to a settled practice’ but they must be accompanied by the opinio juris sive
necessitatis. Either the States taking such action or other States in a position to react to it, must have behaved so
that their conduct is ‘evidence of a belief that this practice is rendered obligatory by the existence of a rule of
law requiring it. The need for such a belief, i.e. the existence of a subjective element, is implicit in the very
notion of opinio juris sive necessitatis’.”

59. In its judgment in Continental Shelf (Tunisia/Libyan Arab Jamahiriya) the Court referred to “the actual
practice of States” as “expressive, or creative, of customary rules”. In the Gulf of Maine case, a Chamber of the
Court observed that customary international law “comprises a limited set of norms for ensuring the co-
existence and vital co-operation of the members of the international community, together with a set of
customary rules whose presence in the opinio juris of States can be tested by induction based on the analysis of
a sufficiently extensive and convincing practice, and not by deduction from preconceived ideas”.

60. When turning to an examination of customary international law in its Advisory Opinion on the Legality of
the Threat or Use of Nuclear Weapons, the Court said at the outset that “[a]s the Court has stated, the substance
of that law must be ‘looked for in the actual practice and opinio juris of States’ (Continental Shelf (Libyan Arab
Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, pp. 29-30, para. 27)”. Later in the Opinion it noted the
existence of customary rules that “have been developed by the practice of States”.

61. The most recent extended pronouncement of the Court on its basic approach is to be found in Germany v.
Italy, in which it said:

“It follows that the Court must determine, in accordance with Article 38 (1) (b) of its Statute, the existence of
‘international custom, as evidence of a general practice accepted as law’ … To do so, it must apply the criteria
which it has repeatedly laid down for identifying a rule of customary international law. In particular, as the
Court made clear in the North Sea Continental Shelf cases, the existence of a rule of customary international
law requires that there be ‘a settled practice’ together with opinio juris …

Moreover, as the Court has also observed,

“It is of course axiomatic that the material of customary international law is to be looked for primarily in the
actual practice and opinio juris of States, even though multilateral conventions may have an important role to
play in recording and defining rules deriving from custom, or indeed in developing them. (Continental Shelf
(Libyan Arab Jamahiriya/Malta), Judgment, I.C.J. Reports 1985, pp. 29-30, para. 27).”

62. At the risk of oversimplification, it may be said that there are two main approaches to the identification of
particular rules of customary international law in the case law of the Court. In some cases the Court finds that a
rule of customary international law exists (or does not exist) without detailed [Link] may be because the
matter is considered obvious (for example, because it is based on a previous finding of the Court or on what the
Court views as unquestioned law). A number of examples may be found in the Court’s judgment of 19
November 2012 in Nicaragua v. Colombia (see footnote). In other cases the Court engages in a more detailed
analysis of State practice and opinio juris in order to determine the existence or otherwise of a rule of
customary international law. The Court’s judgment of 3 February 2012 in Germany v. Italy illustrates this
approach. It is particularly these latter cases that are helpful in illustrating the Court’s approach to the formation
and evidence of customary international law.

63. There is a considerable number of cases in which the Court has addressed specific aspects of the process of
formation and identification of rules of customary international law, covering many of the issues that arise
under the present topic, chief among them the nature of the State practice and opinio juris elements, and the
relationship between treaties and customary international law. While such cases do not provide complete
answers, they offer valuable guidance…

64. It is widely recognized in the literature that the International Court, through its jurisprudence, has enhanced
the role of customary international law and clarified some of its aspects. At the same time, commentators have
suggested that the Court has thus far provided only limited guidance on how a rule of customary international
law is formed and is to be ascertained, having “a marked tendency to assert the existence of a customary rule
more than to prove it”, and ultimately following a rather flexible approach. It has moreover been observed that
the Court has not always been consistent in its use of terminology relating to customary international law, or in
distinguishing the latter from general principles of law.

65. The President of the International Court of Justice, addressing the issue of the Court’s approach to
customary international law, has recently explained:
“… authors are correct in drawing attention to the prevalent use of general statements of rules in the Court’s
modern practice, although they take the point too far by insisting on theorizing this development. In fact, the
Court has never abandoned its view, firmly rooted in the wording of the Statute, that customary international
law is ‘general practice accepted as law’ — that is, in the words of a recent case, that ‘the existence of a rule of
customary international law requires that there be a ‘settled practice’ together with opinio juris’. However, in
practice, the Court has never found it necessary to undertake such an inquiry for every rule claimed to be
customary in a particular case and instead has made use of the best and most expedient evidence available to
determine whether a customary rule of this sort exists. Sometimes this entails a direct review of the material
elements of custom on their own, while more often it will be sufficient to look to the considered views
expressed by States and bodies like the International Law Commission as to whether a rule of customary law
exists and what its content is, or at least to use rules that are clearly formulated in a written expression as a
focal point to frame and guide an inquiry into the material elements of custom.”