Public International Law

PUBLIC INTERNATIONAL LAW — VISUAL STUDY GUIDE

Comprehensive notes across 5 units · KSLU LLB Sem 4

Unit I — Nature, Definition, Origin, Basis & Sources of IL; Relationship with Municipal Law

Introduction

International Law is a body of rules and principles that governs the relations between sovereign States, international organizations, and, in certain cases, individuals. It aims to maintain international peace, security, justice, and cooperation among nations. Unlike Municipal Law, which is enacted and enforced by a sovereign authority within a State, International Law operates primarily through the consent of States. This has given rise to an important debate among jurists regarding whether International Law can truly be regarded as "law."

Meaning and Definition of International Law

Oppenheim: "International Law is the body of customary and conventional rules which are considered legally binding by civilized States in their intercourse with one another."

J.G. Starke: "International Law is that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and therefore generally do observe in their relations with each other."

Brierly: "International Law is the body of rules and principles of action which are binding upon civilized States in their relations with one another."

Why Was International Law Considered Not to Be a True Law?

The main criticism came from John Austin, who argued that International Law is not true law but merely Positive International Morality.

Austin's Theory of Law

"Law is the command of a sovereign backed by sanctions."

According to Austin, every law must have: a Sovereign, a Command, a Duty, and a Sanction. He argued that International Law lacks these essential elements.

Reasons Given by Austin

• Absence of a Sovereign — There is no world government or supreme authority having legislative power over all States.
• No Effective Sanctions — Municipal Law punishes offenders through courts and police, but International Law lacks a comparable enforcement mechanism.

Introduction

International Law is the system of rules and principles that regulates the conduct and relations of States, international organizations, and, to a limited extent, individuals in the international community. It has grown out of the practical necessity for sovereign States to coexist, cooperate, and resolve disputes peacefully.

Definition of International Law

Oppenheim originally defined it narrowly, confined to States:

"Law of Nations or International Law is the name for the body of customary and treaty rules which are considered legally binding by civilised States in their intercourse with each other."

This definition has since been broadened:

"International Law is the body of rules which are legally binding on States and other international persons in their relations with one another."

J.G. Starke: "International Law is that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe... and which includes also the rules of law relating to the functioning of international institutions, the relations of States with individuals, and certain rules of law relating to individuals so far as the rights and duties of such individuals are the concern of the international community."

Fenwick: International Law is "the body of general principles and specific rules which are binding upon the members of the international community in their mutual relations."

Nature of International Law

• Predominantly a Law Between Sovereign States — International Law primarily governs relations between sovereign, independent States. Although its scope has expanded to include international organizations and individuals, the State continues to be the principal subject.

Introduction

Although both branches share the word "international" in their names, Public International Law and Private International Law (also known as Conflict of Laws) are fundamentally different bodies of law, differing in their sources, subjects, subject matter, and the manner in which they are applied and enforced.

Meaning of Public International Law

Public International Law is the body of rules and principles governing the relations between sovereign States, international organizations, and, to a limited extent, individuals, on the international plane. It deals with matters such as State sovereignty, the law of treaties, diplomatic and consular relations, the law of the sea, the use of force, State responsibility, and human rights.

Meaning of Private International Law

Private International Law, or the Conflict of Laws, is that branch of the domestic (municipal) law of each State which comes into operation whenever a private legal dispute contains a "foreign element." It determines: which court has jurisdiction; which State's law is to be applied; and whether a foreign judgment will be recognised and enforced.

Introduction

International Law is not a product of any single era or civilization; it has developed gradually over several centuries in response to the practical necessity of regulating relations between independent political communities.

1. Ancient Period

• Ancient Egypt and the Hittite Empire — One of the earliest recorded international treaties is the peace treaty concluded around 1258 BC between the Egyptian Pharaoh Ramesses II and the Hittite King Hattusili III.
• Ancient India — Kautilya's Arthashastra contains detailed principles on inter-state relations, diplomacy, treaties, and the conduct of war.
• Ancient Greece — Relations among the Greek city-States were regulated through institutions such as the Amphictyonic Councils.
• Rome — Roman law developed the concept of jus gentium (law applied to foreigners) and jus fetiale (procedures for declaring war and concluding treaties).

2. Medieval Period

• Canon Law provided a unifying moral and legal framework across Christian Europe.
• The doctrine of the "Just War" (bellum justum), developed by St. Augustine and systematised by St. Thomas Aquinas.
• The growth of maritime trade gave rise to customary mercantile and maritime codes, such as the Consolato del Mare.

3. The Founding Period — Age of Grotius

The systematic foundation of modern International Law is attributed to the Dutch jurist Hugo Grotius (1583–1645), often called the "Father of International Law."

Introduction

Having established that International Law is a true system of law, the further question arises as to why it binds sovereign States at all. Jurists have advanced several competing theories to explain the basis of its obligatory character.

1. Naturalist Theory

Associated with Grotius, Vitoria, Suarez, and Pufendorf, this theory holds that International Law derives its binding force from natural law — universal moral principles discoverable through human reason, independent of the will of any State.

2. Positivist Theory

Positivist jurists such as Bynkershoek and Vattel argued that International Law binds States only because States have consented to be bound.

• (a) Theory of Common Will (Vereinbarung) — Triepel: International Law arises out of the union of individual wills of several States into a common will (Gemeinwille).
• (b) Auto-Limitation Theory — Jellinek: A sovereign State voluntarily restricts its own freedom of action — an act of self-limitation.
• (c) Pacta Sunt Servanda Theory — Anzilotti: The ultimate basis of International Law lies in a single fundamental norm — pacta sunt servanda (agreements must be kept).

3. Grundnorm Theory — Hans Kelsen

Kelsen argued that all legal systems form a single hierarchical structure of norms, each deriving its validity from a superior norm, ultimately traceable to a hypothetical basic norm or Grundnorm.

Meaning

Propounded by the German jurist Georg Jellinek, this theory begins from the premise that a sovereign State's will is supreme and cannot be bound by any external authority. Jellinek resolved this by arguing that when a State observes International Law, it has voluntarily and unilaterally limited its own freedom of action.

Explanation

On this theory, obligation under International Law is always traceable back to the individual State's own consent. A State that enters into a treaty has not surrendered its sovereignty; it has simply chosen to restrict the exercise of that sovereignty. International Law thus remains "external State law" (aussere Staatsrecht).

Illustration

When a State ratifies the Vienna Convention on Diplomatic Relations, 1961, restricting its own power to prosecute foreign diplomats, this is the State exercising its own sovereign will to voluntarily curtail its future freedom of action.

Criticism

• The theory makes International Law entirely dependent on the continuing willingness of each State to remain bound; a State could unilaterally withdraw at any time.
• It cannot explain how newly formed States become bound by pre-existing customary International Law without ever having specifically consented.
• It cannot explain peremptory norms (jus cogens) such as the prohibition on genocide, which bind States regardless of consent.

Article 38(1) of the ICJ Statute

The most authoritative statement of the sources of International Law. Article 38(1) enumerates:

• (a) International conventions — whether general or particular, establishing rules expressly recognised by the contesting States.
• (b) International custom — as evidence of a general practice accepted as law.
• (c) General principles of law recognised by civilised nations.
• (d) Judicial decisions and teachings of publicists — as subsidiary means for the determination of rules of law (subject to Article 59).

(a) International Conventions / Treaties

Treaties are formal, written agreements between States intended to create binding legal obligations, governed by the Vienna Convention on the Law of Treaties, 1969. They are today the most important source of International Law.

(b) International Custom

Custom consists of a general and consistent practice of States (the material element) followed out of a sense of legal obligation, known as opinio juris sive necessitatis (the psychological element).

(c) General Principles of Law

Where a dispute cannot be resolved by treaty or custom, the Court may apply general principles common to the major legal systems — such as good faith, res judicata, estoppel, and the principle that no one may benefit from their own wrong. This prevents a non liquet.

(d) Judicial Decisions and Juristic Writings

Under Article 59 of the ICJ Statute, decisions of the Court have no binding force except between the parties. These are subsidiary means only.

Meaning of Custom

A customary rule of International Law is one that has emerged from the general and consistent practice of States, followed because they believe such practice to be legally obligatory. Custom must be distinguished from mere usage or comity.

Essential Elements of Custom

As affirmed by the ICJ in the North Sea Continental Shelf Cases (1969):

• 1. State Practice (Usus) — There must be a general and consistent practice among States. The practice must be extensive and virtually uniform, and must include the practice of States whose interests are specially affected.
• 2. Opinio Juris Sive Necessitatis — States must follow the practice in the belief that it is legally obligatory, not merely out of habit, courtesy, or political convenience.

Important Case Laws

• S.S. Lotus Case (1927) — The PCIJ held that in the absence of a rule prohibiting an act, a State remains free to act, since restrictions on State sovereignty cannot be presumed.
• North Sea Continental Shelf Cases (1969) — The ICJ laid down the modern test for the formation of custom, requiring both extensive and uniform State practice and opinio juris.

Definition of a Treaty

Article 2(1)(a) of the VCLT defines a treaty as:

"An international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation."

Kinds of Treaties

• 1. Law-Making Treaties (Traité-Loi) — Multilateral treaties laying down general rules (e.g., UN Charter, Geneva Conventions of 1949).
• 2. Treaty-Contracts (Traité-Contrat) — Bilateral or limited agreements regulating a specific matter (e.g., boundary agreements, trade agreements).

Process of Treaty-Making

• Negotiation between the representatives of the States concerned.
• Adoption of the text, usually by consensus or a specified majority.
• Authentication of the text as final and correct.
• Expression of consent to be bound, through signature, ratification, acceptance, approval, or accession.
• Entry into force, usually upon the deposit of a specified number of ratifications.
• Registration with the United Nations Secretariat under Article 102 of the UN Charter.

No Doctrine of Binding Precedent

Article 59 of the ICJ Statute provides that "the decision of the Court has no binding force except between the parties and in respect of that particular case." Unlike common law's stare decisis, International Law recognises no formal rule of binding precedent.

Persuasive Authority

Despite this, the ICJ and other international tribunals refer extensively to their own prior reasoning. Landmark decisions such as the North Sea Continental Shelf Cases (1969) on custom, and the Reparation for Injuries Case (1949) on legal personality of international organizations, have shaped entire areas of International Law.

National Court Decisions

Decisions of national courts interpreting International Law, though not binding internationally, are frequently cited as evidence of State practice and may contribute to the formation of customary International Law.

Meaning

General principles are fundamental principles common to the major legal systems of the world, transposable to the international legal system. They are distinct from custom, as they need not arise from the practice of States on the international plane.

Examples

• Good faith (bona fides) — underlying pacta sunt servanda.
• Estoppel — a State that has led another State to rely on a certain position may not later assert the contrary.
• Res judicata — a matter finally decided may not be reopened between the same parties.
• Ex injuria jus non oritur — no one may benefit from their own wrong.
• Due process and the right to be heard, and principles of proportionality and reasonableness.

Function

General principles serve a gap-filling function: where no treaty or established custom provides a clear answer, the Court may apply principles common to the world's major legal systems.

Nature as a Subsidiary Source

Juristic writings are not an independent source of binding obligation; they assist in ascertaining, systematising, and interpreting existing rules of law.

Historical Importance

In the formative period, the works of Hugo Grotius (De Jure Belli ac Pacis, 1625), Emerich de Vattel, Alberico Gentili, and Samuel Pufendorf were treated almost as authoritative statements of the law itself.

Modern Role

Although reduced in relative importance, juristic writings remain valuable in unsettled or novel areas, continue to be cited by international courts, and assist in identifying customary International Law.

Article 38(2) — Ex Aequo et Bono

Article 38(2) allows the Court to decide a case ex aequo et bono — on the basis of what is fair and equitable — but only where the parties expressly agree.

Hierarchy Among the Sources

Article 38(1) does not expressly establish a strict hierarchy. In practice, however, a treaty tends to prevail over conflicting custom as between the parties, being more specific and later in time, while judicial decisions and juristic writings remain merely subsidiary aids.

Meaning and Codification

Pacta sunt servanda — Latin for "agreements must be kept" — is codified in Article 26 of the VCLT, 1969:

"Every treaty in force is binding upon the parties to it and must be performed by them in good faith."

Judicial Recognition

Affirmed by the PCIJ in the S.S. Wimbledon Case (1923), where Germany was held responsible for refusing passage of a British-chartered ship through the Kiel Canal in violation of the Treaty of Versailles.

Relation to Article 27 VCLT

A State "may not invoke the provisions of its internal law as justification for its failure to perform a treaty."

Limits and Exceptions

• Mutual consent, material breach, supervening impossibility, or fundamental change of circumstances (rebus sic stantibus, Article 62 VCLT).
• A treaty is void ab initio if it conflicts with jus cogens (Article 53 VCLT).

Why the Relationship Matters

A State may enter into a treaty obligation internationally, yet its domestic courts may refuse to apply it unless given effect through the State's constitutional processes. Conversely, Article 27 VCLT provides that a State cannot invoke its internal law to avoid treaty obligations.

Doctrines Governing Domestic Application

• 1. Doctrine of Incorporation — Rules of customary International Law are treated as automatically forming part of Municipal Law, without the need for any specific legislative act.
• 2. Doctrine of Transformation — International Law must first be specifically transformed into Municipal Law through an act of the domestic legislature before it can be applied domestically.

1. Dualist Theory

Associated with Triepel and Anzilotti. International Law and Municipal Law are two entirely separate and independent legal systems. A rule of International Law must first be transformed into Municipal Law through an act of the domestic legislature.

• Source: Municipal Law from the will of the individual State; International Law from the common will of States.
• Subjects: Municipal Law governs individuals; International Law governs relations between States.
• Subject matter: Municipal Law regulates internal affairs; International Law regulates external relations.

2. Monist Theory

Associated with Hans Kelsen and Kunz. International Law and Municipal Law form part of a single, unified universal legal order, both deriving validity from the same basic norm (Grundnorm).

• Kelsen's "Primacy of International Law" — International Law is the superior legal order, from which the validity of each State's Municipal Law is derived.
• An alternative monist position (associated with Hegel) asserts the primacy of Municipal Law — few modern adherents.

Application of Customary International Law: Doctrine of Incorporation

English courts have traditionally followed the doctrine of incorporation — customary rules are automatically part of the common law of England.

• Triquet v. Bath (1764) — Lord Mansfield affirmed that the law of nations formed part of the law of England.
• West Rand Central Gold Mining Co. v. The King (1905) — A clearly established rule of International Law would be recognised, provided it did not conflict with an existing statute.
• Trendtex Trading Corporation v. Central Bank of Nigeria (1977) — Lord Denning confirmed that customary International Law is incorporated automatically and evolves along with developments in International Law itself.

Application of Treaties: Doctrine of Transformation

Treaties do not automatically become part of English law upon ratification. They must be transformed through an Act of Parliament.

• J.H. Rayner Ltd. v. Department of Trade (1990) — The House of Lords held that an international agreement cannot alter domestic law without Parliamentary implementation.

Constitutional Provisions

• Article 51(c) — Directive Principle directing the State to "foster respect for international law and treaty obligations." Not directly enforceable but guides interpretation.
• Article 253 — Empowers Parliament to make any law for implementing any treaty, even in respect of State List matters. Confirms treaty implementation is a legislative process.

Application of Customary International Law

• Gramophone Company of India Ltd. v. Birendra Bahadur Pandey (1984) — The Supreme Court held that domestic law should be interpreted in harmony with International Law, and customary International Law, if not inconsistent with domestic law, is deemed incorporated.

Application of Treaties

• Jolly George Varghese v. Bank of Cochin (1980) — The Supreme Court held that the ICCPR could not override express provisions of the CPC permitting civil imprisonment for debt, absent implementing legislation.

LLB Exam Prep — Public International Law | Unit I

Unit II — States as Subjects of International Law, Recognition, and State Territorial Sovereignty

Introduction

A "subject" of International Law is an entity capable of possessing international rights and duties, and having the capacity to bring international claims.

1. States — the Primary Subjects

States possess full and inherent legal personality. The criteria for statehood are set out in Article 1 of the Montevideo Convention, 1933: a permanent population; a defined territory; a government; and the capacity to enter into relations with other States.

2. International Organizations

International organizations possess derivative or functional legal personality.

• Reparation for Injuries Case (ICJ, 1949) — The ICJ held that the United Nations possesses objective international legal personality, distinct from that of its member States.

3. Individuals

Individuals today possess limited international legal personality, particularly through international human rights law and international criminal law.

4. Insurgents and Belligerent Communities

Where an insurgent or rebel group achieves sufficient organisation and control over territory, it may be recognised as possessing limited and temporary international legal personality.

1. The Traditional View

Classical International Law treated individuals as mere objects rather than subjects. An individual whose rights were violated by a foreign State had no direct remedy; the individual's own State alone could take up the matter through diplomatic protection.

2. Modern Developments — Individual Rights

• (a) International Human Rights Law — The UDHR (1948), ICCPR, and ICESCR (1966) have directly conferred rights upon individuals. Under the ECHR, individuals may petition the European Court of Human Rights directly.
• (b) Refugee Law — The 1951 Convention confers rights directly upon refugees, including non-refoulement.
• (c) International Investment Law — Under BITs and ICSID, individual investors may bring claims directly against host States.

3. Modern Developments — Individual Duties

• (a) International Criminal Law — Individuals may be prosecuted directly for genocide, war crimes, and crimes against humanity, as before the International Criminal Court.

The Foundational Authority: Reparation for Injuries Case (1949)

The ICJ held that the United Nations possessed objective international legal personality — distinct from its member States and opposable even to non-member States — because such personality was indispensable for the Organization to fulfil its functions. This is the application of the "doctrine of implied powers."

Nature of the Personality: Functional and Derivative

• Derivative — it flows from the member States through the constituent treaty.
• Functional — limited to what is necessary for the organization to fulfil its specific purposes.

Elements of International Legal Personality

• The capacity to enter into treaties.
• The capacity to bring, and be subject to, international claims.
• The capacity to possess and administer property.
• Privileges and immunities necessary for the performance of its functions.

Essential Elements (Montevideo Convention, 1933)

• A permanent population.
• A defined territory.
• An effective government, exercising control over the population and territory.
• The capacity to enter into relations with other States.

Kinds of States

• Unitary States — single, centralised government.
• Federal States — sovereignty divided between federal and constituent levels.
• Protectorates and Vassal States — limited international personality.
• Permanently Neutralised States — e.g., Switzerland historically.
• Microstates — e.g., Monaco, San Marino, Liechtenstein.
• Condominium arrangements — joint sovereignty of two or more States.

1. Constitutive Theory

Associated with Oppenheim, Anzilotti, and Holland. Recognition is what actually creates the international legal personality of a new State. Without recognition, an entity does not become a subject of International Law.

2. Declaratory (Evidentiary) Theory

Associated with Hall, Fischer Williams, Brierly, and Chen. Statehood arises automatically when an entity satisfies the factual criteria. Recognition is merely declaratory — a formal acknowledgment of a status that already exists. Codified in Article 3 of the Montevideo Convention: "The political existence of the state is independent of recognition by other states."

Retroactive Effect — Luther v. Sagor (1921)

Once recognition is granted, the recognising State's courts treat the acts of the recognised government as valid from the date it actually assumed effective power.

Effects on the International Plane

• Establishment of formal bilateral relations and exchange of diplomatic representatives.
• The recognised entity becomes capable of exercising rights and bearing duties under International Law.
• Recognition is generally a precondition for membership of international organizations.

Effects Within Domestic Law

• 1. Locus Standi to Sue — An unrecognised State has no standing in the domestic courts. Wulfsohn v. R.S.F.S.R. (1923).
• 2. Retroactive Validation — Acts of the recognised government are valid from the date it assumed power. Luther v. Sagor (1921).
• 3. Sovereign Immunity — A recognised foreign State enjoys immunity from suit. Government of the Republic of Spain v. SS Arantzazu Mendi (1939).
• 4. Title to Property — Recognition affects the domestic courts' willingness to recognise property claims.

Circumstances Indicating Implied Recognition

• Entering into a bilateral treaty on a footing of equality.
• Formal establishment of diplomatic relations.
• Issuance of a consular exequatur.
• Initiation of official negotiations of a political character.
• Voting in favour of admission to the United Nations.

Circumstances NOT Amounting to Implied Recognition

• Participation in a multilateral treaty or conference.
• Maintenance of informal or unofficial trade relations.
• Negotiations for a purely temporary purpose (e.g., armistice).
• Presence of consular officers for trade protection without formal exequatur.

Modes of Acquisition of Territory

• 1. Occupation — Acquisition of sovereignty over terra nullius through effective and continuous State activity. Island of Palmas Case (1928): mere discovery confers only an inchoate title. Eastern Greenland Case (1933): minimal but continuous display of authority suffices for remote territory.
• 2. Prescription — Acquisition of territory already belonging to another State, through long, continuous, peaceful exercise of sovereignty without protest from the original sovereign.
• 3. Cession — Transfer of territory by mutual agreement, typically through a treaty (e.g., Russia's cession of Alaska to the U.S. in 1867).
• 4. Accretion — Acquisition through natural geographical processes (e.g., gradual deposit of silt, volcanic islands).
• 5. Conquest / Subjugation — Historically recognised but now obsolete and unlawful under modern International Law.

Core Principles

• Non-colonisation — The American continents were no longer open to future colonisation by any European power.
• Non-intervention (outward-facing) — The U.S. would not interfere in European internal affairs.
• Non-intervention (inward-facing) — Any attempt by a European power to interfere in the Western Hemisphere would be viewed as an unfriendly act.

Roosevelt Corollary (1904)

President Theodore Roosevelt extended the Doctrine, asserting that the U.S. could exercise "international police power" and intervene in Latin American States — significantly expanding the Doctrine from defensive to interventionist.

Legal Character

The Monroe Doctrine was a unilateral political declaration, not a binding rule of International Law, and was never formally accepted by other States.

The Principle of Non-Intervention

Reflected in Article 2(4) (prohibiting force) and Article 2(7) (barring UN intervention in domestic jurisdiction) of the UN Charter. Affirmed in the Nicaragua Case (1986).

Nicaragua Case (1986) — Elements of Unlawful Intervention

• The intervention must bear on matters in which each State is permitted to decide freely.
• The intervention must be coercive in nature — coercion is the very essence of prohibited intervention.

Recognised Exceptions

• Collective Intervention under UN Charter Chapter VII — authorised by the Security Council.
• Self-Defence — under Article 51 of the UN Charter.
• Intervention by Invitation — at the genuine request of the legitimate government.
• Protection of Nationals Abroad — a narrower and more contested justification.

Microstates

Sovereign States of very small area, population, or capacity — e.g., Vatican City, Monaco, San Marino, Liechtenstein, Nauru, Tuvalu — which satisfy the Montevideo criteria. They enjoy the same formal voting equality in the UN General Assembly as larger States.

Condominium

An arrangement under which two or more States jointly exercise sovereignty over the same territory. Historical examples: Anglo-Egyptian Sudan (1899–1956), New Hebrides (now Vanuatu). Generally a transitional arrangement.

LLB Exam Prep — Public International Law | Unit II

Unit III — State Jurisdiction (Law of the Sea), State Responsibility, and Succession

Meaning

A State possesses complete and exclusive jurisdiction over everything within its territory. Affirmed in the S.S. Lotus Case (1927).

Principles Governing (and Extending) Jurisdiction

• Subjective Territorial Principle — jurisdiction over an act that commenced within its territory.
• Objective Territorial Principle — jurisdiction over an act that had effects within its territory (central to the Lotus Case).
• Nationality Principle — jurisdiction over its own nationals even while abroad.
• Protective Principle — jurisdiction over acts threatening its own security or vital interests.
• Universality Principle — certain grave crimes (piracy, genocide, war crimes) attract jurisdiction of any State.

Exemptions from Territorial Jurisdiction

• Foreign sovereigns and Heads of State.
• Diplomatic agents and missions (Vienna Convention on Diplomatic Relations, 1961).
• Foreign armed forces present with consent (status of forces agreements).

Kinds of Succession

• Universal Succession — predecessor totally extinguished and absorbed.
• Partial Succession — predecessor loses only part of its territory.

Theories

• Universal Succession Theory (Grotius) — successor inherits all rights and obligations.
• Clean Slate (Tabula Rasa) Doctrine — a new State begins free of predecessor's treaty obligations.

Consequences

• Treaties — the "clean slate" principle applies, except for boundary treaties (Article 11 of the 1978 Vienna Convention).
• Public Property — generally passes to the successor State.
• Public Debts — "localised" debts generally pass; general national debt is more controversial.

Essential Elements

• The existence of an international obligation binding upon the State.
• An act or omission constituting a breach of that obligation.
• Attributability of that act or omission to the State.

Direct and Vicarious Responsibility

A State bears direct responsibility for the wrongful acts of its own organs and officials. It may also bear indirect (vicarious) responsibility for acts of private individuals where it failed to exercise due diligence.

A State cannot avoid responsibility even though it is sovereign — it cannot invoke its own sovereignty or internal constitutional structure as a defence. This reflects Article 27 VCLT.

North Sea Continental Shelf Cases (1969) — Rights over the continental shelf exist ipso facto and ab initio, without any need for occupation, exploitation, or express proclamation.

Meaning and Extent

Under Articles 55–57 of UNCLOS, the EEZ extends up to 200 nautical miles from the baseline. The coastal State does not possess full sovereignty but has specific sovereign rights and jurisdiction.

Rights of the Coastal State (Article 56)

• Sovereign rights for exploring, exploiting, conserving, and managing natural resources.
• Sovereign rights for energy production from water, currents, and winds.
• Jurisdiction over artificial islands, marine scientific research, and marine environment protection.

Rights Retained by Other States (Article 58)

All States continue to enjoy freedom of navigation, overflight, and freedom to lay submarine cables and pipelines.

Fisheries Jurisdiction Case (UK v. Iceland, 1974) — The ICJ recognised the growing acceptance of extended fishery zones even before UNCLOS.

Meaning

Article 86 of UNCLOS defines the high seas as all parts of the sea not included in the EEZ, territorial sea, internal waters, or archipelagic waters. The high seas are res communis — no State may subject any part to its sovereignty (Article 89).

Freedoms of the High Seas (Article 87)

• Freedom of navigation.
• Freedom of overflight.
• Freedom to lay submarine cables and pipelines.
• Freedom to construct artificial islands.
• Freedom of fishing.
• Freedom of scientific research.

Flag State Jurisdiction

A ship on the high seas is subject to the exclusive jurisdiction of the flag State (Article 92, UNCLOS).

Exceptions

• Piracy — universal jurisdiction (Articles 100–107).
• Right of Hot Pursuit — a coastal State may pursue onto the high seas (Article 111).
• Suppression of slave trade and unauthorised broadcasting.
• Stateless vessels — may be boarded and inspected by any State.

The Calvo Doctrine

A foreign national residing in a host State is entitled to no greater rights than the host State's own nationals, and must seek redress exclusively through local courts.

The Calvo Clause

A contractual clause by which a foreign national agrees to submit disputes exclusively to the local courts and waives any right to seek diplomatic protection from their home State.

Legal Status

Controversial — since diplomatic protection is a right of the State (not the individual) under International Law (Mavrommatis Palestine Concessions Case, PCIJ, 1924), a private individual cannot validly waive a right that is not theirs.

LLB Exam Prep — Public International Law | Unit III

Unit IV — State and Individual (Extradition, Asylum, Nationality), Diplomatic Envoys/Consuls, and Treaties

Modes of Acquisition

• By Birth — through jus soli (birth within the territory) or jus sanguinis (descent from a national).
• By Naturalisation — voluntary grant after prescribed residence and conditions.
• By Marriage — automatic or simplified acquisition in some States.
• By Resumption — re-acquisition of a previously held nationality.
• By Cession or Subjugation of Territory — inhabitants acquire nationality of the successor State.
• By Registration — simplified statutory procedure in certain States.

Modes of Loss

• Release — voluntary renunciation.
• Deprivation — involuntary withdrawal by the State (e.g., fraud, disloyal conduct).
• Substitution — voluntary acquisition of a new nationality automatically extinguishes the original.
• Long Residence Abroad — automatic lapse in some States.

Causes

• Conflict between jus soli and jus sanguinis applied by different States at birth.
• Naturalisation without loss of the original nationality.
• Marriage to a foreign national.
• State succession.

Problems Created

• Diplomatic protection — neither State of nationality can protect against the other.
• Military service — conflicting conscription obligations.
• Taxation — double taxation.
• Extradition — States may refuse to extradite their own nationals.

Rule of Effective/Dominant Nationality

The nationality reflecting the individual's genuine and effective link — habitual residence, centre of interests, family ties — is given precedence (Nottebohm Case, ICJ, 1955).

Article 4 of the Hague Convention, 1930: A State may not exercise diplomatic protection against a State whose nationality that person also possesses.

1. Territorial Asylum

Granted within a State's own territory to a person fleeing persecution. Well recognised as an incident of territorial sovereignty. Reinforced by the principle of non-refoulement under the 1951 Refugee Convention.

2. Extraterritorial (Diplomatic) Asylum

Granted within premises situated in another State's territory (e.g., an embassy). More controversial, as it directly derogates from the territorial State's sovereignty.

General Rules

• Treaty Basis — generally granted pursuant to a bilateral or multilateral extradition treaty.
• Double (Dual) Criminality — the act must be a criminal offence under the laws of both States.
• Rule of Speciality — the extradited person may be tried only for the specific offence for which extradition was granted.
• No Extradition of Own Nationals — many civil law States decline to extradite their own nationals.
• Double Jeopardy (Ne Bis in Idem) — extradition refused if already tried for the same offence.
• Prima Facie Evidence — many common law jurisdictions require establishing a case before extradition.
• Human Rights Safeguards — assurances against torture, unfair trial, or the death penalty.

Non-Extraditable Crimes

• Political Offences — a person will generally not be extradited for an offence of a purely political character.
• Military Offences — offences purely of a military character (e.g., desertion) are generally not extraditable.

Rationale

The functional necessity theory — immunities are granted to ensure the efficient performance of diplomatic functions, not for personal benefit.

Inviolability

• Personal Inviolability (Article 29, VCDR) — a diplomatic agent shall not be liable to arrest or detention.
• Inviolability of Mission Premises (Article 22) — agents of the receiving State may not enter without the head of mission's consent.
• Inviolability of Residence, Papers, and Correspondence (Article 30) — the private residence enjoys the same inviolability as the mission premises.

Immunity from Jurisdiction

• Criminal Jurisdiction (Article 31(1)) — absolute immunity from criminal jurisdiction.
• Civil and Administrative Jurisdiction — generally absolute, with three exceptions: (a) real action relating to private immovable property; (b) succession matters in a private capacity; (c) professional or commercial activity outside official functions.

Distinction from Diplomatic Envoys

Consuls perform primarily administrative and commercial functions — issuing visas, assisting nationals, promoting trade. Their immunities under the Vienna Convention on Consular Relations, 1963 (VCCR) are correspondingly narrower.

Key Case Laws

• LaGrand Case (Germany v. United States, ICJ, 2001) — U.S. held responsible for failing to provide consular notification under Article 36 VCCR.
• Avena Case (Mexico v. United States, ICJ, 2004) — same principle — failure to notify detained Mexican nationals of right to consular assistance.

Steps in the Formation of a Treaty

• 1. Negotiation — Representatives with "full powers" negotiate the terms.
• 2. Adoption of the Text — By consent of all States, or by a two-thirds majority at a conference (Article 9, VCLT).
• 3. Authentication — Established as final through signature, signature ad referendum, or initialling (Article 10).
• 4. Expression of Consent to Be Bound — Through signature, ratification, acceptance, approval, or accession (Articles 11–15).
• 5. Reservations — A unilateral statement purporting to exclude or modify certain provisions (Article 19).
• 6. Entry into Force — As provided in the treaty itself (Article 24).
• 7. Registration — With the UN Secretariat under Article 102 of the UN Charter.

• 1. Law-Making Treaties and Treaty-Contracts — Law-making treaties lay down general rules for the international community; treaty-contracts create specific reciprocal obligations between particular parties.
• 2. Bilateral and Multilateral — Two States vs. three or more States.
• 3. Framework (Umbrella) Treaties and Detailed Treaties — General principles vs. comprehensive regulation.
• 4. Self-Executing and Non-Self-Executing — Automatically part of domestic law vs. requiring implementing legislation.
• 5. By Subject Matter — Political treaties, commercial treaties, and constitutional/administrative treaties.

Meaning

Article 2(1)(d) VCLT defines a reservation as a unilateral statement by which a State purports to exclude or modify the legal effect of certain treaty provisions in their application to that State.

When a Reservation May Be Made (Article 19)

A State may formulate a reservation unless: (a) the reservation is prohibited by the treaty; (b) the treaty provides that only specified reservations may be made; or (c) the reservation is incompatible with the object and purpose of the treaty.

Acceptance and Objection (Article 20)

Acceptance may be express or implied (no objection within 12 months). An objection does not necessarily prevent the treaty from entering into force between the objecting and reserving States.

Legal Effect (Article 21)

A reservation modifies the treaty provisions to the extent of the reservation, for the reserving State in its relations with the accepting party. The reservation does not modify the treaty provisions for the other parties inter se.

LLB Exam Prep — Public International Law | Unit IV

Unit V — The United Nations Organisation, WTO, and ILO

Purposes of the United Nations (Article 1)

• To maintain international peace and security, and to take effective collective measures for the prevention and removal of threats to the peace.
• To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples.
• To achieve international cooperation in solving economic, social, cultural, or humanitarian problems, and in promoting and encouraging respect for human rights.
• To be a centre for harmonising the actions of nations.

Principles of the United Nations (Article 2)

• Sovereign Equality — the Organisation is based on the sovereign equality of all its Members.
• Good Faith Fulfilment of Obligations — all Members shall fulfil their Charter obligations in good faith.
• Peaceful Settlement of Disputes — all Members shall settle disputes by peaceful means.
• Prohibition of the Threat or Use of Force — Article 2(4); regarded as jus cogens.
• Assistance to the United Nations — all Members shall give the UN every assistance.

Composition

All Member States, each with one vote (Article 18(1)) — reflecting sovereign equality. Meets in regular annual sessions, special sessions, and emergency special sessions.

Powers and Functions

• General Powers (Article 10) — may discuss any questions within the scope of the Charter and make recommendations.
• Peace and Security (Articles 11–12) — may consider general principles of cooperation, subject to Article 12 (deference to Security Council when it is exercising its functions).
• Promoting International Cooperation (Article 13) — initiates studies and recommendations for the progressive development and codification of International Law.

Composition

15 Members: 5 Permanent Members (P5) — China, France, Russia, UK, and the United States — and 10 Non-Permanent Members elected for two-year terms.

Voting Procedure (Article 27)

• Procedural matters — affirmative vote of any 9 members.
• Substantive matters — affirmative vote of 9 members including the concurring votes of all five Permanent Members (the "veto").

Powers and Functions

• Pacific Settlement (Chapter VI) — Articles 33–38: investigate disputes, call upon parties to settle peacefully.
• Enforcement Action (Chapter VII) — Article 39: determines threats to peace; Article 40: provisional measures; Article 41: non-forcible measures (sanctions); Article 42: use of armed force.

Legal Basis

Article 27(3) of the UN Charter — a negative vote by a Permanent Member blocks the resolution. An abstention or absence is not treated as a veto.

Rationale

The veto was included at the insistence of the major powers of WWII, ensuring the UN could not take enforcement action against any great power's wishes.

Criticism

• Blocks action even in situations of grave humanitarian concern, causing institutional paralysis.
• Inconsistent with the principle of sovereign equality (Article 2(1)).
• Composition unchanged since 1945, despite shifts in global geopolitical power.

Categories

• Original Members — States that participated in the San Francisco Conference (1945) or signed the 1942 Declaration.
• Admitted Members — admitted under Article 4.

Admission (Article 4)

Open to peace-loving States which accept Charter obligations and are able and willing to carry them out. Requires recommendation of the Security Council (subject to veto) + two-thirds majority in the General Assembly.

ICJ Advisory Opinion on Conditions of Admission (1948) — The conditions in Article 4(1) are exhaustive; a Member's vote may not be conditional on extraneous requirements.

Suspension (Article 5)

A Member against which enforcement action has been taken may be suspended from the exercise of rights and privileges by the General Assembly upon recommendation of the Security Council.

Expulsion (Article 6)

A Member which has persistently violated the Charter principles may be expelled. In practice, no Member has ever been formally expelled.

Composition

15 independent judges, elected jointly by the General Assembly and Security Council for 9-year terms. No two judges may be nationals of the same State. Representation of the main forms of civilisation and principal legal systems is assured.

Jurisdiction

1. Contentious Jurisdiction

Only States may be parties (Article 34). Jurisdiction is fundamentally consensual, founded on:

• (a) Special Agreement (Compromis) — parties jointly agree to submit a dispute.
• (b) Jurisdictional Clauses in Treaties — advance agreement to refer disputes to the ICJ.
• (c) Optional Clause (Article 36(2)) — unilateral declaration recognising the Court's jurisdiction as compulsory.

2. Advisory Jurisdiction

The General Assembly and Security Council may request advisory opinions on any legal question (Article 96). Advisory opinions are not binding but carry great authority.

Origin and Status

Established in 1919 under the Treaty of Versailles. Became the first specialised agency of the UN in 1946. Headquarters in Geneva.

Objectives

Promotion of social justice as a foundation for universal and lasting peace. Core objectives: promoting rights at work, decent employment, social protection, and social dialogue. Principle: "labour is not a commodity."

Tripartite Structure

A unique feature: representatives of governments, employers, and workers participate on an equal footing in decision-making and standard-setting.

Organs

• International Labour Conference — supreme deliberative body, meets annually (2 government delegates + 1 employer + 1 worker per State). Adopts Conventions and Recommendations.
• Governing Body — executive council, meets thrice yearly.
• International Labour Office — permanent secretariat, headed by a Director-General.

Standard-Setting

Conventions (binding once ratified) and Recommendations (non-binding guidance), covering freedom of association, abolition of forced labour, elimination of child labour, non-discrimination, and occupational safety.

Formation

Established on 1 January 1995 under the Marrakesh Agreement, succeeding GATT (1947). Headquarters in Geneva.

Core Principles

• Most-Favoured-Nation (MFN) Treatment — any trade advantage granted to one partner must be extended to all Members.
• National Treatment — imported and domestic goods must be treated equally once in the market.
• Trade Liberalisation — progressive reduction of tariffs and barriers.
• Transparency and Predictability — Members must publish trade regulations and bind tariff commitments.

Institutional Structure

• Ministerial Conference — highest decision-making body, meets at least once every two years.
• General Council — conducts WTO business between Ministerial Conferences; also convenes as the Dispute Settlement Body and Trade Policy Review Body.
• Dispute Settlement Body (DSB) — administers the dispute settlement mechanism (panels + Appellate Body).
• Secretariat — headed by a Director-General.

Key Agreements

The WTO administers multilateral agreements including GATT (trade in goods), GATS (trade in services), and TRIPS (intellectual property).

LLB Exam Prep — Public International Law | Unit V

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