1.

TREATIES
The International Court of Justice [ICJ] Statue outlines the following as sources of international [int.] law u/Art.38 –

a. Treaties.
b. Customary Int. Law [CIL] Principles.
c. General principles of law recognised by civilised nations.
d. Judicial decisions and writings of the most highly qualified publicists.

TREATIES
Article 2 (1)(a)of the Vienna Convention on the Law of Treaties, 1969, 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”
While all treaties are binding on States which are parties to them by virtue of the principle of pacta sun servanda which means
Promises are to be kept. Of course, in good faith,
Good Faith in the strict legal sense has no meaning.Parties are required to interpret and perform in good faith, which means, they’re
required to do so in accordance with the ordinary meaning to be given to its term in the content of the treaty and in the light of its
object & purpose.

In CASE CONCERNING GABCÍKOVO-NAGYMAROS PROJECT (HUNGARY/SLOVAKIA) court held that Hungary

and Slovakia must negotiate in good faith in the light of the prevailing situation, and must take all necessary measures to ensure the
achievement of the objectives of the 1977 Treaty; that, unless the Parties agree otherwise, a joint operational regime for the dam on
Slovak territory must be established in accordance with the Treaty of 1977; that each Party must compensate the other Party for the
damage caused by its conduct; and that the accounts for the construction and operation of the works must be settled in accordance
with the relevant provisions of the 1977 Treaty and its related instruments.

A treaty is basically an agreement between parties on the int. scene. Although they may be concluded between States & Int.
Organisations [Int. Orgs.], they are primarily concerned with relations between States. The VCLT is the governing convention on
treaties and certain provisions of the VCLT are now principles of CIL.

The principle of pacta sunt servanda is regarded as the basis of validityof a treaty. It serves two essential functions 1- as a source
of International Law of ever-increasing importance. 2- an effective instrument of international co-operation.

If states fail to observe this very principle, treaties, which are regarded as the most important source of international law, would
become questionable.

The following could be the exceptions to the principle of pacta sunt servanda : -

1. When a new state comes into existence as a result of revolt

2. When the question is related to part of territory which has been ceded/merged with other states

There is no specific requirement of form for the existence of a treaty. The one thing differentiating treaties from other informal int.
instruments is that within treaties, there is intention to create legal relations by means of an agreement.

As per the ICJ in the Case Concerning Maritime Delimitation and Territorial Questions between Qatar & Bahrain Judgement of
1 July 1994, even the Minutes of the Meeting, because they enumerated the commitments to which the Parties have consented, were
considered a binding treaty between the parties; capable of creating rights and obligations in int. law for the parties.

The most fundamental principle while making a treaty is that treaties are binding upon the parties to them and must be performed
in good faith. This has been codified u/Art.26 of the VCLT as pacta sun servanda. It reads “Every treaty in force is binding upon
the parties and must be performed by them in good faith”.

Where then, may one ask, does an individual get the power to make treaties? This power to make treaties can be found in the
municipal laws of the Country. Take for example, Art. 253 of the Constitution of India r/w Entry 13 & 14 of the Union List in
Schedule VII. As per the Court in Maganbhai Ishwarbhai Patel v Union of India, the effect of Art. 253 is that if a treaty agreement
or convention with a foreign State deals with a subject matter within the competence of the State Legislature, the Parliament alone
has, notwithstanding Art. 246(3), the power to make laws to implement the treaty agreement or convention.

Who can be parties to a treaty ? There is no prescribed form or procedure to make a treaty (Temple of Preah Vihear Case, ICJ,
1961). However, treaty-making must comply with certain rules that are set out in the VCLT itself. As per Art. 6 VCLT, every State
 possesses the capacity to conclude treaties. Exceptions: protected states, neutralized states, obligated states, etc.

A person representing the State with appropriate full powersas per Art. 7, has the power to conclude treaties on behalf of the States.
As per Art. 7(2) VCLT, some people need not produce such full powers, as they are considered representing their State. These are-

(a) Heads of State, of Government and Ministers for Foreign Affairs

(b) Heads of diplomatic missions
(c) Representatives accredited by the States to an int. conference or to an int. organisation or one of its organs.

As per the ICJ in the case of Somalia v Kenya (Preliminary Objections) 2017, stated that State representatives under IL may also
duly authorize other officials to adopt, on behalf of a State, the text of a treaty or to express the consent of the State to be bound by
a treaty. If the treaty is concluded by someone who does not have the authority u/Art. 7 VCLT to do so, Art. 8 comes into picture.
Art. 8 states that any act relating to theconclusion of a treaty performed by a person who has not been duly authorised would be
without legal effect, unless afterwards confirmed by the State.

Once a treaty is signed, how is its text adopted? The adoption of the text of the treaty is covered by Art. 9, which states that it will
be adopted by the consent of all the States participating in its drawing up, except if – At an int. conference, the vote is 2/3rd of the
States present & voting unless by the same majority, they decide to apply a different rule.

How do these states express their consent? As per Art. 11, the consent of a State may be expressed by –
1. Accrediting of plenipotentiary/representatives on behalf of contracting parties
The first step involved in the formation of a treaty is to authorize certain representatives, who will be granted the power by the
Minister of foreign affairs to represent the state for ratification, adoption, negotiation etc. of a treaty.

2. Negotiation & adoption of text

The persons accredited are authorized to enter into negotiations or adoptions. This requires the agreement of all parties to the treaty.
The treaty is adopted after all concerning matters are resolved. If the adoption is being done at an international conference, the
acceptance of the text will require a two-thirds majority unless otherwise negotiated or agreed.[15]

Consent of the States (Vital Stage)

States may be bound by the treaties only when they have given their consent.
Ways of expressing consent: - (Art. 11 to 17, VCLT)

3. Consent by signature
The next step involved is signature by the accredited representatives once the final draft of the treaty is prepared. The treaty thus
comes into force once it is signed by the authorized representatives on behalf of the contracting states. It however becomes binding
only after it is ratified by the states in question which is the next step.
4. Consent by Exchange of Instruments
exchange of instruments constituting a treaty
5. Consent by Ratification
Ratification refers to the act of the parties to an international treaty adopting it. It implies the conformation of a treaty signed by the
representatives of various states involved which is done by the head of the state by conforming to the provisions of the constitution.
A state can declare its agreement to a treaty in a variety of ways. It can be expressed through signature, ratification, accession or
exchange of instruments.
Treaties can bind countries only if they consent to be bound by them and thus this is a very important step in the creation of treaties.
However, ratification of a treaty may be withheld for the reasons listed below:
If the representative has acted in excess of his or her authority
If the representative has been subject to deception with respect to the matters of fact.
If it becomes difficult to fulfil the treaty requirements.
In the absence of consensus ad-idem
6. Consent by Accession
A non-party state that wasn't an original signatory can become a party to the treaty by accepting a treaty that has already been
concluded. This is referred to as accession. On the other hand, adhesion is when a third-party state accepts or adheres to certain terms
of a treaty that has already been signed. Due to the thin line of difference, these terms are used interchangeably. However, the
distinction lies in the fact that in case of accession, the non-signatory state accepts all of the provisions contained in the treat, whereas
in case of adhesion, the non-signatory accepts a few but not all of the provisions.

7. Coming into force

The next step is essentially the enforcement of treaty. This depends on the provisions contained in a treaty. it may include a specific
clause regarding the date of applicability of the treaty. Further, certain treaties become binding immediately after it has been signed,
while others may come into force only after it has been ratified by a prescribed number of states. A fundamental premise of
international law is that only those parties are bound by a treaty that have consented to be bound by it, this is exemplified by the
maxim "pacta terties nec noncent nec prosunt."

8. Registration
Following ratification, the treaty must be registered with the International Organization's headquarters. According to Article 102[16]
of the UN Charter, registration and publication is essential and if this requirement isn't complied with then the treaty cannot be
invoked before any organ of the UN charter. This doesn't however mean that the treaty would become invalid or be unenforceable. In
addition to this provision, Article 18[17] of the covenant on league mandates that every treaty must be registered with the league
secretariat and until it is so done, it won't be binding on any state. This further implies that in the event of a dispute, a non- registered
treaty could not be relied upon.

9. Enforcement & incorporation of treaties

The final step is the enforcement of treaties where the treaty is incorporated into state law

Consent by signature means that the State representatives have agreed upon an acceptable text, subject pending acceptance or
rejection by the Government, as per Art. 12 VCLT. However, a signed treaty (pending ratification, acceptance, or approval),
a state must refrain from acts which would default the object and purpose of the treaty, as per Art. 18 VCLT.
Consent by ratification is expressed when the treaty provides for it, or it is otherwise established that the negotiating States were
agreed that ratification is required, or the representative of the State has signed the treaty subject to ratification, or the intention
of the State appears from the full powers of its representatives or was expressed during the negotiation.

Concept of reservation

Do you have to agree to the entire treaty? No.

A state may give its consent to the treaty in part, i.e. might exclude the legal effect of certain provisions of a treaty. “A unilateral
statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that state”. (Art.
2(1)(d), VCLT) Reserving is the sovereign right of the state.

Benefits Challenges
More States willing to ratify the treaty, allows flexibility to Reservations could jeopardize the whole exercise, defeat the
States, and encourages harmony between states with differing purpose, and give rise to complicated interrelationships
social, economic, and political systems
Reservations do not apply to bilateral treaties, but only to multilateral treaties. Countries may either omit some aspects of the treaty
or apply a different understanding to them (Declarations)
Reservations are possible unless: - (Art. 19, VCLT)
the reservation is prohibited by the treaty,
The treaty provides that only specified reservations which do not include the reservation in question may be made,
in the cases where it is not compatible with the object & purpose of the treaty (Advisory opinion on the Reservation to the Genocide
Convention, ICJ, 1951)

When is a reservation incompatible with the object and purpose of the treaty? Under the League of Nations [LoN], reservations
were allowed only when all other parties accepted them (unanimous acceptance, otherwise null & void). Under the United Nations
[UN] system, to afford flexibility and balance universality and integrity, the rules were changed. Furthermore, the ICJ, in 1951, gave
an Advisory Opinion on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide where it
was asked if the reserving State would be regarded as a party to the Convention while still maintaining its reservations, even if it
were objected to by one or more of the parties to the Convention (but not the others). In the Opinion, the Court stated that there can
be no absolute answer to this question, and it must be considered based on the particular circumstances of each individual case, and
by a majority of 7 votes to 5, held that a State maintaining a reservation can be regarded as being a party to the Convention if the
reservation is compatible with the object and purpose of the Convention. It was after this case that the ‘objects and purpose’ test
was codified under VCLT.

TERMINATION

Termination in literal sense means the ‘coming to an end’ of the treaty. However, ‘termination’ doesn’t necessarily mean termination
of treaty.

Ways of Termination (Sec. 3, Part V, VCLT)

- By Consent of the Parties (Art. 54 VCLT)

Article 54 concerns the general and obvious grounds of the termination of or withdrawal from a treaty under its provisions or
by consent of the parties. If a treaty is terminated, it comes to an end for all States.

- By Denunciation (Art. 56, VCLT)

 A right of a party, provided for in a treaty or arising under article 56, to denounce, withdraw from or suspend the operation of
the treaty may be exercised only with respect to the whole treaty unless the treaty otherwise provides or the parties otherwise
agree.

- By Concluding Another Treaty (Art. 59 (1), VCLT)

When a fresh treaty is generated to govern an issue previously regulated by a treaty, the earlier treaty is to become invalid.
Additionally, if the stipulations of the new treaty are so mismatched with those of the preceding treaty that they are unable to coexist
harmoniously, the preceding treaty shall be deemed cancelled.

- By Material Breach (Art. 60, VCLT)

A material breach of a bilateral treaty by one party entitles the other party to terminate the treaty. However, a party may lose its right
to invoke the breach if, after becoming aware of the facts, it expressly or impliedly agrees that the treaty remains in force or continues
in operation.

- By Impossibility of Performance (Art. 61, VCLT)

After the conclusion of a treaty, if certain circumstances emerge which render the performance of an obligation under the treaty
permanently impossible, a party may withdraw from or terminate it. This is codified in Art. 61 VCLT.

By Emergence of jus cogens (Art. 64, VCLT)

Any treaty that violates a new jus cogens or peremptory rule of international law that emerges after worldwide assent is presumed to
be terminated.

- By clasula rebus sic stantibus (Art. 62, VCLT)

Coming from the Latin maxim rebus sic standibus, this principle allows a party to unilaterally undermine treaty relations by
identifying circumstances that allow it to terminate its contractual obligations. This hasbeen codified u/Art. 62 VCLT.

Procedure for Terminating a Treaty (Art. 65, VCLT)

A party willing to terminate must notify other parties of its claim. (formally!)Objection may be raised by the other party (within
three months). if an objection has been raised;The parties shall seek a solution as prescribed in Art. 33 of UNC If no solution is
reached, any one of the parties may submit it to the ICJ (unless it’s submitted to arbitration by common consent).Or, any one of the
parties may submit a request to the UNSG.

As per the ICJ in the Namibia Advisory Opinion (1970), one of the fundamental principles governing the int. relationship thus
established is that a party which disowns or does not fulfil its own obligations cannot be recognised as retaining the rights which it
claims to derive from the relationship.

In the case of Gabčíkovo-Nagymaros, the ICJ was of the view that only a “material breach” of the treaty itself by a State which is
party to that treaty will entitle the other party to rely on it as ground for terminating the treaty.

Effects of War on Treaties

State of War or armed conflict between two parties doesn’t ipso facto terminate the treaty.
Lawmaking treaties (e.g. the UN Charter) aren’t terminated.
However, some economic, social and bilateral treaties are generally terminated.
With the exception of political (relating to border delimitation) treaties.

Vienna Convention is silent on the effects of war on treaties. It instead provides that it doesn’t govern the effects of war on treaties.
(Art. 73, VCLT)
Outbreak of war creates fundamental change in circumstances. Hence, a treaty can be suspended or even terminated.
In some treaties, the effects of war over that treaty is explicitly mentioned. In that case, according to the interpretations of the treaties.
Effects of War on Treaties
Some treaties remain unaffected (e.g. UN Charter, VCLT, & some boundary delaminating treaties).
Some treaties get suspended (provisionally) (e.g. minor treaties, like those relating to health, protection of industrial property, etc)
some treaties get terminated (e.g. non-aggression treaty, friendship treaty, alignment treaties, treaty to establish diplomatic relations,
etc)
Some of them remain active (e.g. the treaties regulating war; like, the Hague Conventions of 1899 & 1907, the 1949 Geneva
Conventions, the treaties relating to neutrality & policy of neutralizarion , etc.)
 2.CUSTOMARY INTERNATIONAL LAW [CIL]
• Art. 38 (1) (b) says: “… international custom, as evidence of a general practice accepted as law…”
• Oppenheim says: Custom is the “oldest” source of international law.
• It has a history older than that of treaties – i.e., before the regimes of treaties came in, Customs was the
most/only important source of international law, and a large part of IL were [just] customs.
The relationship between treaty law and customary law is complex. When no treaty (bilateral or multilateral) is binding on
the parties, the dispute is to be governed by CIL. As per the judgement by the ICJ in Continental Shelf (Libya v Malta)
case (1985) the Court held that since Malta is a party to the Geneva Convention while Libya is not, and since the parties
have agreed, the dispute is to be governed by CIL. In the Case Concerning the Arrest Warrant of 11 April 2000 (DRC v
Belgium), the ICJ stated that while the conventions provide useful guidance on certain questions of immunities, it is based
on CIL that the court on decide questions relating to the immunities of Ministers.
So, what is a custom? A custom is a standard of behaviour that governs relations between certain set of people. Rules
developed through social practice which are then gradually accepted by parties. As Court noted by the ICJ in the
Continental Shelf (Libya v Malta) case, the substance of customary law must be “looked for primarily in the actual practice
and opinio juris of states.”
What are the two parts of determining whether a principle of law is CIL or not? The two factors to be taken into
consideration are (i) state practice and (ii) opinio juris sive necessitatis. This means that there must be proof of state
practice following a particular principle of law and the belief of the State must be that this course of action is legal and
binding upon them. If this belief exists along with the practice, it can be sufficiently inferred that the State has tacitly
consented to the rule involved.

a. Material Fact (State Practice)

These are practices made by the state in dealing with various matters of international concern. State practices can be in
form of governmental actions, state legislation, diplomatic notes, ministerial and official statements.
For state practices to qualify s international, they must contain the hereby features:-
1. Duration. The state practices must have been done in a considerable period of time. It does not matter whether it
is long or short time.
2. Universality. State practices must have been done by many states, a substantial number of states. This does not
mean all states must have the practice to consider them inaternational
3. Uniformity. State practices must have been done unanimously, consistently not variably. They must have been
practised in similar ways.
In IL, there is no rigid time element for a practice to become State practice, and it will depend upon the circumstances of
the case and the nature of the usage in question.
C A S E S T U D Y – A S Y L U M C A S E ( C O L O M B I A V P E R U ) [1 9 5 0 ]
Court’s Decision - The Court, in characterising the nature of a customary rule, held that it had to constitute the expression
of a right appertaining to one state (Colombia) and a duty incumbent upon another (Peru). However, the Court felt that in
the Asylum litigation, state practices had been so uncertain and contradictory as not to amount to a ‘constant and uniform
usage’ regarding the unilateral qualification of the offence in question. The issue involved here dealt with a regional custom
pertaining only to Latin America and it may be argued that the same approach need not necessarily be followed where a
general custom is alleged and that in the latter instance a lower standard of proof would be upheld.
CASE STUDY–NORTH SEACONTINENTAL SHELF CAS E[1969]
Passage of time not required for a new rule to crystallise – This case involved a dispute between Germany on the one hand
and Norway and Denmark on the other over the delimitation of the continental shelf, the ICJ remarked that state practice,
‘including that of states whose interests are specially affected’, had to be ‘both extensive and virtually uniform in the sense
of the provision invoked’. This was held to be indispensable to the formation of a new rule of customary int. law.
CASE STUDY–NICARAGUA V UNITEDSTATESCASE[1969]
Small degree of inconsistency is not fatal to formation of custom – This Court held that t it was not necessary that the
practice in question had to be ‘in absolutely rigorous conformity’ with the purported customary rule. The Court continued
with saying that “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 rules, 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.”
So, what constitutes as general practice? Judgements of national courts, legislation of the concerned state, claims advanced
by the Country before foreign courts, statements made by the state, all will be proof of general practice as per the ICJ in
Jurisdictional Immunities of the State (Germany v Italy).
How do we know that State Practice exists?
Administrative acts or attitudes: Administrative acts, such as executive orders, regulations, policy statements, and
official communications, can reflect a state's practice and position on a particular issue. The actions and decisions of
administrative authorities, including government ministries, agencies, and officials, often provide evidence of a state's
practice.
Legislation: National legislation, including laws, statutes, and codes enacted by legislative bodies, can be a
manifestation of state practice. The adoption of laws and regulations on specific subjects can demonstrate a state's position
and contribute to the development of customary international law.
Acts of the judiciary: Judicial decisions, particularly those of domestic courts, can shed light on a state's practice and
interpretation of international law. Court rulings, opinions, and judgments can reflect a state's understanding and
application of customary international law principles.
Treaties: While treaties primarily create binding obligations between the parties, they can also provide evidence of
state practice and contribute to the development of customary international law. The provisions of treaties, as well as their
preambles and travaux préparatoires (preparatory works), can reveal the positions and practices of states on specific issues.

b. Opinio Juris Sive Necessitatis

This is the psychological element on part of the State as to its opinion on legal status of a rule. Opinio juris is a shortened
form of the Latin phrase “opinio juris sive necessitatis,” which means "an opinion of law or necessity."
In customary international law, opinio juris is the second element necessary to establish a legally binding custom. Opinio
juris denotes a subjective obligation, in that a state perceives itself to be bound by the law in question. The International
Court of Justice outlined the standard for customary international law in ICJ Statute, Article 38(1)(b) which requires that
the custom be “a general practice accepted as law.” The general practice requirement refers to state practice or actions,
while the accepted as law aspect refers to opinio juris, the belief that the actions are required by law.
Practices that are generally followed by states but which they feel free to legally ignore lack the opinio juris element and
thus are not customary international law. At the same time, a practice that was originally to be followed for other reasons
may become customary international law if states come to believe they have a legal obligation to the practice.
How to identify a new rule of custom? Generally, state practice is the best way of identifying a new custom. State practice
can be legislation, treaties, acts of government, judicial decisions. Opinio juris can be discerned from military manuals,
diplomatic guidelines, pleadings before int. courts, correspondence from one State to another or a private action, position
taken at UNGA meetings during resolutions etc.
What is the relevance of CIL? What are the reasons for its continuing vitality? CIL possesses more jurisprudential power
than treaty law as it can bind all States. The reach of CIL can also extend to the States that have not (yet) ratified a treaty.
When a new state is created, there is a deemed acceptance of the entire corpus of CIL by them. Generally, States also do
not possess the unilateral right to withdraw from CIL. Sometimes customs may even form faster than treaties.
What are some examples of formation of a custom? In 1945, the U.S. President Truman made a unilateral proclamation
with respect to the policy of the US w.r.t the Natural Resources of the Subsoil and Seabed of the Continental Shelf which
declared U.S.’s national jurisdiction upon the continental shelf along U.S. coastline. Soon after, the continental shelf
concept came to be recognised rapidly through emulation and acquiescence, mostly due to post-war economic needs and
technological advancements. Other states started formulating similar claims to the adjacent continental shelf and other
states, if affected by this proclamation of a right, had the option of either reacting either by objecting to the assertion or by
refraining from objecting.

What is the prominent mode of emergence of a new rule of CIL? The prominent mode of emergence of a new rule of
CIL is, however, acquiescence. In customary international law, acquiescence refers to the tacit or implied acceptance or
tolerance of a particular state practice or behavior by other states, through their inaction or silence, despite being aware of
it and having the opportunity to object.

Acquiescence can serve as evidence of opinio juris (the belief that the practice is legally binding), contribute to the
establishment of a widespread and consistent practice among states, and indicate the consent or recognition of that practice
as a legal norm.

Essentially, when states acquiesce to a practice by not protesting or objecting, despite having the opportunity to do so, it
can be interpreted as acceptance or consent to that practice, supporting its status as a rule of customary international law.

Generally, a State cannot be expected to consent or object to every possible new instance of relevant practice. As per the
ICJ in Gulf of Maine case (United States/Canada) held that acquiescence is equivalent to tacit recognition manifested
by unilateral conduct which the other party may interpret as consent.
Claim & Response – Prof. Myers McDougle of Yale proclaims that CIL formation process is one of continuous claim and
response. The claim may be express, such as demanding that US special forces be allowed to enter the territorial State of
Libya to arrest a territories, or it can be implicit, such as sending its special forces into the territorial State without its
permission, to apprehend the terrorist. The response to the claim may in turn be favourable, such as consenting to the
operation, or refraining from protesting the extraterritorial apprehension. In such case, the claim and response will begin
the process of generating a new rule of CIL and some states may imitate practice while others may passively acquiesce to
it.
Articulation v Act – Prof. D’Amato of Northwestern University proposes that CIL is formed through articulation and act.
In their view, the articulation can either accompany the initial act or it can be embodied in a treaty, draft instrument of the
ILC or UNGA Resolutions. Acts that follow and are consistent with the articulation will crystallise the policy into a
principle that takes on life as a rule of CIL. Once there is consensus articulation that States ought to conform to a given
rule of conduct, a legal custom can emerge when some level of spontaneous compliance with the rule is manifest.
When can a new rule of CIL not bind a particular State? Usually, a new general rule of CIL binds all States.
However, there are some exceptions which are –
1. Persistent Objector – This allows a State to exempt itself from the application of a new CIL rule if it can be
demonstrated that it had objected persistently, and explicitly, during the period when the norm was emerging.
Anglo-Norwegian Fisheries Case (UK v Norway) – Although the 10-mile rule has been adopted by certain States, other
States have adopted a different limit (thereby not giving it CIL status). Even if it were as such, the 10-mile rule would
appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian
coat.
In order to become a persistent objector it appears from the cases above that a State must object to the rule as it evolves or
develops.Indeed, the US Restatement reads: “… in principle a state that indicates its dissent from a practice while the law
is still in the process of development is not bound by that rule even after it matures. Historically, such dissent and
consequent exemption from a principle that became general customary law has been rare.”
2. Subsequent Objector – A State that has adhered to an original rule, but objects to proposed changes to that rule,
cannot be bound by said rule.
There are certain limitations on both the Persistent Objector and the Subsequent Objector principles. There are that –
1. CIL rules will be binding on new states and existing states that are newcomers to a particular activity (i.e., a new State
cannotbe a subsequent objector). 2. The rule does not apply to peremptory norm (jus cogens).

3. Possibility of Regional or Localised Custom – Rules of CIL can also apply and emerge as binding only to a sub-
set of States.
A question that can arise is that whether a local custom can be established only between two states?
In the case of Right of Passage over Indian Territory (Portugal v India), the ICJ held that it is difficult to see why the
number of States between which a local custom may be established on the basis of long practice must be larger than two.
The Court sees no reason why long continued practice between 2 States accepted by them as regulating their relations
should not form basis of mutual rights and obligations between the two States. It must however be a constant and uniform
practice having continued over a period unaffected by the change of regime and therefore the Court can be satisfied that
the practice was accepted as law by the Parties.
 3. GENERAL PRINCIPLES OF LAW

Why is there a need to include Art. 38(1)(c) as a source of IL? Art. 38(1)(c) states that general principles of law
recognised by civilised nations are a primary source of law. This provision was added to avoid a non liquet i.e., absence
of suitable law, vagueness, inconsistency, or injustice of legal consequence. It was also driven by the requirements of IL
to be a coherent legal system, and to aid interpretation of other primary sources in novel situations. It is also to ensure
that if no immediate/obvious rule is applicable to any given int. situation, it is still capable of being determined as a
matter of law. The use of GPL is more need-driven than consent- driven. Conventions and CIL are generally regarded as
stemming directly ‘from the will of the States’ (SS Lotus, p28), GPL are usually ‘found’ by lawyers and adjudicators.
As per the ICJ in the SS Lotus Case (France v Turkey) Judgement, the rules of law binding upon States therefore
emanate from their own free will as expressed in conventions or by usages generally accepted as expressing principles of
law and established to regulate the relations between co-existing independent communities or with a view to the
achievement of common aims.
What are the origins of GPL u/Art. 38(1)(c)? While there exists no consensus on the definition of GPL, they are –
 Unwritten legal norms of a wide-ranging character; and

 Recognised in municipal laws of States; and

 Must be transposable at the int. level.
What are some examples of GPL? The examples of GPL are borne out of case laws and ICJ judgements. In the case of
Factory at Chorzow (Claim for Indemnity) Germany v Poland, the ICJ stated that there is a principle generally accepted
in the jurisprudence of int. arbitration as well as municipal courts and that is there are obligations upon States to make
reparations for a breach of an obligation. In the ICJ Case of Nuclear Tests (Australia & New Zealand v France) the
court held that one of the basic principles governing the creation and performance of legal obligations, whatever their
source, is the principle of good faith.
What are other, subsidiary sources of IL? As per Art. 38(1)(d) there are other subsidiary sources of IL which are –
1. Judicial decisions – The ICJ refers to its old decisions, as per the judgement in Croatia v Serbia, to the extent
that the decisions contain findings of law, the Court will treat them as it treats all previous decisions: that is to
say that, while those decisions are in no way binding on the Court, it will not depart from its settled
jurisprudence unless it finds very particular reasons to do so.
2. Writings of highly qualified publicists
3. Principle of equity - Art. 38(2) à possibility to consent to a dispute between them being decided ex aequo et
bono à allows the court to depart from settled rules of law. This is rarely used and while it is not a formal source
of law, it can generally be used as a guiding principle which can steer the interpretation and application of
existing legal rules.
4. Unilateral acts of a State – As per the Nuclear Tests (Australia & New Zealand v France) case, declarations
made by way of unilateral acts, concerning legal or factual situations, may have the effect of creating legal
obligations. When it is the intention of the State making the declaration that is should become bound according
to its terms, that intention confers on the declaration, the character of a legal undertaking, the State being
thenceforth legally required to follow a course of conduct consistent with the declaration.
5. Resolution of the UNGA – As per the Nicaragua case, the attitude of States towards certain UNGA
resolutions can be used as sources for deducing opinio juris.
JUS COGENS
Jus cogens possess a higher status to ‘ordinary’ CIL norms. In case of a conflict between an IL rule and jus cogens, the
jus cogens norm would prevail and such a rule would be, regardless of whether it is a part of a treaty or CIL or GPL,
would be null & void.
The first recognition of jus cogens in a treaty happened in Art. 53 VCLT. It defined a peremptory
norm of general IL as a – norm accepted and recognised by the int. community of States as a whole,
as a norm from which no derogation is permitted.
As per Art. 53 VCLT, only a new rule of jus cogens can modify or supersede an existing rule. But
this brings up a question. What happens to the old norm? Is it still valid? As per Art. 64 VCLT, if a
new peremptory norm of general IL emerges, any existing treaty which conflicts with that norm
becomes void and terminates.
Examples of jus cogens norms include, inter alia, Rules relating to the prohibition of use of force
under UN Charter, Right to self- defence, Prohibition of aggression (commentary to 2001 ARSIWA,
UN Doc A/56/10), Principle of sovereign equality of states, Right of self-determination, Prohibition
of slavery and slave-trade, Prohibition of piracy, Prohibition of genocide, prohibition of crimes
against humanity, prohibition of war crimes, and Prohibition against torture.
In the case of Questions relating to the obligation to prosecute or extradite (Belgium v Senegal)
(2012) the ICJ stated that prohibition of torture is part of CIL and has become a peremptory norm/jus
cogens. Prohibition is grounded in a widespread int. practice and on the opinio juris of States. It
appears in numerous int. instruments of universal application, and it has been introduced into the
domestic law of almost all States. Furthermore, acts of torture are regularly denounced within national
and int. for a, therefore giving it a peremptory norm status.
ERGA OMNES - The principle of an obligation erga omnes is the exception to the rule of jus
dispositivum i.e., law adopted by consent. Traditionally, States and parties are free to choose their
partners in a treaty-relationship. Rights and obligations of said parties/States are to the parties to the
treaty and only parties to the treaty are bound to perform its stipulations. The concept of privity of
contract extends to agreements between States.
However, modern IL has categories of obligations of such importance to the int. community that they
may potentially be enforced by any member of the community. This means that these are obligations
that are owed towards all i.e., obligations erga omnes. This means that the Courts can go beyond the
reciprocal nature of relations between the States and hold them accountable.
C A S E S T U D Y – B A R C E L O N A T R A C T I O N C A S E- The Court held that an
essential distinction should be drawn between the obligations of a State towards the int. community as
a whole and those arising vis-à-vis another State in the field of diplomatic protection. By their very
nature, the former is the concern of all States and in view of the importance of rights involved, all
States can be held to have a legal interest in their protection: they are obligations erga omnes. Such
obligations can be from outlawing acts of aggression and genocide, from principles and rules
concerning basic human rights such as protection from slavery and racism etc.
C A S E S T U D Y – E A S T T I M O R C A S E- The Court considered that the erga omnes
character of a norm and the rule of consent to jurisdiction are two different things. Whatever the
nature of obligations invoked, the ICJ cannot rule on the lawfulness of the conduct of a State when its
judgement would imply an evaluation of the lawfulness of the conduct of another State which is not a
party to the case. Where this is so, the Court cannot act, even if the right in question isa right erga
omnes
C A S E S T U D Y – O B L I G A T I O N T O P R O S E C U T E OR E X T R A D I T E-
The Court held that Belgium, as a State party to the Convention against Torture, has standing to
invoke the responsibility of Senegal for alleged breaches of its obligations u/Art. 6(2) and Art. 7(1) of
the Convention. There is no need for the Court to pronounce on whether Belgium has a special
interest with respect to Senegal’s compliance with provisions of the Convention as has the same is
obligations erga omnes.
 4. International Legal Personality
Personality in int. law necessitates the consideration of the interrelationship between rights and duties
afforded under the int. system and capacity to enforce claims.
This refers to capacity and status of a person or entity recognised and protected by the international
law. Since it is the law that creates legal personality, international law creates international legal
personality. This concept denotes who are recognised and protected by the international law. It
involves persons or entities that are bound by the international law. It connotes person or entity which
can enforce rights under international law. The persons or entities that can enforce rights and duties
under international law are international legal persons. They are also called SUBJECTS OF
INTERNATIONAL LAW. Being international body does not automatically make the body
international legal person. It is the international law which makes the persons or bodies international
legal persons. Hence, NO international law, no international legal persons.
Therefore, if persons or entities acquire legal personality internationally, they become entitled to
various rights recognised under the international law. In addition, they acquire capacity of being held
accountable, responsible or liable for breach of international obligations. Henceforth, being subject of
international law entails rights and duties under international law.

There are major three subjects of international law. These subjects have been extended from one
due to the development of international law. The traditional subject of international law was STATE.
However, as time went on and development of international law, INTERNATIONAL
ORGANISATIONS became also subject of international law through functional approach of the
international law. Moreover, due to growth of human rights and international criminal laws,
INDIVIDUALS became subject of international law.,Therefore, the major subjects of international
law are States, International Organisations and Individuals
States have always been and will remain, the main object of international law. They are all sovereign,
independent and equal. Economic and political dependence does not necessarily affect the
independence. 'Only states may be admitted as full members to the UN' - Article 34(1) ICJ Statue and
only states can be parties to the ICC. International law permits freedom of actions for states, unless
there is a rule constraining this. No state should intervene in the internal matters of other state. Also,
UN help in the administration of Kosovo and East Timor before these countries gained independence.
Nicaragua case: in international law there are no rules whereby the level of armament of a 7 sovereign
may be limited. Two main question regarding states are the criteria of statehood and recognition of
states.
The Montevideo Criteria (Article 1, Montevideo Convention 1933): The State as a person of
international law should possess the following qualifications (however now it is outdated as it was
founded upon effectiveness and not legitimacy, but cannot be detached from recognition):
STATEHOOD
What exactly is the criteria for Statehood? The most widely accepted formulation of the criteria for
Statehood under IL, but neither exhaustive nor immutable, is Art. 1 of the Montevideo Convention on
Rights & Duties of States, 1933. Art. 1 defines a “State” as a person of int. law which should
possesses the following qualifications –
(a) Permanent population – There is no minimum number of inhabitants as such. The existence
of a permanent population does not relate to the nationality of the population [nationality depends on
statehood; statehood does not depend on nationality]. The population also need not inhabit the
territory constantly.
(b) Defined territory – Even if there is a dispute about the exact demarcation of territory, as long
as there is a consistent band of territory which is undeniably controlled by the government of the
alleged State, it would satisfy this criteria. The size/minimum area of the territory is not a factor to
determine Statehood. E.g., Albania (1913) – Member LoN 1920, Israel (1949) – Member of UN 1949,
Bosnia and Herzegovina, and Croatia (1992). There is no requirement of size/minimum area of
territory and no contiguity of the territory is required (it can be separated by land or water).
(c) Government – The State must be sufficiently socially and politically organized to be viewed
as an entity. It should be able to uphold international legal duties and obligations. IL is agnostic to the
form of internal governance. Sometimes, states may even receive recognition or membership before
they can start exercising full effective control.
The ICJ, in the Nicaragua Case, held that it could not contemplate a new rule opening up a right of
intervention by one State against another on the ground that the latter has opted for some particular
ideology or political system.
(d) Capacity to enter relations with other States – Objective criteria: need for formal structures
that must be in place. Subjective criteria: need for recognition of a State, as a State, by other States.
One important factor to determine capacity was the status of independence. Non-self-governing
entities did not have capacity to enter relations. Self-governing dominions were considered
sufficiently independent after they signed LoN (except India). Furthermore, independence cannot
merely be in name; a degree of actual independence is also required.
Does Statehood, once granted, continue? A change of circumstances does not immediately
extinguish the legal personality of the State. There is a presumption of continuity of statehood. E.g.,
Occupation by another State (occupation by Nazi Germany of Poland, Czechoslovakia, the
Netherlands, Belgium, Denmark, Norway, and France) during WW-II, Occupation of Kuwait by Iraq
(1990- 1991), Collapse of governmental authority or extensive civil strife (Somalia and Syria) etc. As
a continuing State, the ILP remains of the original State. There is no need to re-apply for membership
in int. organisations., nor is there a need to re-accede to treaties. Public debts would also continue.
E.g., Partition of British India & Pakistan
Article 3: “The political existence of the state is independent of recognition by other states.” The
Arbitration Commission of the European Conference on Yugoslavia in Opinion No. 1 declared
that ‘the state is commonly defined as a community which consists of a territory and a
population subject to an organised political authority’ and that ‘such a state is characterised by
sovereignty’.
The Article (1) basically lists out the 4 absolutely essential elements that are required for a State
to be identified as a State. However, this list is not an exhaustive list. Other elements such as
sovereignty, independence, recognition or self-determination can be valid elements as well.
Self-determination: the principle of self-determination provides that the people of colonially defined
territorial unit in question may freely determine their own political status, new states should be
created in accordance with self determination principle: peoples must have a say in international
dealings, consent to be governed and right to be free from external oppression. This was a crucial
principle in the decolonisation process, Congo 1960 case and e.g. Croatia and BH in ex-Yugoslavia.
UN Charter, Article 1: 'to develop friendly relations among nations based on respect for the principle
of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen
universal peace'. Problems with self-determination: 1. What is 'peoples'? There is no definition under
international law, however there are some objective elements like: common history, religion,
language, culture and some subjective ones. 2. One people/nation = one state? International law does
not say anything about the rights of a group within an existing state to create their own state, but it
does not prohibit secession either. The was a question about acceptable minimum in Falkland Islands
but needs further clarification. 3. No self-determination for minorities? Answer: internal self-
determination - respect for cultural rights. 4. The Concept of Remedial Secession?
How are States created and get Extinct? PROFESSOR’S PPT
Creation
• terra nulluis
• Decolonization
• Secession
• cession, etc.
Extinction
• Dissolution
• M&As (Mergers and Associations)
• The other A – Absorption
• Annexation
Modes of Acquisition of State Territory
1. Occupation- In Eastern Greenland Case (1933), PCIJ propounded two principles (Denmark
and Norway were contesting their sovereignty over Eastern Greenland):
a. It is necessary for the occupation over the territory that there should be an intention to
establish sovereignty over the territory concerned and;
b. There should be some actual exercise of such authority.
2. Prescription (Title by prescription also called acquisitive prescription)- State to fulfil
following conditions:
a. State not to accept sovereignty of that portion by any other state
b. Possession to be peaceful and uninterrupted
c. Possession should be in public
d. Possession should be for a definite period
3. Accretion- New territory is added through natural causes; could also be by artificial means.

4. Cession- Cession could be voluntary or may be under compulsion as a result of war. Cession
shall be considered valid only when sovereignty of a territory is transferred to another state. (Indian
teen bigha land to Bangladesh)
5. Annexation- Conquest
6. Lease- Island of Malta to Britain on lease
7. Pledge- Republic of Geneo pledged Island of Corsica to France
8. Plebiscite
9. Acquisition of territorial sovereignty by newly emerged states
Modes of loss of State Territory
The following are the various ways in which a state can lose or give up its (or a part of it)
territory:
• Cession,
• Operation of Nature,
• Subjugation,
• Prescription,
• Revolt,
• Dereliction (Renunciation) and
• Granting of independence to a colony by an Imperialist state.
RECOGNITION
Recognition is an act that confers a status (either by acknowledgement or acceptance) upon a State as
being legitimate in the eyes of the recogniser. The recognised entity acquires the legal status of a
‘State” under IL. Recognition comes from existing states of the int. community. Recognition indicates
the willingness of the existing State to interact with the recognised State as a member of int.
community. The decision to recognise is a political decision but is based on legal factors as the very
act of recognition produces legal consequences under IL.
Fenwick- through recognition, members of international community formally acknowledge that the
new state has acquired international personality.
Legal effects of recognition
The recognized State or Govt. acquires the capacity to enter into diplomatic relations and treaties. The
state can claim immunity of diplomatic representatives. Right to sue and to be sued.
Why is there a need for recognition of Statehood under IL? States, and the international
community, is in a state of continuous change. There is frequent creation of new states through the
breakdown of empires, decolonisation, wars of independence etc. Starting from 48 States in 1913, the
world has moved to over 195 recognised States in 2023. Since there is no int. organ vested/competent
to ascertain and authoritatively declare if a state has full legal personality, already existing States fulfil
this function of ‘recognition’ in their capacity as legal persons under IL.
What are the legal effects of recognition? When a State acquires recognition, it gains certain rights,
obligations, and immunities. Some of them are –
a. The State acquires the capacity to enter diplomatic relations with other States.
b. The State acquires the capacity to enter treaties with other States.
c. The State can enjoy the rights and privileges of international statehood.
d. The State can undergo State succession.
e. The State acquires the right to sue and to be sued.
f. The state can become a member of the United Nations.
Is possession of legal personality a mark of statehood? Possession of legal personality is not in
itself a mark of statehood. Statehood is considered as a question of fact and not law. Recognition is a
political act. There may be situations where a State remains unrecognised despite meeting certain
criteria for Statehood.
There are two theories of Recognition –
a. Declaratory Theory
The Declaratory theory states that it does not matter if an entity is recognised by other States. It is still
a state once it fulfils the criteria for statehood. Recognition, then, only confirms the pre-existing legal
capacity and therefore, recognition is not determinative but only evidentiary in nature.
Reason for its existence – (i) To remove politics from the factual situation and (ii) Minimize the
power of existing states to confer legal personality.
b. Constitutive Theory
According to the Constitutive theory, recognition by other states is a necessary condition for
statehood, even if all other criteria are met. It is, therefore, the act of recognition that constitutes the
State.
Reasons for its existence – (i) States form a political community and (ii) Membership is conditional
on a sufficient degree of acceptance by existing members.
Practically, in today’s world, for a community to recognize as a state by the United Nations, it must
qualify the attributes of statehood. However, as the act of recognition is the free will of each State,
even in the case of recognition by U.N., the States, which did not vote in favour, are not deemed to
have recognized a new State.
Example-
Palestine - superpowers do not recognise Palestine but it has observer status in numerous international
organisations. It cannot be regarded as a valid state due to Palestinian organisation not controlling any
part of the territory they claim.
Croatia, Bosnia and Herzegovina: were recognised by European Community and admitted
membership of the UN at a time when both states were faced with a situation where non-
governmental forces controlled substantial areas of the territories in question in civil war conditions

**Forms of Recognition
Express Recognition: An existing state recognizes another state by releasing a public statement by
way of notification or a declaration announcing the intention of recognition Grant is expressed in
written words.
Implied Recognition: Does not release a formal state but recognizes the state by some acts which
imply that the state is being recognized.
- Unilateral Acts: State entering into bilateral treaty establishes diplomatic relations with an
unrecognized state.
- Collective Acts: A new state is recognized collectively by the existing states.
**Modes of Recognition
There are two important modes of recognition:
1. De Facto Recognition: This is a provision recognition and not a permanent one. i.e. it can be
withdrawn by other States at any time. It is the first step towards becoming a recognized state.
Recognition is only by fact and not legal. State may have more than one Governments. No exchange
of diplomatic representatives takes places. State succession might not happen. Mere de facto
recognition is not sufficient to get UN membership. It is extended where a govt. has not acquired
sufficient stability. Three conditions for giving de-facto recognition.
- Permanence
- The Government commands popular support.
- The Government fulfils international obligations. Example: Israel, Bangladesh, Taiwan,
Sahrawi Arab Republic etc.
2. De Jure Recognition: This is a permanent recognition which once granted cannot be taken
back or withdrawn by other States. It is regal and rightful. It means that the Government recognized
formally fulfils the requirement laid down by International law. State will have only one
Governments. Exchange of diplomatic representatives takes places. State succession happens
smoothly. De jure recognition by majority states is essential for UN membership.
 De-facto recognition of a state is a step towards de-jure recognition. Normally the existing states
extend de-facto recognition to the new states or Governments. It is after a long lapse of time when
they find that there is stability in it that they grant de-jure recognition. Such practice is common
among the states. The essential feature of de-facto recognition is that it is provisional and liable to be
withdrawn.
PREMATURE RECOGNITION:
The recognition occurs before the criteria of statehood have been fulfilled by the new State. In such cases, the problem
is to determine the premature recognition is an intervention in the internal affairs of another state or is an admissible
recognition of a new state that has emerged or is emerging as a result of secession.

In the case of Croatia, it could be argued that the recognition of that state by the European Community and its member
states (together with Austria and Switzerland) on 15 January 1992 was premature. Croatia at that time, and for several
years thereafter, did not effectively control one-third of its territory. In addition, the Yugoslav Arbitration Commission
had taken the view in Opinion No. 5 on 11 January 1992 that Croatia did not meet fully the conditions for recognition
laid down in the European Community Guidelines of 16 December 1991, since the Constitutional Act adopted by
Croatia did not fully incorporate the required guarantees relating to human rights and minority rights.

The recognition of Bosnia- Herzegovina on 6 April 1992 by the European Community and member states and on 7
April 1992 by the USA was premature, particularly since the government of that state effectively controlled less than
one-half of its territory, a situation that continued until the Dayton Peace Agreement of November1995.

On the other hand, it could be argued that in the special circumstances of Former Yugoslavia, the international
community (particularly by means of membership of the UN which is restricted to states) was prepared to accept a
loosening of the traditional criteria of statehood, so that essentially international recognition compensated for lack of
effectivity.

IMPLIED RECOGNITION:
Recognition itself need not be express that is in the form of an open, unambiguous and formal communication, but may
be implied in certain circumstances.

This is due to the fact that recognition is founded upon the will and intent of the state that is extending the recognition.
Accordingly, there are conditions in which it might be possible to declare that in acting in a certain manner, one state
has by implication recognized another state or government.

States may make an express declaration to the effect that a particular action involving another party is by no means to
be interpreted as comprehending any recognition. Arab countries with regard to Israel maintained this attitude.

EXAMPLES:

1. A message of congratulations to a new state upon attaining sovereignty will imply recognition of that state, as will the
formal establishment of diplomatic relations,
2. But the maintenance of informal and unofficial contacts (such as those between the United States and Communist
China during the 1960s and early 1970s in Warsaw) will not.
3. The issuing of a consular exequatur,the accepted authorization permitting the performance of consular functions, to a
rep- representative of an unrecognized state will usually amount to recognition of that state, though not in all cases. A
British Consul has operated in Taiwan, but the UK does not recognize the Taiwan government.
4. It is possible that the conclusion of a bilateral treaty between the recognizing and unrecognized state, as distinct from
a temporary agreement, might imply recognition, but the matter is open to doubt since there are a number of such
agreements between parties not recognizing each other. One would have to study the circumstances of the particular
case to clarify the issue.
5. Recognition is not normally to be inferred from the fact that both states have taken part in negotiations and signed a
multilateral treaty, for example the United Nations Charter. Although Israel and many Arab countries are UN
members, this did not affect Arab non-recognition of the Israeli state.
6. However, where the state concerned has voted in favor of membership in the UN of the entity in question, it is a natural
inference that recognition has occurred. The UK, regarded its vote in favor of UN membership for the former
Yugoslav republic of Macedonia as amounting to recognition of that entity as a state.
7. Irrespective of recognition by individual states, there is no doubt that membership of the UN is powerful evidence of
statehood since being a state is a necessary precondition to UN membership by virtue of article 4 of the UN Charter.

CONDITIONAL RECOGNITION:

The practice of making the recognition subject to fulfillment of certain conditions.

For example, the good treatment of religious minorities as occurred with regard to the independence of some Balkan
countries in the late nineteenth century, or the granting of most-favored-nation status to the recognized state.

The Litvinov Agreement of 1933: whereby the United States recognized the Soviet government upon the latter
undertaking to avoid acts prejudicial to the internal security of the USA, and to come to a settlement of various financial
claims.

However, breach of the particular condition does not invalidate the recognition. It may give rise to a breach of
international law and political repercussions but the law appears not to accept the notion of a conditional recognition
as such. The status of any conditions will depend upon agreements specifically made by the particular parties.

OLLECTIVE RECOGNITION:
Recognition by means of an international decision, whether by an international organization or not. BUT it is clear that
member states reserved the right to extend recognition to their own executive authorities and did not wish to delegate
it to any international institution. The most that could be said is that membership of the United Nations constitutes
powerful evidence of statehood. But that, of course, is not binding upon other member states that are free to refuse to
recognize any other member state or government of the UN.

WITHDRAWAL OF RECOGNITION:
More easily achieved with respect to de factorecognition, as that is by its nature a cautious and temporary assessment
of a particular situation.

Where a de factogovernment loses the effective control it once exercised, the reason for recognition disappears and it
may be revoked.

De jure recognition, on the other hand, is intended to be more of a definitive step and is more difficult to withdraw.
Where a government recognized de jurehas been overthrown a new situation arises and the question of a new
government will have to be faced, but in such instances withdrawal of recognition of the previous administration is
assumed and does not have to be expressly stated, providing always that the former government is not still in existence
and carrying on the fight in some way.

Withdrawal of recognition of one government without recognizing a successor is a possibility as was the approach
adopted by the UK and France, with regard to Cambodia in 1979.

The United Kingdom recognized the Italian conquest of Ethiopiade factoin 1936 and de juretwo years later.
However, it withdrew recognition in 1940, with the intensification of fighting and the dispatch of military aid.

Recognition of belligerency will naturally terminate with the defeat of either party, while the loss of one of the required
criteria of statehood would affect recognition.

The 1979 recognition of the People’s Republic of China as the sole legal government of China entailed the
withdrawal of recognition or ‘derecognition’ of the Republic of China (Taiwan). This was explained to mean that, ‘so
far as the formal foreign relations of the United States are concerned, a government doesnotexist in Taiwan any longer’.
 The usual method of expressing disapproval with the actions of a particular government is to break diplomatic relations.
This will adequately demonstrate aversion.

For example, the rupture in diplomatic relations between the UK and the USSR in 1927, and between some Arab
countries and the United States in 1967, without entailing the legal consequences and problems that a withdrawal of
recognition would initiate. But one must not confuse the ending of diplomatic relations with a withdrawal of
recognition.

NON- RECOGNITION:
Where, under certain conditions, a factual situation will not be recognized because of strong reservations as to the
morality or legality of the actions that have been adopted in order to bring about the factual situation. It is a doctrine
that has also been reinforced by the principle that legal rights cannot derive from an illegal situation (ex injuria jus non
oritur).

US Secretary of State declared in 1932 that the illegal invasion would not be recognized as it was contrary to the 1928
Pact of Paris (the Kellogg–Briand Pact), which had outlawed war as an instrument of national policy.

The doctrine of not recognizing any situation, treaty or agreement brought about by non-legal means was named the
Stimson doctrine after the American Secretary of State who put it forward. It was reinforced not long afterwards
by a resolution of the Assembly of the League of Nations stressing that League members should not recognize any
situation, treaty or agreement brought about by means contrary to the League’s Covenant or the Pact of Paris.

Article 2(4) of the UN Charter prohibits the threat or use of force against the territorial integrity of states, while the
draft Declaration on the Rights and Duties of States, 1949, emphasized that territorial acquisitions by states were
not to be recognized by other states where achieved by means of the threat or use of force or in any other manner
inconsistent with international law and order. The Declaration on Principles of International Law, 1970, also
included a provision to the effect that no territorial acquisition resulting from the threat or use of force shall be
recognized as legal, and Security Council resolution (1967) on the solution to the Middle East conflict emphasized
‘the inadmissibility of the acquisition of territory by war’.

Rhodesia unilaterally proclaimed its independence in November 1965 and in the years of its existence did not receive
official recognition from any state at all, although it did maintain diplomatic relations with South Africa and Portugal
prior to the revolution of 1974. The day following the Rhodesian declaration of independence, the Security Council
passed a resolution calling upon all states not to accord it recognition and to refrain from assisting it. The Council
imposed selective mandatory economic sanctions on Rhodesia and these were later made comprehensive.

Similar action was also taken with regard to the Bantustans, territories of South Africa declared by that state to be
independent.

The Security Council also adopted resolution 541 in 1983, which deplored the purported secession of part of Cyprus
occupied by Turkey in 1974 and termed the proposed Turkish Cypriot state ‘legally invalid’.

In 1990, the Security Council adopted resolution 662, which declared the Iraqi annexation of Kuwait ‘null and void’
and called on all states and institutions not to recognize the annexation.

Consequences of Non-recognition
1. Unrecognized state cannot sue
2. Not entitled to enter into diplomatic relations
3. No diplomatic immunities from legal processes in foreign states
4. Can’t get property situated in a foreign state

PROFESSOR’S PPT
Doctrines on Recognition

• Tobar Doctrine – no recognition of unconstitutional/illegitimately formed governments

• Estrada Doctrine – recognize state/government, not its legitimacy
• Betancourt Doctrine – no recognition to military juntas
• Stimson Doctrine – ex injuria jus non oritur – no recognition of territorial changes brought about by aggression

What do States think before recognizing?

In-general, before granting recognition to any state or government – states would like to think whether all or most of these
conditions have been met or not: (p.s.: it is discretionary) • Control over considerable size of territory
• Considerable support from the population
• Capacity and willingness to fulfill treaty obligations
• Their national interests aligns (or does not conflict) with recognizing
• Quid pro quo

State Succession
• Succession of states is a concept in international relations regarding a successor state that has become a sovereign state over a
territory (and populace) that was previously under the sovereignty of another state.
Types:
• Partial Succession – Pakistan after Bangladesh
• Universal Succession – Czechoslovakia
• No Succession (Dissolution) – East Germany, Sikkim, etc.
• Other Examples: India (1947), India (1860)

INTERNATIONAL ORGANISATIONS
Can IO possess legal personality? Traditionally, only States could hold legal personality. However,
now, IO can hold derivative ILP. A way in which they can derive ILP is through instruments like
treaties – EU (Art. 47 of the TEU), WTO Art. VIII etc. The IO must be capable of possessing
international rights and bear international obligations and duties distinct from those of its members
What are the consequences of an IO possessing legal personality? There are several consequences of
an IO possessing legal personality.
Non-state actors: increasingly more important but not as important as states: 1. international
organisations (most important - 'they have now become indispensable' Shaw) 2. NGOs (problems with
members/representation, accountable to anyone?) allowed to participated in international legal
processes 3. National Liberation Movements 4. Transnational Corporations (attempts to regulate their
conduct) - not bound by international law but bound by the domestic law of countries in which they
operate. 5. Indigenous Peoples (recognised as legitimate participants in various international fora -
UN Permanent Forum on Indigenous Issues) 6. Individuals (subject-matter or objects - traditionally,
not able to bring claims before international courts, but now can e.g. in human rights or international
crimes). 7. Do they have legal personality? Article 281 EC Treaty 'The Community shall have legal
personality' or consider whether legal personality can be 10 Downloaded by Bisma Khalid
([email protected]) lOMoARcPSD|10709634 inferred from the powers and purposes of the
organisation. Recognition? Consideration of domestic impact.
Legal Personality of International Organizations
• When States create a new IO, they have certain principles, purposes, objectives, goals, and
powers.
• Examples of IOs: UN, CoE, SAARC, and a whole lot more!
• Theories on legal personality of IOs:
• Inductive approach: rights and duties expressly stated on their constituting treaty (derived
explicitly from therein, based on its purposes, etc.)
• Objective approach: those aren’t just dependent on their constituting treaty, but on whether
they fulfill certain requirements/conditions under general international law
• Establishment by treaty
• Independence from member States
UN’s legal personality
• Article 104: The Organization shall enjoy in the territory of each of its Members such legal
capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.
• Article 105:
• The Organization shall enjoy in the territory of each of its Members such privileges and
immunities as are necessary for the fulfilment of its purposes.
• Representatives of the Members of the United Nations and officials of the Organization shall
similarly enjoy such privileges and immunities as are necessary for the independent exercise of their
functions in connection with the Organization.
• The General Assembly may make recommendations with a view to determining the details of
the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of
the United Nations for this purpose.
ICJ Advisory Opinion (Reparation for Injuries Suffered in UN Service)
• Folke Bernadotte: a Swedish diplomat working for the UN, posted as the United Nations
Mediator in Palestine
• He tabled several peace proposals, and those proposals infuriated many in the reason
• In September 1948, together with other UN folks, Count Bernadotte was killed in Jerusalem –
because his proposals weren’t “liked” by an extremist Israeli group
• The UN Security Council immediately condemned the attack
• Israeli authorities were reluctant to investigate/prosecute those involved (they later did, but
pretty leniently)
• The UNGA then requested the ICJ to give an advisory opinion about the capacity of the UN
to bring a claim of reparations against the Israeli government for injuries resulting from the killing of
its envo

HELD- However, the Court looked beyond that silence of the Charter
• The member States had obligations to cooperate/assist with the UN organs and agencies (also
to carry out the resolutions of the UNSC)
• The UN was entitled to conclude agreements with member States
• ICJ decided: “The UN could not carry out the intentions of its founders if it was devoid of its
international personality”
• The ILP of the UN, thus, exists beyond the silence of its constituting document
• Court said, YES! It could indeed bring claims in its own capacity against governments of its
member States.
• It also concluded that it could bring such claims even in relation to its relations with non-
Member States!
• Israel would not be justified in raising an objection according to which the UN had no
capacity
• ICJ: “Fifty States, representing the vast majority of the members of the international
community, had the power, in conformity with international law, to bring into being an entity
possessing objective international personality, and not merely personality recognized by them along,
together with capacity to bring international claims!”

INDIVIDUALS
For a long time, states have been subjected to international law without subjecting the individuals of
those states to the international law. This means the Individuals were not recognised as subject of
International law. Hence, they had neither rights nor obligations under the international law.
However, in the 20th Century, international law began concerning with individuals. What triggered its
concerns of the individuals under international law were the world wars
which led to massive prisoners of wars and wounds. Thus, after second world war, international law
began attaching direct responsibility to individuals for the crime against peace and security.
The charter of Nuremberg International Tribunal of 1945 provided specifically for individual
responsibilities for crimes committed against peace, war crimes and crimes against humanity. This
charter pointed out that international law imposes duties and liabilities upon individuals as well as
upon the states because crimes against international law are committed by men, not by abstract
entities and only by punishing individuals who commit such crimes can the provisions of international
law be enforced.
The principles of Nuremberg International Tribunal Charter were affirmed by the United Nations
General Assembly in 1946 thus making individuals’ part of international law. The United Nations
General Assembly adopted genocide as serious international crime bearing individual responsibility.
Later on, they were reaffirmed in Genocide Convention 1948, 1949 and its protocols I and II 1997.
These conventions led to establishment of International Criminal Tribunal for Yugoslavia in 1993 and
International Criminal Tribunal for Rwanda in 1994. They were established to prosecute all persons
who were responsible for serious violations of international criminal and humanitarian law in their
territories. They later influenced the establishment of the International criminal court through Rome
Statute of 1998.
 5. Right to Self-Determination
The right to self-determination [R2SD] has a somewhat recent entrance to the IL forum. During WWI,
the concept of R2SD was not full-formed, and was considered a political, rather than a legal concept.
After WWII, the concept gathered momentum and was included in the UN Charter.
Art. 1(2) r/w Art. 55 includes the words “on respect for the principle of equal rights and self-
determination of peoples”. In 1960, Resolution 1514(XV) on the Declaration on the granting of
independence to colonial countries and people was adopted, 89 votes to none with 9 abstentions
which declared that “all peoples have the right to self-determination; by virtue of that right, they
freely determine their political status and freely pursue their economic, social, and cultural
development.”
• Self-Determination is a ‘group’ right!
• historical tradition
• Ethnicity
• cultural homogeneity
• common economic life, etc

Resolution 2625 (XXV) on the Declaration on Principles of International Law concerning Friendly
Relations and Cooperation among States in accordance with the Charter of the United Nations states
that “every state has the duty to promote, through joint and separate action, realisation of the principle
of equal rights and self-determination of the peoples”. It further goes onto say that “the establishment
of a sovereign and independent State, the free association or integration with an independent State or
the emergence into any other political status freely determined by a people constitute modes of
implementing the right to self- determination by that people AND that every State has the duty to
refrain from any forcible action depriving peoples referred above in elaboration of the present
principle of their right to self-determination”.

The ICJ, in the cases of Namibia (South-West Africa) Advisory Opinion (1971) and Western
Sahara Advisory Opinion, declared that int. law regarding non-self-governing territories, as
enshrined in the Charter of the UN, has made the principle of R2SD applicable to all of them. The
concept of the sacred trust was confirmed and expanded to all “territories whose people have not yet
attained a full measure of self-government” as per Art. 73 of the Charter. The Court further brings up
Resolution 1514(XV) of 1960 which embraces all peoples and territories which “have not yet attained
independence”.
In East Timor (Portugal v Australia) the ICJ held that the R2SD has an erga omnes character by
virtue of its recognition by the UN, multiple judgements of the ICJ etc. In Re Secession of Quebec
(1998) 161 DLR (4th), it was held that R2SD has acquired a status beyond convention and is
considered a general principle of int. law. In a more recent judgement i.e., Chagos Advisory Opinion
of 2019, the ICJ has held that Resolution 1514(XV), while being recommendatory in nature, has a
declaratory character w.r.t R2SD as a customary norm. The R2SD was not contested by any of the
States participating in the vote on Res. 1514.

INTERNAL SELF-DETERMINATION
This is the right of the people of a State to govern themselves without outside interference. Generally,
it is considered less intrusive because it respects territorial integrity of existing states. Most prevalent
modes: autonomy, protectorates, trusteeships, free association, provincial self-government. E.g.,
Aaland Islands, Quebec (Canada), Catalonia (Spain), Scotland (UK)
It can be in the form of protectorates i.e., a dependent territory exercising local autonomy and some
independence while remaining a territorial unit of a greater sovereign State. E.g., Guam, Mariana
Islands, Puerto Rico, US Virgin Islands (à dependent territories of the US), \ was a UN Protectorate
since 1999 (only de jure since 2008 independence).
It can also be through free association i.e., situations where people, through an expression of their
own free will, choose to subject themselves to the sovereignty of another, larger State. This is the
more common form of political self-expression for microstates which may lack the capacity
 (economic, territorial etc.) to exist independently. E.g., Cook Islands and Niue (associated with NZ),
Palau, the Marshall Islands, and the Federal States of Micronesia (associated with the US), Kiribati
and Samoa (national defence provided by Australia and NZ), Nauru (national defence delegated to
Australia), Andorra (national defence to Spain and France), San Marino and Monaco (delegated
defence to Italy and France).
ETERNAL SELF-DETERMINATION
This is the right of the people to determine their own political status and to be free of alien
domination, including formation of their own independent state. It is difficult to assess legally because
of competing principles of territorial integrity and state sovereignty and there is a general reluctance
to recognize external R2SD outside the context of decolonization.
External R2SD accrues in the most extreme circumstances and has a generally high threshold which
includes, inter alia, severe violation of HR, non-respect of internal R2SD by the parent state. E.g.,
Aaland Islands (small island between Finland and Sweden) which used the ‘last resort’ argument
when parent State (Finland) lacked the will or ability to provide effective guarantees.
In the case of Re Secession of Quebec (1998), it was held that the various documents that support the
existence of a R2SD also contain parallel statements supportive of the conclusion that the exercise of
such a right must be sufficiently limited to prevent threats to an existing state’s territorial integrity or
the stability of relations between sovereign states. It went on further to state that recognised sources of
IL established that the R2SD is normally fulfilled through internal self-determination, and a right to
external self-determination, which could take the form of the assertion of a right to unilateral
secession, arises only in the most extreme of cases, and even then, under carefully defined
circumstances.

Is there a uniformly accepted definition of the term “peoples”?

Definition of ‘people’ (UNESCO)
• A people for the [purpose of the]…the right to self-determination, has the following characteristics:
(a) A group of individual human beings who enjoy some or all of the following common features:
-A common historical tradition; Racial or ethnic identity; Cultural homogeneity; Linguistic unity;
- Religious or ideological affinity; Territorial connection; Common economic life;
(b) The group as a whole must have the will to be identified as a people or the consciousness of being a people…
(c) Possibly the group must have institutions or other means of expressing its common characteristics and will for
identity.
There is no uniform definition that is accepted by all States, and the lack of a definition of the same
in treaty law and generally proven this term to be difficult to define. The accepted understanding of
“peoples” is a group with a common identity and a link to a specific territory who should be entitled
to decide their political fate in a democratic fashion. It has 2 elements –
a. Subjective element – A commonly held belief, by all members of a group, that they constitute
a unit and that they share a common history, language, culture, heritage, and political aspirations.
b. Objective element – An assessment to examine whether the members share/possess the
above-mentioned commonalities and whether they have a claim to a particular delineated territory.
R2SD as an erga omnes obligation

In the case of East Timor (Portugal v Australia) the ICJ held that Portugal’s assertion that the
R2SD as evolved from the UN Charter and UN practice, has an erga omnes character is
irreproachable. The R2SD is one of the essential principles of contemporary IL. This was also
reaffirmed by the ICJ in its advisory opinion in Legal Consequences of Construction of Wall in
Occupied Palestinian Territory.
R2SD as a jus cogens obligation
While not binding, the ILC Report of the Work of its 53rd Session, in its commentary to Art. 40 of
ARSIWA, spoke about how, although not specifically listed in the Commission’s commentary to Art.
53 of the 1969 Vienna Convention, the peremptory character of R2SD, among other norms, seems
 also to be generally accepted. The Commission brought up the ICJ’s decision in the East Timor case.
IMP
Right of secession
• The effect of linking self-determination to decolonization seems to deny a general right to secession of groups within
a State. However, while international law does not acknowledge a general right to secession, it is also generally agreed
that it does not prohibit secession. International law is neutral in this respect, and, in other words, follows reality and
the principle of effectiveness.

Definition of Aggression within Article 39

While a finding that there has been an act of aggression is also a trigger for a decision under article 39 of the UN
Charter, it has very rarely been the basis of determination by the SC.
The General Assembly considered the meaning of the term for over 20 years, and by consensus, agreed upon the
Definition of Aggression in 1974:
Article 1: Aggression is the use of armed force by a state against the sovereignty, territorial integrity or political
independence of another state, or in any other manner inconsistent with the charter
Article 3: Specifies acts which shall qualify as an act of aggression regardless of a declaration of war:
i. Invasion or attack by armed forces of a state of the territory of another state or any military occupation, however
temporary resulting from such invasion or attack;
ii. Bombardment by armed forces of a state against the territory of another state or use of any weapons
against the state;
iii. Blockade of ports or coasts of a state by the armed forces of another state;
iv. Use of armed forces of one state which are within the territory of another state with the agreement
of the receiving state, in contravention of the conditions provided for in the agreement;
v. The sending by or on behalf of a state of armed band, groups, irregulars or mercenaries, which carry out the acts of
armed forces against another state of such gravity as to amount to the acts listed above, or its substantial involvement
therein.
This resolution provides both a general definition and a list of acts that will constitute aggression, but does not include
economic or ideological forms of aggression. Although not binding on the SC, the definition has informed its debates
and was employed in the condemnation of South Africa for its ‘aggression’ against Angola in 1976; against Southern
Rhodesia killing 45-70 people; and Israel when it bombed the PLO headquarters in Tunisia in 1985, frequently by the
General Assembly.

PROFESSOR’S PPT

Conditions for legality of secession

• Government not representing the whole population

• Government discriminating against a group on the grounds of race, language, etc.
• Such discrimination must be deliberate, sustained, and systemic in nature • Any other potentially peaceful solution
within the existing structure should be exhausted
•That group willing to exercise their group rights and secede collectively,
• That seceding entity shall [promise to] behave better with its own minorities (protect their human rights by law and
practice)
• The seceding entity shall [promise to] adhere with rules for statehood in international law (acc. To Art. 1 of
Montevideo Convention)
• The seceding entity shall [promise to] comply with jus cogens norms such as no use of force.

UTI POSSIDETIS JURIS

• Uti possidetis juris or uti possidetis iuris is a principle of international law which provides that newly-formed
sovereign states should retain the internal borders that their preceding dependent area had before their independence.
• Uti possidetis juris is a modified form of uti possidetis; created for the purpose of avoiding terra nullius. • The original
version of uti possidetis began as a Roman law governing the rightful possession of property.
• During the medieval period it evolved into a law governing international relations and has recently been modified for
situations related to newly independent states. Uti possidetis juris
• Uti possidetis juris is generally applied in regions where centralized governments have broken up (e.g. Soviet Union),
or kings or emperors were overthrown (e.g. British India), or where League of Nations mandates ended (e.g. Palestine
and Nauru).
• It is often applied to prevent foreign intervention by eliminating any contested terra nullius, that foreign powers could
claim, or to prevent disputes that could emerge with the possibility of redrawing the borders of new states after their
independence. • The principle was also applied by the Badinter Arbitration Committee in opinions related to the
disintegration of Yugoslavia, specifically no. 2, on self-determination.

Badinter Commission Op. No. 2

• Question before the commission: Does the Serbian population in Croatia and Bosnia and Herzegovina, as one of
the constituent peoples of Yugoslavia, have the right to self-determination?
• The commission said:
• The Serbian population in Bosnia and Herzegovina and Croatia is entitled to all the rights concerned to minorities
and ethnic groups....
• Republics must afford the members of those minorities and ethnic groups all the human rights and fundamental
freedoms recognized in international law. • including, where appropriate, the right to choose their nationality.
• The opinion extended the principle of uti possidetis to the former Yugoslavia for the first time.

The ICJ’s Advisory Opinion on Kosovo

Introduction
On July 22, 2010, the International Court of Justice (ICJ) issued its long-awaited advisory opinion on the legality of
Kosovo’s declaration of independence of February 17, 2008. The expectation had been that the ICJ would offer a mixed
ruling that would give some comfort to Serbia and some support to Kosovo. Instead, by a majority of 10 to four, the ICJ
concluded that “the adoption of [the] declaration did not violate any applicable rule of international law. “While the
advisory opinion will not resolve the longstanding dispute between Belgrade and Pristina, it will facilitate any further
recognition of Kosovo. The ICJ opinion is also of interest to parties engaged in contested territorial struggles elsewhere,
notwithstanding the fact thatthe opinion speaks principally to the specific and unique circumstances of the Kosovo case
and the scope for application of the opinion beyond Kosovo therefore is limited.

The Advisory Opinion and its Significance

The ICJ opinion was issued in response to a single question put to it by the United Nations General Assembly in
October 2008: “Is the unilateral declaration of independence by the Provisional Institutions of Self-Government of
Kosovo in accordance with international law?”Serbia, which had initiated the procedure, was con dent that the ICJ
would rule in its favour for three reasons: first, Kosovo, although under international administration since June 1999,
was a province of Serbia, and the U.N. Security Council had affirmed the “sovereignty and territorial integrity” of
the then Federal Republic of Yugoslavia in its Resolution 1244 (1999) establishing the international administration;
second, the inherent conservativism of international law and diplomacy militates against acts of unilateral secession,
which Kosovo’sdeclaration of independence was widely interpreted to be; and third, the conservativism of the ICJ itself
means that its members are generally reluctant to intervene in matters that divide the international community and
where the relevant legal principles are to some degree uncertain or in ux. And, yet, it would have been di cult for the
ICJ to ignore the fact that, by the time of its ruling, 69 states—including 22 of 27 European Union (EU) member
states—had already recognized Kosovo’s independence.

Historically, questions submitted to the ICJ have been quite broad but this particular one that the Court was asked to
consider was a very narrow one. The ICJ was not asked what the legal consequences of the declaration of independence
were, or whether the people of Kosovo had a right to self-determination, or whether Kosovo had satisfied the
 requirements of state- hood. Con dent that its advantage lay with a narrow focus, Serbia chose to challengethe legal
authority of the U.N.-supervised Provisional Institutions of Self-Government of Kosovo (PISG) to declare
independence. However, the ICJ shifted the focus away from the PISG. It concluded that the authors of the
independence declaration were not the PISG but rather “persons who acted together in their capacity as representatives
of the people of Kosovo outside the framework of the interim administration. “This was an important differentiation
because had the declaration been taken to be an act of the PISG, it could havebeen interpreted to have exceeded the remit
of the PISG—as the U.N.’s special representativeof the secretary-general (SRSG) had judged other acts of the PISG to
have done in the past. The Court was thus able to argue that, as the authors of the independence declaration were acting
outside the legal framework of the U.N. interim administration, their declaration did not violate that framework and, as
no legal prohibition of declarations of independence exists, the declaration did not violate general international law.

The advisory opinion thus paves the way for more states to extend recognition to Kosovo, butso far, the wave of new
recognitions that Pristina had hoped for has not materialized. Even if more recognitions are forthcoming, they are
unlikely to alter the political landscape fundamentally. Serbia has affirmed its opposition to Kosovo’s unilateral
declaration of independence and as long as Serbia continues to withhold its recognition of Kosovo, other countries will
follow suit, including China and Russia. As permanent members of the Security Council, these two states are in a
position to block Kosovo’s admission to the U.N. and thus keep Kosovo in a sort of diplomatic limbo. The EU is keen
to break the logjam, but as long assome of its member states continue to oppose recognition, it will be di cult for the
EU to act effectively on this issue.

Western Sahara Case (Advisory Opinion)

Introduction
The Western Sahara advisory opinion of the International Court of Justice (ICJ) of 16 October 1975 deals with legal
questions in the context of the decolonization of the territory ofWestern Sahara.
Factual Background
In 1884 Spain seized control over Western Sahara and declared it a Spanish protectorate. In the late 1950s Morocco
and then also Mauritania claimed the territory. In the course of the decolonization efforts of the United Nations (UN),
Spain agreed to decolonize the territory byway of a referendum. When Morocco still claimed the territory and Spain
refused to submit the dispute to the ICJ, the issue was dealt with by the UN General Assembly.

History of Proceedings
The case was brought before the Court in the procedure of an advisory opinion. Recalling its resolution 1514 (XV) of
14 December 1960 containing the Declaration on the Granting of Independence to Colonial Countries and Peoples and
reaffirming the right of the population of the Spanish Sahara to self-determination the United Nations General
Assembly(UNGA) made clear that its goal was to accelerate the decolonization process and to dispose of the impeding
controversy over the status of the said territory. The two questions the UNGA submitted to the Court had this wording:
1. Was Western Sahara at the time of colonization by Spain a territory belonging to no one? If the answer to the first
question is in the negative,
2. What were the legal ties of this territory with the Kingdom of Morocco and the Mauritanian entity?

Before the Court could proceed to answer the two questions submitted, it had first to consider certain procedural
matters. The existence of a ‘legal question’ as a precondition for an advisory opinion was doubted by arguing that the
two questions posed were either factualor of a purely historical or academic character. The Court held, however, that
even a mixed question of law and fact was a ‘legal question’ and rejected the argument that both questionsrelated to a
point in time in the past by citing that ‘…the Court may give an advisory opinion on any legal question, abstract or
otherwise’, which it had decided in the case onthe Admission of a State to membership in the United Nations
(Advisory Opinions).

Spain suggested that due to its lacking consent, the Court should decline to exercise its competence. The advisory
jurisdiction would be used to circumvent the lacking consent whichwas required in any dispute settlement and especially
in this case where issues of territorial sovereignty over Western Sahara were at stake. The Court stated that only
‘compelling reasons’ should lead it to refuse to give a requested advisory opinion. The controversy had arisen during
the proceedings of the UNGA and not in bilateral relations. Furthermore, advisory opinions did not have binding force
and contrary to the circumstancesin the case of Eastern Carelia (Request for Advisory Opinion) Spain was a member
of the UN, a party to the United Nations Charter and the ICJ Statute and thus subject to the advisory jurisdiction of the
Court. The decision would not affect the rights of Spain but assist the UNGAin its decolonization policy. For the same
reason, it was not devoid of object and purpose.

Findings and Reasoning of the Court

The Court answered the first question in the negative. It initially held that ‘time of colonizationby Spain’ meant the period
beginning in 1884 when Spain proclaimed a protectorate over theRio de Oro. Therefore, the Court interpreted terra
nullius (nobody’s land) by referring to the law in force at that time. It held that state practice of the relevant time
indicated that territories inhabited by tribes or peoples having a social and political organization were not regarded as
terra nullius. The Court found that Western Sahara was at the time of colonizationby Spain inhabited by peoples which
were socially and politically organized in tribes and under chiefs competent to represent them and thus was not terra
nullius.

The Court then proceeded to spend much more reasoning on the second question, asking what were the legal ties of
Western Sahara with the Kingdom of Morocco and the Mauritanianentity. With a view to the decolonization context of
the question the Court decided that the notion ‘legal ties’ ‘may affect the policy to be followed in the decolonization of
Western Sahara’ and would thus include not only ties established directly with the territory but also take reference to
the people who may be found in the respective territory. In Western Sahara,there had been nomadic tribes of Islamic faith
with their own customary law.

After having dealt with the evidence brought by Morocco to substantiate its legal ties of territorial sovereignty with
Western Sahara on the basis of an alleged immemorial possession, the Court denied any such legal ties. Referring
to the Eastern Greenland Case of the Permanent Court of International Justice (PCIJ) the Court stated that a claim
to sovereignty based upon continued display of authority involved the two elements of ‘intention and will to act as
sovereign’ and ‘some actual exercise or display of such authority’. Due to the lack of evidence of actual display of
authority of Morocco relating to Western Sahara the Court held these preconditions not fulfilled. As to Morocco’s
specific evidence relating to the time of colonization, the Court saw the alleged acts of internal sovereignty, such as the
imposition of taxes in the territory, as not proven and other acts as relating to areas situated within present-day Morocco
itself. International acts such as treaties of Morocco with Spain and Great Britain invoked to display recognition of the
Moroccan Sultan’ssovereignty in Western Sahara were equally rejected as merely being evidence of ties of allegiance
or of personal influence regarding some of the nomadic tribes of the territory or of evidence of the acceptance of the
Sultan’s interest in that area rather than recognition of existing sovereignty.

Since there did not exist, at the time of Western Sahara’s colonization, a Mauritanian State, the Court confined itself to
examine, with regard to Mauritania, legal ties other than those ofState sovereignty. The Court held that the ‘Mauritanian
entity’, identical with the so-called Shinguitti country, did not enjoy any form of sovereignty since ‘it did not have the
character of a personality or corporate entity distinct from the several emirates and tribes which composed it.’ However,
the nomadic peoples of this region had in the relevant period possessed rights, e.g. concerning grazing pastures,
cultivated land, and wells in Western Sahara and the ‘Mauritanian entity’ alike which constituted legal ties between
these two territories.

The Court came to the conclusion that there were no legal ties of territorial sovereignty but only legal ties of allegiance
between Western Sahara and the Kingdom of Morocco (by 14 votes to two) and between Western Sahara and
Mauritania (by 15 votes to one). The legal ties of allegiance, however, were not of a nature that could affect the process
of decolonization of Western Sahara and the application of UNGA Resolution 1514 (XV) of 14 December 1960 as well
as the principle of self-determination.
 6.ICJ
Settlement of International Dispute , ICJ
 The ICJ, a.k.a. World Court (metonymically called ‘the Hague’), is a Hague-based
international tribunal, created primarily to settle the international (inter-state) disputes.
 The Court also provides advisory opinions on legal questions submitted to it by duly
authorized international branches, agencies, and the UNGA.
 The International Court of Justice is the principal Judicial Organ (‘the Judicial Arm’) of the
United Nations. (Art. 92, UN Charter)
PCIJ
 The ICJ has its roots in Art. 14 of the Covenant of the LoN, which placed upon the Council of
the League the duty to formulate and submit to the Members of the League for adoption for
the establishment of a Permanent Court of International Justice.
 The PCIJ was established in 1922 and functioned until 1946.
 During that period, the PCIJ dealt with 29 contentious cases and gave 27 advisory opinions.
 By a resolution from the League of Nations on 18 April 1946, the Court and the League both
ceased to exist and were replaced by the ICJ and the UN.
BACKGROUND
 Established in 1945 by the UN Charter, the court began work in 1946 as the successor to the
Permanent Court of International Justice.
 The Statute of the International Court of Justice, similar to that of its predecessor, is the main
constitutional document constituting and regulating the court.
 Concept of The ICJ Rules of Court.
 In the ICJ, (normally) the whole court sits.
 The judges do not really have the necessity to recuse.
The working languages of the court are English and French
Law to be applied by the Court (Art. 38)
 The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply:
 international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
 international custom, as evidence of a general practice accepted as law;
 the general principles of law recognized by civilized nations;
 subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.
 This provision shall not prejudice the power of the Court to decide a case ex aequo et bond, if
the parties agree thereto.

The ICJ is composed of 15 judges.

  The judges have a tenure of nine years each.
 They are elected independently by the UNGA and the UNSC. The candidate should get an absolute
majority in both the UNGA and the UNSC to be elected.
 No two judges can have the same nationality in the ICJ.
 Elections are held every three years for one-third of the seats, and retiring judges may be re-elected.
 The members of the ICJ do not represent their governments but are independent magistrates.
 The judges must possess the qualifications required in their respective countries for appointment to
the highest judicial offices, or be jurists of recognized competence in international law.
 The judges are distributed as per the regions:
 3 from Africa
 2 from Latin America and the Caribbean
 3 from Asia
 5 from Western Europe and other states
 2 from Eastern Europe
 Among the 15 judges, there is a President, a Vice President and a Registrar.
 Every State government party to the Charter designates a group that proposes candidates for the
office of ICJ judges.
Types of Jurisdiction
The International Court of Justice possesses two types of jurisdiction:
(i) Contentious jurisdiction
Contentious jurisdiction involves States that submit the dispute by consent to the Court for a binding
decision. States are the only party in Contentious cases. No Corporation, Individuals or
Non-Governmental Organizations (NGOs) etc can be included as a party in
contentious cases. International Court of Justice gives a binding ruling between the
concerned states which agree to the ruling of the court.

(ii) Advisory jurisdiction

Advisory jurisdiction, on the other hand, concerns questions referred to the Court by the General
Assembly, the Security Council or other organs and specialized agencies of the United Nations. Those
questions can only refer to legal questions arising within the scope of their activities. Advisory
opinions given by the International Court of Justice are not Binding
Mainline and Incidental jurisdiction
A distinction can be made between incidental jurisdiction and mainline jurisdiction. Incidental
jurisdiction relates to a series of miscellaneous and interlocutory matters; for example the power of
the Court to decide a dispute as to its own jurisdiction in a given case; its general authority to control
the proceedings; its ability to deal with interim measures of protection; and the discontinuance of a
case. Mainline jurisdiction, on the other hand, concerns the power of the Court to render a binding
decision on the substance and merits of a case placed before it.

Jurisdiction Rationae Personae

The Statute of the ICJ establishes that for contentious jurisdiction, only States can be parties before
the Court (Article 34(1) of the Statute of the ICJ). However, States are entitled to sponsor the claims
of their nationals against other States. This is generally done by way of diplomatic protection. Such
protection under international law can be exercised by the State of nationality only after the person
concerned has exhausted local/judicial remedies available in the jurisdiction of the State in which the
person has suffered the legal injury
Basis for Jurisdiction
  The basis for jurisdiction is the consent of the States parties to a dispute. No state can,
without its consent, be compelled to submit its disputes with others states either to mediation
or arbitration, or to any kind of pacific settlement.
Consent can be expressed in one of the following ways-
 Contentious Jurisdiction

States are the only party in Contentious cases. No Corporation, Individuals or Non-
Governmental Organizations (NGOs) etc can be included as a party in contentious
cases. International Court of Justice gives a binding ruling between the concerned
states which agree to the ruling of the court.
 Voluntary Jurisdiction
 Ad Hoc Jurisdiction
 Compulsory Jurisdiction
 Advisory Jurisdiction
This kind of consent can be given by the state parties in three ways:
1. In advance, by sigining avrious treaties and conventions (Voluntary Jurisdiction)
If the parties to a treaty or convention stipulate in a clause in that document that dispute under it shall
be referred to the Court, the jurisdiction of the Court is established. (a.k.a. Compromissory clause)
Consent is given in advance – before the occurring of the dispute.
One way of conferring jurisdiction on the Court is through the inclusion of a jurisdictional clause in a
treaty. Generally, through this compromissory clause the States parties agree, in advance, to submit to
the Court any dispute concerning the implementation and interpretation of the treaty.
Article 36(1) of the Statute
“The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially
provided for in the Charter of the United Nations or in treaties and conventions in force.” Several
treaties contain such compromissory clauses conferring jurisdiction upon the Court in respect of the
parties to those treaties

2. By the conclusion of a Compromis (Ad-Hoc Jurisdiction)

 The conclusion of a special agreement (compromis) to submit the dispute after it has arisen.
For example, a compromis was concluded between Hungary and Slovakia on 7 April 1993,
by which they submitted to the Court the dispute concerning the Gabcikovo Nagymaros Pr
When the disputant parties, after the occurrence of a dispute, decide that the legal dispute
must be settled by the ICJ, they enter into a compromis.
Compromis is a Special Agreement concluded by the two states for the purpose.
This consent can be given either by the disputant parties themselves or on the recommendation of the
Security Council.
Brief Concept of forum prorogatumoject.12

3. By accepting the compulsory jurisdiction clause (Compulsory Jurisdiction)

At San Francisco Conference, it was argued that the time had come when the Court should be given
compulsory jurisdiction, i.e. all members of the UNO should bind themselves in advance to the
Court’s having the right to consider legal disputes between them.
However this proposal was rejected!
Instead, the Statute provided that it would be optional for the states to recognize the compulsory
jurisdiction.
Such compulsory jurisdiction can be recognized by the States in two ways, basically: -
By making declaration for the recognition of the jurisdiction of the Court (Art. 36(2)).
Procedures (also can be withdrawn (exceptions))
Exceptions: Maritime Territorial Dispute Case (Nicaragua v. Colombia) – Legal Dispute’s presence.
By the Declaration made under the Statute of the PCIJ (Art. 36(5)).
This can also be known as transferred jurisdiction.

Do International Courts of Justice laids down binding decision?

A. This is the very frequently arising doubt in mind of most of the people. This aspect
is discussed in Article 94 of United Nation Charter which states that, The Judgements
which are delivered in the disputes between states by International Courts of Justice are
binding to the parties concerned. However, There is no mentioning of enforcement by
the court to its decisions which shows that the decision laid by the courts are binding
but the court cannot enforce it decision.

Article 94 also states that:

“If any party to a case fails to perform the obligations incumbent upon it under a
judgment rendered by the Court, the other party may have recourse to the Security
Council, which may, if it deems necessary, make recommendations or decide upon
measures to be taken to give effect to the judgment

Nicaragua v. United States of America (1986)

This case is one of the most famous examples of the enforcement powers of the ICJ and the UN.
In this case, the Court had ruled that the U.S had supported the rebel groups in Nicaragua as
covert-war efforts against the then Nicaraguan government which was a violation of the
International Law. The Court ordered the US to pay war reparations to Nicaragua but the US
refused to do so and also pulled out from the compulsory jurisdiction. When Nicaragua
approached the UNSC for enforcement of the ICJ order, the US vetoed the enforcement action.
 7.USE OF FORCE
USE OF FORCE [UOF] AND LAW OF ARMED CONFLICT [INT. HUMANITARIAN LAW]
History of the law on the use of force
For centuries, states have resorted to force in their international relations in order to achieve particular,
desired aims. The use of violence has proved to be an accepted, although tragic in its consequences,
method of resolving disputes between states. States reserved the right to wage war without any
internationally agreed regulatory framework. Nevertheless, over time, the concepts of ‘just and unjust
war’ emerged. The distinction between the two can be traced back to ancient Rome and the Fetials
(fetiales), a group of priests who were responsible for maintaining peaceful internal and external
relations and who gave rise to fetial law (ius fetiale) – religious law regarding the process of creation,
interpretation and application of treaties and regulations on the declaration of war. The concept of ‘just
war’ has changed over centuries (Von Elbe, 1939).
The post-1945 legal framework
The current legal framework regulating the use of force in international law is enshrined in the UN
Charter. The maintenance of international peace and security is the primary purpose of the UN (Article
1(1) UN Charter). This includes:
prevention and removal of threats to the peace, [...] the suppression of acts of aggression or other
breaches of the peace, [...] and in conformity with the principles of justice and international law,
adjustment or settlement of international disputes or situations which might lead to a breach of the
peace.
The UN Charter provides that
• All members shall refrain in their international relations from the threat or use of force against
the territorial integrity or political independence of any state, or in any other manner
inconsistent with the purposes of the United Nations. (Art. 2(4), UN Charter)
• Nothing in the present Charter shall impair the inherent right of collective or individual self-
defence if an armed attack occurs against a member of the United Nations, until the Security
Council has taken the measures necessary to maintain international peace and security.
Measures taken by members in exercise of this right of self-defence shall be immediately
reported to the Security Council and shall not in any way affect the authority and responsibility
of the Security Council under the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and security. (Art. 51, UN Charter)
• “Threat or Use of Force” – in the case of Nuclear Weapons Advisory Weapons the notions of
threat and use of force u/Art.2(4) of the Charter stand together in the sense that if the use of
force itself in a given case is illegal – for whatever reason – the threat to use such force will
likewise be illegal. In short, if it is lawful, the declared readiness of a State to use force must be
a use of force in line with the Charter. For the rest, no State – whether or not it defended the
policy of deterrence – suggested to the Court that it would be lawful to threaten to use force if
the use of force contemplated would be illegal.
• jus ad bellum refers to the conditions under which States may resort to war or to the use
of armed force in general.
• The prohibition against the use of force amongst States and the exceptions to it (self-
defence and UN authorization for the use of force), set out in the United Nations
Charter of 1945, are the core ingredients of jus ad bellum.
• jus in bello regulates the conduct of parties engaged in an armed conflict. (IHL is
synonymous with jus in bello)
It seeks to minimize suffering in armed conflicts, notably by protecting and assisting all victims of
armed conflict to the greatest extent possible
Jus ad bellum – it sets the normative boundaries as to when a state may resort to use of force. Generally,
the raison d’etre of IL is to abolish or (at least) restrict violence. Yet, there is always a resort to war,
and it has to be considered legally permissible as an attribute of Statehood. This has historical evolved
from the “just war theory” i.e., St. Augustine state wars are necessary to amend an evil.
St. Augustine and St. Thomas Aquinas (c. 1200) gave 3 criteria for just war –
• Just authority – war should be waged by a legitimate authority.
• Just cause – self-defence, resisting aggression etc.
• Just intentions – the object of war is peace.
It is important to remember that the prohibition on the use of force is not absolute. As the wording of
Article 2(4) suggests, the force is permissible in circumstances consistent with the purposes of the UN.
Chapter VII of the UN Charter (‘Action with Respect to Threats to the Peace, Breaches of the Peace,
and Acts of Aggression’), outlines when a state can resort to the use of military force against other
states. Force may be used against another state when:
 such an act is authorised by the UN Security Council as part of collective security
mechanism
 a state is acting in self-defence.

The use of force authorised by the UN Security Council

The UN Security Council plays a major role in the global collective security system by deciding whether
force may be used against other states. Should a situation that threatens international peace and security
occur, it is within the Security Council’s mandate to ‘determine the existence of any threat to the peace,
[...] or act of aggression’ as well as to ‘make recommendations, or decide what measures shall be taken
in accordance with Articles 41 and 42’ (Article 39 UN Charter). In such a situation, a state (or group of
states) does not act unilaterally (as in the case of self-defence), but rather states act collectively by
resorting to force acting under the authority of the international organisations (e.g. the UN Security
Council).
The use of force in self-defence
States may legitimately resort to the use of armed force in self-defence (Article 51 UN Charter). But
what is the meaning of ‘self-defence’?
Self-defence is a lawful reaction to the ‘armed attack’ against the territorial integrity of a state, which
also diminishes its political independence (acts forbidden in Article 2(4) UN Charter). By executing the
right to use force in self-defence, states are conducting a unilateral act. The traditional meaning of the
right to self-defence originates from the Caroline case (29 Brit & For St Papers) (Box 3); these
principles were accepted by the British Government at the time and formed a part of customary
international law
This case sets out a customary international law definition of the right to self-defence. It originates from
a dispute between the British Government and the US Secretary of State regarding the destruction of an
American vessel in an American port by British subjects. The reason behind this act was the use of the
vessel to transport munitions and groups of Americans, who were conducting attacks on the Canadian
territory. The US Government declared that the attack on the vessel constituted an attack against the
American territory. The British Government responded by claiming the right to self-defence. The
subsequent diplomatic correspondence between the parties contained an outline of the key elements for
legitimate self-defence. The US Secretary of State, Daniel Webster, emphasised that for the self-defence
to be lawful in international law, the British Government must prove the: necessity of self-defence,
instant, overwhelming, leaving no choice of means and no moment for deliberation and that assuming
such a necessity existed at the time: the act justified by the necessity of self-defence, must be limited
by that necessity, and kept clearly within it.
The customary nature of the right to use force in self-defence was further confirmed by the International
Court of Justice (ICJ) in the Nicaragua Case (Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v United States of America ICJ Rep 1986). This is one of the key judgments in
international law.
Conditions for Use of Force
1. There must be an armed attack,
In order to lawfully exercise the right to self-defence, a state must be able to demonstrate that
it has been a victim of an armed attack. The burden of proof in such a case lies with the state
seeking to justify the use of force in self-defence. Nevertheless, not all attacks will constitute
an armed attack for the purposes of Article 51: only the most grave forms of attack will qualify
(Nicaragua Case, para.191).
2. The response was/should be necessary and proportionate
the ICJ held in the Nicaragua Case (Merits) that ‘self-defence would warrant only measures which are
proportional to the armed attack and necessary to respond to it’ (para. 176). This statement sets out two
important principles in international law concerning the use of force: the principle of proportionality
and the principle of necessity. In this context, proportionality means that the response to an armed attack
must be reflective of the scope, nature and gravity of the attack itself. On the other hand, the principle
of necessity guards against the use of measures which are excessive and not necessary in response to
an armed attack.
War on Ukraine

The Russian invasion of Ukraine flagrantly violates the post-second world war international legal order. The
Russian invocation of individual or collective self-defence is of no legal merit. This remains the case even if you
accept the most elastic interpretation of the notion of “imminent attack” which Russia might use to justify invading
– such as “anticipatory” or even “preventive” self-defence. Similarly, Russian references to “genocide” in eastern
Ukraine to justify its intervention cannot be substantiated and offer no justification for military action under
international law.

Instead, Russia has violated the principle of jus ad bellum (the law relating to the prohibition of recourse to force).
Its action constitutes an act of aggression in breach of the cornerstone legal principle of the prohibition of use of
force, laid down in the UN Charter. The UN General Assembly has demanded that Russia immediately cease its
illegal use of force against the territory of Ukraine in the strongest terms.
Apart from jus ad bellum, which makes the invasion itself illegal, the conduct of the war raises serious concerns
with respect to jus in bello. This is the body of international law related to the way war is waged.

• Right to self-determination of Russian-speaking Ukrainians in Donbas

• No! With the possible exception of gross HR violation (even this is contested)
• There was nothing as such in Ukraine. Bona-fide secession wasn’t initiated.
• This was exactly what the charter meant to prevent.
• Charter allows use of force in - i) self-defense, ii) in response to UNSC authorization
• Contested notion of humanitarian intervention (when one state is carrying out extinction of minorities)
— this didn’t happen in Ukraine.
And this isn’t accepted by the UN Charter (the concept of Hum. Int.)
• Law of War / International Humanitarian Law
• No unnecessary suffering by combatants (weapons
• Principles of distinction (no civilian targets)
• N.B.: It isn’t a violation of law of war if civilians die in a war.
• But if military advantage is taken out, it is.
• Principle of proportionality (disproportionate attack)
• Principle of precaution (military attack should aim minimizing civilian casualties)
In the Russia-Ukraine War, there is no[t much] deliberate target of civilians.
• However, there is indiscriminate use of force.
• There is also lack of precautions.
And the attack is not proportional
• Prospects of individual accountability
• ICL criminalizes certain violation of IHL
• HRC decided to create an individual commission
• ICC doesn’t have jurisdiction – traditional POV
• none of the countries are parties to the statute
• either by a national of a state party
 • or by the territory of a state party
• security council ko referral would be met w/russian veto.
• BUT, ICC still opened investigation! And issues arrest warrants!! HOWW???

3. There must be a report to the Security Council

Report should be submitted to UNSC within 24hrs. UN Security Council Resolution 1973 of 17 March
2011 is an example of the authorisation of the use of force by the UN Security Council. , the UN Security
Council, acting under Chapter VII of the UN Charter, adopted Resolution 1973 authorising member
states ‘to take all necessary measures […] to protect civilians and civilian populated areas under threat
of attack in the Libyan Arab Jamahiriya, including Benghazi, while excluding a foreign occupation
force of any form on any part of Libyan territory.’
Self-defence against non-state actors
The question of whether it is lawful to use force in self-defence against an armed attack by a non-State
actor is contentious.
9/11 x Al-Qaeda x USA x UNSC resolutions – UN Security Council Resolution 1368 (2001) –
recognised the right of the US To individually, and collectively, use the right to self-defence, with any
act of international terrorism, in the light of 9/11. UNSC Resolution 1373 (2001) – reaffirmed the
inherent right of individual or collective self-defence against terrorist attack – allowed the US to violate
the state sovereignty of the country.
If the armed attack being defended in attributable to the State, then defensive force can be used against
the controlling State. If the armed attack is not attributable, then the force can be used only against non-
state actors within that state. It has to meet necessity & proportionality test and this defensive force
should be limited and targeted using force against and only against the source of non- state actors.
Judge Simma: An armed attack could come from a non-State actor, giving rise to a right to respond
with force in self-defence
State practice in response to the 9/11 attacks and to the activities of Islamic State would also seem to
suggest that where a host state is ‘unwilling or unable’ to control the acts of non-State groups on its
territory, a State might be able to use force in self-defence against that non-State group, even on the
territory of another State (without that State’s consent).
Pre-Emptive Self-Defence
This is also known as anticipator self-defence and remains highly controversial. The supports of pre-
emptive self-defence state that the right to self-defence encompasses within it, the right to pre-emptive
self-defence. The opposers call this principal incompatible with the wording of Art.51 which refers to
an actual armed attack. There is another response from some parties who state that limited pre-emptive
self-defence against a manifestly imminent armed attack should be allowed.
Test for anticipatory self-defence – This is, as extrapolated from the Caroline Test, as follows – “a
necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for
deliberation.”
In the case of DRC v Uganda, the ICJ, on pre-emptive self-defence, stated that Art.51 may justify a use
of force in self-defence within the strict confines there laid down. It does not allow the use of force by
a State to protect perceived security interests beyond these parameters. Other means are available to a
concerned State, including, in particular, recourse to the UNSC.
There is an absence of any linearity in state practice and therefore this could not lead to an inclusion of
any detailed statement in the UNGA resolutions. Before 9/11, majority of the States rejected
anticipatory self-defence, and this has been rarely invoked. The States usually rely on self-defence in
response to an armed attack, if they possibly can. They rather prefer to take a wide view of ’armed
attack’ than openly accept anticipatory self-defence. There are some examples of actions that can be
counted as ostensibly pre-emptive, but have not been claimed as such i.e., 1967 Israeli air strike on Arab
neighbours, and the 1962 Cuban missile crisis.

1967 Israeli strike on Arab neighbours – Egypt, Jordan, and Syriac – did not rely on anticipatory
self-defence but rather argued that the previous acts by Arab States amounted to an armed attack
(blocking of Straits of Tiran, expulsion of UN Peacekeeping forces, …)
 1962 Cuban missile crisis – Cuba importing missiles from the USSR – USA forcible intercepted
the missiles on high seas. USA did not rely on anticipatory self-defence but rather relied on “regional
peacekeeping” under Chp.VIII.
There is one example of pre-emptive self-defence that was claimed as such but condemned by the
collective of nations. The 1981 Israeli attack on Iraqi nuclear reactor. Israel claimed anticipatory self-
defence as it had acted to remove a nuclear threat under the claim that the under-construction Iraqi
reactor was designed to produce nuclear bombs to be used to attack Israel. It relied on scholarly
literature to support anticipatory SD but could not prove State practice and the UNSC condemned it as
a violation of the Charter.
Bush Doctrine Post-9/11 - National Security Strategy of the United States of America, 14 September
2001
Malcolm Shaw on “imminence” in pre-emptive self-defence
The concept of “imminence” within the context of anticipatory self-defence is relative. It depends upon
the nature of the threat and the possibility of dealing adequately with it at any given stage. What is
imminent will vary as technology evolves. The aim of self- defence is to defend the territory and
population of a state and the extent to which this is feasible will be dependent upon the character of the
attack (foot soldiers, chariots, tanks, planes, missiles) as well as the vulnerability of the target state and
the intention of the attackers. Russia and China can absorb initial attacks and be in a position to regroup
and counter-attack even if hundreds of miles of territory have been lost. Other states, not so well
endowed geographically, cannot and thus must act in time to prevent the anticipated destruction, such
as may have been the case with regard to Israel in 1967. “Imminent” will also need to be interpreted in
the light of changing threats in the light of changing practice.83 Today, of course, terrorist threats are
high on the agenda and after 11 September 2001 and other outrages, no longer to be hived off as the
problem of a few relatively unimportant states.
However, “imminent” does not mean “perhaps sometime in the future”. A forceful action to disrupt an
imminent terrorist act being prepared in a neighbouring state may well be legitimate; force to attack
person who may in the future contemplate such activity is not. Distinguishing the two is not easy.
Relevant factors would include the pattern of events to date, statements and threats made, the level of
the threat (e.g., preparations for the use of a ‘dirty bomb’ in a city) and the realistic possibility of averting
the threats by non-forcible means. Current events have highlighted the issue of evidence. Clearly
credible evidence reasonably believable in the circumstances is required and it may be that the test of
this has or will harden in the light of the Iraq situation. In such situations, it is difficult to envisage in
all reality judicial tests of “beyond reasonable doubt” determined by objective bodies as being the sole
determinant. While it is easy to say that hindsight will determine the issue and the consequences will
be drawn at that stage, it is important that those responsible for taking the measures in question have
assured themselves as to reasonable and adequate evidential methodologies.
Malcolm Shaw on proportionality and necessity
Proportionality means that there has to be a sense of relationship between the threat and the response.
What is proportionate will depend upon the nature of the threat faced and the means available in practice
to counter it, as well as the requirements of law.105 Case law is vague on the precise conditions
required. Time may also alter the equation. Israel was roundly condemned for bombing the Iraqi nuclear
reactor just before it went critical in 1981. I suspect that such criticisms faded as from 1990.
The first issue will be to determine against what the proportionate response is to be measured since
simply to pronounce that the action must be proportionate to the armed attack begs the question. Indeed,
it seems to me that the appropriate determinant is not the armed attack as such but the totality of the
threat that this represents. An analysis of the threat needs to be considered and realistic. Is the aim to
grab a few miles of land or to extinguish the target state or murder large numbers of the population or
“ethnically cleanse” the territory in question? Is the aim to attack a military location or a city?
The different levels of threat will of necessity require a different response. Reasonable evidence will,
of course, be critical and may condition the reaction of third states after the event, but such evidence is
time-conditioned in that the test will be what is reasonable at the time in the light of knowledge known
or reasonably to have been known at the time of response.
Proportionality, then, refers to a similarity in scale between the attack and the response.
Necessity is linked to proportionality in that the response has to be limited to measures appropriate in
order to deal with the threat. Indeed, necessity is a gloss on proportionality and restricts the response to
the elimination of the threat. Necessity will also relate to the means available so that the kinds of forces
and the level of armament to hand will be relevant to the type and intensity of response that it would be
reasonable to expect, as well as the realistic possibilities of resorting to non-military means in the
circumstances. What this means in practice is, however, uncertain. Tanzania in responding legitimately
to a Ugandan attack upon the Kagera salient in 1978 continued to Kampala and overthrew the regime.
There was little meaningful criticism. Again, the UN authorised coalition forces in 1991 stopped at the
Iraqi border after expelling invading troops from Kuwait.
Humanitarian Intervention
Humanitarian intervention is an exception to Art.2(4) allowing UoF on humanitarian considerations.
The argument is that H.I. can allow a State to protect people from gross and systemic HR violations,
when the target State is unable and unwilling. This is controversial because this allows for unilateral
intervention, thereby making it open to abuse.
E.g., NATO intervention in Kosovo: In 1999, NATO intervened in Kosovo (then a province of FRY)
via a 78-day aerial bombardment. It gave convoluted legal justifications which were mostly on grounds
of humanitarian intervention and implied UNSC authorization. Belgium and UK justified it “as an
exceptional measure to prevent an overwhelming humanitarian catastrophe….Every means of short of
force has been tried to avert this situation. In these circumstances, and as an exceptional measure on
grounds of overwhelming humanitarian necessity, military intervention is legally justifiable.”
Subsequently, UNSC Res. 1244 welcomed the withdrawal of Yugoslav forces from Kosovo and
established the UN Mission in Kosovo This case went to the ICJ, called Legality of Use of Force,
however, none of the cases went passed the jurisdiction stage. The International Commission on Kosovo
concluded that the NATO military intervention was “illegal but legitimate”.
After this, however, the UN Sec-Gen Kofi Annan in 2000 stated that – if humanitarian intervention is,
indeed, an unacceptable assault on sovereignty, how should we respond to a Rwanda, a Srebrenica – to
gross and systemic violations of human rights that affect every precept of our common humanity? A
response to this challenge was led by Canada (+ some major foundations) who proposed the
establishment of ‘International Commission on Intervention and State Sovereignty’ and prepared a
report called ‘Responsibility to Protect’ (R2P).
The Responsibility to Protect Report – This report rejected the doctrine of ‘humanitarian
intervention’ and stated that “state has the duty to protect but if unable and unwilling, then the principle
of non-intervention yields to the international R2P – to prevent, to react, and to rebuild”.
R2P DOCTRINE
• Each individual State has the responsibility to protect its populations from genocide, war
crimes, ethnic cleansing and crimes against humanity.
• This responsibility entails the prevention of such crimes, including their incitement, through
appropriate and necessary means.
• States accept that responsibility and act in accordance with it.
• The international community should, as appropriate, encourage and help States to exercise this
responsibility and support the United Nations in establishing an early warning capability.
• The international community, through the United Nations, also has the responsibility to use
appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters
VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic
cleansing and crimes against humanity.
• R2P is about taking collective action, in a timely and decisive manner, through the Security
Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in
cooperation with relevant regional organizations as appropriate, should peaceful means be
inadequate and national authorities manifestly fail to protect their populations from genocide,
war crimes, ethnic cleansing and crimes against humanity.
 • There is a need for the General Assembly to continue consideration of the responsibility to
protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity
and its implications, bearing in mind the principles of the Charter and international law.
• The idea is to help States build capacity to protect their populations from genocide, war crimes,
ethnic cleansing and crimes against humanity and to assisting those which are under stress
before crises and conflicts break out.
• Pillar I: The protection responsibilities of the state – "Each individual state has the responsibility
to protect its population from genocide, war crimes, ethnic cleansing, and crimes against
humanity".
• Pillar II: International assistance and capacity-building – States pledge to assist each other in
their protection responsibilities.
• Pillar III: Timely and decisive collective response – If any state is "manifestly failing" in its
protection responsibilities, then states should take collective action to protect the population.
Above mentioned Pillars must be used in chronological order Pillar 2 must be used on exhaustion if
Pillar 1 similarly, pillar 3 must be used on exhaustion of pillar 2.
The key distinction b/w R2P and humanitarian intervention -
UNSC resolution before intervening.
the requirement that collective action by the int. community must be undertaken pursuant to UNSC
authorization under Chp.VII. In short, there is an affirmative burden on the international community to
protect civilians, with force if necessary, when individual nations fail to do so. Humanitarian
intervention principle came into play because certain countries thought that it was imperative to allow
other States to intervene into the affairs of a country on grounds of human rights violations. This was
met with a lot of backlash, as it was at odds with the state sovereignty principle. Canada then proposed
“responsibility to protect”, which while stays like humanitarian intervention, now requires a UNSC
resolution before intervening.
Humanitarian intervention principle does not really protects, humanitarian intervention only refers
to the use of military force, whereas R2P is first and foremost a preventive principle that emphasizes a range
of measures to stem the risk of genocide, war crimes, ethnic cleansing or crimes against humanity before the
crimes are threatened or occur. The use of force may only be carried out as a measure of last resort, when all
other non-coercive measures have failed, and only when it is authorized by the UN Security Council. [22] This
is in contrast to the principle of 'humanitarian intervention', which claims to allow for the use of force as a
humanitarian imperative without the authorization of the Security Council.
while humanitarian interventions have in the past been justified in the context of varying
situations, R2P focuses only on the four mass atrocity crimes: genocide, war crimes, crimes against
humanity and ethnic cleansing. The first three crimes are clearly defined in international law and
codified in the Rome Statute of the International Criminal Court, the treaty which established the
International Criminal Court. Ethnic cleansing is not a crime defined under international law, but has
been defined by the UN as "a purposeful policy designed by one ethnic or religious group to remove by
violent and terror-inspiring means the civilian population of another ethnic or religious group from
certain geographic areas".R2P does not fulfil political purpose but protects.
Finally, while humanitarian intervention assumes a "right to intervene", the R2P is based on a
"responsibility to protect".[22] Humanitarian intervention and the R2P both agree on the fact that
sovereignty is not absolute. However, the R2P doctrine shifts away from state-centered motivations to
the interests of victims by focusing not on the right of states to intervene but on a responsibility to
protect populations at risk.[25] In addition, it introduces a new way of looking at the essence of
sovereignty, moving away from issues of "control" and emphasising "responsibility" to one's own
citizens and the wider international community.
 8.State Jurisdiction
State jurisdiction is the extent and limits of legal competence of a State/entity/regulatory authority to
make, apply, and enforce legal rules w.r.t persons, property, and other matters. Exercise of sreflects the
classic exercise of state sovereignty, equality of states, and non-interference in domestic affairs.
The two arms of SD are (i) State is supreme internally within its own territorial JD and (ii) A
State must not interfere in the domestic affairs of another State unless it is expressly permitted.
The principle of sovereignty shields
The Lotus Principle
• The first and foremost restriction imposed by IL upon a State – failing the existence of a
permissive rule to the contrary – it may not exercise its power in any form in the territory of another
State. – PCIJ in The Lotus Case (1927)
– i.e., a state may not exercise jurisdiction in the territory of another state unless it is permitted
by a contrary rule of international law, and
– A State is entirely free to exercise its jurisdiction over the territory which belongs to it
Art. 2(7) of the UN Charter states that nothing contained in the present Charter shall authorise the UN
to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require
the Members to submit such matters to settlement under the present Charter; but this principle shall not
prejudice the application of enforcement measures u/Ch. VII.
• Jurisdiction of a State over its territory (i.e., a State enjoys civil as well as criminal jurisdiction
over all persons and things within the territory of a State which falls under its territorial jurisdiction).
• There is a theory (called Area Theory) which recognizes sate territory as an element of State
(as studied in ILP), which regards the violation of state territory as the violation of State personality and
that of the people living in that state.
What are the types of jurisdictions? Broadly speaking, JD can be divided into three types –
a. Prescriptive – Prescriptive JD gives the entity the capacity to make, amend, or repeal legal
rules. Regulates the ‘jurisdiction to prescribe’, through which a State’s constitutionally recognized
organs (L/E/J) make binding laws regulating affairs in its territory (and sometimes abroad). It further
governs the basic question of over whom, and in what situations, a State may extend its laws, compel
conduct, or demand certain penalties.
b. Enforcement – Enforcement JD gives the entity the capacity to ensure/compel compliance
with such ‘prescribed’ legal rules. Officials and organs of States exercise exclusive ‘jurisdiction to
enforce’ over certain persons/conduct located in their territory. Generally, enforcement JD is confined
to the territorial JD of a State. In some cases, enforcement may be carried out in another State, but with
express consent.
c. Adjudicative – Adjudicative JD gives the entity the capacity to adjudge upon disputes
concerning the applicability of its prescribed rules/laws.
Which is broader, prescriptive or enforcement? Virtually, a State has unlimited prescriptive JD. But
IL does not always allow a State to enforce its legislation outside its territory without an int. agreement
or a rule of CIL permitting it. The ICJ, in the SS Lotus case, opined that the first and foremost restriction
imposed by IL upon a State is that failing the existence of a permissive rule to the contrary, it may not
exercise its power in any form in the territory of another state. In this sense, JD is certainly territorial;
it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from
int. custom or from a convention.
What is the application of prescriptive and enforcement jurisdiction? Prescriptive and enforcement
jurisdiction, both have territorial and extraterritorial application.
There are two approaches to jurisdiction. Either one allows States to exercise jurisdiction as they
see fit, unless there is a prohibitive rule to the contrary; OR One prohibits States from exercising
jurisdiction as they see fit, unless there is a permissive rule/principle to the contrary.
States are generally considered to be authorized to exercise jurisdiction if they can advance a legitimate
interest based on personal or territorial connections of the matter to be regulated. A jurisdictional nexus
is required between the State claiming to exercise prescriptive JD and the conduct that it claims to
regulate. Such a nexus is governed by principles of jurisdiction.
What are these permissive principles of jurisdiction? The principles of jurisdiction can be divided as
per their application –
TERRITORIAL APPLICATION
a. Territoriality Principle
Generally, all persons found within the territory of a State are bound by its laws. States have unlimited
and exclusive sovereignty over its territory, save such as those obligations required by IL (e.g.,
requirements by treaties on diplomatic relations, CIL norms or jus cogens norms). The territory of the
State includes land territory + territorial waters (12 NM from its coastline) + airspace over land and sea
territories (12 NM)
It can be subjective and objective. Subjective territorial means the ability to regulate an act which
initiated within its territory but only consummated outside. Objective territorial means the exercise of
JD by a State over an act which originated outside its territory; but consummated within it.
EXTRATERRITORIAL APPLICATION
a. Nationality/Active Personality Principle
A state and its nationals are inextricably linked. While there is no definition of nationality in any
convention/treaty, according to the Nottebohm case, the ICJ held that nationality is a legal bond having
as its basis a social fact of attachment, a genuine connection of existence, interests, and sentiments,
together with the existence of reciprocal rights & duties. A State is entitled to exercise JD over its
nationals, even when they are found outside the territory. Under active personality, the individual may
reasonably be informed about what law may apply to the conduct in question.
b. Passive Personality Principle
A State is entitled to exercise JD over non-nationals for acts committed abroad, provided that the victims
are nationals of the State claiming JD. This principle is claiming JD based on the nationality of the
victim. This principle is considered as an aggressive form of extraterritorial JD. Generally, it does not
apply to ordinary torts or crimes. This principle makes it difficult to anticipate what State’s law will the
perpetrator be subjected to, as the perpetrator will not usually know the nationality of the victim. While
controversial, State practice considers this JD as reasonable for certain crimes (usually, terrorism,
torture, hijacking, …). Some conventions authorize (but not compel) the use of passive personality
principle.

c. Protective Principle
The protective principle allows JD to protect a State from acts perpetrated abroad which jeopardize its
sovereignty or its right to political independence. It is invoked when ‘vital interests’ of a State are
endangered. Th exercise of JD is to protect themselves, even against activities committed by non-
nationals that take place outside the territory. This can be used in some cases like that of espionage,
terrorist-related activities, smuggling, printing counterfeit currency, treason/coup d’état, taking of
hostages, aircraft hijacking, illegal immigration, human trafficking, etc. This principle is rarely
exercised.
d. Universality Principle
Generally, JD is premised on the presence of a jurisdictional nexus. But universality principle does not
operate on the basis of a connecting factor. It operates solely on the nature of the crime, without regard
to where the crime was committed, the nationality of the alleged or convicted perpetrator, the nationality
of the victim, or any other connection to the State exercising jurisdiction. This is as per Principle 1 of
the Princeton Principles on Universal JD.
This principle gained international attention only post-1990s, when ‘bystander’ States started
prosecuting the perpetrators of such crimes as war crimes, genocide, crimes against humanity, piracy,
and torture. E.g., the four Geneva Conventions (1949) allowed domestic courts the competence to try
for grave breaches (wilful killing, torture or inhuman treatment, unlawful deportation of protected
persons, and taking of hostages).
The classical understanding of universal jurisdiction is informed by the principle of aut dedere aut
judicare (either extradite or prosecute)à a State is required to establish JD over a perpetrator of the
offense present in the territory, if it does not extradite them (E.g., Art. 7 of UN-CAT).
• Example: Col. Kumar Lama case
 – A Nepalese army soldier, allegedly tortured Nepalese citizens in Nepalese territory
in 2005.
– He in 2012 went to London on a casual trip, where he was arrested and tried in the Old
Bailey
• i.e., a national court may prosecute individuals for serious crimes against international law –
such as war crimes or torture – based on the principle that such crimes harm the international
community or international order itself (breach int'l public policy)
• Can be used in: Genocide, Torture, Piracy in High Seas, War Crimes, CAH, Terrorism, Slave-
trade, airplane-hijacking, drug-trafficking, apartheid, etc.

Jurisdictional Rule
There is general rule of jurisdiction under public international law which prescribes that the state has
jurisdiction has jurisdiction over its territories. The exceptional rule is that the state can exercise its
jurisdiction over territory of another state when there is agreement with that state to do so. Absence of
the agreement makes the state loses its jurisdiction over another state.
Extradition
This is surrender of accused person by one state to the jurisdiction of another state. It is the process by
which the state upon request of another state effects the surrender of the accused person for trial for
crime punishable by the laws of the requesting state and committed outside the state. For instance, China
surrenders the drug accused person to Tanzania for prosecution. Regulation of Extradition
Extradition operates when there is treaty between the surrendering state and requesting state upon the
extradition process. Moreover, there must Extradition Acts in the states which prescribe the extradition.
The treaty and Acts must prescribe inter alia crimes extraditable, extradition procedures and safeguards
and relation between the extradition treaty and extradition Act. For instance, Tanzania has the
Extradition Act, CAP 368 RE 2002 which deals with extradition with countries she entered the treaty
with for extradition.
Immunity from jurisdiction
It is the privilege granted to persons from being prosecuted by the state by their positions. It is the
immunity to officials protecting them from liability for injury or crimes caused by their acts they have
done as part of their official duties. There is certain state officials when they commit wrongs in the
jurisdiction of another state can be granted immunity from being prosecuted by the state that has
jurisdiction because they have done wrongs during executing the official functions.
Types of Immunity from Jurisdiction
There are various types of immunity from jurisdiction of the state. These types are classified depending
on the position of those officials in the state capacity.
(i) Sovereign immunity
This is immunity from jurisdiction granted to Heads of States. They are exempted from being exercised
jurisdiction of another state. This immunity is not absolute. It can be waived by the state expressly or
impliedly.
(ii) Diplomatic Immunity
This immunity is given to certain members of foreign embassies such as ambassadors or high
commissioners for the crimes they have committed in the host state. This is immunity granted to
diplomatic agents and their families from being prosecuted by the host state. This immunity commences
when these diplomatic agents are appointed by their states. This immunity can be waived by the sending
states.
(iii) Consular immunity
Consular is member of foreign embassy dealing with commercial and administrative functions of the
state that has sent him or her to the receiving state. They promote commercial and administrative
relations between individuals of the different states. Consular immunity is the immunity granted to
consular from being prosecuted for the crimes they have committed in the receiving state during
execution of their functions. This immunity can be waived by the sending state.
(iv) International Organisation Immunity This is immunity granted to certain officials of
international law organisations from being prosecuted for the crimes they have committed when
carrying out their official duties. This immunity ensures fulfilling their objectives.
These, are limitations or exceptions to the general rule of territorial sovereignty.