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Public International Law 2022 Definition Nature and Basis
DEFINITION NATURE AND BASIS

Early Origins of a Universal Law by Romans
Romans made a Universal Law: The early Roman law (the jus civile) applied
only to Roman citizens. It was totally unable to provide a relevant background
for an expanding, developing nation. This need was served by the creation and
progressive augmentation of the jus gentium. This provided simplified rules to
govern the relations between foreigners, and between foreigners and citizens.
Inspiration from Greece: Romans took the idea of Natural Law from Greeks.
This was formulated by the Stoic philosophers of the third century BC and their
theory was that Natural Law constituted a body of rules of universal relevance
so Natural Law in fact had influence and contribution in formation of Jus
Gentium.
The progressive rules of the jus gentium gradually overrode the narrow jus
civile until the latter system ceased to exist. Thus, the jus gentium became the
common law of the Roman Empire and was deemed to be of universal
application.
Later in 1624, Hugo Grotius (Considered father of international law), He wrote a

book called De Jure Belli ac Pacis (the law of war and peace) in which he divided law
into the following categories
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Private International Law and Public International Law

Public International Law - It refers to rules and regulations governing
international relations between different states and international institutions.
Private International Law - Private International Law establishes and deals

with the relationship between citizens/private entities of different countries.
People from different parts of the world are often interacting with each other
forming legal relations, like contracts, marriages, adoption etc.
It is also referred to as, ‘Conflict of laws’ and the phrase was first used by Ulrich
Huber in his book-” De Conflictu Legum Diversarum in Diversis Imperiis” in
1689.
Jurists on International Law

Who didn’t consider international law as true law (mostly positivists)
John Austin – International law is not law it is just Positive International Morality
Jeremy Bentham - (First person to use the term ‘International Law’)- International
Law lacks an effective Legislative Machinery, an executive machinery and Potent
Judiciary and the Sanction which is necessary for enforcement
Thomas Erskine Holland – International law is Vanishing Point of Jurisprudence. He

was of the view that as International Law lacks sanction and therefore it cannot be kept
in the category of true law.
Who Considered International law as true law (mostly naturalists)

Bynkershoek – He was a leading figure of the positivist school in international
jurisprudence, He Ignored natural law but still supported the freedom of seas, the
reason for that being modern practise.
Hall and Lawrence - International law is followed and enforced and just like
positive law it is derived from custom and precedent so it is a law.
Fredrick Pollock - For a law to exist, the only condition is that it is recognized by the
political community as binding them and international law satisfies this condition
Samuel Pufendorf - Being a proponent of Natural Law School, he identified

international law completely with the law of nature.
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Subjects of Public International Law

The state was considered to be the only subject of international law according to the
Realist Theory. All the definitions below follow this approach, mostly they are
saying the same thing.
J.L. Brierly, “The Law of Nations or International Law may be defined as the body of
rules and principles of action, which are binding upon civilized states in their relations
with one another.”
Prof. L. Oppenheim, “Law of Nations or International Law is the name for the body
of customary and conventional rules which are considered legally binding by the
civilized states in their intercourse with each other.”
Gray said, “International law or the Law of Nations is the name of a body of rules
which according to their usual definitions regulate the conduct of states in their
intercourse with each other.”
Torsten Gihl, “The term International Law means the body of rules of law, which
apply within the International Community or society of States.”
In Queen v. Keyn (1876), Lord Coleridge, C.J., defined international law as “The
law of nations is that collection of usages which civilized States have agreed to observe
in their dealings with one another.”
But as international law also regulates the actions of other entities like
international organizations and individuals, they were also added as subject to
international law in the definition of Sir Robert Jennings and Sir Arthur West.
Prof. Kelsen is the supporter of the Fictional Theory which suggests that the
subjects of international law are the individuals only and that legal order is for the
well-being of the individuals. So, Nation/state are nothing but aggregate of
individuals as subjects.
Both the Realist and the Fictional Theory take on an extreme course of opinion, but,
according to Functional Theory, neither state nor individuals are the only subjects.
There are other subjects also like International Organizations.
Schwarzenberger - International law is the body of legal rules which apply

between sovereign states and such other entities as have been granted international
personality.
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To conclude the following are considered the main subjects of Public

international law:
• States
• Individuals
• International Organizations
• Multinational Companies
Basis of International Law

Naturalist Theory – It says there is a higher reason why the law is the law. (e.g.,
morality, universal principles, religious, etc.)
Positivist Theory – Positive law is law made by humans and Customs and treaties
also come into existence from express or tacit consent of States. The theory is
criticised because a treaty may be binding on third States as well, and, States in some
cases are bound by general international law even against their will.
Eclectic theory - Naturalists and positivists are both extreme views, contemporary
sociological theories tend to support Naturalism because they argue that
international law is based on social interdependence and aims at bringing about
international social justice. Thus, natural law underlies the positive law (customs and
treaties) which is only an expression of this social interdependence.
Consent Theory - State consent is the method whereby states identify and
acknowledge the rules they consider binding upon themselves.
Auto Limitation Theory – Voluntary Restriction or automatic limitation of

sovereignty of states by themselves, by giving their assent to international law.
Fundamental Rights Theory – Man is entitled to basic rights i.e. right to life,
dignity etc, such rights should not be limited to any state, and should be available to
all no matter what the state law is.
Pacta Sunt Servanda - literally translating to “treaties shall be complied with,”

The pacta sunt servanda rule embodies an elementary and universally agreed
principle fundamental to all legal systems (General Principles of Law).
Jus Cogens - Certain principles which all states must observe (peremptory norm)
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International Law And Municipal Law
Monism - International law does not need to be translated into national law.
International law can be directly applied by a national judge, and can be
directly invoked by citizens, just as if it were national law.
Delegation Theory (Monist)
Dualism - There is difference between national and international law and the
latter must be incorporated by the former.
Transformation Theory (Dualist)
Specific Adoption Theory (Dualist)
Harmonisation Theory - Neither municipal nor international law is superior

to other; they are both made to solve the problems of humans. Judges must
harmonize both systems rather than treating one system superior to another.
This theory made sense because international law and municipal law
traditionally addressed relatively different issues; International law
concentrated on relationship between states and municipal law concentrated
on relationship between persons.
But now they have a convergence in their functions because ultimately
as the Harmonisation theory suggests the goal of both of them is to
secure well-being of individuals.
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Public International Law 2022 Recognition
RECOGNITION
Recognition is acknowledging political entity of another State. It could be Express or
Implied, Conditional or pre-mature.
According to Article 1 of the Montevideo Convention on the Rights and Duties of
States, 1933 and Oppenheim, the entity of a state can be created if it possesses the
following characteristics:
1. Permanent Population
2. Definite Territory
3. Government
4. Capacity to enter into relations with other States (Sovereignty)
Change of Regime of State can happen in 2 ways-

 Normal Course.
 Coup d’ eat’ (revolt, revolution etc.)
Recognition of Belligerency:
Belligerency exists when a portion of the State’s territory and population
is under the de facto control of the people who are fighting against the
government to establish a separate State or to overthrow the existing
government. A civil war may turn into a real war if the rebels are in
possession of a substantial part of territory.
Insurgency is a lower form of belligerency, when the rebels don’t have a
good enough portion of the state under their control
Effects of Recognition: Recognition enables the State-

1. To sue in the courts of recognizing States.
2. To get sovereign immunity for itself from recognizing state.
3. To enter into diplomatic and treaty relationship with recognizing state.
4. To get retroactive effect for its past legislative and executive acts from
recognized state
5. To be entitled to the succession and possession of property situated in
recognizing state.
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Theories of Recognition.
Constitutive/Constructive Theory (Hegel, Anzilloti, Oppenheim)
An entity becomes state when other State Recognise it, not when it
possesses essential attributes of Statehood. This doesn’t mean that State
doesn’t exist unless recognised, but in this theory, State gets the exclusive
rights and obligations and becomes a subject to International Law after its
recognition by other existing States.
Declaratory/Evidentiary Theory (Hall, Wagner, Brierly, Fisher)

State Exists prior to and independent of Recognition. Recognition is just a
formal acknowledgment. The theory has been given in Article 3 of the
Montevideo Convention where it recognizes the existence of a new state
does not depend upon the mind of the existing state’s consent.
Modified Constitutive Theory (Kelson)

Natural Statehood exists in a state as soon as it attains essential elements
of statehood, but Juridical Statehood only exists in a State after
recognition by other States.
Doctrines of Recognition
TOBAR DOCTRINE (No Recognition for Unconstitutional Governments).
Named after Carlos Tobar, Foreign Relations Minister of Ecuador, the
doctrine states that recognition of government should only be granted if
its administration came to power by legitimate democratic means.
ESTRADA DOCTRINE (Recognize Existence of Government not Legitimacy).

Named after Mexican Secretary of Foreign Affairs, Genaro Estrada, the
doctrine states that; "Recognition of government should be based on its
de facto existence rather than on its legitimacy." This policy based on the
principles of non-intervention and self-determination of all nations does
not allow the states to assess the legitimacy of governments of other each
-others.
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BETANCOURT DOCTRINE (No Recognition for Military Rules).

This doctrine which inter alia became the cause of isolation of Venezuela
denied the; "Diplomatic recognition of any regime that came to power by
military force.”
STIMSON DOCTRINE.
Named after American Secretary of State, Stimson, this doctrine pledged,
"Not to recognize international territorial changes brought about by the
aggression." The doctrine was application of a principle, 'ex injuria jus non
oritur' means 'illegal act cannot create law’.
De-Facto & De-Jure Recognition

In law and government, de facto describes practices that exist in reality, even though
they are not officially recognized by laws, de jure describes practices that are legally
recognised.
DE FACTO Recognition DE JURE Recognition

Provisional and Temporary. Formal and Definitive.
Lesser Degree of Recognition. Fullest kind of Recognition.
Dependant on conditions, can be Final, cannot be Withdrawn (Article 6,

Withdrawn. Montevideo convention, 1933)
Given to State which formed through Given to State which formed by peaceful
Revolt. and constitutional means.
Full Diplomatic Relations cannot be Full Diplomatic relations can be

established, full immunities to established, Full Immunities granted to
Diplomats may not granted. Diplomats.
Cannot make claim in the recognizing Can make such claim.

states property.
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Luther v. Sagor (1921)

1917 - Luther (Citizen of UK) had business of timber in Russia, Russia nationalised all
timber factories. Luther left Russia.
1920 - Sagor made an agreement with Russian nationalized business company for
supply of timber, but when the timber reached UK, Luther claimed that it was his
timber and UK never recognised the Government of Russia and Russia took over his
factory illegally, so UK court cant validate Russian law.
During this whole time Russia was given de Facto Recognition.
- Court held that Once a government is recognized, its acts will be granted as
valid, even those prior to its recognition, known as retrospective effect and
about the point of whether it would make a difference if the recognition is de
facto or de jure, court held that there is no distinction between de-facto and
de-jure recognition for the purpose of giving effect to the international acts
of the recognised authority
Bank of Ethiopia v. National Bank of Egypt and Liquori (1937)

Addis Ababa(capital of Ethiopia) was captured in the italo-Ethiopian war.
Decree passed by Italy to dissolve Bank of Ethiopia.
Decree challenged by Bank of Ethiopia.
Court said the Italian government has been recognised as the de facto
government of the area. So, effect to the decree must be given.
The Arantzazu Mendi case (1939)

Facts: During the Spanish Civil War, the UK recognized de jure the Republican
government of Spain, but also recognized de facto the rebel government (the
Nationalists). Both governments sued in British courts to control the Spanish-flagged
vessel Arantzazu Mendi, when arrived in a British port.
Issue: Whether the republican government shall have the right to possess the ship.
Held: A de facto government has control over state assets within the territory it
controls. A de jure government has control even over state assets abroad.
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Bank of China v Wells Fargo (1952)

In 1949, the communists were victorious in the revolt of China. Before this, China
was controlled by the KMT which was a US friendly govt. This government was
saving some money in the Wells Fargo bank in California. By 1948, it had $800,000.
When the communist government came to power, they realized that this money
was available in the Wells Fargo bank and wanted the bank to send them the
money. Wells Fargo refused.
The court of California decided that the money should go to the KMT government in
Taiwan. (This judgement is based more on politics rather than principles)
Civil Air Transport Inc. v. Central Air Transport Corp (1953)

Communist Revolt in China, Communist government took territories under control.
Granted de facto recognition. While Government of People’s Republic of China still
had de jure recognition. 40 airplanes were sold by the nationalist government to a
US company. (Central Air Transport Corp.)
Communist Party of China was given de jure recognition later. Now because the
recognition is retroactive in nature, the deal could be cancelled because subsequent
recognition de jure of a new government as the result of successful insurrection can
in certain cases annul a sale of goods by the previous government. This is to validate
acts of the new de jure government and not to invalidate the acts of the previous
de jure government.

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Public International Law 2022 Sources
SOURCES OF INTERNATIONAL LAW

The West Rand Central Gold Mining Company v. The King (1905)
2 parcels of gold was confiscated by South African Republic
War broke out between Great Britain and South Africa and Great Britain defeated
South African Republic. It was contended that now Great Britain has the
responsibility of the confiscated gold.
It was held that there was no principle of international law which was in existence
which would make the conquered state to be liable for the gold in this way.
Unlike municipal law, sources of international law are not certain.

There is no legislature at international level.
Important Areas which can be considered sources
Oppenheim says there is only one source of law – Common Consent.

Lawrence says there is only one source of law – Consent of Nations,
this consent can be express or implied.
So, considering the above information there can be two types of
sources of international law.
 Treaties (Express Consent)
 Customs (Implied Consent)
Other than treaties and customs we have certain international

bodies which have the power of making decisions which are
followed by nations. Other than that, there are certain fundamental
laws which all humans follow like Natural Justice, Equity and good
conscience, Res Judicata, Basic Human Rights etc.
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ARTICLE 38 OF THE STATUTE OF INTERNATIONAL COURT OF

JUSTICE
Article 38 of Statute of ICJ is the first source which comes to mind
when we start talking about SOURCES of International law.
The Court, whose function is to decide in accordance with
international law such disputes as are submitted to it, shall apply-
a) International conventions, whether general or particular,
establishing rules expressly recognized by the contesting
states.
b) International custom, as evidence of a general practice
accepted as law.
c) The General Principles of Law Recognized By Civilized
Nations.
d) 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 bono, if the parties agree thereto.
Sources
1. International Conventions.
2. International Customs.
3. General Principals of law recognized by civilized nations.
4. Judicial Decisions and Juristic Works.
5. Equity and Conscience and Justice.
6. Decisions or determinations of the organs of international
Institutions.
7. Resolutions of International Conferences.
8. Decisions of Municipal courts touching International Matters.
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INTERNATIONAL CONVENTIONS
Regina(Queen) v. Keyn (1876)
The court considered the significance of the existence of an academic
consensus as to the meaning of an international convention. Definition
of International law is given by Lord Coleridge,
“The Law of nations is that collection of usages which civilized states

have agreed to observe in their dealings with one another.”
The term Convention under article 38 (ICJ) implies any ‘convention, treaty, protocol
or agreement etc.’ These can be General or particular, establishing rules expressly
recognized by the contesting states.
It is a formal written agreement, Between actors of international law.
The codified law on Treaties is Vienna Convention on the law of Treaties (VCLT)
Definition of Treaty according to Art.2 of Vienna Convention, 1969 - A treaty is an
agreement whereby two or more states establish or seek to establish relationship
between them governed by international law’
Other subjects of international law such as international organizations can also
conclude treaties. (Art. 3 of Vienna Convention, 1969)
Non-Sovereign States can also conclude treaties; some examples of non-sovereign
states are Colonies, Trust Territory, Protectorate, Vassal State
pacta tertiis nec nocent nec prosunt - A treaty binds the parties and only the parties.
It means that a treaty does not create obligations for a third state.
Exceptions.
1. The third party accepts obligation (via a collateral agreement) in
writing
2. Rights for third states can be created.
3. International customs created by treaty binding upon third states
also
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HOW A TREATY IS FORMED?

1. Appointment of the representation by the Contracting States
2. Negotiations and Adoption
3. Signatures
4. Ratification
5. Accession or Adhesion
6. Entry into Force
7. Registration and Publication
Termination of Treaties
 By consent of the parties
 By denunciation or withdrawal of a party
 By concluding Another Treaty
 By material Breach
 Impossibility of Performance
 According to provisions of treaty
 Outbreak of war
 Jus Cogens
 Rebus Sic Stantibus
Fisheries jurisdiction (UK v Iceland) (1973) – Termination of Treaty
Facts: Iceland’s (D) claim to a 12-mile fisheries limit was recognized by the United Kingdom
(P) in 1961 in return for Iceland’s agreement that any dispute concerning Icelandic fisheries
jurisdiction beyond the 12-mile limit be referred to the International Court of Justice. An
application was filed before the I.C.J. when Iceland proposed to extend its exclusive fisheries
jurisdiction from 12 to 50 miles around its shores in 1972. Changes in circumstances since
the 12-mile limit was the ground upon which Iceland stood to argue that the agreement was
no longer valid. Iceland also asserted that there would be a failure of consideration for the
1961 agreement.
Issue: In order that a change of circumstances may give rise to a ground for invoking the
termination of a treaty, is it necessary that it has resulted in a radical transformation of the
extent of the obligation still to be performed?
Held: Yes. In order that a change of circumstances may give rise to the premise calling for
the termination of a treaty, it is necessary that it has resulted in a radical transformation of
the extent of the obligations still to be performed.
The change of circumstances alleged by Iceland cannot be said to have transformed radically
the extent of the jurisdictional obligation that was imposed in the 1961 Exchange of Notes.
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Reservations to a Treaty
o Accepting a treaty but with exclusion or modifications in certain parts of the treaty is called
accepting the treaty with reservations.
o Reservations are allowed or prohibited by treaty itself.
o If the treaty is silent about reservations, then reservations can be made as long as it is not
against the object and purpose of the treaty.
o If a State objects to reservation made by another state then the treaty would not operate
between the objecting state and the state which made the reservation.
Spain v. Canada (Fisheries jurisdiction) (1998)

A fishing vessel flying the Spanish flag and manned by a Spanish crew, was
intercepted and boarded some 245 miles from the Canadian coast, in Division 3L of
the Northwest Atlantic Fisheries Organization (NAFO) Regulatory Area, by Canadian
Government. The vessel was seized and its master arrested on charges of violations
of the Coastal Fisheries Protection Act, in particular illegal fishing for Greenland
halibut (a type of fish); part of the ship’s catch was confiscated.
Spain complained about a violation of the international law in force, since these
acts took place outside the 200-mile zone.
The Canadian Government stated that it had taken the said measures on basis of the
amended Section 2 of the Coastal Fisheries Protection Act. It also stated that the
Court lacked jurisdiction to deal with the Application filed by Spain, by reason of
paragraph 2 (d) of a Declaration made by Spain on 10 May 1994, whereby Canada
accepted the compulsory jurisdiction of the Court but excluded it under certain
circumstances.
The Court analysed the question whether the Parties had conferred upon it
jurisdiction in respect of that dispute. In order to decide this question, the Court had
to interpret subparagraph (d) of paragraph 2 of Canada’s declaration, which
excluded the Court’s jurisdiction as:
"Disputes arising out of or concerning conservation and management measures
taken by Canada with respect to vessels fishing in the NAFO Regulatory Area, as
defined in the Convention on Future Multilateral Co-operation in the Northwest
Atlantic Fisheries, 1978, and the enforcement of such measures".
Held- The Court concluded that the dispute submitted to it by Spain constituted a
dispute arising out of "conservation and management measures taken by Canada
with respect to vessels fishing” in the NAFO Regulatory Area" and "the enforcement
of such measures". It followed that this dispute came within the terms of the
reservation contained in paragraph 2 (d) of the Canadian declaration of 10 May
1994. The Court consequently had no jurisdiction to adjudicate upon the present
dispute.
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North Sea Continental Shelf Case (Germany v. Denmark & The Netherlands) (1969) -
ICJ
Series of Disputes between Germany Denmark and Netherlands regarding the ‘delimitation’
of areas of the continental shelf of the North Sea.
Dispute: If the delimitation was done by equidistance principle Germany would be at a

loss because Germany had concave coasts and Denmark and Netherlands have convex
coasts. Germany wanted the length of the coast as the factor determining delimitation.
Denmark and Netherlands had ratified the 1958 Geneva continental shelf convention
which said that equidistance principle was to be applied.
So, Was Equidistance Principle comes under Customary International Law?
Held: It is indeed possible for Conventions, while only contractual in origin, to pass into
the corpus of international law, and thus become binding for countries which have never
become parties to the Convention. But this was not the case here.
Court decided that it is an unusual preface for it to be a general rule of law, Also the
meaning of equidistance principle in Article 6 of the convention is not clear. Court
ultimately urged the parties to "abate the effects of an incidental special feature
[Germany's concave coast] from which an unjustifiable difference of treatment could
result."
The states should grant to Germany most of the additional shelf it sought.
INTERNATIONAL CUSTOM
Usage: International habit which hasn’t taken the form of a law.
Custom: usage which has taken force of law.
Two conditions must be fulfilled for a usage to become a custom

1. There should be sufficiently uniform state practice for a continuous period
Corpus test: There should be a material fact of the actual observance of a
line of conduct for that custom by the States.
2. There should be a belief that such practice is obligatory (Opinio Juris)
Animus test: There must be an intention to follow the custom. It reaches
a stage of approval 'opinio juris sive necessitatis'
Opinio Juris which is the short form of the above phrase which means
‘An opinion of law or necessity’
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Portugal v. India (1960) - Right of Passage over Indian Territory - ICJ

Facts: Portuguese possessed many small enclaves of the territory of India, one
was on the coast but others were inland. Portugal wanted Right of Passage
which was a right according to regional custom.
Issue: India argued before the Court that practice between only two states
was not sufficient to form a local custom.
Held: The Court rejected this reasoning, finding no reason why a century and a
quarter of practice based on mutual rights and obligations was insufficient for
local custom to arise. The court held that a particular practice between two
States may give rise to binding customary law for them. It was held that
Portugal had a right of passage for civilians but not for military officials
In the Paquete Hebana Case (1900) the Court (U.S. Supreme Court) held that
looking to all the facts & circumstances, there was uniform practice of giving
'immunity to small fishing vessels from belligerent action in times of war. This was
recognised as an International Customary Law
In the Lotus Case (France v. Turkey (1927), the Court (P.C.I.J.) held that the opinion
juris must be drawn from all the circumstances, & not merely from the facts on
hand.
JUDICIAL DECISIONS AND JURISTIC WORKS

Subject to the provisions of Article 59, it is a Subsidiary and indirect source of
international law.
ICJ did not adopt the doctrine of precedent (stare decisis) - Art. 59 of Statute
of ICJ says that the decisions of the court shall not have any binding force
except for the parties of the case only for that particular matter.
JUDICIAL DECISIONS- Uniform decisions of Municipal courts of various
nations can serve as evidence of existence of an international custom;
JURISTIC WORKS - Only resorted to when all other sources listed are not
enough to resolve the dispute.
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GENERAL PRINCIPALS OF LAW ACCEPTED BY CIVILIZED

NATIONS
By general principles we mean principles so general as to apply within all systems of
law. Some Important General principles are given BELOW:
Pacta Sunt Servanda (Agreements must be kept)

‘States are bound to fulfil in good faith the obligations assumed by them
under treaties’
• Article 26 of Vienna Convention on the law of treaties says that
Every treaty in force is binding upon the parties to it and must be
performed by them in good faith’
• Article 27 of VCLT strengthens the rule by saying that no party to a
treaty might attempt to justify its failure to perform any of its
international treaty obligations by invocation of its internal law.
Exceptions To Pacta Sunt Servanda :
o When a new state comes into existence as a result of revolt.
o Treaty obligations which are related to property ceded or merged.
o Clausula rebus sic stantibus – Inapplicability of treaty or contract
due to fundamental change of circumstances. (Article 62 of VCLT)
Jus Cogens - Certain principles which all states must observe (peremptory
norms)
Article 53 - Treaties conflicting with a peremptory norm of general
international law (“jus cogens”) - A treaty is void if, at the time of its
conclusion, it conflicts with a peremptory norm of general international
law.
Article 64 - Emergence of a new peremptory norm of general
international law (“jus cogens”) - If a new peremptory norm of general
international law emerges, any existing treaty which is in conflict with
that norm becomes void and terminates.
Natural Justice - Natural justice is technical terminology for the rule

against bias (nemo iudex in causa sua) and the right to a fair hearing (audi
alteram partem).
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Res Judicata - According to this, a judgment given by a competent court,

bars any suit by the parties on the same issue.
Right of Self Defence - Self-defense in international law refers to the

inherent right of a State to use of force in response to an armed attack. Self-
defense is one of the exceptions to the prohibition against use of force under
article 2(4) of the UN Charter and customary international law.
The Caroline Case (1837)

A group of Men staged a rebellious protest in Canada to force government
to be democratic, they later fled to an island in the Niagara River.
The Caroline was a small steamer ship used by Americans in order to
support Canadians against the British.
British men set the boat on fire resulting in death of one US citizen.
Now the Question was whether US had the right to self-defence in this
situation.
It was held that under the laws of nations, self-defence is a right but the
necessity of self- defence must be instant, overwhelming, and leave no
choice of means and no moment for deliberation, this is called anticipatory
self-defence, also known as Caroline Test or Pre-emption doctrine
The Republic of Nicaragua v. The United States of America (1986)

Contras were trained, armed and financed by US to tackle Guerrillas in El
Salvador which were supposedly financed by Nicaragua
Nicaragua brought a suit against the United States on the ground that the
United States was responsible for illegal military and paramilitary activities
in and against Nicaragua. The jurisdiction of the International Court of
Justice to entertain the case as well as the admissibility of Nicaragua’s
application to the I.C.J. was challenged by the United States.
- It was held that USA broke Customary international law by

intervening in the affairs of another and by using force and threat
against Nicaragua and It was not collective self-defence what US
did.
Prescription - The establishment of a claim of title to something under

common law usually by use and enjoyment for a period fixed by statute
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Temple of Preah Vihear Case (Cambodia Vs. Thailand) – ICJ – (1962) -

Principle Of Acquiescence
Preah temple was an ancient and significant temple due to its cultural and
historical value. It was situated on the border of Thailand and Cambodia.
Though Thailand was the historical owner of that area in 1904 when Cambodia
was a colony of French they came to an agreement with Thailand; they agreed
to divide the border according to the watershed. After that, A French – Siamiz
(now known as Thailand) commission drew a detailed map of the border where
though by mistake, but still very clearly marked the Preah Vihear in the territory
of Cambodia, Thai Government never objected after officially receiving that
map. Later, after several years when Thai Prince went to visit that Temple, he
saw the French Flag over the temple but did not raise any objection.
The main objection came by Thailand when UNESCO declared the Preah Vihear
as a world heritage site and thus gave a million dollar project to save it, at that
time thailand demanded it as their land and put some military personnel, on the
other hand, Cambodia rejected that claim. On gradual dispute, it went to
International Court of Justice.
Main Issue: Whether Cambodia had sovereignty over the territory of Preah
Vihear?
Decision: Cambodia had sovereignty over the whole territory of the Preah Vihear
and that, in consequence, Thailand was under an obligation to withdraw from
that territory the Thai military or police forces.The commission that marked the
map finally was a joint commission form both party and both of the party adopted
the same without any objection, therefore, Cambodia had sovereignty over that
area according to their treaty.
Island of Palmas Arbitration (1925)

Facts: Palmas was an island. USA said it is part of Philippines, the island had been
ceded by Spain by the Treaty of Paris (1898), and as successor to the rights of Spain
over Philippines, It is theirs. Netherlands said it is theirs because they have exercised
rights of sovereignty over the island from 1677.
Held: The Title of USA is inchoate, and an inchoate title cannot prevail over a definite
title found on the continuous and peaceful display of sovereignty.
Territorial sovereignty of the Netherlands was not challenged by anyone from 1700
to 1906. The peaceful display of sovereignty is as good as title.
YG LAW 10
Eastern Greenland Case – (Denmark v. Norway) (1933) - PCIJ

Denmark filled a case against Norway over the legal status of certain territories in
eastern Greenland because the Norwegian government proclaimed that it
proceeded to occupy certain territories of eastern Greenland. These territories
were claimed by Denmark as under their sovereignty.
Doctrine of Intertemporal Law states that “the crystallisation of a right must be

analysed through the application of international law as it existed at the point in
time when the right arose. Hence, if a dispute regarding sovereignty over a certain
territory arose in the 18th century, international law as it existed then must be
applied to analyse the facts.”
In Island of Palmas case intertemporal law of the 19th century was applied, it was
held that mere discovery, conferring an inchoate title, was not an accepted
means of acquiring sovereignty over a parcel of territory but was in fact effective
occupation, or actual occupation and administration over the territory.
Critical Date: In this case the Danish Government contended that the date on
which Danish sovereignty should have existed is July 10th, 1931 in order to make
the Norwegian declaration meaningless. The PCIJ considered the Norwegian
proclamation on July 10th, 1931 as the critical date. For a valid title, it is not
needed to establish sovereignty over Greenland throughout the period before the
critical date. It was held that it is sufficient [for Denmark] to establish that they had
valid title in the period immediately preceding the occupation.
What Is Effective Occupation? How to Show That Who Was the Sovereign.
Effective occupation has two requirements:
Animus occupandi - Animus occupandi, or animus possidendi is the will to act

as sovereign over a particular territory
Corpus possesionis - Corpus possessionis includes the actual possession and

administration over the territory concerned. Administration has to be for a
reasonable period of time.
One of the distinguishing features of this case was till 1931 there was no claim by
any sovereign other than Denmark to the sovereignty over Greenland.Danish
Government placed reliance on Palmas Island decision of the Permanent Court of
Arbitration which stated that a title “founded on the peaceful and continuous
display of State authority over the island”.
Conclusion: Denmark will have Sovereignty because from the facts stated i.e.
legislations on Greenland for administration, various treaties ratified, concessions
granted for erection of telegraph lines, fixing limits on territorial waters, etc. are
manifestations of the exercise of sovereign authority.
YG LAW 11
Anglo Norwegian Fisheries Case (UK vs Norway) (1951) (Persistent Objector

Rule)
Issue: UK argued that customary international law did not allow the length of a
baseline drawn across a bay to be longer than ten miles and Norway by following its
own system of delimitation has violated the general principles of International Law.
Norway argued that its delimitation method was consistent with general
principles of international law.Norway was clear that its practice was not
contrary to international law. It emphasized that its practice – even if it was a
deviation from the general practice – was in conformity with international
law
In Norway’s view, these rules of international law take into account the
diversity of facts.
Persistent objector rule: An existing customary law rule would not apply
to a State if It objected to the application of the rule to itself; and the
objection is from the initial stages and in a consistent manner.
Held: The court ruled in favor of Norway for the following reasons
1. Norway had refused to accept the rule as regards to it in 1870. The
Norwegian Minister of Foreign Affairs, in 1870 objected to the 10-mile rule.
2. Norway had followed its own principles of delimitation in a consistent and
uninterrupted manner from 1869 until the time of the dispute.
The Court held that the fact that this consistent and sufficiently long practice
took place without any objection to the practice from other States (until the
time of dispute) indicated that these States did not consider the Norwegian
system to be “contrary to international law”.

YG LAW 12
Public International Law 2022 State Jurisdiction
STATE JURISDICTION
State jurisdiction is the Capacity of a State under International Law “to prescribe the
rules of law, enforce the prescribed rules and to adjudicate”.
The term ‘jurisdiction’ Includes-
 Legislative Jurisdiction (prescribing rules)
 Executive Jurisdiction (enforcing rules)
 Judicial Jurisdiction (adjudicating rules)
PRINCIPLES OF JURISDICTION
Territorial Principle
A state shall have jurisdiction on basis of its territory over:
i. Everything falling under its territory (all the areas i.e. the land, water and
airspace covered inside a state and also all movable as well as
immovable property within state).
ii. Everybody living within its territory (all citizens and all aliens)
Territorial jurisdiction has a subjective and objective element:
 Subjective: State will have jurisdiction if crime is committed over its

territory.
 Objective: State will have jurisdiction if the crime had effect over its
territory.
Extra Territorial Principle - Jurisdiction over embassies abroad, state owned

property abroad like (ships, planes etc.)
S.S lotus Case (France v. Turkey) (1927) – PCIJ
French Steamer –S.S. Lotus collided with a Turkish vessel- S.S. Boz-Kourt in high
seas, 8 Turkish nationals drowned when The Turkish ship was hit by Lotus.
Issue – Turkey’s Jurisdiction to try the case against Monsieur Demons (French
Lieutenant on watch duty) was in question.
YG LAW 1
- In this situation, it is impossible to hold that there is a rule of international

law that prohibits Turkey from prosecuting demons just because he was
aboard a French Ship. This stems from the fact that the effects of the alleged
offence occurred on a Turkish Vessel.
- The Lotus principle or Lotus approach, usually considered a foundation of
international law was laid down in this case which says that sovereign states
may act in any way they wish so long as they do not contravene an explicit
prohibition.
Lotus principle as regards collisions at sea has been overturned by article

11(1) of the High Seas Convention, 1958, which emphasised that only the flag
state or the state of which the alleged offender was a national has jurisdiction
over sailors regarding incidents occurring on the high seas.
Nationality Principle
 Jurisdiction on basis of Nationality of the criminal/victim.
 The State will have a claim over Jurisdiction over its national even if he/she
commits crime outside the territory of the State. This principle is the basis of
the extradition laws.
 Same way state can claim jurisdiction over an alien if it commits crime against
its nationals even outside its territory.
In general, the two most important principles upon which nationality is founded in
states are first by descent from parents who are nationals (jus sanguinis) and
second by virtue of being born within the territory of the state (jus soli).
Mavrommatis Palestine Concessions Case (Greece vs United Kingdom) (1924)

Facts: Certain concessions to Mr. Mavrommatis (Greek national) were given by
Ottoman authorities for certain public works in Palestine. Later that territory of
Palestine became British Mandated Territory.
Great Britain gave that concession to Mr Rutenberg, so there was an overlapping

between concessions given to Mavrommatis.
Issue: Whether it is an INDIVIDUAL VS. STATE or STATE VS. STATE dispute because
the injury was to a private subject and not to the state.
Held: A State is entitled to protect its subjects. By taking up the case of one of its
subjects and by resorting to diplomatic action or international judicial proceedings
on his behalf, a State is in reality asserting its own rights – its right to ensure, in the
person of its subjects, respect for the rules of international law.
YG LAW 2
Nottabohm case – (Liechtenstein v. Guatemala) (1955)
Facts: Friedrich Nottebohm – born in Germany – resided in Guatemala for a long

time but never took citizenship. He frequently visited Germany and also
Liechtenstein where his brother live.
In 1939 Nottabohm was visiting Liechtenstein and World War II began. He applied
for Liechtenstein citizenship and it was accepted and he got Liechtenstein citizenship
which because of German law terminated his German Citizenship.
He returned to Guatemala on a Liechtenstein passport, Later Guatemala sided with

the allies against Germany and treated Nottabohm as a German citizen and arrested
him as an enemy alien in 1943 and handed over to US. All his property was seized by
Guatemalian government.
All this was later claimed as unjust treatment by Lichtenstein and it filled a case
against Guatemala for that. Guatemala claimed that he was not a Lichtenstein citizen
as per international law.
The court Agreed and laid down the Nottebohm Principle which said that ‘The national must
prove a meaningful connection to the state in question’.
Held: The Court ruled that Nottebohm’s naturalization as a citizen of Liechtenstein

was not based on any genuine link with that country but for the sole purpose of
enabling him to replace his status as national of a belligerent state, there was no
relationship between Liechtenstein and Nottebohm, the change of nationality was
merely a subterfuge mandated by the war. Under this circumstance, Guatemala
cannot be forced to recognize it.
Danzig Railways Official Case (1928)

Free City of Danzig (city - state) was under the protection of League of Nations.
Danzig railway employees employed by Polish Employers sued their employer over
pension and pay.
- PCIJ said that treaty is there between Danzig City and Poland but this treaty
cannot govern pay and pension i.e. rights or even duties for individuals. So, it
recommended taking the issue to the national court.
Passive Personality Principle - Under this principle, a state may claim jurisdiction
to try an individual for offences committed abroad which have affected or will affect
nationals of the state.
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Universality Principle - State can take jurisdiction over certain crimes by anyone
anywhere in the world without any link to its territory, nationality etc.
Protective Principle - This Principle is used to exercise Jurisdiction over an alien

outside the territory of the State. It is a very controversial principle because it can
easily be abused to undermine the sovereignty of other state.

YG LAW 4
Public International Law 2022 Nationality, Statelessness and Refugees
NATIONALITY, STATELESSNESS AND REFUGEES

Nationality is the Legal Relationship between Individual and State. Every State has
right to determine who its nationals are. Citizenship is subset of nationality
Nationality can be Acquired via
• Birth (Jus Soli (birth right) and Jus Sanguinis (Right of Blood)).
• Naturalization (Every country has its own criteria for naturalization).
• Resumption (when State gives back the nationality it terminated earlier).
• Subjugation and Cession (When one state takes over another state).
Article 15 of UDHR, 1948

"Everyone has the right to a nationality," and "No one shall be arbitrarily
deprived of his nationality nor denied the right to change his nationality. “
STATELESSNESS
Stoeck Vs. The Public Trustee (1921)
‘Statelessness’ defined in this case.
“If a person is not a citizen of any state, he will be called stateless and this
condition is to be called ‘statelessness'”.
Russel J. observed, “the question of what state a person belongs to must

ultimately be decided by the Municipal law of the state to which he claims to
belong or to which, it is alleged that he belongs”.
Article 1 of the 1954 Convention relating to the Status of Stateless Persons

defines a stateless person as “a person who is not considered as a national by
any State under the operation of its law.”
Three conventions available to prevent people from becoming stateless.
1. 1951 Convention relating to the Status of Refugees
2. 1954 Convention relating to the Status of Stateless Persons
3. 1961 Convention on the Reduction of Statelessness
The United Nations High Commission for Refugees(UNHCR) is an agency of

the United Nations that addresses the issue of statelessness.
YG LAW 1
REFUGEES
Article 14(1) of the UDHR,1948 guarantees the right to seek and
enjoy asylum in other countries.
Main Legislation on it is ‘1951 Convention relating to the Status of
Refugees’ and ‘1967 Optional Protocol relating to the Status of
Refugees’
• 150 Countries signed the convention but India is not a signatory to it.
• Non Refoulment (Article 33) - This principle forbids a country
receiving asylum seekers from returning them to a country in which
they would be in likely danger of persecution based on "race,
religion, nationality, membership of a particular social group political
opinion".
Who is a Refugee?
1951 Convention laid down definition of ‘Refugee’ under Article 1
person who ‘owing to well-founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is unable
or, owing to such fear, is unwilling to avail himself of the protection of
that country.’
3 Essentials
1. Presence Outside home country
2. Well-founded fear of Persecution (only on the basis of the
above 5 reasons)
3. Incapacity to enjoy the protection of one’s own state
Does not include:

IDP’s , Economic Migrants, Victims of natural disasters, Victims of persecution
not on basis of the 5 mentioned categories.
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Refugees, Immigrants and IDP’s

Immigrant: Someone who chooses to resettle to another country.
Refugee: Someone who has been forced to flee his or her home country and
has got Refugee Status in different Country.
Asylum Seeker: Someone who is seeking international protection but whose
claim for refugee status has not yet been determined.
IDP: Just like Refugee they have fled their home country but they have not
crossed international border.

YG LAW 3
Public International Law 2022 Extradition and Asylum
EXTRADITION AND ASYLUM

ASYLUM
Originated from Asylia – Inviolable place (never to be broken, infringed, or dishonoured.)
Giving asylum mean giving protection and immunity by a state to an individual
from their own country’s Persecution.
UDHR , Article 14(1) says ‘Everyone has the right to seek and to enjoy in other
countries asylum from persecution”
Types of Asylum
1. Territorial Asylum - Given inside the territory of the State - Not given if crimes
against humanity, war crimes, crimes against peace has been committed.
2. Extra Territorial Asylum - Outside Physical Territory, For example in embassies,
international organizations, warships (but not merchant ships) etc.
The Asylum Case (Columbia v. Peru) – (1950)

Facts: The Colombian Ambassador in Lima, Peru allowed asylum to
Víctor Raúl Haya de la Torre, head of the American People's
Revolutionary Alliance Sanctuary in Columbia, after his faction lost a
one-day civil war in Peru on 3 October 1949. The Colombian government
granted him asylum, but the Peruvian government refused to grant him
safe passage out of Peru.
Issue: Colombia maintained that according to the Conventions in force -
the Bolivian Agreement of 1911 on Extradition, the Havana Convention
of 1928 on Asylum, the Montevideo Convention of 1933 on Political
Asylum - and according to American International Law, they were
entitled to decide if asylum should be granted and their unilateral
decision on this was binding on Peru.
Held: Both submissions of Colombia were rejected by the Court. The
relevant treaties cited by Colombia were not ratified by Peru, and it was
not found that the custom of Asylum was uniformly or continuously
executed sufficiently to demonstrate that the custom was of a generally
applicable character.
YG LAW 1
Public International Law 2022 Extradition and Asylum
EXTRADITION
Aut Dedere Aut Judicare (Latin for "either extradite or prosecute“)
Bringing back someone who ran away from your country after committing a crime.
Extradition is the delivery of an accused or a convicted individual to the State on whose
territory he is alleged to have committed or to have been convicted of a crime.
The practice of extradition enables one state to hand over to another state suspected
or convicted criminals who have fled to the territory of the former. It is based upon
bilateral treaty law and does not exist as an obligation upon states in customary law
Main Legislation in India – Extradition Act, 1962
Extradition Treaty - Section 2(d); Extradition Offences - Section 2(c)
India has signed extradition treaties with 43 countries and extradition
agreements with 11 countries.
Principle of Double Criminality - The act for which extradition is sought must
constitute a crime punishable by some minimum penalty in both the requesting and
the requested states.
Rule of Speciality - Whereby a person who is extradited to a country to stand trial for
certain criminal offenses may be tried only for those offenses and not for any other
offences.
Attentat Clause - Under the attentat clause, it is not just a ‘political offense’ to
murder or to make an attempt at the life of the head of a state, or a member of his
family, or sometimes, a member of the government. This is also called the Belgian
clause, since it was first propounded in an enactment in Belgium in 1856.

YG LAW 2
Public International Law 2022 UN
UNITED NATIONS AND ITS ORGANS

LEAGUE OF NATIONS - Headquarters – Geneva
To develop Peace, Harmony and world order, basically to not have more World
Wars.
The idea was for the League of Nations to prevent wars through disarmament,
collective security and negotiation. It was also involved in other issues such as
drug trafficking, arms trade and global health.
8th Jan 1918 – 14-point programme by American President Woodrow Wilson
for establishment of L.O.N
10th Jan 1920 – L.O.N established at Paris Peace conference also known as
Versailles Peace Conference.
LON organs – Assembly, Council, Secretariat.
LON Functions – Disarmament, Protect League of nations members, To
Maintain international peace and security.
Why League of Nations failed

 Did not portray world balance: Many countries including major Powers
like U.S.A never joined. Soviet Union was expelled.
 Major Structural flaws: All decisions must be unanimous, Division of
responsibility not clear.
 Real power remained with large nations: France and Britain were using
the league for their own agendas. (Colonialism).
 Silence: Italy and Japan acted aggressively and league of nations didn’t do
anything.
 World War II Broke out: No real power to stop wars.
LON dissolved on 20th APRIL 1946 but UN was CREATED before that on 24TH OCTOBER 1945.
YG LAW 1
UNITED NATIONS
Atlantic Charter - Joint Declaration issued by American President Roosevelt
and British Prime Minister Churchill in 1941. The word ‘United Nations’ was
used by President Roosevelt and it indicated the countries that are allied
against Germany, Japan, and Italy. On 1st January 1942, 26 nations signed the
Declaration at Washington DC stressing their adherence to the principles of the
Atlantic Charter.
Dumbarton Oaks Proposal (1944-1945) - A proposal was submitted by the Big
Four (China, Great Britain, USSR, and the United States) for the formation of
the United Nations, where the principles of the organization were laid down.
25th of April 1945 - San Francisco Conference (United Nations Conference on
International Organization) to determine the final structure of the United
Nations Charter. On 24th October 1945, the 5 permanent members and other
signatory nations ratified the official UN Charter.
United Nations was created for:
 Maintaining international peace and security
 Developing friendly relations among nations.
 Protecting Human Rights.
 Delivering Humanitarian Aid.
 Promoting sustainable development.
Headquarters – New York City.
Official Languages – Arabic, Chinese, English, French, Russian, Spanish.
Members – 193 States.
Observers – 2 {State of Palestine and Holy See (Vatican city)}
UN Charter signed on – 26th June 1945

UN Charter Came into force – 24th October 1945
Preamble and 19 Chapters – 111 Articles (They randomly ask Articles from this UN
Charter, Important Chapters and articles are covered below in United nations organs,
but you should give a look to the whole charter whenever you study PIL, that will give
you an idea as to what is where if in exam they ask, which they do very often).
YG LAW 2
Six Principal Organs of United Nations

General Assembly – Chapter IV
Security Council – Chapter V
Economic and Social Council – Chapter X
Trusteeship Council – Chapter XIII
International court of Justice – Chapter XIV
UN Secretariat – Chapter XV
General Assembly - Chapter IV (Art.9-22)

Parliament of United Nations, Chief deliberative, policymaking and
representative organ of the United Nations.
Composition (Article 9)
o All Members of UN are by default member of General Assembly.
o 5 representative – per country
Functions and Powers (Article 10-17)

o If Security Council is discussing a matter, then General Assembly will not
discuss it or make recommendation unless asked by the Security Council
(Article 12).
o Discuss any Questions or Make recommendation to Security Council and
Members in relation to international peace and security.
o Promote co-operation in the political, economic, social, cultural, and
educational and health fields.
o Progressive development of international law and its codification.
o Assisting in the realization of human rights and fundamental freedoms
for all without distinction as to race, sex, language, or religion.
o Receive annual and special reports from Security Council and other
organs.
o Decide Budget related stuff.
YG LAW 3
Voting (Article 18-19)

o Each member one vote.
o 2/3rd majority for important questions - recommendations on peace and
security, budgetary concerns, and the election, admission, suspension or
expulsion of members.
o Simple majority for other questions.
o No vote if due on the members financial contribution is more than 2
years.
o Meeting once per year – but Special sessions shall be convoked by the
Secretary-General at the request of the Security Council or of a majority
of the Members of the United Nations.
The Security Council - Chapter V (Article 23-32)

o 5 permanent Members. (China, France, Russia, UK, USA )
o 10 other non- permanent members elected for 2 years.
o Immediate re-election not allowed.
o 1 representative per member.
India has been a member of the UN Security Council for seven terms (a total of
14 years), with the most recent being the 2010–12 term.

o Primary responsibility for the maintenance of international peace and
security.
o The Security Council shall submit annual and, when necessary, special
reports to the General Assembly for its consideration.
o The specific powers granted to the Security Council for the discharge of
these duties are laid down in Chapters VI, VII, VIII, and XII.
Voting (Article 27)

o 1 vote per member.
o 9 votes to make decision including the concurring votes of the permanent
members.
o Party to dispute will abstain from voting.
YG LAW 4
The Economic and Social Council - Chapter X (Article 61-72)

o 54 members elected by GA.
o 18 members selected each year for 3-year term. Can be re-elected
immediately.

o Make or initiate studies and reports with respect to international economic,
social, cultural, educational, health, and related matters.
o Make recommendation with respect to any such matters to the General
Assembly to the Members of the United Nations, and to the specialized
agencies concerned.
o Assist Security council if requested.
o Prepare draft conventions for submission to the General Assembly.
o Call international conferences.
o Co-ordinate the activities of the specialized agencies.
Voting (Article 67)

o Co-ordinate the activities of the specialized agencies.
o Each member has one vote.
o Decisions made with simple majority.
The Trusteeship Council - Chapter XIII (Article 86 - 91)

o Established to help ensure that trust territories were administered in the best
interests of their inhabitants and of international peace and security.
o Created by the United Nations Charter as a successor to the League of
Nations mandate system.
Trust Territory - Territory under the trusteeship of the United Nations or of a
state designated by them.
With the independence of Palau, formerly part of the Trust Territory of the
Pacific Islands, in 1994, there presently are no trust territories, leaving the
Trusteeship Council without responsibilities.
YG LAW 5
Chapter XII : International Trusteeship System

o Composition (Article 86)
o Functions and Powers (Article 87-88)
o Voting (Article 89)
International Court of Justice - Chapter XIV (Article 92-96)

Headquarters - Hague, Netherlands
It is the successor court of the Permanent Court of International Justice (PCIJ). The
Permanent Court of International Justice was created in 1922 and by the league of
nations. Between 1932 and 1940, it handled 60 cases. It was dissolved after World
War II.
The ICJ succeeded the permanent court on the 18th of April 1946 but was founded
on 26 June 1945 in San Francisco, California, United States.
Composition – 15 Judges (term 9 years) elected by General Assembly and Security
Council, 5 posts are renewed every 3 years (judges can be re-elected also),
3 seats - African judges.
2 seats - Latin America and the Caribbean.
3 seats - Asian judges.
5 seats - Western Europe and other Western States.
2 seats - Eastern Asia.
Judges should be from different countries but they are NOT REPRESENTING their
countries so they must act independently in the capacity of a judge.
There is a president and vice president elected by court, the president chairs all
sittings of the court, President reports to General assembly annually.
Other pointers for ICJ

o Principal judicial organ of the United Nations.
o Functions in accordance Statute of the PCIJ.
o All Members of the United Nations are ipso facto parties to the Statute of the
International Court of Justice.
o A state which is not a Member of the United Nations may become a party to the
Statute of the International Court of Justice on conditions to be determined in
YG LAW 6
each case by the General Assembly upon the recommendation of the Security
Council.
o Each Member of the United Nations undertakes to comply with the decision of
the International Court of Justice in any case to which it is a party.
o Nothing in the UN Charter shall prevent Members of the United Nations from
entrusting the solution of their differences to other tribunals by virtue of
agreements already in existence or which may be concluded in the future.
o The General Assembly or the Security Council may request the International
Court of Justice to give an advisory opinion on any legal question. Other Organs
of UN too after getting authorization by the general assembly.
The Secretariat - Chapter XV (Article 97-101)

Secretary General plus staff is Secretariat, Secretary General is the chief
administrative office of UN. Appointed by General Assembly on
recommendation of Security council
Functions
Make an annual report to the General Assembly on the work of the
Organization.
May bring to the attention of the Security Council any matter which in his
opinion may threaten the maintenance of international peace and security.
In the performance of their duties the Secretary-General and the staff shall not
seek or receive instructions from any government or from any other authority
external to the Organization.

YG LAW 7
Public International Law 2022 WTO
WORLD TRADE ORGANISATION (WTO)

International trade law refers to the body of rules and regulations that
governs the relationships of nation states for regulating their domestic
markets in relation to international trade. The law regulates
the global exchange of goods and services.
lex mercatoria – The law of merchants on land
lex maritima – The law of merchants on sea.
The Bretton Woods Conference

• Also known as: The United Nations Monetary and Financial Conference.
• Who participated - 730 delegates from all 44 Allied nations.
• Held at - Bretton Woods, New Hampshire, United States.
• Dates – 1st -22nd July 1944
• Purpose - to regulate the international monetary and financial order after the
conclusion of World War II.
• Established: International Bank for Reconstruction and Development (IBRD)
and International Monetary Fund (IMF)
• Purpose of IBRD – to speed reconstruction after the Second World War and to
foster economic development, especially through lending to build
infrastructure.
• Purpose of IMF - to promote stability of exchange rates and financial flows.
International Trade Organisation (ITO) – Not established at Bretton woods, was
supposed to establish rules and Regulations for international trade. Not ratified by
U.S.A so not ratified by others also. Instead of ITO, GATT came into picture.
GATT - General Agreement on Tariffs and Trade (GATT)

• Signed: 30 October 1947 by 30 nations
• Came into Force: 1st January 1948
• In effect till: 14th April 1994
• 8 rounds of negotiations: First round in Geneva, last round in Uruguay
YG LAW 1
WTO - World Trade Organisation

• Est. 1St January 1995
• Purpose: Reduction of tariffs and other barriers to trade.
• Headquarters: Geneva Switzerland.
• Official Languages: English, French and Spanish
• WTO has 164 members and 23 observer governments, latest member
Afghanistan.
• Not a UN specialized agency but has cooperating agreements with United
Nations.
Relationship of WTO with GATT.

• WTO replaced GATT but trade agreements established by GATT in 1994 are
part of the WTO agreement too, 28 such agreements are there in the ‘FINAL
ACT’ of the Uruguay round.
• GATT only regulated merchandise goods but WTO also has trade in services,
inventions, creations and designs (intellectual property) in its ambit.
• WTO took in all the evolution which was done to the world trading system
under the 8 rounds of GATT.
Aims and Functions

• Promote and enforce the provisions of trade laws and regulations.
• Oversee world trade practises.
• Acts as a forum to negotiate multilateral trade agreements.
• Settle Trade Disputes among member states through arbitration.
• Develop and expand free international trade by reduction in tariffs and
barriers.
• Reviewing national trade policies.
• Assisting developing countries in trade policy issues.
• Cooperating with other trade bodies like IMF (International Monetary Fund)
And IBRD (International Bank for Reconstruction and Development)
YG LAW 2
Structure of WTO
Three main organs of WTO i.e. Ministerial Conference, General Council and
Secretariat
1. Ministerial Conference
o Highest Authority
o Consist of all WTO members, each member has one vote, each
European community has votes equal to member countries.
o Meets at least once every two years,
o Voting is by simple majority and special majority depending on the
nature of case.
2. General Council
o Works as Ministerial conference in the intervals between the
conference meetings.
o Meets several times a year at Geneva.
o Convenes as the ‘Dispute Settlement Body’ and ‘Trade Policy Review
Body’.
3. Secretariat
o Administrative Organ
o Headed by Director General (Appointed by Ministerial Conference)
o To handle technical support of various councils and committees.
o To provide Technical Assistance to developing countries.
o To analyse World Trade.
o Explains WTO affairs to world and media.

YG LAW 3
Public International Law 2022 Dispute Settlement
SETTLEMENT OF INTERNATIONAL DISPUTES
What is International Dispute?

Disagreement on a point of law or fact a conflict of legal views or of interest between
the States.
The reason of disagreement could be legal or political.
Only Legal disputes can be solved by international court of justice.
In an advisory opinion given by International Court of Justice (ICJ) in the ‘Legality of
the Threat or Use of nuclear weapons’ the court said that the presence of a political
aspect along with the legal aspect does not deprive the case of its a legal question.
UN Charter says that all members shall settle their international disputes by
peaceful means
Role of Security Council

• Security Council shall determine the existence of threat to the peace, Breach of the
peace, or act of aggression and will take measures to maintain and restore
international peace and security. Before making any recommendation on the matter
the Security Council will call upon the parties and ask them to comply.
• Article 41 of UN Charter mentions some measures which will be taken, these are:
1. Interruption of economic relations.
2. Interruption of rail, sea, air, postal, telegraphic, radio, and other means of
communication.
3. Severance of Diplomatic Relations.
• Article 42 says if measures under Article 41 dont work then take any measures using
sea, air or land forces as it seems adequate for maintenance of international peace
and security. Such Action may include Demonstration or Blockade.
• Article 43 says members of the UN undertake to make available to the security
council armed forces, assistance and facilities including Right of Passage. (Special
Agreements will be made for this)
• Article 51 - Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against a Member of
the United Nations, until the Security Council has taken measures necessary to
maintain international peace and security.
YG LAW 1
2 Main Methods to Resolve Disputes

Pacific Means – Chapter VI of United Nations Charter
Manila Declaration - declaration mentioned that the States shall seek any
peaceful way of settlement of a dispute in good faith and a spirit of
cooperation.
Article 2 (3) of UN Charter also says that “All Members shall settle their
international disputes by peaceful means in such a manner that international
peace and security, and justice, are not endangered.”
Various Forms of Pacific Means:
• Negotiation - When the disputant parties settle the dispute themselves

by discussion or by adjusting the disagreement, the process is called a
negotiation.
• Enquiry - a Commission is to be appointed, consisting of honest and
impartial investigators, so that they can verify the facts of the issue.
• Good Offices - good offices is basically the act through which the third
party either arranges for a meeting between the disputant parties or he
acts, in ways through which a peaceful settlement can be reached. Once
the disputant parties are brought under one roof the third party has no
active role to play.
• Mediation - In the process of mediation, the mediator participates in the
discussion, gives his views and suggestions in resolving the dispute.
• Conciliation - The process where a Commission or a Committee is
appointed and the dispute is referred to them and it is required by them
to find out about the facts and then to write a report for the settlement
of the dispute, is called conciliation.
• Arbitration - Arbitration is a private process where disputing parties
agree that one or several individuals can make a decision about the
dispute after receiving evidence and hearing arguments. Arbitration is
different from mediation because the neutral arbitrator has the
authority to make a decision about the dispute.
• Judicial Settlement – ICJ and other Tribunals
• Resort to Regional Agencies/Authorities
YG LAW 2
Compulsive Means - Chapter VII of United Nations Charter

• Complaints
• Retorsion – Retorsion covers only those reactions which do not interfere
with the target State’s rights under international law. Such acts done by the
States are not illegal but are permitted under International Law.
Retorsion is an unfriendly but lawful measure taken in response to another State's
unfriendly or unlawful act. Examples of retorsion would be the severance of diplomatic or
consular relations, suspension of air, sea, land or other means of transport or the withdrawal
of voluntary aid programmes
• Reprisal - If the problem is not solved by retorsion, the States have the right
to resort to Reprisal. In retaliation, the state can initiate such a proceeding
where the problem may be resolved. However, reprisal is one such method
that can only be resorted against a State when it has indulged in some
illegal or inappropriate activity.
• Embargo - Detention of ships or restricting movement of goods
• Blockade - An act where one party blocks entry to or departure from a
defined part of an enemy's territory,
• Intervention - Intervention by state in the affairs of another state is a
recourse to the settlement of disputes.
• War

YG LAW 3
Public International Law 2022 IHL
INTERNATIONAL HUMANITARIAN LAW (IHL)

What is IHL?
 Laws of war
 Applies only during armed conflict (both international and internal)
 Does not apply to internal disturbances or tensions. (Demonstrations, and
isolated acts of violations) Human Rights law applies to these.
 Brings a balance between humanity and Military activities.
 Regulates war, does not go into the legitimacy of war.
Jus In Bello And Jus Ad Bellum

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.
Basic Principles of IHL:

Principle of Distinction: The distinction between civilians and combatants. Protection of
non-combatants i.e. Civilians, medical personnel, wounded, sick, prisoners of war,
surrendered etc. {Hors De Combat- those who are no longer in combat)}
Principle Of Military Necessity: This principle basically says that only those measures
which are needful for securing the end of the war, which are lawful according to modern
law should be used.
Principle Of Proportionality: Primary aim of IHL is indeed to protect the victims of

armed conflict and to regulate the conduct of hostilities based on a balance between
military necessity and humanity. The principle of proportionality obliges parties to an armed
conflict to ensure that incidental damage is not excessive.
Principle Of Humanity: International humanitarian Law simply looks to limit the harm,
and the principle of humanity is very much at the spirit of this ambition. Many rules of
International humanitarian law are inspired by this idea, specifically those setting out
protections for the wounded and sick.
YG LAW 1
Human rights law is NOT International Humanitarian Law, they are not
synonymous
Human Rights – how the government treats its subjects, national arena,
peace time laws.
IHL – How States behave in war time situation with each other,
international arena, war time laws.
Foundation of IHL
2 Persons whose initiatives provided a foundation for modern IHL.
Henry Dunant
 Won three Nobel peace prizes.
 Wrote ‘A memory of Solferino’ in which he made
Distinction between soldiers and non-soldiers.
 Founded International Committee of the Red Cross (ICRC)
 Formed – 17th February 1863.
 Based in – Geneva, Switzerland.
 His Initiative gave rise to the Geneva Conventions later.
Francis Lieber
 Author of Lieber Code also known as Code for the
Government of Armies in the Field (1863).
 Lieber code was accepted as national law, was not
accepted as International law.
 Lieber Code became basis of the Hague convention.
‘Geneva law’ intended to Protect who were not or were no longer

participating in the hostilities.
‘Hague Law’ intended to Restrict the means and methods of warfare.
YG LAW 2
Evolution of IHL
Hague Conventions (1899 and 1907)
First multilateral treaties which addressed the conduct of warfare.
Based on the Lieber Code.
Preamble: Martens Clause - Aims to offer some protection to
individuals caught up in armed conflict even when there is no specific
applicable rule of international humanitarian law.
These Conventions were based on the loose concept of humanity.
Three declarations were accepted—
1. Prohibiting the discharges of projectiles or explosives
from balloons. (Accepted in both conventions)
2. Prohibiting the use of asphyxiating gases (accepted in 1899 but
not in 1907).
3. Prohibiting the use of expanding bullets (dumdums) (accepted
in 1899 but not in 1907).
Limitation of armaments proposal was not accepted in both
conventions.
Most important, was the adoption of the Convention for the Pacific
Settlement of International Disputes, creating the Permanent Court of
Arbitration.
Another Conference was scheduled in 8 years of this conference in 1915
but it failed to meet because of World War I.
Geneva Conventions (1864, 1906, 1929, 1949)
GCI: Protects wounded, sick soldiers at land.

GCII: Protects wounded, sick and shipwrecked military
personnel at sea.
GCIII: Treatment of Prisoners of War.
GCIV: Protection of Civilian Persons.
YG LAW 3
Additional Protocols to GC’s:

API: International Armed Conflict and protection of civilians (1977)
International armed conflict: "Armed conflicts in which peoples are
fighting against colonial domination, alien occupation or racist regimes"
APII: Non-International Armed Conflict (1977)
Limited scope of laws because of sovereignty of the nation.
APIII – Additional Distinctive Emblem (2005) - Red Crystal

YG LAW 4

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Public International Law 2022 Definition Nature and Basis

DEFINITION NATURE AND BASIS

Later in 1624, Hugo Grotius (Considered father of international law), He wrote a

Private International Law and Public International Law

Private International Law - Private International Law establishes and deals

Jurists on International Law

Thomas Erskine Holland – International law is Vanishing Point of Jurisprudence. He

Who Considered International law as true law (mostly naturalists)

Samuel Pufendorf - Being a proponent of Natural Law School, he identified

Subjects of Public International Law

Schwarzenberger - International law is the body of legal rules which apply

To conclude the following are considered the main subjects of Public

Basis of International Law

Auto Limitation Theory – Voluntary Restriction or automatic limitation of

Pacta Sunt Servanda - literally translating to “treaties shall be complied with,”

International Law And Municipal Law

Harmonisation Theory - Neither municipal nor international law is superior

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Change of Regime of State can happen in 2 ways-

Effects of Recognition: Recognition enables the State-

Declaratory/Evidentiary Theory (Hall, Wagner, Brierly, Fisher)

Modified Constitutive Theory (Kelson)

ESTRADA DOCTRINE (Recognize Existence of Government not Legitimacy).

BETANCOURT DOCTRINE (No Recognition for Military Rules).

De-Facto & De-Jure Recognition

DE FACTO Recognition DE JURE Recognition

Dependant on conditions, can be Final, cannot be Withdrawn (Article 6,

Full Diplomatic Relations cannot be Full Diplomatic relations can be

Cannot make claim in the recognizing Can make such claim.

Luther v. Sagor (1921)

During this whole time Russia was given de Facto Recognition.

Bank of Ethiopia v. National Bank of Egypt and Liquori (1937)

Decree passed by Italy to dissolve Bank of Ethiopia.

Decree challenged by Bank of Ethiopia.

The Arantzazu Mendi case (1939)

Bank of China v Wells Fargo (1952)

Civil Air Transport Inc. v. Central Air Transport Corp (1953)

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SOURCES OF INTERNATIONAL LAW

Unlike municipal law, sources of international law are not certain.

Important Areas which can be considered sources

Oppenheim says there is only one source of law – Common Consent.

Other than treaties and customs we have certain international

ARTICLE 38 OF THE STATUTE OF INTERNATIONAL COURT OF

“The Law of nations is that collection of usages which civilized states

HOW A TREATY IS FORMED?

Spain v. Canada (Fisheries jurisdiction) (1998)

Dispute: If the delimitation was done by equidistance principle Germany would be at a

So, Was Equidistance Principle comes under Customary International Law?

Two conditions must be fulfilled for a usage to become a custom

Portugal v. India (1960) - Right of Passage over Indian Territory - ICJ

JUDICIAL DECISIONS AND JURISTIC WORKS

GENERAL PRINCIPALS OF LAW ACCEPTED BY CIVILIZED

Pacta Sunt Servanda (Agreements must be kept)

Natural Justice - Natural justice is technical terminology for the rule

Res Judicata - According to this, a judgment given by a competent court,