PIL ENDSEMS

SOURCES OF INTERNATIONAL LAW

• The basis of international law is the common consent of member states of the international
community.
• These can either be expressly declared, or tacitly implied from the conduct of states. (These
are the two primary sources)
• The statute of the ICJ recognizes the above mentioned sources of international law in four
fold enumeration
a. International conventions, whether general or particular, establishing rules expressly
recognized by contesting states.
b. International custom, as evidence of a general practice accepted as law
c. General principle of law as recognized by civilized nations
d. Subject to provisions of article 59, judicial decisions and reachings of the most highly
quealified publicists of various nations, as subsidiary means for determination of rules
of law.

History of art. 38

• 2 hague conventions in 19th century tried to codify international law. Law, equity and
justice should be determining source of international law.
• During the time of league of nations, states tried to decide how to determine or solve
dispute.
• In 1946, ICJ cleared the same, but art. 38 of the ICJ was not exhaustive and it does not
provide an exhaustive list of international law sources.

International custom

• Older source of international law- in legal sense it is usage felt by those who follow it to
be an obligatory one. There is a feeling that non following of custom would lead to a
‘sanction’.
• Growth of custom is a slow process- but it is still possible for new customs to develop and
win acceptance as law when the need is clear and urgent.
 Ex- In the law of the sea, the Geneva Conventions of 1958 were repealed by international
custom which grew during the 1970s and was finally codified into the UNCLOS.
• The primary two elemetns of international custom are as follows
a. There should be a sufficiently uniform practice (State practice)
b. The belief that the practice is obligatory (opinion juris)
• State practice
a. Covers acts of the state as well as the activity of every organ and officials of the state
in an international context. Ex- Attitude of permenant members of the Security Council
of the UN to application of Art. 27(3) of the UN Charter (Requiring that decisions of
Security Council on non-procedural matters can be adopted by a qualified majority
including concurring votes of permanent members- abstention of one of permanent
members does not prevent SC from adopting a resolution which otherwise satisfies the
provisions of art. 27.
b. Procedures of International organizations too constitute State practice as much as acts
of government representatives. Ex-
1. Barcelona Tractions case- state practice “as manifested within International
organizations and conferences” contribute to the formation of a custom.
2. Advisory Opinion on Declaration of Independence by Kosovo- State practice
invoked as one of the justifications for its opinions.
3. Lotus case- (facts dealt with in a self determination chapter)- Court was of the
opinion that a general rule of followed by states of abstaining from instituting
criminal proceedings against criminals at the high seas- merely shows a general
practice and not a legal obligation to abstain (no opinion juris).
4. North Sea Continental Shelf Case- ICJ held that the rule of ‘equidistance-special
circumstances principle’ had not been sufficiently uniform, but even if it had been,
there was an absence of a psychological element required for the creation of a new
rule.
5. Germany v. Italy- cited continental shelf- reiterated principle that existence of an
international custom depends upon the evidence of settled practice of states together
with opinion juris.
 6. Libya Arab Jamahariya v. Malta- dispute regarding delimitation of continental
shelf between Lbya and Malta- ICJ held that international customary law must be
looked for primarily in the actual practice of the states and opinion juris of states-
7. Legality of threat of use of Nuclear weapons- In examining whether there was an
international custom prohibiting the use of nuclear weapons, the ICJ held that the
international court was profoundly divided on the issue of use of nuclear weapons-
and that there was no rule of customary international law existed which prohibited
the use of nuclear weapons.
8. Paquette Habana case (Cuban ship case)
9. Asylum case- matter was regarding diplomatic protection give to Victor haia de la
tor in the Colombian embassy- Columbia’s right to unilaterally declare the nature
of the offence was under challenge. Columbian government failed to prove the
custom- argument not accepted- they said that even if a custom existed it was
between latin American states only.
10. Case concerning Right of Passage over Indian Territories- India had obstructed
prortugals right of passage- it was held that this was a lawful exercise of power
(ICJ looked into the right of passage in India in 1954- this was granted only for
private persons, civil officials and goods in general, and did not extend to armed
forces, police, arms and ammunition- this was again subject to India;s sovereign
authority)

Treaties

• Treaty is one of the modes to express agreement of states- it concretises, develops, modifies
or creates new modes of international law
• Treaties create new modes of international law
• Classification of treaties
a. Law making treaties- lays down rules of universal or general application
b. Treaty contracts- treaty between two or only a few states, dealing with a special matter
concerning these states exclusively.
• Law making treaties
a. They have a large number of parties and create general norms
 b. Brierly- these treaties are concluded by a large number of states for the purpose of
either declaring their understanding of what the law is on a particular subject, or of
laying down a general rule for future conduct, or creating some international institution.
c. Treaties general binds state parties to it, does not create obligations nor rights for third
states without their consent.
d. Non parties are bound by treaty principles only if through their conduct they show an
indication to accept the treaty. Ex North Sea Continental Shelf Case.

• Treaty contracts
a. They are not direct sources of IL- constitute a particular law for parties and therefore
bind them.
b. Treaty contracts fall within the scope of the term particular conventions under art. 38
para Ia- They may however lead to formation of new rules of customary international
law through operation of principle governing the development of customary rules.

(Debate- which rule is superior- gurdip paaji ‘treaty rules cancelling put customs are on the
rise- he says that both are at the same level and are different forms of one essential element-
i.e. agreement of subjects of international law)

General Principles of International Law

• This phrase meanse those principles so general as to apply within all systems of law and
have achieved a comparable state of development
• These principles are generally looked for in Municipal law- analogies from municipal legal
systems are drawn to develop and supplement international law is as old as international
law itself.
• Ex of General principles of municipal law systems applied in IL
a. Charzow factory case- principle that a party cannot take advantage in its own wrong
as principle (emo judex in causa sua) was recognized as a principle generally accepted
in jurisprudence of international arbitration and municipal courts.
 b. Island of Palmas case- ICJ here applied the municipal law rule of ‘prescription’ in
ruling the case in favour of Netherlands- based on their unchallenged acts of peaceful
display of sovereignty over the island of palmas.
c. Award of the King of spain case- ICJ accepted the principle of estoppel
• On general principles, some writers are of the opinion that general principles of
international law are not a distinct source- only wy it is different from customs is because
of its reflection of municipal law principles- Soviet union criticised the western imposition
of so called general principles, which were a reflection of their own bourgeois systems.

Subsidiary means of interpretation

• Judicial decisions of ‘highly qualified publicists of various nations’ have been identified as
a subsidiary means of interpretation

Judicial decisions

• Necessary corollary to Art. 59 of the ICJ statute

• ICJ ahs not adopted the stare decisis doctrine (Seen in common law systems)- they have
most of the time refused to not depart from their own decisions
• Respect for previous decisions and consistency of decisions are essential to ordely
administration of justice.
• Decisions sometimes influence law making
Ex- Norweigian fisheries case and North Sea Continental Shelf Cases influenced the
development of the UNCLOS.

Modern Sources if International Law

• General Assembly of the UN has played a significant part in the process of codification
and progressive development of international law
• Some resolutions of the GA, namely those involving principles of decolonization and self-
determination of non-self-governing territories, declaration of the resources of
International Seabed Area- have universal recognition and acceptance. Its legal binding
nature is however questionable.
• Status of GA resolutions
a. UNGA resolutions- legal validity is doubtful. Art. 10 of the charter states tht the general
assembly may make recommendations to member sttes on ny questions within the
scope of the charter.
b. GA is also given power under art. 11 of the charter, to consider and make
recommendations concerning general princiles of cooperation in the maintenance of
international peace and security.
c. UN Charter is silent on legal effects of GA resolutions- however at San Francisco-
Philippine delegation made a proposal- they wanted the GA to have vested with them
the legal authority to enact rules of international law which should become effective
and binding upon the members of the organization after such rule has been approved
by a majority vote in the security council.
This proposal to make it legally enforceable was however rejected.
• Juristic opinion (he didn’t do in class)- (read through the book)
• Judicial dicta (not done in class)
• ILC draft articles as source of international law
a. ILC was established with a mandate for codification and progressive development of
interntional law.
b. There are 34 members in ILC who are elected by GA after being nominated by member
states
c. ILC draft articles are subsidiary sources of international law, as
1. They are travaux prepertoires for treaties and conventions which have come into
force and are based on subject matter of these draft articles
2. Since ILC members are persons of recognized competence in international law,
draft articles that they prerpare could be considered writings of highly publicized
jurists.
 • Soft law principles
a. It includes bilateral treaties, joint statements etc.
b. Differences between soft law and treaties
1. Soft law- it is practical, flexible and pragmatic, such as UN passing a code, visiting
diplomats, signing documents etc. Treaties can be signed only by foreign ministers
or PM or diplomatic head. Documents passed by UN can even be signed by raising
of hands
2. Treaties- they are codified documents based on consensus between states- rigid
law.
c. Soft law often leads to the evolution of hard law.
d. Relationship between soft and hard law- In 1992 Rio convention is the genesis of all
post 1992 treaties related to climate change and sustainable development- soft law here
developed into hard law.
e. When it comes to soft law and customary international law- the relationship is best
exempliefied in international commercial arbitration where the relationship between
the two are evident.

SELF DETERMINATION

• Secession- unilateral withdrawal from a state of a constitutent part, with its territory and its
population, constitutes secession in strict sense.
• A consequence of secession is that the existing state splits into two- old state exists and a
new state comes into existence concurrently.
• Under the UN Charter- self determination is more like an idea rather than a legal right. Art.
55 of the UN Charter also provides for a right of self determination.
• Main issue with regards to secession is the conflict between the right of the people
(secession due to oppression by state) and legality of secession territorial integrity and
stability.
• The right of self determination was earlier just a political concept which was recognized
a. In Woodrow Wilsons ‘fourteen points’
b. International Committee of Jurists referred in the Aaland Islands Disputes
 It became a legal concept through UN charter and various HR treaties. The ICJ further
recognized Self Determination as a concept having Erga Omnes Character in the case of
East Timor (Portugal v. Australia).

• The UN declarations recognizing this right of self determination are

a. Chapter XI of the UN Charter (Regarding non self governing territories)- These non
self governing terrirtoes were given the right to S.D. These included trust territories too
like Namibia
b. UNGA Friendly Relations Declaration
c. UNGA declaration on the granting of independence to colonial countries and people.
• There is also a customary right of independence for people of non self governing
terrirtories and those subject to alien subjugation, domination and exploitation.
• The UN created a list of such territories- they were seleced and given the right to
decolonization and self determination (The selection of these territories were however
controversial).- Even now there are 17 non self governing territories (including western
sahara)
• The principle of Uti Possedentis imposes restrictions on the power of self determination-
even if the erstwhile boundaries were made by colonial powers with n regard to cultural
and ethnic differences- they have a legal life.
• Problems with self determination
a. Territorial integrity
b. The right extends to ‘people who have been subjected to alien subjugation, domination
and exploitation’- all these terms remain controversial. (people- may be linked to pre
determined political entities with historically defined territorial basis)

Now, another question arises as to the concept of self determination beyond the colonial context.

Random part on legal positivism in Internationa law (SS Lotus case)

• Facts- There was a French steamer SS Lotus. On the high seas the ship collided with a
Turkish vessel ‘Horz Korz’. The Turkish vessel broke down and 10 people were rescued
by the SS Lotus. They then reached Constantinople- where both the Turkish and the French
 captains were arrested by Turkish authorities, and the French captain was given
imprisonment and fine. French captain objected to this arrest- claiming that they cant be
tried in Turkish courts
• Contentions
a. France contention-
1. They have the exclusive right to prosecute French citizens
2. No international law provision which allows Turkish court to prosecute these
citizens.
b. Turkish contention
a. There is no rule which prohibits such prosecution- therefore they ca do this.
• Held- Turkey won the case- ICJ held that a state can act as a state unless there is expressly
ptohibited from activn in such a way under international law
Similar reasoning was reflected in Kosovo (Unless expresslt prohibited, an act can be done)
Principle- The legal positivist nature of international law was reflected and reiterated
in the Kosovo opinion.

Remedial secession beyond the colonial context

• The general principle regarding Secession is that there is no right of external self
determination if there is adequate internal self determination
Whether there is adequate internal self determination should be seen from whether the will
of the people are getting adequately represented.
• Law on this developed with the Quebec advisory opinion
a. The judgment was passed by the Supreme Court of Canada in considering Quebecs
right to secede from Canada
b. The court gave two important legal points
1. Under Canadian constitutional law- if population expressed will to secede with a
clear majority, this would entail an obligation to negotiate in good faith change
the constitution necessary for the withdrawal of Quebec.
2. Held that under International law on the other hand, Quebec does not have the right
to unilaterally secede from Canada- However in principle such a right could arise
only under these specific circumstances
 ➔ Decolonization
➔ Alien subjugation
➔ Domination or exploitation
➔ When a people is blocked from meaningful exercise of its right to self-
determination internally.

SC considered that in 1998, the population of Quebec has not expressed a clear
intention to secede- which is an essential requirement under the Canadian
constitutional law.

Kosovo Advisory opinion

• Facts
a. In 2008, assembly of Kosovo declared independence from Serbia.
b. UN provided for interim administration for the newly independent Kosovo provided
for under Chapter VI and VII of the charter. This power could be taken by the UNSC
too. This power was generally invoked post war situations
c. The resolution through which the interim administration was provided for was UNSC
Resolution 1244. This provided for the establishment of a notional assembly for the
interim administration of Kosovo basedon the constitutional framework given by the
UN Sec Gen
d. It was this national assembly that declared independence.
e. UNGA stated that this unilateral secession declated by provisional institutions of self
government of Kosovo should be given to the ICJ pursuant to art. 65 of the ICJ statute
• Preliminary questions
a. Does the ICJ have jurisdiction over this matter?
Main problem here was that the jurisdiction was taken up based on a UNGA resolution.
According to art. 12 of the UN Charter, the UNGA cannot make a recommendation
when the SC is exercising power over the issue.
ICJ- Held that this rule doesn’t restrict the right- the resolution of the UNGA is not a
recommendation.
b. If the GA and SC are exercising jurisdiction under art. 96, is it mandatory for the
ICJ to give advisory opinion
 ICJ- No it is not mandatory, it is exercised at the discretion of the ICJ.
c. Whether the order would be useful for the organ exercising power in Kashmir?
ICJ- No opinion was given in this matter
• Main questions
a. Whether international law prohibited declaration of independence
b. Whether or not the declaration of independence was adopted in violation of
international law.

In analysing the validity, the court looked into two relevant ‘negative prohibitions; to such
a declaration

a. Territorial integrity (shouldn’t be compromised)

b. The UNSC Resolution 1244- provided for a mandate- this mandate itself maybe a
restriction.

ICJ- If the resolution is in compliance with general international law or the resolution (lex
specialis), it would be valid.

• Opinions of the court

a. Opinion on territorial integrity
1. State practice in 18th and 19th century showed that there was no prohibition on such
a right
2. Declarations like this were allowed in colonial contexts, later even in some non
colonial contexts
3. Referring to the declaration of friendly relations- territorial integrity principle were
in relation only to other states- it does not exist against non state actors present
within a state
4. There have been instances in the past where the SC gave condemning resolutions
(like Rhodesia). However these were due to violations of peremptory norms of
international law. (Resolutions were very fact specific and all condemnation for
secession was only based on violation of peremptory norms). There was no
violation of these peremptory norms. Therefore no rules restricting these were
found.
b. Opinion on Remedial Secession
 1. There was a sharp difference in opinion on whether Kosovo has circumstances
which allowed for a right to Remedial Secession.
2. Court here did not answer the question on remedial secession as it was beyond the
scope of the question posed by the UNGA
3. Answer still unaddressed- only with respect to unilateral declarations the law was
clearly laid down.
c. Regarding violations of lex specialis
1. Court said that both the resolutions and the law declaring secession are two different
orders/laws/
2. The parties in Kosovo did not make the declaration as an interim government, but
was rather done as ‘persons’
(They made this derivation by
➔ Language of the declaration
➔ Silence of the secretary general- who would’ve questioned this had the
declaration been violative of the resolution.)- Scholars have been critical of this
reasoning

Main logic- the lotus logic was being followed- unilateral declaration was not
prohibited under international law, so they are allowed.

• Scholars have said that this differenciation of internal and external SDs are wrong- if
colonial power gives right of internal self-determination does it mean that external self-
determination is extinguished.

STATE JURISDICTION

• Exercise of sovereign power a territory.

• Max Huber in Island Palmas- emphasized on the importance of jurisdiction.
• Jurisdiction in the context of international law refers to the limits of legal competence of
state to make apply and enforce rules with regard to person property and situation/events
outside the territory (judicial, legislative and administrative competence)
• The restatement of the Foreign Relations Law of the United States divides jurisdiction into
three categories;
a. Prescriptive jurisdiction (control through legislation)
b. Enforcement jurisdiction (Executive)
c. Jurisdiction to adjudicate (judiciary)

Further, PIL has certain limitations on jurisdictions- enforcement jurisdiction has to be

restricted territorially, otherwise it would violate territorial integrity.

• Approaches to jurisdiction
a. Prohibitory approach- prescription (seen from SS Lotus)
b. Permissive approach (extra territorial only when there are permissive rules).

The second approach isn’t accepted by states especially when it comes to criminal
jurisdiction.

• SS Lotus case-
a. PCIJ made an important distinction between prescriptive and enforcement jurisdiction
b. States are precluded from enforcing their laws in another state’s territory absent a
permissive rule to the contrary.
c. International law poses no limits on a state’s jurisdiction to prescribe its rules for
persons and events outside its own territory.
d. Under Lotus- states could set rules for persons, property and acts outside their
territory absent a prohibitive rule to the contrary.
• Whether a state has prescriptive jurisdiction extra territorially?
a. Yes it can be done, however enforcement becomes difficult
b. Judicial opinions too recognize the right to prescribe laws extraterritorially. It is only
enforcement jurisdiction that is challenged- and not the legislation itself.
• In 1955, the Harvard Research on International Law in particular has been instrumental
in permissive principles approach becoming the main framewoek of reference for assessing
legality of jurisdiction principles. The permissive principle approach, as inductively
derived from practice of states- viewed territorial jurisdiction as the fundamental rule
of international jurisdictional order.
 Primacy of territorial jurisdiction is premised on
a. Principle of sovereign equality of states
b. Principle of non interference (non-intervention) which render unlawful such
legislation as would have the effect of regulating conduct of foreigners in foreign
countries.
• The Harvard Research Draft Convention on Jurisdiction with respect to Crime, 1935
recognized 6 principles of jurisdiction
a. Territorial principle-
1. It is jurisdiction over the territory.
2. Civil and criminal jurisdiction over persons and things within the territory of the
state which falls in its territorial jurisdiction.
3. Possession of jurisdiction over all persons anf things within territorial limits and in
all causes of civil and criminal aarising with in the same is an attribute of
sovereignty
4. Territorial sovereignty extends to
➔ Land
➔ Dependant territories
➔ Airspace
➔ Aircraft
➔ Ships
➔ EEZ
➔ Continental Shelf etc
5. Draft declaration on rights and duties of state, 1949- provides every state the
right to exercise jurisdiction over it and all persons and things therein.
6. State territory is a constructive element of the concept of state
7. Violation of area is a violation of state personality. (Kelsen- Territory is not a land
or a thing, but an area determined by International law).
8. Limits on territorial jurisdiction
➔ Doctrine of state immunity- foreign states may claim exemption from
jurisdiction under this- this is based on customary international law.
 ➔ UN Convention on Jurisdictional immunity of states and their property-
Favors restricted immunity- Art. 5 provides immunity to states in respect of
itself and its property from jurisdiction of courts of another state subject to
provisions of the present convention.
➔ Exceptions to TJ- Diplomatic Agents, Embassies, Foreign sovereign, property
of foreign sovereign, armed forces etc.
b. Nationality principle
1. State has an inherent right to prosecute nationals for crimes committed anywhere
in the world
2. Nationality is determined under art. 1-4 of the Hague convention on certain
questions relating to conflict.
3. Nationality forms the basis of exercise of jurisdiction even in certain international
courts like the ICC.
4. Restrictions and limitations have been placed on nationality principle
Ex- English courts lay down connecting factor of nationality in case of serious
offences like treason, murder and bigamy. Ex- UK Bribery act
Jurisdiction is required also because international agreements and.or offence is also
a crime under International Law. Ex- English War crimes act, Australia child sex
tourism act

c. Protective principle
1. States assume jurisdiction to punish acts prejudicial to national security or other
vital interests of a state even when they are committed by aliens abroad. Eg- Safety,
public order etc.
2. C- Attorney General of Israel v. Adolf Eichman- Case was regarding an adolf
eichman, who was the head of section for Jewish Affairs- he was charged with all
matters related to implementation of the Holocaust .
➔ In 1960- Israeli intelligence services Mossad abducted Eichman from his hiding
place in argentina and transferred him to Jerusalem
 ➔ Trial commenced from 1961- charged with 15 counts of crimes against jews,
humanity, war crimes and membership of an organization declared criminal by
the Nuremberg military tribunal.
➔ Eichman was declared guilty of all counts and was sentenced to death
➔ Legal points
- Israel had taken up jurisdiction based on protective principle (they
argued two bases of jurisdiction- a universal source which allows them
to prosecute anyone within the ‘family of nations, and the protective
principle). This is how Eichmans contention that Israel represented the
jewish people and were hence too biased to try Eichman was challenged.
- Israel did not exist at the time the acts were committed – however the
jurisdiction was legitimised on the ground that ‘an injured group has the
natural right to punish the offenders once they achieve sovereignty, if it
was only the want of sovereignty that denied them the power to exercise
this right.
9. Western countries are less hostile to the protective principle- terrorism and drug
smuggling are punished under this.
10. Issues with the protective principle-
➔ Can be abused by state
➔ Individuals may get punished for crimes which are not crimes in their home
state
➔ Possible double conviction
d. Passive personality principle
1. State has jurisdiction to punish aliens for harmful acts committed abroad against its
nationals
2. Civil law countries can claim jurisdiction on this ground- UK and US regard it as
contrary to international law so far as ordinary torts and crimes are considered- not
in respect of terrorist killing and taking of hostages etc
3. Ex- US Torture victim protection act - civil action can be brought by victim (US
National or foreigner) against individual, acting in official capacity for any foreign
government on act of torture or extra judicial killings
 e. Universality principle
1. States have adopted this principle with limitation
2. Jurisdiction over acts of non nationals where circumstances including nature of
crime- justify repression of some types of crimes as a matter of international public
policy.
3. Jurisdiction over offende- is based solely on the nature of crime- no link to
nationality or place of commission of crime.
4. The reason behind this- destructive natire of the international legal order-
considered as an attack on the international legal system
5. Under customary law- used for crimes such as piracy on high seas, slave trade,
Crime Agaisnt Humanity, Genocide and terrorism.

EXTRADITION

• The origin of the term is from the latin word ‘Extradere’ which means forceful return of a
person to his sovereign.
Modern word extradition comes from the terms ‘extra tradition’, referring to the traditional
hospitality offered by an alien by a state who had allegedly committed an offence and
sought refuge or asylum to save himself from prosecution or punishment.
• Defintions of Extradition
a. Art. 102 of the Rome Statute- Extradition means the delivering up of a person by
one state to another as provided by a treaty, convention or national legislation.
b. UN Model Law on Extradition- Extradition means the surrender of any person who
is sought by the requesting state for criminal prosecution for an extraditable offence
or for the imposition or enforcement of a sentence in respect of such an offence.

• There are two levels of laws governing extradition

a. National Laws
b. International Laws
• Extradition or non extradition is determined by the municipal laws of a state, but at the
same time it is also a part of international law because it governs the relationship between
two states over the question whether or not a given person should be handed over by one
state to another state. This question is decided by national courts but in the basis of
international commitments as well as rules of international law.
• Extradition v. Deportation
a. E- In interest of the requesting state
D- In interest of expelling state
b. E- Applies to criminal prosecution
D- Expulsion of foreigner on any grounds
c. E- Done on request of other state
D- order of state prohibiting a person to remain inside the territory of the ordering state.
• An obligation of extradition does not arise from customary international law as there is no
duty to extradite. However, extradition can be done based on an existence of a rule of
reciprocity. These reciprocity arises from
a. Domestic Legislations (Ex- Indian Extradition act)
b. Bilateral Extradition treaties
c. Multilateral Extradition treaties. (Whether a treaty takes precedence over domestic
legislations is largely decided by the provisions of the statute).

(Common law countries are prevented from extraditing in the absence of a treaty- most
civil law countries rant extradition without a treaty on the basis of reciprocity and
according to the rules of their national acts.)

• General principles of extradition- Every extradition treaty has certain common

principles, which operate as customary international law. These rules include
a. Extradition can be done only for an extraditable offence- What constitutes an
extraditable offence could be seen through
1. Open List- Crimes described based on the name of the offence Ex- India
Netherlands extradition treaty
2. No list- There is no list of specific offences- rather offences are put in based on the
punishment prescribed for each crime. Ex- India Bangladesh extradition treaty.
 3. Accessory jurisdiction- If a person has been charged with 4-5 charges, only one
of which constitutes an extraditable offence- extradition still happens through this
principle).
b. Prima facie evidence of guilt- Common law countries would look at this wheras Civil
law countries may not look only at this (may require additional offence). Ex0
Hypothetically UK would look at the prima facie guilt of Vijay Mallya before possibly
extraditing him.
c. Dual criminality rule- Extradition happens only if the offence here is a crime in both
states (requesting and the other state). It is sometimes considered as a part of CIL- no
state is obligated to extradite a person for a crime which is not a crime in their own
state
However, nowadays, more and more treaties such as the UN Convention against
Transnational Organized Crime and the International Convention for the Suppression
of Financing of terrorism are providing more and more exceptions from the double
criminality rule by accepting the demand of the requesting state exercising jurisdiction.
d. Reciprocity rule- Principle of reciprocity underlies the whole structure of extradition-
some recent extradition treaties and statutes either do not mention reciprocity at all,
allow considerable exceptions, or express the principle in optional terms, thus
conceiving reciprocity as a political maxim rather than as a legal precondition.
e. Rule of speciality- If a person has been extradited for a particular offence only- he
shall be tried only on this crime in the requesting state.
Prior consent is not required if the description of offence for which extradition is
granted is altered in the course of the proceedings- provided offence in its new
description is based on the same facts and itself constitutes a returnable offence. This
rule is important as
1. Protects alleged offender from having to face charges which he/she had no notice
in prior
2. Reinforces the dual criminality rule and the rule preventing extradition for certain
offences- eg- political, fiscal or military offences.
• Denial of extradition- States can deny extradition, and generally extradite people on the
following grounds
 a. Accused is a national of the host state (India however extradites its own nationals-
subject to the rules of reciprovity- i.e. the other state should also extradite its own
nationals to india- these extraditions are governed by bilateral extradition treaties)
b. States may deny extradition on the ground of Human Rights (i.e. ex- if the requesting
state has capital punishment). This does not apply if the requesting state gives
assurances that the death penalty won’t be imposed or carried out.

C- Soering v. United Kingdom-

F- Jens Soering was a German National who went to the US at the age of 18. He was interested in
marrying a Canadian girl, who’s parents were against the relationship. He killed the parents
(conspiring with his girlfriend) and fled to the UK. In the UK Soering was arrested for some other
offence.

Meanwhile the US requested to extradite Soering- Soering however pleaded before the ECHR that
he would be capitally punished if extradited.

Contention of Soering- Extradition from UK to USA would violate the HR and risk serving on
death row would constitute a violation of art. 3 of the EU Convention.

Contention of the UK- There is an obligation with the US to extradite through a treaty.

ECTHR- Ruled that

(a) Extradition could raise a responsibility for the requested state under art. 3 of the convention
for the protection of HR and Fundamental Freedoms to avoid the death penalty.
(b) Art. 5(1)(f) of the ECHR- convention does not grant a right to be extradited- ECtHR
unanimously endorsed the established case law of the European Commission on Human
Rights (‘ECommHR’) by which extradition of an individual to a State where he would be
likely to be subjected to torture or inhuman or degrading treatment engaged the
responsibility of the requested State under Art.3 ECHR.
(c) Stressing on absolute nature of art. 3- held that loss of control after extradition does not
absolve a state from responsibility for foreseeable consequences of extradition suffered
outside jurisdiction.
(Court here created a hierarchy- the obligation to protect human rights would prevail over an
obligation to extradite of the UK- Even after extradition he cant be given a death penalty.)

• Points on extradition
a. Procedural problems- If a state feels that the requesting state follows a flawed
procedure in trying the person in question, it can be denied (However there Is no way
to ensure that procedural guarantees are followed)
b. Humanitarian grounds- Such as age, physical or mental helath
c. Military offence- If offence is a military offence- extradition can be denied
d. Fiscal offences- Earlier this wasn’t an extraditable offence- however now states do
extradite for this too.
e. Pending proceedings- If pending proceedings are there or final orders have already
been passed in respect of the same offence in the requeste state- then extradition can be
avoided.
f. Lapse of time
g. Political offence- In most treaties this is considered as an exception to extradition
offences. These can be divided into two categories
1. Absolute political offence- directly against the state
2. Relative political offence- normal offences with a political character or an
incidental link to a political offence. (politically motivated crimes)

Absolute political offences are a clear exception to extraditable offences- even in those
cases where there is a political angle- even then it is an exception to extraditable
offences. There are certain tests to determin what constitutes a political offence

1. French ‘objective’ test- objective is to only see whether the rights of states would
be injured. It’s a rigid test (doesn’t look into the motive of the criminal). It is a rigid
test.
2. Swiss test- If there is a predominance of a political element- in such a case
extradition will be accepted or denied (if very predominant it will be denied). This
test is broader and looks into the motivation of the offender and circumstances
surrounding the commission of the crime- it primarily applies two elements
a. Proportionality between means and ends
 b. Predominance of the political elements over the common crime elements.
3. Anglo American system- Incidence test- which requires act to be incidental to
forming a part o political disturbances. There must be a preliminary showing that
political disturbances existed in the requesting at the time of the operative
behaviour.
C- Castioni case- A fugitive, being dissatisfied with the admin of a swiss
government joined a group and murdered a member of the swiss government, and
fled to England. The swiss government requested for extradition
Here, the court looked into the incidental test and said that the offence of murder
was incidental to the political strife in the country- this was therefore a political
offence- extradition did not take place. The decision by J Hawkins laid down two
criterion to be looked into for a political offence
➔ It would be an offence of a political character if the fugitive committed the
offence with the object of staging a political disturbance
➔ There must be a nexus between the criminal act and the political disturbance.

C- In Re Meunier- The fugitivr here was an anarchist wo was accused of causing

an explosion at a café in certain barracks in france as a protest against the French
government. The government requested his extradition after he escaped to England.

Fugitive- took the defence that it was a political offence

Court- It is not a political offence as he committed the offence only with a mere
intention of expressing his hatred, distrust or disbelief of government as an
institutions. (Further, referring to castioni said that there was no object of causing
political disturbance or a nexus between the act and political disturbance.

C- Extradition of V. Savarkar (France v. UK)

F- Savarkar was an Indian law student who was accused of various offences in India- after being
located by British authorities in London, Savarkar was ordered to be extradited to India to stand
trial- was placed aboard on ship Morea
French authorities were notified by British regarding layover of the ship at Marseilles- French took
precautions to avoid his possible escape- when morea landed- a commissaire of French army came
aboard and placed himself at the ships disposal. In the early morning hours, Savarkar broke through
a porthole- attempted to escape- he was captured after a short chase and returned to Britain- morea
set sail to India

Later they requested his extradition back to India- UK refused to comply with France’s demand-
later they agreed to a compromise to submit the matter to the Permanent Court of Arbitration.

Frances contention

a. UK had no right to bring political fugitive to their jurisdiction without prior consent- UK
lost jurisdiction over Savarkar upon entering French waters
b. Release of Savarkar to british was too irregular an extradition to be binding on france

UKs arguments

a. Savarkar was in the lawful custody and difference existed between the transit of a political
fugitive through actual territory of a sovereign state and simply stopping at a port while a
sea journey
b. Brigadier peacefully handed over savarkar- there was no irregularity in this matter.

PCA’s decision

a. There was no recourse to fraud or force in order to obtain possession of savarkar- no

violation of French sovereignty- and all those who took part in the matter acted in good
faith and had no thought of doing anything unlawful.
b. There was no rule of international law imposing an obligation on the UK to return custody
of fugitive to France because of a ‘mistake’ of a French official. UK was therefore entitled
to Savarkar.

Indian Extradition Act 1962

The Extradition Act of 1962 provides the legislative basis of extradition. Act consolidated the law
relating to extradition of fugitive criminals from India to foreign states. It was substantially
amended in 1993.

• History of the act

a. Extradition act of 1870
b. Indian Extradition Act 1903
c. Extradition Act 1962
• Chapters of the act
a. Chapter I- Preliminary
b. Chapter II- Extradition of fugitive criminals to foreign state to which Chapter III does
not apply
c. Chapter III- Return of fugitive criminals to foreign states with extradition
arrangements.
d. Chapter IV- Surrender or return of accused or convicted persons from foreign states.
e. Chapter V- Misscellaneous
• Under the act
a. S.2(d)- Extradition treaty means a treaty, agreement or arrangement with a foreign
state relating to the extradition fugitive criminals.
b. S.2(c)- An extradition offence means an offence provided in the extradition treaty with
foreign states. An offence punishable with imprisonment for a term which shall not be
less than one year under Indian law or foreign state.
c. S.2(f)- Fugitive criminal means a person who is accused or convicted of an extraction
offence committed within the jurisdiction of a foreign state. A person while in India if
1. Conspires
2. Attempts to commit
3. Incites
4. Participates as an accomplice in commission of an extradition offence in a foreign
state

He is a FC.
• The Extradition act applies differently to different countries. While most of the countries
have been notified under chapter II, Butan and Turkey have been notified under Chapter
III of the act.
a. S.3- Chapter I and II would apply to countries notified here. Notification of this chapter
is important, and extradition cant happen without notification- Even if there is a
multilateral agreement needs to be mentioned that this part would be applicable against
a particular state.
b. S.12- Chapter I and III would apply- States which have been notified herewould not be
notified under Chapter II.
• Chapters in Detail
a. Chapter II- Return of Fugitive criminals in India
1. Applies to countries notified under S.3
2. S.7 says that requisition should be by diplomatic means only
3. S.7-Procedure before magistrate- Central government under this section, if it
thinks fir, issues an order to the magistrate who has jurisdiction in this case. Once
an order is received, warrant is issued against a fugitive criminal (Bail provision
was also provided for- S.25)
➔ Once order is issued- inquiry will be done by the magistrate (They will play a
quasi judicial role here)
➔ In this inquiry the mafistrate takes evidence, execising power under the CrPC
and the evidence. They try to assess the prima facie case of guilt
➔ Further, in this inquiry, magistrate also looks to whether the offence is
extraditable (political offence or not)
➔ If no prima facie case- then he will be discharged. If its there however, he will
send a report to the central government
➔ If the CG is of the opinion that there is a case of guilt- they will issue an order
of custody. (Section- 8 surrender of fugitive criminal)
4. S.9- Power of magistrate to issue warrant of arrest in certain cases.
5. S.29- Power of CG to discharge the Fugitive Criminal- If it apprears to the CG that
➔ The case is trivial
➔ Application is not made in good faith in the interest of justice
 ➔ It is unjust to return

The CG at any time can pass an order to stay the proceedings- or direct any court
and can also order for the accused to be discharged.

6. S.31- Restrictions on Surrender- Whenever an inquiry is made- the CG must ensure

that the Fugitive Criminal will not be extradited if the offence does not constitute
an extraditable offence (plus rule of specialis and other provisions)
b. Chapter III- Return of fugitive criminals to foreign states with extradition
arrangements.- (S.14- Fugitive criminal may be apprehended in India through an
endorsed warrant or a provisional warrant)
Chapter IV
1. S.19- Request can be made only through diplomatic channels
2. S.21- It is a section on the rule of speciality as codified in the language of the act.
(only three kinds of offences for which the accused can be charged) (accused or
convicted person in foreign state not to be tried for certain offences).
3. S.28- Deals with bail provisions- to be granted on CrPC grounds (arrest provision
also provided)
4. In case an offence does not entail capital punishment n another country- punishment
will be in the form of imprisonment only.
5. If 2 -3 countries have made extradition requests- executive discretion was to be
exercised by the state
6. Any offence which is a ‘lesser offence’- if this was informed to the requesting state-
this can be exercised

c- Abu Salem Case-

F- Abu salem was shown accused ain the 1993 mumbai blasts. According To the charge sheet, he
was accused of transporting illegally smuggled arms and ammunition, their storage and
distribution to other conspirators. A red corner notice was issued for him by the Interpol, and the
court framed common charges of criminal conspiracy punishable under S.3(3) of TADA, various
charges of IPC, Arms Act, Explosives Act, Explosive Substances Act, Prevention of damage to
public property act
Meanwhile he changed his name and entered Portugal on a Pakistani passport. In 2002 he was
detained by Portugese police at Lisbon on the basis of the red corner notice. Later in 2002 GOI
requested extradition (request made based on the International Covnention for suppression of
terrorist bombings)

In the request for extradition, India assured that the death penaly wont be granted and he
imprisonment for more than 25 years wont be given. Portugal complied with the request, but
however denied the charges regarding 25(1-a) of Arm Act, S.4 and 5 of the Explosive
Substances Act, S.5 and 6 of TADA and S.9 of Explosive Act.

However, it nonetheless made it to the trial charges. Court however allowed for the trial to
proceed. In 2006, Abu Salem filed criminal appeal invoking article 32 challenging the order

AS’s arguments

a. Respondents are lowering esteem of nation by violating the rule of lex specialis under
International Law
b. Construction made by designated court is not acceptable and appellant is being wrongly
tried by designated court in violation of extradtion decree prayed for quashing of the entire
proceedings.

AS meanwhile moved an application before Court of Appeals of Lisbon stating that he is being
tried in India for violation of the lex specialis rule. However, the court declared inability to look
into the matter, and said they would look into the same once decree was passed by Supreme Court
of India.

Abu Salem Abdul Qayoom Ansari v. Stte of Maharashtra

a. Court dismissed appeal and petition filed by applicant.

b. Stated that additional charges are well within proviso 21(b) of the extradition act. Offences
with which the appellant has been charged are lesser than the offences for which appellant
has been extradited.

Portugal court
 a. Took a contrary view- held that authorisation granted for extradition of Abusalem ought to
be terminated. (art. 6 of the portugese law provided that a person cannot be tried for an
offence than the one that gives rise to request for cooperation by way of extradition.
b. India preferred an appeal in the Portugese court- this was rejected. However constitutional
court of Portugal decided appeal preferred by UoI.

Supreme Court of Justice, Portugal

a. The decision of the Lisbon court of appeals only declared a violtion of the rule of speciality-
by itself did not bind the requesting state to the practice of a certain act- which is return of
the extradited person and this is not a decision rendered against the union of India

Subsequent proceedings

a. AS in India made appeal to Ministry of Home and External Affairs- for annulment of the
extradition order due to the said violations of the prosecution-
b. AS filed petition to court of appeals praying that a direction be given to government of
Portugal to request a call back.

Supreme court

a. AS also filed a petition under S.19 of TADA challenging final judgement and order passed
by designated court where designated final judge dismissed application filed by AS in view
of order passed by court of appeals Lisbon- terminating extraditing order for stay of all
further proceedings.
b. Portugal meanwhile considered some of the charges imposed by the SC as additional
charges- came to conclusion that there was a violation of principle of speciality.

Abu Salem Ansari v. CBI

a. CBI sought to withdraw additional charges mentioned

b. Abu salem submitted that CBIs modification of judgement and order in Abu Salem v. State
of Maharashtra is vexatious and serves no purpose- should be dismissed.
 c. AS argued= Since order of extradition itself has been set aside and is no longer valid-
withdrawal of additional charges will have no effect and the appellant cannot be tried in
India.

Legal issues before SC

a. Whether the SC can modify decision rendered in Abu Salem v. State of MH on the grounds
raised by the respondent
b. Whether the order of extradition stands annulled/cancelled as alleged by the appellant.

The state government here withdrew the additional charges- proceedings went on without these
charges

IMMUNITIES

• Sovereignty is exercised through jurisdiction over the territory- state has complete liberty
to do whatever they want within the jurisdiction
• Jurisdiction is the way in which states exercise their sovereign powers.
• However, state exercise of jursidition in its own territory is limited by international law-
through the concept of immunities.
• Under International law- various subjects can exercise immunities
a. States (US cannot be sued in India’s domestic courts)- Under S.86 of the CPC- acts
against other states are prohibited.
b. State officials- Ex- Narendra Modi cant be sued in US domestic courts as he is a state
official.
c. International organizations- Their officials are protected.
d. Specialised regimes through diplomatic councils- Through VCCR and VCDR.
• Immunity has two concepts
a. Jurisdiction immunity
b. Enforcement immunity
• Concept of immunity is different from the concept of ‘privileges’ and inviolability’
a. Privileges- unlike privileges which are substantive right, immunity is a provedural right
b. Inviolability is a duty of the state unlike immunities.
 • Immunities are not absolute
a. It can be waived off by states
b. State can alter immunity through treaties
c. immunity can be altered through interpretation of human rights treaties too.

State immunity

• Based on sovereignty itself

• Based on the principle you cannot sue an equal state in your territory.
• Immunity of states concept started in 1648 with the treaty of Westphalia (which resulted
in birth of states)
• States immunity comes from customary international law- 2 treaties have tried to codify
a. European Convention of state immunity- 1972- with 8 parties
b. UN Convention on immunities of states and their property 2004- not yet in force. This
convention represents customary international law (now 28 states have ratified- 30
states need to sign for it to come into force).
• Earlier state immunity was an absolute concept- state had immunity in all concepts-
however now the position has changed- they have jurisdictions only in jure imperice- or
‘sovereign acts of the state’. Jure gemstones or non sovereign acts have no immunities
• However, courts often find it difficult to characterise actions as sovereign and non
sovereign – leads to bad decisions

C- Juristic immunity of states (Germany v. France)

F- In 1940, Italy entered into war with Germany against the allies- In 1943 they surrendered
and declared war against Germany- then Germany occupied Italian territory and di a lot of
human rights violations.

Post was- Germany announced compensation through a german legislation. However due to
certain technicalities some Italians couldn’t get the benefits- Therefore action was brought
against Germany in Italian courts. Germany tried to claim immunities
Italian court- State immunity is not absolute. In case of crimes under International Law,
immunities can be taken away.

Germany went to the ICJ

Italy made the following arguments

a. Germany doesn’t enjoy immunities for IHL violations

b. Germany doesn’t have immunities due to the application of the ‘territorial tort principle’
c. Italy could take jurisdiction based on the ‘last resort principle’- they brought claim against
Germany only because other remedies failed

ICJ decided the following

a. Even with IHL violations (peremptory norm violations)- state immunity exists from the
national courts jurisdiction
b. The territorial tort principle takes awy the states immunities- however it wont apply here
in the present case as it applies only to cases like vehicle accidents etc.
c. ICJ rejected this argument on last resort- not a valid argument.

(Maam- the case here was a civil proceeding- had it been a criminal proceeding immunity
would’ve worked differently.)

State officials immunities

• There are two types of immunities available to officails

a. Ratione materiae (by virtue of their functioning)- this is given due to nature of
functions only- this extends only to official acts.
b. Ratione personae (by virtue of their personal immunity)- given to high ranking
officials- this generally extends to personal acts also.
• Universal jurisdiction
a. Only the crime of piracy entailed universal jurisdiction initially
b. While there are certain requests to make IHL cases universal jurisdiction- these have
failed
c. Universal jurisdiction continues to rein a treaty based principle (not universal in its true
sense)

C- Arrest warrant case (Congo v. Belgium)

F- Belgium court issued an arrest warrant against the incumbent foreign minister of DRC
(entails ratio personae)- on the ground that he has instigated mass murder through hate
speeches.
Law of Belgium- state that in such cases immunity wont be provided
Congo initiated proceedings against Belgium to get arrest warrant cancelled.

Meanwhile DRC changed his portfolio and made him the foreign minister

Arg
a. State cant exercise authority over another state’s territory- they said this violates the
principle of sovereign equality of states (Q- can universal jurisdiction be exercised
based on national laws)
b. The arrest warrant disregarded the immunity of the incumbent Congolese foreign
minister under customary international law

Belgium

a. Jurisdiction related- no legal dispute

b. As a subsidiary argument- said that in the event the court decides that it does have
jurisdiction in this case and that the application is admissible- then the non ultra petita
rule operates to limit jurisddition of court only to those issues which are subject to
Congo’s final submission.
 ICJ

a. ICJ did not answer it- basedo n the principle that the court will not go beyond the
request of the party.
b. Foreign ministers are granted immunity to help them function more effectively. Court
looked into the argument that sovereign immunity can be waived off in cases of IHL
violations.
Referring to precedents such as Pinochet and Gaddafi- they said that there was no
customary law to this effect- and no exception to the immunity of incumbent foreign
ministers. Non applicability of immunities before international criminal tribunals could
not be extended to national courts.
Therefore prosecution and extradition imposed on states by international conventions
did not affect immunities under CIL.

As an obiter, the court also stated that in these circumstances immunities can be waived off

a. If they are prosecuted by the home state

b. If home state waives immunity
c. If they cease to hold office
d. Acts done when they don’t hold office

Even in all these cases, court can exercise jurisdiction on personal rights.

C- Pinochet case

F- Pinochet was a dictator who overthrew the democratically elected government- he has been
accused of over 3,196 deaths and forced disappearances. During a visit to a hospital in UK,
Pinochet was arrested by the UK authorities on the ground of a warrant issued by a Spanish Judge
for genocide, terrorism and torture done during his leadership.

While the Spanish judge claimed jurisdiction because there were many Spanish victims to
Pinochet- his claim is more founded on universal jurisdiction as majority of the victims were
actually Chileans.

Meanwhile crown prince of spain issued an order for extradition of Pinochet to spain- on the basis
of the European Convention on Extradition. The Spanish judge also issued a more detailed second
arrest warrant on the ground of murde,r hostage taking and conspiracy etc. The matter was taken
to a divisional court in England.

Re Augusto Pinochet Ugarte

• The divisional bench upheld pinochets claim of state immunity.

• In the meantime arrest warrants were also issued by Belgium, French and Swiss
magistrates.

Pinochet cases and ruling

• Pinochet 1- It was held that the immunity ratione materiae of a former head of state was
confined to acts performed in legitimate exercise of his official finctions, and therefore did
not include torturing political opponents.

Applying Universal Jurisdiction on a Customary International Law- they held that

Pinochet’s loss of immunity applied to all offences committed by him including torture,
taking hostages and conspiracy to murder.

• Pinochet 2- Qualification of one of the majority judges, Lord Hoffman, who had failed to
disclose the fact that he had served as a director of Amnesty International, an intervener in
the case was revealed.
• Pinochet 3- There were three main issues discussed here, i.e. double criminality as a
condition for extradition, exercise of extraterritorial jurisdiction and personal immunity of
former heads of state
a. Universal jurisdiction- 6:1 rejected application- said that UJ could only be exercised on
the basis of an international treaty and not on CIL including Jus Cogens
b. Dual Criminality- 5:2- Extradition offences (operational date)- the torture convention
came into effect in UK only in 1988- as the acts of torture were committed before this,
the act was not extraditable.
However, they rejected Pinochets claim of immunity on this ground at a 6:1, and held
that the charges against pinochets (slides 26-28 says contrary things).
ICJ JURISDICTION – OPTIONAL CLAUSES AND RESERVATION

• Jurisdiction of the ICJ is based on consent- without consent there is no jurisdiction. Ex-
Treaty, agreement etc provide for this
• Optional clauses- provided for under art. 36(2) of the ICJ Statute- states may at anytime
declare that they may recognize compulsoty ipso facto jurisdiction without any special
agreement- in relation to any other state accepting the same obligation with regards to all
dispute concerning those mentioned under art. 36(2), i.e.
a. the interpretation of a treaty;
b. any question of international law;
c. the existence of any fact which, if established, would constitute a breach of an
international obligation;
d. the nature or extent of the reparation to be made for the breach of an international
obligation."
• If one state comes with unilateral declaration and other state agrees- they go to ICJ.
• States often provide for reservations in optional claises (Ex- for certain offences the
optional clauses wont come into effect- the alter the legal effects of the optional clauses

Ex- State A accepts jurisdiction of ICJ for all issues except maritime delimitation- State B
accepts it for all cases without limitation.

In case of a maritime delimitation isse- state B cannot bring matter because of reservation.
State A cannot bring reservations (with other states accepting the same obligation).

Optional clauses is therefore like a common denominator

C- Jadhav case- India had made a reservation on commonwealth countries. Jurisdiction here
was based on VCCR.

Pakistan interestingly has a reservation on national security cases- bringing the Jadhav case
within its ambit. However, because of VCCR the matter went to the ICJ.
LAW OF THE SEA

Historical background

• Mare liberum and mare clausum

a. The principle of ‘freedom of the seas’ or mare liberum was first propunded by Spanish
theorists and later adopted by Hugo Groitus. This was reflected in Asian traditions also,
in countries such as India who propagated freedom of the seas and never attempted to
control the seas. This principle was also developed in order to break the monopoly of
the Portugese on maritime trade in the Indian ocean.
b. On the other hand, the principle of mare clausum or restricted access was propagated
in the west, especially Britain where various kings attempted to claim sovereignty over
seas surrounding Britain. However, these theorists did not believe in regulating free
access for trade, unless there was a dire humanitarian need. They attempted to reconcile
between the British special claims at the sea and the claims of freedom of navigation.
(This was largely to favour the Industrial Revolution in Europe).

The early parts of the 19th century saw some decisions given in favour of the Mare liberum
theory, such as the Le Louis case (which stated al nations have an equal right over
unappropriated parts of the sea).

However, in the latter part of 19th century, support for mare liberum fell as

a. One of the primary motivations behind mare liberum was to support for colonial
explorations of Asia and Americas- with the decline of colonialism and weakening of
Europe- other countries united and claimed right over the sea adjacent to their territory.
b. Excessive fishing by various countries- forced other countries to limit their territorial
seas to regulate fisheries jurisdiction.
c. Security, fiscal, health and sanitary regulations
• Truman declaration of 1945
a. Freedom of seas principle faced serious setback when President Harry Truman
proclaimed natural resources of the seabed and subsoil of the continental shelf beneath
the high seas contiguous to the coasts of the US as belonging to the US.
b. This notification
1. Proclaimed control over the minerals at the sea bed
2. Did not revoke the high seas status of the water above- no attempt made to regulate
navigation.
c. Another notification issued on the same day which provided for high seas conservation
zones for protection of fisheries in certain areas in the high seas contiguous to the US.
(This was done in order to protect environment against excessive fishing)- move was
welcomed by states and many states issued similar declarations.
d. Significance of declaration- opened up floodgates for claims of extended maritime
jurisdiction claimed by many countries-
1. many latin American countiries extended jurisdiction to over 200 nautical miles for
protecting fisheries from depredations by other states.
2. Navigation permitted over these waters.
3. These extended maritime jurisdiction were not acceptable to a lot of countries-
created a lot of confusion
4. 1958- 27 of the 73 independent coastal states claimed territorial sea much wider
than the traditional 3 mile limit (claims varied- between 5, 6, 12 and 200 nautical
miles).
• UN Conference on Law of the Sea
a. Conferences
1. First UN Conference on Law of the Sea- resulted in the conclusion of the four
Geneva conventions
2. Second UN Conference- convened to decide the limit of territorial sea- failed to
produce any result.
(claims were largely based on new science and tech which revealed that seabseds
are rich in manganese)
 b. Pardo proposal
1. Proposed to the UNGA to establish a regime to regulate the access to minerals and
hydrocarbon resources for benefit of humankind
2. UNGA accepted Pardo proposal- established a seabed committee to prepare for a
third UN Conference on the Law of the Sea.
c. Common heritage of mankind- GA resolution 1970-
1. GA unanimously adopted a resolution converning Declaration of Principles
Governing Sea Bed and ocean floor
2. Declared seabed as ‘beyond national jurisdiction’ and not subject to national
appropriation or sovereignty- it was a ‘common heritage of mankind’.
d. Third UN Conference on the Law of the Sea
1. Law of sea was in a state of disorder burdening on chaos before the beginning of
UNCLOS III.
2. Conflicting claims were there regarding the breadth of the territorial sea, nature and
extent of coastal jurisdiction over fisheries , regime for marine scientific research.
3. Pardo proposal was accepted- Seabed committee was constituted.
e. Significant resolutions at the GA in 1970
1. 1st- convening declaration of principles applicable to the seabed beyond national
jurisdiction and other agreeing to hold the third conference on law of the sea
2. 2nd- GA gave a mandate to the conference to prepare a single comprehensive
convention- Seabed committee was given the mandate to prepare for the
conference- especially to list out areas and subjects to be dealt with in the
convention.
• Law of the Sea convention as a ‘package deal convention’
a. The law of the sea convention was called a package deal
b. In a package deal, states do not accept a partial solution because when they make a
concession on an important item, they do so in expectation of progress towards an
acceptable solution on another equally important issue
c. Seabed committee’s work- unlike other conferences- there was no draft preparatory
text ot begin negotiations with at the third conference in caracas. The seabed committee
 simply set forth alternatives for an international machinery and regime for the sea bed
(They had prepared 161 docs- which did not resemble a treaty).
d. Interest groups- at the conference various interest groups emerged at the conference
based on their own interest. These were
1. ‘margineers’- countries having broad continental margins
2. ‘territorialsits’- states advocating for 200 miles of territorial sea
3. ‘strait states’- states bordering straits used for international navigation
4. Pacific states- emphasising on the special status of islands in the pacific ocean
5. Tuna fishing countries etc
6. Most important group- gang of five –US, UK ,USSR, Japan and France.
• Working of the UN Conference
a. UNCLOS worked on the principle of consensus- Rule 37-40 of the UNCLOS
conevention defined voting rights, required majorities and a variety of procedures
b. Object of all this – was to reach consensus
c. The UNCLOS Conference primarily worked on active and passive consensus
1. Active consensus- voting considered as decision making
2. Passive consensus- used to avoid voting when there is a fear of destructive
polarisation will result from vote

Seabed committees work was based on the passive consensus procedure.

d. Transformation of P into A consensus

1. First session was held in 1973- however due to passive consensus no agreement
could be reached till 1975
2. Conference president amarasinghe proposed the chairmen of the three committees
to be mandated to produce informal single negotiating tests (ISNTs) covering
agendas of their respective committees.
3. Delegations agreed to transfer to the chairmen their collective rights and
responsibility to draft an ISNT
4. The ‘negotiating texts’ however ended up tuning into a ‘negotiated’ ones
5. Principle agencies in transformation were chairman who produced new texts on the
basis of negotiations at the sessions.
e. Negotiating texts
1. At the 1976 session in New York – revised single negotiating texts were produced
(RSNTs)
2. 1977- all texts were integrated into a single document called the Informal
Composite Negotiating Texts. (ICNT)
3. 1978- seven negotiating groups were set up to deal with the remaining hard core
issues confronting the conference. These groups replaced the three committees and
their chairmen performed the same consensus building function
4. 1979- ICNT was revised- again revised to produce Draft Convention on Law of the
Sea.
f. Coming into force- The UNCLOS was then adopted in 1982 along with four
resolutions.
1. Art. 308 of convention provided that the convention shall enter into force 12 months
after date of the deposit of the 60 th instrucment of ratification or accession
2. 1993- Guyana submitted 60 th accession- the convention accordingly entered into
force on the 16th of November 1994.
3. 1994- agreement relating to implement part XI of the UNCLOS was adopted by a
resolution of the UNGA to open doors for universal participation in the convention.
4. The agreement revised part XI of the convention, annexure III and IV dealing with
regime of the seabed that prevented industrialised contries from ratifying or
acceding to the convention
5. India ratified the agreement at the same time it ratified the UNCLOS in 1995.
NEXT PART- PROVISIONS AND CONCEPTS

Territorial sea

• Legal nature of rights of coastal states in territorial sea

a. Territorial sea has been dealt with under art. 2 of the UNCLOS, which provides
1. The sovereignty of a coastal sea extends, beyond its land territory and internal
waters and, in case of an archipelagic state its archipelagic state waters to an
adjacent belt of the sea, described as territorial sea.
2. This sovereignty extends to the air space over the territorial sea as to its bed and
subsoil as well.
3. The sovereignty over territorial sea is exercised subject to this convention and to
other rules of international law.

(provision is analogous to art. 1 and 2 of 1958 GC)

b. The tem used in UNCLOS is however not ‘sovereignty’- principle of territorial sea is
not absolute as sovereignty and has certai exceptions- such as the right of innocent
passage
• Innocent passage right
a. Art. 17 of the UNCLOS specifies that all ships of all states, whetehr coastal or
landlocked, enjoy the right of innocent passage through the territorial sea
b. Art.18 defines passage- Here passage means navigation through the territorial sea for
the purpose of
1. Traversing the sea without entering internal waters or calling at the road tend or
port facility outside internal waters; or
2. Proceeding to or from internal waters or a call at such roadstead or port facility.

The passage shall be continuous and expeditious. It also includes the r

c. Art. 19- elucidates the meaning of the term innocent- it means not prejudicial to peace,
good order or security of the coastal state. Such passage shall take place in conformity
with convention and other rules of international law. It also gives examples of what is
prejudicial to these (threat or use of force against sovereignty, any exercise or practice
with weapons of any kind).
 d. Provision for submarines- Art. 20 of the UNCLOS stipulates that in territorial sea,
submarines and other underwater vehicles are required to navigate on the surface to
show their flag.
e. Warships- Right of innocent passage of warships has always been a controversial issue
in international law. Prima facie it is considered as an infringement of the coastal state’s
sovereignty.
There is no law on this. GC didn’t address and so didn’t customary law. Earlier in 1939-
the right of innocent passage for warships were denied.
C- Corfu Channel case-
1. UK- Argued that the warships had a right of innovent passage through the territorial
sea, which was a right a fortiori in the case of straits
2. Albania- there was no such right either generally or specifically in case of straits
3. ICJ- did not comment upon the general right of warships- but restricted opinions
specifically to straits. Some judges however did express opinion on straits too.
➔ Alvarez- war is outlawed in the UN Charter- mission of warships can only be
the defence of the country
➔ Kyrlov- no right of innocent passage of warships through territorial waters
➔ Azvedo- position of warshops in respect of passage was different from that of
merchant ships.
f. ILC on warships- In 1955, there was a trend towards allowing the coastal state, to
require previous notification or authorisation, although the emphasis varied between
subjecting transit to consent and merely informing of it in advance. (However at the
time of GC there was no consensus of warships- GC therefore did not address it).
• Breadth of territorial sea
a. After 17th century- debate started over how much of territory can be claimed as
territorial sea
b. 1737- breadth of territorial sea ws given by Bynkershoek as ‘the place where the power
of firearms ends’. (this gradually changed with developments in science and
technology).
c. In the debates of ILC in 1950-56 there were differences
1. They recognized differences in custom and practice of deciding territorial sea
 2. Recognized that international law did not permit extension of territorial sea beyonf
12 nautical miles
3. Commission recognized that many states had fixed limit greater than 3 nautical
miles- many states did not recognize breadth when that of a territorial sea is less.
d. Opinion at different conferences
1. 1st convention-failed to set the issue of breadth of territorial waters- therefore GC
1956 didn’t make any mention.
2. 2nd convention- 12 nautical miles suggestion made by US and Canada which failed-
no consensus reached
3. 3rd convention- some proposals made supporting, 50, 12 and 200 nautical miles.
However consensus reached on 12 nautical miles- reflected in art. 3 of the
convention.

• Measurement of territorial sea

a. Art. 5 of the UNCLOS states that the normal baseline for measuring the breadth of the
territorial sea is the lower waterline of the coastal state.
b. The issue however becomes complicated when there are a fringe of islands along the
coast, or multiple offshore features- in such a case the normal standard is departed from
and the outermost baselines are linked by straight lines from the territorial sea.

C- Anglo Norweigian fisheries case-

In this case, the UK and the Norwat contested access to fisheries off the norweigian coast.
Norwat attempted to claim ocean areas through ‘straight baselines; frm points along its
ruffed coastline and asserting that the enclosed areas between deep fjords were exclusive
Norweigian fisheries.

UK argued against this by maintaining that the baselines should dollow the outline of the
coast, using trace parallele or courbe tangent methods following the low water line.

ICJ ruled in favour of Norway based on geographic, historic and economic considerations.
 1. Geographic considerations- geo character of the coast is such that it is deeply
indented and cut into and is surrounded by fringe ilsands along the coast in its
immediate vicinity- these appertain to the territory- therefore straight baselines
can be drawn from appropriate points from these small islands.
2. Economic and Historic considerations- they tried to justify it through historic
and economic considerations particular to the region- on how local fisherman had
for a long time exercised monopoly over these regions. Further, economic
considerations were
➔ The Norwegian population derived benefits from fishing
➔ reference to the reality and importance of economic interests being evidenced
by long usage linking the economic and historic factors
➔ In reference to traditional to traditional rights of fishing.
c. Art. 7 of UNCLOS- The Anglo Norweigian Fisheries case also heavily influenced the
codification of law under the UNCLOS. It provided for straight baselines as a valid
method of drawing coastlines when ‘the coastline is deeply indented and cut into, or if
there is a fringe of islands along the coast in its immediate vicinity’.

• Delimitation of territorial sea between states with opposite or adjacent coasts.

a. According to art. 15 of the UNCLOS- where caosts are opposite or adjacent to each
other, neither of the two states are entitled, failing an agreement to the contrary to
extend the territorial sea beyond the median line every point of which is equidistant
from the neatest points on the baseline from the which the breadth of the territorial sea
of each of the two states is mentioned.
b. This does not apply, when there is a special historic circumstance to delimit the
territorial seas of two states in variance with this rule.

• Passage through international straits.

a. A strait is a narrow passage connecting two sections of the high seas
b. Concept of strait was iven judicial expressin n the corfu channel case
C- Corfu Channel Case- case involved dispute between UK and Albania. In 1946, two
units of the Royal Navy Squadron proceeding through the North Corfu chanel struck mines
which had been laid, as a result of which 4 people lest lives and serious damage was caused.
Soon, UK started minesweeping operations at the Corfu Channel.

Albania objected to this. As a result of the minesweeping operations, many mines were
detected and removed. Matter was referred the matter to the ICJ

UK Contentions- Albanian government had knowledge of the mines laid out at the Corfu
strait, which was a part of the international highway used to the knowledge of the Albanian
government by the shipping of other states;

Even if corfu wasn’t a strait, no state was entitled to lay down mines under International
Law

Albania contentions- Corfu channel was a inor route and therefore was not legally a strait-
this route was in between Albania and Greece which were at war with each other- passage
through this area was therefore not a question of free passage, but of national security. UKs
passage was therefore not innocent but offensive passage.

ICJ

1. Generally in times of peace states have to allow rite of passage of warships through
the area- no right for the coastal state to stop.
2. In seeing whether it was a strait- court said that a strait is an area connecting two
parts of the high seas, coupled with the fact that it was actually used for international
navigation- to be atrait it need not be a ‘necessary’ route between the high seas-
Corfu channel was an alternate route- hence it was sufficiently a strait.
3. Due to the ongoing war- Albania could’ve been justified in installing regulations
(like special approvals) for passage- but not stop it completely.
4. The passage of the ships were considered as non- innocent passages- these
operations were not justified under international law.

Two main propositions

 1. Warships have a right to innocent passage through international straits at a time of
undeclared war and peacetime.
2. Not all straits linking two parts of the high seas are international straits but only
those which are important as communication links.
c. ILC draft of 1956, ILC recommended no suspension of innocent assage for foreign
ships normally used for international navigation between two parts of the high seas.- it
was manifested in art. 16(4) of the Geneva Convention- which provides no suspension
of innocent passage of straits used for international navigation. (it doesn’t use the word
normally- so its applicable in all situations).
d. UNCLOS recognizes 116 straits as part of the territorial sea subject to coastal state
jurisdiction.
e. Important articles on straits-
1. Art. 34- regime of passage through straits for international navigation shall not in
other addect status of waters of straits, or exercise of sovereignty or jurisdiction
over them
2. Art. 37- straits used for navigating Exclusive Economic Zones
3. Art. 36- convention excludes such straits when a high seas route or a route through
an EEZ of similar convenience, with respect to navigational and hydrographical
exists through the strait
4. Art. 38- proclaims a right of transit passage which is not to be impeded, provided
that the right would be exercised solely for the purpose of continuous and
expeditious transit through strait or t o a state bordering a strait.
5. Art 42(4)- allows strait states to make on-discriminatory laws and regulations for
the safety of navigation and regulation of traffic.
• Contiguous zones
a. Concept arose due to the inability of coastal states to ensure effective protection of all
its interests due to the limited breadth of the territorial sea.
b. Issue discussed at the Hague codification conference- concept was adopted by states
without any nuances being discussed.
c. Issue was raised at first conference on law of the sea- here provides that in a zone of
high seas contiguous to the territorial sea, coastal state may exercise the control
 necessary to prevent infringement of customs, fiscal, immigrations or sanitary
regulations within the territorial sea- and punish infringement of the regulations
d. Contiguous zone doesn’t exist beyond 12 nautical miles
e. Acc to art. 33 therefore, a contiguous zone is an are where the costal state may exercise
control necessary to
1. Prevent infringement of its customs, fiscal, immigration or sanitary laws and
regulations within territory nd territorial sea.
2. Pbubish infringement of the above laws and regulations committed within its
territory or territorial sea.

Contiguous zone may not extend beyond 24 nautical miles from baseline from which
the breadth of the sea is measured.

• Continental shelf
a. Continental shelf- means submarine extenstion of the continent outward to the sea.
(submerged land mass)
b. Two factos of the submarine area are recognized by geologists
1. Continental slope- it is the steeper fall off of the seabed towards abyssal depths
beginning from the outer edge of the shelf is known as the continental slope.
2. Continental shelf- the part continuing outward is known as the continental rise.
c. Under the Truman proclamation of 1945- Truman claimed jurisdiction over natural
resources of the subsoil upto 200 metres water depth. The proclamation created two
precedents as to continental shelf
1. Continental shelf was regarded as a natural prolongation of the land mass of the
coastal state
2. Continental shelf was delimited for legal purposes by specific water deapth.
d. Concept received general approval from states- however the limitation for continental
shelf has been a matter of concern. Chile, Ecuador, Peru etc have claimed 2000 nautical
miles as the length of the continental shelf.
e. UNCLOS and provisions for continental shelf
The provisions for this are art. 76 to 85 of the UN Convention on the Law of the Sea
1. Art. 82- payment- coastal state would make payment for revenue sharing in respect
of exploitation of the non living natural resources of continental shelf beyond 200
nautical miles. These would be made annually with respect of all production at a
site after the first five years of production. For the sixth year, the rate of payment
or contribution would be one percent of the value or volume of production, and this
would increase by one percent each year until the 12th year after which it shall
remain 7 percent thereafter.
2. Regarding area under continental shelf- many states proposed formulas but none
were accepted. This resulted in the Irish and the Biscuit formula which were
incorporated in art. 76 of the UNCLOS (IMPT SECTION READ BARE ACT)
➔ Continental shelf was defined to be the seaed and subsoil of submarine areas
that extend beyond its territorial sea throughout the natural prolongation of its
land territoriy to the outer ede of the continental margin- or a distance of 200
nautical miles from baselines from which breadth of territorial sea is measured
where the outer edge of the margin does not extend up to distance.
➔ Irish formula (para 4)- costal state shall establish the outer edge of the
continental margin wherever the margin extends beyond 200 nautical miles
from the baselines from which the breadth of the territorial sea is measured
- Line delineated in accordance with para 7 by reference to the outermost
fixed points at each of which the thickness of the sedimentary rocks is
at least 1 percent of the shortest distance from such point to foot of the
continental slope
- Line delineated in accordance with para 7 by reference to the fixed
points not more than 60 nautical miles from the foot of the continental
slope.

In the absence of a contract to the contrary, the foot of the continental slope
shall be determined as the point of maximum change in the gradient at its
base.

(Envisaged under art. 76)

 ➔ Biscuit formula- It envisages that the continental shelf itself shall not exceed
350 nautical miles from the baselines from which the breadth of the territorial
sea is measured and shall not exceed 100 nautical miles from the 2500 meter
isobaths.

In deciding their continental shelves, the states need to employ either of these
methods and fix points.

The next step is to submit the proposed delineation, together with supporting
scientific and technical data, to the commission on limits of continental shelf, to
be established under the convention to be composed of experts (scientists). If
commission has recommendation- it will be sent to state- if state disagrees0 they
may make a revised or new submission with the commission

Initial submission must be made within 10 years of entry into force of the
convention in respect of that state, and revised new submissions within a
reasonable time after the first.

Delimitations of the continental shelf- Issue of delimitation of continental shelf- highly debated-
under GC the states are required to determine boundary of their continental shelf through an
agreement betwee them

In the absence of an agreement-and unless there is another boundary line justified under special
circumstances, the boundary shall be determined by application of principal of equidistance from
the nearest points of the baseline of which the breadth of the territorial sea is measured.

This ‘equidistance special formula’ is defined under art. 6 of the Geneva convention on the
continental shelf.

• Cases on Delimitation of continental shelf

C- North Sea Continental Shelf Case

F- Two special agreements had asked court to declare principles and rules of international law
applicable to delimitation as between parties of the areas of north sea continental shelf
appertaining to each of them beyond the boundaries in the immediate vicinity of the coast
already determined between Germany and Netherlands by an agreement in 1964.

a. The waters of the North Sea were shallow, the whole seabed, except for the Norwegian
Trough consisting of continental shelf at a depth of less than 200 metres. Most of it had
already been delimited between the coastal states concerned.
b. Germany, Denmark and Netherlands respectively however had been unable to agree on
the prolongation of the partial boundaries as referred above, mainly because Denmark
and Netherlands had wished this prolongation to be effected on the ‘equidistance
principle
c. Germany on te other hand considered that it would unduly curtail Germany’s proper
share in the continental shelf area, on the basis of proportionality to length of its north
sea coastline
d. Neither of the boundaries in question would by itself produce this effect, but only both
of them bound together, an element now regarded by Denmark and Netherlands as
irrelevant because they viewed it as two separate delimitations to be carried out without
reference to the other.
e. A boundary bsed on the equidistance principle, left to each of the parties concerned all
those portions of the continental shelf that were near to a point on its own coast than
they were to any point on the coast of the other party.
f. In case of a concave or recessing coast such as Germany’s at the North Sea, the effect
of equidistance method was to pull the line of boundary inwards towards the concavity.
g. Consequently, where the two lines were drawn, they would, inevitably meet at a
relatively short distance from the coast, thus cutting off the coast from the area of the
shelf outside. On the other hand, the effect of convex or outwardly curving coasts- was
to cause the equidistance lines to leave the cost at divergent courses- thus having a
widening tendency on the area of continental shelf off that cost.

Denmark and Netherlands contentions

 a. Denmark and Netherlands contended that the whole matter was governed by a
mandatory rule under art. 6 of the Geneva Convention on continental shelf- under the
equidistance special circumstance rule. (Rule – in absence of agreement to employ
another method, all continental shelf boundaries had to be drawn by means of an
equidistance line, unless special circumstances were recognized to exist.

Germany’s contention

a. Germany contended that there was no special circumstance

b. Alternatively, Germany claimed that if the equidistance method was held to be
applicable the configuration of the German north sea coast constituted a special
circumstance such as to justify a departure from that method of delimitation in this
particular case.

Court

a. Rejected the mandatory nature of the rule of equidistance- stated that a principle of
proximity inherent in the basic concept of the continental shelf, causing every part of
the shelf to apperatain to the nearest costal state and not to one another.
b. Further stated that art. 6 was not mandatory as art. 12 allowed for reservations to be
made with respect to this article when states signed the UNCLOS.
c. After concluding that it was not mandatory, two basic legal principles were stressed on
1. That delimitation must be the object of the agreement between the states concerned
2. Such agreement must be arrived at in accordance with equitable principles.

C- UK v. France delimitation of continental shelf case

F- Dispute arose between France and UK about alignment of boundary line in reation to
Channel islands which were close to the French mainland, i.e. across the median line drawn
with reference to the mainland of both countries. Both parties had opposite coasts.

Both parties agreed on portions of boundary line in the Channel to follow a simpliefied median
line. In case of boundary line in relation to Channel islands, UK wanted the median line to be
drawn between these islands and the French mainland whereas France wanted main boundary
between the main boundary line to be draw between the mainland of the two countries by
ignoring these islands as special circumstances.

Court- France had taken a reservation against art. 6 t the time of entering- therefore art. 6
could not be made applicable between the countries. However, the rule of equidistance special
circumstance was recognized as a principle of customary international law.

C- Libya Tunisia Continental Shelf case

F- Libya and Tunisia entered into an agreement to submit questins of delimitation of

continental shelf between the two countries to the ICJ- under this- cout was requested to declare
what provisions were applicable for delimitation of each territories continental shelf and to
clarify their method of delimitation.

Both parties here admitted to use of equitable principles, and also agreed that the GC of 1958
wont be applicable.

Q- what constituted natural prolongation

Court- Court applied equity in order to decide the case. As both parties recognized that
equitable principles dictated the relevant circumstances which characterise that area to be taken
into account but defer as to what they are- Tunisia wanted court to look into geographical and
historical factors, whereas Libya wanted the court to look only at geographical factors.

Court here held that it was not just economic factors, but even various historical
considerations raised by Tunisia which have to be looked into. The court also applied the
rule of proportionality, and ruled the case in favour of Tunisia

Regarding the equidistance rule, the court stated that it is not a principle of customary
international law as envisaged by UK France arbitration.

C- Delimitation of maritime boundary in the Gulf of Maine Area

It was different from other cases in the sense that

a. Court had to not just give relevant principles of international law- but provide for a practical
method for delimitation
b. Delimitation question was not just in relation to continental shelf, but exclusive conomic
zone also.

Here Canada argued customary nature of art. 6 and the equidistance principle whereas the US
rejected it

ICJ- Concluded that the equidistance special rule had not yet become a mandatory rule of
customary international law. Looking at the UK France decision held that the legal obligations
of the convention does not necessarily make it apply to the present case.

• UNCLOS on delimitation of EEZ and the continental shelf

a. Art. 74(1) and Art. 83(1) provides for these
b. Provides that the delimitation of EEZ and continental shelf between states shall be
affected by agreement on the basis of international law, as referred to in art. 38 of the
ICJ stature, in order to achieve an equitable solution.

Therefore, the statute expressed the need to settle a problem by agreement and recalling
the obligation to achieve an equitable solution.

• Regarding equitable criteria in delimitation

a. According to ICJ- fundamental rule of General international law requires delimitations
to be established applying equitable criteria- viewing to reach an equitable result.
b. Equity- should be derived from specific circumstances of each case- and should be
based on geography of the coast- which has primarily a physical aspect, and a
secondary political aspect.
c. Fair amount of weightage should be given to geographical features, namely lengths, of
the respective coastlines or countries, and presence of islands or groups of small islands
flying off coast.
d. ICJ therefore emphasises not only on equitableness of the result but also of the means
adopted- these depend from case to case.
e. In the case of Continental shelf between Libya and Malta-
1. Q here- what principles and rules of international law are applicable to delimitation
of the area of the continental shelf which appertains to Malta and the area of shelf
appertaining to Libya- and what practical pricniples should be applied.
2. Libya contended
➔ The law applicable here is that of limitation- and shall be solved through
equitable solutions
➔ In practice – these rules are applied by means of a median line at every point
which is equidistant from the nearest points on the baseline of Malta, and low
water mark of the coast of Libya.
3. Sources of law applicable
➔ Art. 6 and GC 1958 was not pplicabel
➔ UNCLOS not yet in force
➔ Decided that only CIL is applicable.
4. ICJ Views on principles
➔ Prolongation and distance principle- court held that natural prolongation and
distance are essential elemtns in the juridical concept of continental shelf-
implies that where the natural prolongation didn’t extend beyond 200 nautical
miles from shore, it is defined by distance from the shore, irrespective of
physical nature of seabed and subsoil.
➔ Equidistance method- It was stated that art. 6 is not a principle of CIL- not
obligatory
➔ Equitable principles- relying on Libya v. Tunisia, court held that delimitation
should be effected in accordance with equitable principle and taking into
account all the relevant circumstances, so as to arrive at an equitable result.
Court further looked into factors which need to be taken into account in
achieving equitable delimitation
- General configurations of the coasts of the parties, their oppositeness,
and their relationship to each other within the general geographical
context
- Disparity in lengths of the relevant coasts of parties and the distance
between them
 - The need to avoid delimitation any excessive dispropriation beteen the
extent of the continental shelf areas appertaining to the coastal state and
the length of the relevant part of its coast, measured in the general
direction of the coastlines

Court rejected Maltese argument that economic factors and security should
also be taken into account as relevant factors in the delimitation of the
continental shelves.

Pointed out that delimitation should not be influenced by relative economic

positions of two states in question- in a wat that the area of continental shelf
regarded as appertaining to the less rich of the two states would somewhat
increased n order to compensate for inferiority in exonomic resources

f. UNCLOS provisions regarding delimitation

1. Art. 15- repeats the Geneva conference- third conference- there were a lot of
problems- two rivalling principles came- equitable principles and single
equidistance cum special circumstances ruel
2. No resolution- UNCLOS ended up giving a vague solution- art. 74 and 83 said that
these disputes will be solved by ‘international law’ principles

g. Equity vis a vis equistadistance

1. Internatonal maritime boundary law contained in UNCLOS- seems to be
indeterminate- the solution to delimit is on the basis of international law.
2. UNCLOS makes direct references to the equidistant line, special circumstances and
historic title. In spite of indeterminancy of law relating to continental shelf and
EEZ- coastal states have preferred third party dispute resolution for their maritime
delimitation issues. Therefore there are more maritime related disputes than any
other subjects of international law.
3. As a result of ndeterminancy of maritime law- decisions of ICJ and arbitral award
shapes states obligations in this regard even though there is no doctrine of stare
decisis
 4. Decisions of ICJ and arbitral tribunalswith respect to delimitation of maritime
boundaries between states raise fundamental problems of jurisprudence
5. Jurisprudential issues are
➔ Unicum conception- unique of monotypic
➔ Whether equity plays the role of corrective equity or autonomous equity
➔ Whether equidistance principle represents basic premise
➔ Whether courts should develop jurisprudence of structured equity.
• Unicum Conception
a. Cocnept of uniqueness of each boundary of continental shelf- dates back to evolution
of continental shelf
b. Each continental shelf- is unique- has to be adjudged differently
c. Unicum conception supports this approach- of dealing with each situation in a unique
way having its own merits. View confirmed by ICJ in the Gulf of Maine case and the
Gunea Bissau arbitration
• Types of equity
a. Corrective equity- approach views equity as a corrective measure- holds that the role
of equity is to reduce the harshness of law and to mitigate the effects of the application
of the rule of law in particular circumstances in which the strict rule of law would work
an injustice- corrective equity approach implies that application of the equidistance
principle in the delimitation of maritime boundaries embodies the general rule.
b. Autonomous equity- insists that legal concept of equity is a general principle directly
applicable as law- constitutes independent measures to delimit the maritime
boundaries- equity is assigned a lead role in the delimitation process by this approach
Unicum conception supports autonomous equity which requires the court to render
justice in the concrete case by means of a decision shaped by and adjusted relevant
factual matrix of the case.
• Structured system of equity
a. Solution to autonomous equity lies in creating a ‘legal structure of equity’ or a common
principle to be followed across cases
 b. While equidistance might be a general norm which could be followed- various ICJ
Decisions and arbitral awatds have demoted equidistance as not a mandatory rule of
international law. Ex- settled in North Sea Continental Shelf case, Libya Tunisia etc.
c. Court did ntot prescribe any method of delimitation- however in Libya Malta the court
itself began a delimitation process by drawing a median line as a provisional strp by
asserting equitable nature of the equidistance principle especially in case of states with
opposing coasts.
d. Court cited various equitable principles and in substance found itself to be bound to
apply equitable principles as a part of international law and balance up various
considerations which it regarded as relevant to produce an equitable result.

C- Qatar v. Bahrain- equidistance special circumstances rule for delimitation of territorial

sea has been held to be customary international law and closely related to equitable
priciples/ relevant circumstances rule as it had been developed since 1958

C- Bay of Bengal Maritime Boundary Arbitration- issue was with respect of the
delimitation of the maritime boundary, i.e. the territorial sea, EEZ and continental shelf
within and beyond 200 nautical miles between the two states pursuant to art. 287- which
provides that states are free to choose means for the settlement of the dispute under annex
VII, art. 1 of the UNCLOS…. (DO REST FROM BOOK LATER)

• Exclusive Economic Zone

a. Concept is a product of UNCLOS 3- advanced by developing countries with an aim to
offset economic imbalances against them in history
b. Seabed committee looked into the proposal for a Patrimonial sea- introduced under
the santo domingo declaration by Mexico and Venezuela- provided for exclisove rights
to coastal state over renewable and non renewable resources found in wters, in seabed,
in subsoil and any area adjacent to territorial sea called the patrimonial sea.
c. These were however opposed by a few developed countries in the seabed committee-
saying it would change the character of high seas
 d. It was introduced in UNCLOS (the conference) due to overwhelming support from the
developing countries
e. It was made a part of an Informal Single Negotiating Text- which provided that the
coastal state had certain rights in an area of sea beyond the territorial waters- breadth
of sea should be 200 nautical miles
f. These principles remain unchanged- reflected in UNCLOS 1982

• EEZ under the UNCLOS

a. UNCLOS provided for legal regime for EEZ in articles 55-75.
1. Art. 55- EEZ is an area beyonf and adjacent to the territorial sea, subject to specific
legal regime established on its part under the jurisdiction of the coastal state and
the rights and freedoms of other states are governed by relevant provisions of this
convention.
2. Art. 56- identifies two essential legal rights of a coastal state
➔ Sovereign rights for the purpose of exploring and exploiting, conserving and
managing natural resources.
➔ Other rights and duties- vests jurisdiction in the coastal state with regards to
1) establishment and use of artificial islands, installations and structures; 2)
marine and scientific research 3) protection and preservation of marine
environment.
➔ This article is significant as it firstly indicates the nature of the coastal states
rights and activities in respect of the jurisdiction. Secondly, it underlines the
fact that the coastal states rights are primarily economic in nature, and only
categorises economic rights as sovereign rights.
3. Art. 58- provides for other rights and duties
➔ Navigation, overflight and laying of submarine cables and pipelines- and other
internationally lawful uses of the sea
➔ Art, 85-115 and other pertinent rules are to apply to EEZ as long as they are not
compliant with this part
 ➔ In exercising rights and duties of states in an EEZ- states shall have the rights
and duties of the coastal state and shall comply with laws and regulations of the
coastal state in accordance wit hprovisions of the conventions and other rules
of international law.
4. Art. 59- resolution of conflict- provides that in case the convention doesn’t attriute
rights or jurisdiction to coastal state- conflict would be resolved on the basis of
equity and in light of all relevant circumstances- taking into account respective
importance of interests as a part of the international community.
5. Art. 60- provides right for coastal state to construct
➔ Artificial islands
➔ Installations and structure for purpose provided under s.56 and other purposes
➔ Installations and structures which may interfere with exercise of rights of the
coastal state in the zone

STATE RESPONSIBILITY

• If a state by its act or omission commits a breach of an international obligation- it incurs

international responsibility. According to the PCIJ, it is a principle of international law that
the breach of an agreement involves an obligation to make reparation in an adequate form.
C- Corfu channel case – Albania was held liable for certain omissions, particularly for
the absence of a warning of the fanger of mines laid in territorial waters.
• State may incur responsibility in two ways
a. Direct injury0 to the rights of another state
 b. Wrongful act or omission which causes injury to an alien- in which case responsibility
will be attributed to the state where the alien is a national
• International responsibility is distinct from international obligation of states- obligation of
states under international law are primary rules, the breach of which the source is
international responsibility.
• The general rules of responsibility are referred to as secondary rules in as much as they
determine legal consequences of failure to fulfil obligations established by primary rules.
• A rule regarding an obligation is different from rules regarding whether that rule has been
breached. It is the latter which comes in the sphere of responsibility proper.

ILC on state responsibility

• ILC prepared the draft code on state responsibility into three parts
a. Part I- Concerning the origin of international responsibility
b. Part II- Concerning the content, forms and degrees of International Responsibility
c. Part III concerning settlement of disputes and implementation of International
responsibility
• The commission at its 32nd session in 1980 commenced the consideration of part two of
the drat articles. The draft articles were finaly completed in 2001
C- Bosnian Genocide case, Belgium v. Senegal- principles of law cited in various draft
articles have been relied on- these draft articles have come to represent principles of
customary international law.

Constituent elements of international responsibility

• Damage theory- damage is not treated as a separate element of state responsibility. Special
rapporteur ago considers it to be really contained in the primary rules and not the secondary
rules concerning state responsibility- implicitly the first constitutive element though not
expressly provided for in the draft articles.
Requirement of damage is connected with secondary rules- state becomes responsible to
another state only if by an act, another state suffers some international oblgations. This
theory provides that in order to create an automatic link between the acting and
 claiming state- fulfilment of the condition of damage suffered by claimant state is
required.
• Fault theory- This view states that a state is not responsible to another state for unlawful
acts committed by its agents unless these are committed wilfully and maliciously with
culpable negligence.
This view is not correct- introduces subjectivity in the field of state responsibility. What
is relevant for existence of state responsibility is the objective conduct of the state and not
psychological attitude of individuals acting as organs of the state.
C- Corfu channel- No heed paid to malicious intent- liability attributed to Albania solely
for the acts
Generally, most cases of Internationally wrongful Act requires some kind of absolute
liability ( like nuclear weapons, genocide etc) whereas there are some very specific crimes
which may need malafide intent (like active support of riots, denial of police protection
during civil war).
• Risk Theory- This theory establishes the liability of states arising out of the performance
of certain activities which are lawful but create serious risks, such as spatial and nuclear
activities.
Not applied as a general principle of responsibility, but only in case of conditions defined
in international conventions. Ex- GA Resolution 227 on space objects- lunching state is
absolutely liable to pay compensation for damage. No reference made to Absolute Liability
theory in draft articles

Draft articles- Important articles

• Art. 1 – states that every internationally wrongful act of a state entails the international
responsibility of that state.
• Art. 2- deals with elements of an internationally wrongful act of a state when conduc
consisting of an act or omission is
a. Attributable to the state under International Law
b. Constitutes a breach of an international obligation of the state
 (No heed paid to damage, fault or risk theory)

• Art. 3- deals with the issue of characterisation of an act as internationally wrongful and
states that the characterisation of an act of a state as internationally wrongful is governed
by international law. (determined by international law and not municipal law).
• Art. 4- (any organ to be considered state) (under rules of attribution)
• Art. 7- (Excess authority) (dealt with under rules of attribution)

Rules of attribution

• Attribution means imputation- if agency of state A has caused injury to citizen of state B
in breach of international law, state A will be responsible to State B for the damage done
• If there is no imputation- state can’t be made liable internationally liable- the act need not
even be wrongful in municipal law as long as its wrongful in international law.
• Art. 4 of the DARSIWA- provides that the conduct of any organ shall be considered as an
act of state under international law- whether the organ exercises legislative, execurive
judicial or other functions (Whatever position it holds).
• Art. 7 deals with the issue of importance of excess authority o contravention of instructions
and provides that the conduct of an organ of a state or entity empowered to exercise
elements of governmental authority.
• In case where the state organ or official had no authority under municipal law or the acts
were ultra vires- no attribution of liability arises. In these cases too however, states may be
responsible through omission or default of other state organs.
• If individuals are charged- state responsibility generally doesn’t arise if such person was
not acting on behalf of the state. If they are official personnel then the state may be liable
for omission or default.
• Before a state becomes liable, there must be some implied complicity in the wrongful act
either by negligent failure to prevent the injury, or to investigate the case and punish the
guilty offender.
C- Cost Rica v. Nicaragua- each party has the responsibility to monitor the territory from
tehe territory over which it unquestionably holds soveregitny…
Cases

C- Trail Smelter case- Arbitration grew out of air pollution from sulphur dioxide frimes emitted
by a smelter plant at trail, british columbi owned by a Canadian corporation. Arbitral tribual held
Canada responsible and directed injunctive relief and payment of indemnity stating that no state
can use their territory in such a manner as to cause harm to another state.

C- Iran hostages case- US instituted proceedings against Iran when a dispute arose in the US
embassy in Tehran. The staff and consuls were kept hostage by a group of militants, under the
order of an Imam. The matter was taken to the ICJ by the US. The court thoroughly analysed two
events (on the day of the incident, and ever since) in arriving at their judgment.

ICJ- held Iran to be responsible for the act of its nationals (in detaining diplomatic and consular
staff.) as

a. Iran was aware of their responsibilities and obligations under the conventions in force,
and the urgent need for action on their part, and had the means and methods to take steps
to protect the embassy. However, they did nothing to prevent the attack.
b. Regarding events since the hostge incident- court noted tht the leader of the country had
openly declared support fro the militnts’ action
c. In addressing whether the conduct of iran was justified- court looked into two letters cited
by Iranian foreign minister citing instances of criminal activities done by the US in iran.
The court however stated that even if these allegations were true, Iran had to first
negotiate with the US to revoke the diplomatic status before doing anything drastic.
d. Iran through their breach of international obligations has incurred responsibility towards
the US. Therefore, they owe some reparations for these injuries casued.

C- Nicaragua case- Nicaragua claimed that the US had over 1000 contra rebels recruited, paid,
equipped, supplied, trained and directed to carry out attacks against the Sandinista government.
By doing so, US was accused by Nicaragua for use of force, and sought a declaration from the US
that they had an obligation to pay for damages to person, property and the the economy

ICJ
 a. Provisionally passed a decision directing US to immediately cease its activities constituting
use of force against Nicaragua
b. Later passed a resolution holding US liable for acting in breach of its obligation under
customary interntional law by training contra forces.
c. They were also asked to pay reparations of an amount mutually recognized by the parties
(or if no consensus, an amount settled by the court).

(Read through bosinia and herzogivina genocide case at page 147)

• International Crimes and Delicts

a. International crime may result from serious breach of an international obligation of
essential importance. Ex- maintenance of peace and security, safeguarding the right of
self determination.
b. Distinction between International Crimes and delicts (just go through from the book-
he did not teach)

• Forms of reparation for breach of an international obligation

State discharges responsibility incumbent upon it for breach of an international obligation
by making reparation for the injuries caused. Regarding reparations, the PCIJ has said that
“reparation must, as far as possible wipe out all consequences of the illegal act and re-
establish a situation which would, in all probability, have existed if that act had not been
commited”.
Its types are
a. Restitution
1. It is designed to re-estalish the situation which would have existed if the
wrongful act or omission had not taken place- by performance of the obligation
which the state failed to discharge (Ex- revocation of unlawful act, return of
property)
2. Draft articles have approved restitution as a form of reparation- provides that a
state responsible for an internationally wrongful act is under an obligation to
 make restitution, i.e. to restablish the situation which existed before the
wrongful act was committed, provided and to the extent that the restitution
➔ Is not materially impossible
➔ Does not involve a burden out of all proportion to the benefit deriving the
restitution instead of compensation.
b. Indemnity
1. Most usual form of reparation.
2. Monetary compensation must, as far as possible, wipe out all the consequences
of the illegal act and correspond to the value which a restitution in kind would
bear- loss of profits are included and payment of confiscated property must be
determined at time of payment and not time of confiscation.
3. Indemnity should compensate for all damage which follows as a consequence
of an unlawful act- including a profit which would have been able to carry in
the ordinary course of events but not ‘prospective gains’.
4. Art. 36 of the draft articles- titled compensation provides that a state
responsible for an internationally wrongful act is under an obligation to
compensate for the damage caused thereby- in so far as such damage is not
made good by restitution.
5. Should cover financially assessable damanges including loss of profits in so far
as it is established.
c. Satisfaction
1. Third form osf reparation is appropriate for non material damage or moral
injury to the dignity or personality of the state
2. Ex- official apologies, punishment of guilty officials by the home state.
3. Art. 37 of draft articles- provides that states are under an obligation to give
satisfaction for injury caused by that act insofar as it can be made good by
restitution or compensation
Satisfaction- according to this provision can be through acknowledgement of
breach, expression of regret, apology etc.
d. Cessation and non-repetition
 1. Art. 30 – provides for an obligation to the state to cease the wrongful act and
give a guarantee of non repetition.
2. Also obliges states to offer appropriate assurances and guarantees of non
repetition, if circumstances so require.

C- Texaco Overseas Petroleum v. Govt. of Libya- here nationalisation measures

were taken by Libya against claimants concessions.

Sole arbitrator held that under international law, restitution in kind was the normal
sanction for non performance of contractual obligations. Ward against govt. was
rendered in defendants absence. Libya did not participate in any stage of the
proceedings. In dact, Libya stated that it would compensate the claim.

Arbitrator declared later tht the parties had settled the issues for an amount 152
million. However, the problem is that there are other decisions where under similar
circumstances, compensation has been seen to be the adequate remedy. (in case of
removal of concessions)

The correct position is that most agreements provide a clause which gives the
arbitrator to select the most adequate form of compensation. (Arbitral tribunal will
therefore give reparations considering practical difficulties and stuff).

e. Interest
1. Art. 38- provides that interest on principal sum shall be payable when necessary
in order to ensure full reparation
2. Interest rate and mode of calculation shall be set so as to achieve that result
3. Interest runs from the date the principal sum should have been paid until the
date the obligations to pay is fulfilled.
f. Contribution to the injury
1. ILC provides that in the determination of reparation, account shall be taken of
the contribution to the injury by wilful or negligent actin of romission of the
injured state or any person or entity in relation to whom reparation is sought.
g. Exploration of the property of aliens
 1. Any expropriation by a state of the property of an alien gives rise to
international responsibility of the state
2. It is difficult to treat an expropriation of foreign property in an non-
discriminatory manner as a breach of an international law
3. ICESR- gives right to developing nations to make such measures to guarantee
as to how much the economic rights of non nationals will be determined.
4. Appropriate compensation is required to be paid-on any controversy by
domestic tribunals of the nationalising state- unless it is freely and mutually
agreed by all parties concerned that other peaceful means may be sought on the
basis of which sovereign equality of states in accordance with the principle of
free choice of means

(Calvo clause- read briefly from book)

C- Case concerning Barcelona Traction Ligh and Power Co. Ltd.

F- Claim was submitted on behalf of Belgian nationals and shareholders of Barcelona traction.
Object of reparation was allegedly caused to the Belgian national by conduct said to be contrary
to international law., of various organs of the Spanish state towards Barcelona. Barcelona traction
was a Canadian company, and hence the main parties in the case are Belgium, the national state
whose organs are alleed to have committed unlawful acts aainst, and Canada, under who’s laws
Barcelona Traction was incorporated.

Questions

1. Whether Belgium has a right to exercise dilomatic protection of Belgian shareholders in a

company which is a juristic entity incorporated in Canada, and measures complained of
having been taken by the Spanish government
2. What considerations govern determination of nationality of a corporate entity?

ICJ

1. Limited liability company whose capital is represented by shares enjoys in municipal legal
systems independent corporate personality and is a separate entity from the shareholder
 ➔ While losses have been caused to both company and shareholder- only te
shareholders’ rights have been affected- therefore compensation needs to be
given to the shareholders only.
➔ Adoption of diplomatic protection for shareholders would cause confusion and
insecurity.
2. ICJ pointed out that in allocating corporate entities to states, international law is based, but
only to a limited extent on an analogy with the rules governing the nationality of the
individuals- corporates get protection under the state of its registered office-
➔ No need for a genuine connection test- it is relatively applied from case to case.
➔ Registered office is in canade, board meeting have been held in Canada for years
etc.

Accordingly, application of the Belgium was rejected.

Last part

La Grande case (learn from earlier chapter)

C- Avena case-

F- Case considered the obligations a state bears towards detained foreign nationals under art. 36
of the Vienna Convention on Consular Relations.

Mexico brought a suit on behalf of Mexican nationals arrested in US- 51 of them were arrested
without them being made aware of their art. 36 VCCR rights. Held liable (Read in detail from the
last page).

Part missed out- circumstances precluding liability

The draft articles of ILC on State Responsibility contains various circumstances precluding
wrogfulness. These are
a. Consent of the injured party- If a state consents to conduct by another state which would
otherwise constitute a breach of an international obligation towards the first state- then it
is a valid defence to preclude liability. These are provided for under art. 20-27.
Ex- justification was invoked by UK in conection with dispatch of british troops to muscat
and oman in 1957 and oman. (art. 20)
b. Self defence- Wrongfullness of an act not in compliance with an international obligation
of tht state if the act constitutes a lawful measure of self defence taken in conformity with
the charter of the UN. (art. 21)
c. Counter measure in respect to internationally wrongful act- wrongfulness of an act not
in conformity with an obligation of a stte towards another state- precluded if act constitutes
a measure legitimate under international law against that other state, in consequence of an
internationally wrongful act done in that other state. This has been provided for under art.
22 of the draft articles on state responsibility. (art. 22)
d. Force Majeure- wrongfulness of an act of a state not in conformity with an obligation of
that state is precluded if the act was due to an undorseen event which was beyond the
control of the state which made it materially impossible for state to act in conformity with
that obligation or to know that its conduct was not in conformity with that obligations.
(does not apply if party has contributed to the irresistible harm). (art.23)
Ex- tsunami, earthquake etc.
e. Distress- wrongfulness of an act not in conformity with international obligation of that
state is precluded if the author of the conduct which constitutes the act had no other means,
in situation of extreme distress, of saving life or that of person entrusted to his care.
(like force majeure does not apply if situation caused by the state itself). (art. 24)
Ex- UNCLOS Art. 18 para 2 provides that ships exercising rite of innocent passage have
the right to stop and anchor insofar as they are for necessity and force majeure.
f. Necessity- state of necessity denotes the situation of state whose sole means of
safeguarding an essential interest was threatened by a grave and imminent peril was to
adopt conduct not in conformity with what is required of it under international obligation
to another state. It has two elements
1. Impossibility of otherwise preserving, the state or its vital interests from a grave and
immediate danger
 2. The undeniably intentional nature of conduct engaged into this end.

Anyone invoking state of necessity is perfectly aware of having deliberately chosen to act
in a manner not in conformity with an international obligation. Provided for under (art.
25.)

C- Torrey Canyon case

g. Compliance with peremptory norms- Art. 26 of DARSIWA- provides tht the

proposition that no circumstance r ground whatsoever precludes the wrongfulness of any
wrongful act of a state which is not in conformity with an obligation arising from a
peremptory norm of international law. (art.26)

INTERNATIONAL LAW AND MUNICIPAL LAW

Theories

There are two principle theories on the relationship between international law and municipal law.
These are known as monism and Dualism

• Monism-
a. School which is led by Kelsen
b. They view international law and municipal law as accompanying aspects of one legal
system.
c. They contend that international law and municipal law not only resemble each other,
but at the same time emerge from a single grund norm or standard- they ‘mediately or
immediately’ regulate the conduct of individuals.
 d. Delegation theory is an aspect of mnism
1. Rules regarding international law are delegated to each state by the rules and laws
of the constitution. It is the state law which decides when provisions of a treaty or
a convention are to come into force.
2. Procedure to be adopted for this purpose- by the state are continuous and begins
with the implementation of the ‘international treaty convention’.
3. No transformation of international law into municipal law- no fresh creation of
rules of municipal law.
4. Process of creation of municipal law is prolongation of a single act of creation- i.e.
creation of international norms (municipal norms arises from international norms).
Primacy given to international law as the superior legal system over national law.

C- Hungary v. Slovak Republic- held that EU law should be read with international
law and that international law is a part of EU law.

• Dualism
a. They hold international law and municipal law to be entirely two distinct legal systems.
b. International law has a different character from municipal law- they have no
relationship whatsoever with each other.
c. They give three arguments to support their stand
1. Origin of international law are different in as much as the source of municipal law
is the will of the state itself whereas the source of international law is the common
will
2. Subjects of municipal law are individuals whereas subjects of international law are
states
3. International law and municipal law differ in regard to the substance of their law
inasmuch as municipal law is a law of the sovereign over individuals whereas
international law is the law between sovereign states (and hence weaker law).
d. Dualism also propagate the transformation or specific adoption theory
1. They contend that international law cannot be directly applied within the municipal
sphere by state courts.
 2. Rules of international law become binding on municipal courts only if such rules
are transformed into domestic legislations. Municipal law strengthens international
law by incorporating it into the national law by legislation- making it binding on
municipal law.
3. As they are two distinct areas- international law cannot interfere with national law
unless the national law gives permission to do the same.
4. They recognize international law treaties to be in the nature of ‘promises’ as
opposed to municipal law which is in the nature of ‘commands’. Therefore follows
that transformation of international law into municipal law is formally and
substantively indispensable.

Practice of states

Practices of three states will be analysed- England, US and India

• English practice
a. William Blackstone propounded a doctrine known as the Blackstonian doctrine (Also
known as the incorporation doctrine)
b. It states that Customary International Law is deemed automatically to be a part of
common law. (must be ascertained and administered by courts of justice of appropriate
jurisdiction as questions of right depending upon it are presented for their
determination).
c. Treats customary international law as a part of municipal law without any limitation
d. Doctrine favoured by English courts in the 18th century and most of the 19th century-
doctrine was however clouded after the decision in R v. Keyn. (Held that English courts
had no jurisdiction over crimes committed by foreigners within the maritime belt
extending miles off the English coast- even though this was allowed by international
law.)
This was following the principle that international law could not be applied to
municipal courts in Britain unless they have been embodied in a British statute.
e. 20th century- Blackstonian doctrine was revamped again- however the scope of the
doctrine was narrowed and exceptions were made.
 The doctrine suffered an eclipse in case of inconsistency between international law and
municipal law. In case of inconsistency between international law or municipal law-
the municipal law would have prevailed. This constituted an exception to the
blackstonian doctrine.
f. Despite this, the doctrine has left its mark in England notwithstanding the fact that it
has been made subject to exceptions by british decisions- this is mainly seen in two
points
1. Rule of construction-
➔ Courts in England adopted a harmonious construction avoiding conflict
between statute law and international law.
➔ Through various decisions, it has been shown that English courts interpret
municipal law in the context of international law, and thereby avoid conflict of
the former with the latter.
➔ Rule doesn’t apply if the municipal law is clear and unequivocal (preference
given to municipal law over international law.

2. Rule of evidence-
➔ British courts do not call for evidence to prove rules of international law, as they
do in cases requiring proof of foreign law in the sphere of conflict of laws.
➔ British courts take judicial notice or international law and refer to textbook and
other sources for evidence.
➔ English court follow international custom unless it conflicts with statute (when
it does the latter prevails).
g. International treaties
1. In case of such treaties- English practice is conditioned by the principles governing
the relations between the executive and the parliament.
2. In England, all treaties do not automatically come into force- treaties which affect
private rights , requiring for their enforcement a modification of common law or
statute means receive parliamentary assent through an enabling act of the parliament
3. International treaties ipso facto does not become the law of the land, unless they are
accepted by the states.
 4. These work different for two types of treaties- those treaties which affect the
legislative domain of the parliament need the assent of the parliament, whereas those
involving other ancillary aspects don’t count.

• American practice (Read in brief from book) (very similar to English practice)
(small difference- in the US the congress is given the power to define and punish offences
against the law of nations-
On customs they consider international law as a part of law, which must be ascertained and
administered by courts of justice of appropriate jurisdiction as often as questions of right
depending uon it are duly presented for their determination- Decision in Pacquette Habana
case)

• Indian practice
a. On international custom
1. India does not follow the blackstonian doctrine that the law of nations is a part of
the law of the land.
2. Ar.t 51(c) of the Indian constitution is the guiding stone as far as the Indian practice
is concerned- states shall endeavour to ‘foster respect for international law and
treaty obligations n the dealings of organized people with one another.
3. Article 51 further states that states must foster respect for international law.
4. Further under art. 51(c) the difference between international law and treaty
obligations is that international law refers to customary law only. Ths imples that
customary law is not incorporated into indian municipal law ipso facto. Another
implication of this rule is that interntional law is merely seen as a directive
principle.
5. It is not like Indian law completely shuts down incorporation of customary
international law
 ➔ C- Annakumaru Pillai v. Muthupayal- right over chank fisheries decided
through historic title (customary right)- stated that this title was acquired by
prescription and acquiescence.
➔ C- AMSSVM v. State of Madras- issue was whtehr the state of madras was
entitled to abolish provate rights on the exploration of chank fish in Palk bay-
according to Madras HC chank fish, due to their immobile nature and constant
attachment to the seabed could not be considered like other fishes- they also
said relied on common law and international law to incorporate prescription and
acquiescene to states that chank fisheries are beyond India’s maritime
delimitation.
➔ C- ADM Jabalpur v. Shivkant Shukla- arguments regarding UDHR as a part
of indian municipal law J Beg said that the final test for validity and
enforcement of rights is Indian constitution- to try and cite the UDHR implies
that constitution is inadequate.
6. Common law requires that international law and municipal law needs to be
harmoniously constructed- only in conflict does statute law prevail.
Further, law in force under art. 372 includes both Indian law and common law- art.
395 makes it clear that notwithstanding any other provision of this constitution- all
laws in force in the country immediately before the constitution shall continue to
remain in force until repealed or amended by a competent legislature- therefore
until there is express conflict- itnerntional law can be harmoniously
constructed and imposed otherwise domestic law will prevail.
7. This is a more rational idea provided for discussed in Khanna’s dissent- who held
that such a construction of constitutional provisions should be adopted as would, if
possible- if it doesn’t directly conflict with UDHR.
➔ C- Vellore Citizens Welfare Forum v. UoI- SC held that the precautionary
principle and polluter pats principle have acquired the character of
international custom, and accordingly, constitute a part of the law in India as
there is no conflict between these principle of law and law in India.
b. International treaties-
1. Art. 73 of constitution- executive power of the union shall extend to such matters
in respect of which the parliament has the power to make laws
2. Art. 53- executive power of the union is vested with the president and can be
exercised by him directly or through officers subordinate to him in accordance with
the constitution.
3. Art. 246 read with list 1 entry 14 (union list)- deals with entering into treaties and
agreements with foreign countries- as there is no executive act- presidents right to
enter into treaties is unfettered.
4. Art. 253 further provides that parliament has exclusive power to make any law for
the whole or part of the territorial with a view to implement treaties and
international agreements- all laws have to be made by the parliament only.
(Q arises- does there have to be a parliamentary law for treaties to come into force)
C- Union of India v. Manmull Jain- Making a treaty is an executive act and not
a legislative act- legislation may be required for giving terms of treaty (Depending
on type of treaty)-however as it is the treaty is complete without the legislation.

5. Implementation of treaties (involving cession of national territory)-

➔ C- Re berubari 1- here the question was regarding secession of certain enclaves
to Bangladesh- whether there was a need for a legislation or will an executive
agreement do.
Court here held
- Agreement amounted to cession and alienation of a part of the territory
and was not a mere ascertainment of the boundary- as cession of territory
involved- legislation needed.
- SC held that if the agreement is for rearrangement or ascertainment of
boundaries- no legislation required- however as the agreement is in the
nature of cession of territories- a domestic legislation is required-
agreement would therefore have to be implemented in accordance with
art. 368
 ➔ Re Berubari 2 (Ramkishore Sen v. UOI)- Q- was regarding a territory which
was de facto under indian administration but de jure with Pakistan- here as the
giving back of territory was mere ‘restoration of rights’ and not ceding of
territory- proposed transfer could take place without agreement.
• International law and statute law- what would prevail
a. In India it is well established that in case of conflict between International law and
statute law
1. India will give effect to statute law
2. If statute law is ambiguoug, the courts adopt the doctrine of harmonious
construction so as to avoid conflict between international treaties and statute law.

(similar to English and American practice).

b. C- Jolly Varghes v. Bank of Kochi- J Krishna Iyer harmoniously constructed S. 51 of

the CPC with art. 11 of the ICCPR (Regarding no imprisonment merely on the ground
of non fulfilment of contractual obligation)- declared that S.51 has some flavour of
international law.

LAW OF TREATIES

Introduction

• Term sources refer to formal sources of international law- methods for establishing legal
norms of IL. Does not refer to the substantive or material sources of IL. Content of treaty
provision or rules of Customary International Law.
• History
a. In 1920- Statute of PCIJ drafted by advisory committee of jurists appointed by league
of nations.
b. 1945- drafting of ICJ statute- accepted as correct statement of the sources of
International Law.

Treaties in International Law and the law of treaties

 • There are about 1,58,000 registered treaties with the UN- In various instances they have
come to replace the existing Customary International Law as the source with more
certainity and clarity.
• Law of treaties- It is the body of rules which governs
a. What is a treaty
b. How it is made and brought into force
c. Amended
d. Terminated
e. And how it generally operates.
• Apart of jus cogens- not concerned with the substance of a treaty (rights and obligations
created by it)- which is known as a treaty law.

ILC and its codification for law of treaties

• Law of treaties was one of the first laws chosen by the ILC for its codification at the first
session in 1949.
• Succession of eminent british international legal scholars presided over this- Brierly,
Hersch Lauterpacht, Fitzmaurice, Waldock
• ILC adopted a final set of draft articles with a commentary on each one in 1966 (1996
Draft Articles on Law of Treaties).

VCLT

• VCLT was based on the ILC’s draft articles on law of treaties in 1968 and 1969. The
conference adopted the VCLT on 22 May 1969
• Text accepted with 79 votes to 1 with 10 alterations- entry into force required 35
ratifications and happened on January 27, 1980. Currently 116 states were parties to the
VCLT including 26 EU Member states.
• Traditionally the law of treaties were governed by CIL. UN has codified law of treaties
a. 1969 VCLT
b. 1978 Convention on succession os states with respect to treaties
 c. 1986 Vienna Convention on Law of treaties between states and International
Orgnization or between I0s (not yet in force)

Recent codifications on law of treaties

a. Reservations to treaties (guide to practice)

b. Effects of armed conflicts on treaties
c. Subsequent agreements and subsequent practice practice in relation to interpretation of
treaties
d. Provisional application of treaties.

• Advantages of the VCLT

a. Governs all the law of treaties (whatever name, subject matter, bilateral or multilateral
treaties)
b. VCLT governs all aspects of treaty law (Birth of treaty, life of the treaty, death of the
treaty)
c. VCLT strikes a balance between regulating of all treaties (new and classic forms of
treaty making, stability and flexibility of treaty relations

• Flexibility of VCLT
a. VCLT is the key reference to settle issues arising in treaty law but not settle all.
b. VCLT consolidates key principles of law of treaties (principle of consent of state
parties, priciples of pacta sunt servanda)
c. VCLT is a set of residual rules (provisions subject to contrary view of the parties
(however refer to art. 53 and 64).

• Application of VCLT
a. Strictly speaking VCLT applies only to treaties that are concluded by states after entry
into force of the convention with regard to such states (art. 4)
 b. Most provisions of the VCLT is considered as customary international law and are
applicable to other treaties as well
c. Many judgements and advisory opinions of the ICJ refer to VCLT as an expression of
customary international law- no cases where ICJ has held to the contrary.

• VCLT as a reflection of Customary International Law

a. Three aspects of VCLT confirm that rules of customary international law continue to
govern questions not regulated by VCLT
1. Art. 3(a) - fact that convention does not apply to international agreements
concluded between states and such other subjects of international law or to
international agreements not in written form shall affect the legal force of such
agreements.
2. Art. 4- treaties concluded before the convention was completed would continue to
be governed by customary international law.
3. Para 8 of the preamble of VCLT- Affirming that the rules of customary
international law will continue to govern questions not regulated by the provisions
of the present Convention,
b. The contents of the VCLT represents both codification of Customary International Law
and progressive development of international law (art. 9(2), 19-23, 40-41 and Part V)

Substantive provisions of VCLT

(Basic elements of multilateral treaty - take from slide 16)

Scope

Art. 1- Scope of convention

• Applies to treaties between states

Art. 3- International Agreements not within the scope of the present convention
 • Present convention does not apply to international areements concluded between states
and other subjects of international law- or between other subjects of international law
or international not in written form. This shall not affect
a. Legal force of agreements
b. Application to them any rules within the convention to which they would be subject to
under international law
c. Application of convention to relations of states- as between themselves- under
international agreements to which other subjects of law are also parties.

(ILC purposefully excluded these – due to peculiarities of certain treaties to which IGOs
are parties- differing rules of which would make VCLT very complicated and delay
drafting.)

Art. 5- Treaties constituting international organizations and treaties adopted within an international
organization

• Present convention applies to any treaty- which is the consttutent instrument of an

international organization- and to any treaty adopted within an international organization
without prejudice to any relevant rules of the organization.

C- Cameroon v. Nigeria (Dispute regarding maritime delimitation)- Nigeria argued that

the Maroua Declaration was invalid and nonbinding because although the Nigerian head of
state had signed it, the agreement had not been ratified either by Parliament or any other
governmental process. The ICJ held that under international law the declaration was valid and
came into effect upon signing by the head of state

Definition

Art. 2(1)(a)- Treaty definition

• Treaty has been defined as an ‘international agreement concluded between states in the
written form and governed by international law whether embodied in a single instrument
or in two or more related instruments whatever its particular designation.
• Requirements of a treaty
 a. Must be a written instrument or instruments between two or more parties
b. Parties must be states within the meaning of international law
c. Must be governed by international law
d. Must be intended to create legal obligations.
• Requirement of writing is not there specifically- in fact CIL provides specifically for non
written treaties in some cases.

Birth of the treaty/ Inception of treaty- Authority to conclusion of treaties

• Provisions of part II of VCLT deas with rules pertaining to the creation of treaties in
IL
a. Covers procedural aspects of treaties
b. Parts of Part II are as follows
1. Conclusion of treaties (Art. 6-18)
2. Reservations (art. 19-23)
3. Entry into force and provisional application of treaties (Art. 24-25).
• Practice regarding conclusion of treaties
a. Negotiation
b. Adoption
c. Authentication
d. Consent to be bound
e. Entry into force

Art. 46- Provisions of itnernatl law regarding competence to conclude treaties

• State cannot invoke fact that consent to be bound by a treaty has been expressed in violation
of a provision of internal law regarding competence to conclude treaties- unless that
violation was manfest and concerned a rule of internal law which was of fundamental
importance.
• Violation is manifest- if it would be evident to any state conducting itself in matter
according to normal practices and in good faith.
 C- Eastern Greenland case- ICJ rejected Norway’s claim that a foreign minister was not
competent under national law to give promise.

C- Maritime Delimitation and territorial questons case (Qatar v. Bahrain)- Court rejected
argument that Doha minutes was not a treaty- irrelevant that the foreing minister had no
constitutional authority to conduce a treaty per se.

• Who represents a legitimate government- governed by doctrine of full powers

a. Art. 2(c)- full powers means document emanating from the competent authority of
a state designating a person or persons to represent the states for negotiating,
adopting or authenticating a text of a treaty, for expressing consent of state to be
bound by treaty, or accomplishing any other act with respect to a treaty.
b. Art. 7- full powers- provides that a person is considered to be representing state if
1. He produces appropriate fullpwoers
2. Appears from practice of state concerned that their intention was to consider that
person representing that state for such purposes and to dispense with full powers.
c. If person not authorised under by state concludes a treaty- then the state has the power
to confirm the authorisation subsequently (under art. 8)

Adoption and authentication

Art. 9- Adoption of the text

• Adoption of texto f a treaty takes place by consent of all states participating in its drawing
up except as provided in para.2
• Adoption in its of text of a treaty at an international conference- takes place by the vote of
two thirds of states present and voting- unless by same majority they shall decide to apply
a different rule.

Art. 10- Authentication of the tet

• Text of treaty is established as authentic and definitive

 a. By such procedure as may be provided for in the text or agreed upon by sttes
participating in its drawing up
b. Failing such procedure- by the signature, signature ad referendum or initialling by the
representatives of those states of the text of the treaty- or the final act of a conference
incorporating text.

Art. 11- Means of expressing consent to be bound by a treaty

• Consent of a state to be bound by a treaty may be expressed by signature, exchange of

instruments constituting a treaty, ratification, acceptance, approval or accession, or by any
other means if so agreed.

Art. 24- Entry into force

• Treaty enters into force in such manner and upon such date as it may provide or as the
negotiating states may agree
• Failing any such provision or agreement- a treaty enters into force as soon as consent to be
bound by the treaty has been established for all negotiating states.
• When consent of state to be bound by a treaty- is established on a date after has come into
force- treaty enters into force for that state on that date, unless the treaty otherwise provides.

• Provision of treaty regulating the authentication of its text- establishment of consent of

states to be bound by the treaty- manner or date of its into force, reservations- functions of
the depositary and other matters arising necessary before the entry into force of treaty apply
from time of adoption of its text

Art. 25- Provisional application (read bare act)

Art. 18- Obligtion not defeat the object and purpose and purpose of a treaty prior to its entry into
force

• State is obliged to refrain from acts which would defeat the object and purpose of a treaty
when:
 a. Signed the treaty or has exchanged instruments constituting the treaty subject to
ratification, acceptance or approval, until, it shall have made its intention clear not to
become a party
b. It has be expressed its consent to be bound by treaty, pending the entry into force of the
treaty and provided that such entry into force is not unduly delayed.

Scope of legal obligations

Art. 26- Pacta sunt servanda (treaties must be performed in good faith)

Art. 27- Internal law and observance of treaties- (parties may raise provisions of internal law as
justifications for failure to perform a treaty).

Treaty interpretation

• Three schools of interpretation

a. Objective or textual interpretation- ordinary or plain meaning of treaty text- if
meaning cant be seen- then extra linguistic elements and meanings may be considered.
b. Subjective interpretation- Intention of parties to the treaty who negotiated it- this may
change over time
c. Teleological interpretation- Interpretation in light of object and purpose of treaty-
general object of treaty v. intention of parties

(Bare provisions not done from here- just the bare act)- starting from slide 44

Art. 31- general rule of interpretation

Art. 32- Supplementary means of interpretation

• Preference given to ordinary meaning in terms of treaty in their context

• Involves adegree of subjectivity

C- Qatar v. Bahrain- Doha minutes did have an ordinary meaning in light of its context and
object and purpose- rejected supplementary means of interpretation

• WTO- favors textual and subjective interpretation followed by historical interpretation

 (cases- provided in slide 46)

Art. 33- Interpretation of treaties authenticated in two (when treaty is there in two or more
languages, the text is equally authoritative in each language- unless treaty provides or parties agree
that in case of divergence, a particular text shall prevail).

Amendment and modification of treaties

Art. 39- General rule of interpretation regarding amendment of treaties

Treaty may be amended by agreement between parties- unless the treaty itself provides otherwise.

Art. 40- Amendment of multilateral treaties

Unless treaty otherwise provides- amendment to multilateral treaties shall be governed by the
subsequent paragraphs. (Refer to slide 51)

Further, according to para 5 of this provision, any state which becomes party to treaty after entry
into force of the amending agreement shall, failing an expression of a different intention by that
state

a. Be considered party to the amended treaty

b. Be considered as a party to the unamended treaty in relation to any party to the treaty not
bound by the amending agreement.

Art. 41- Agreements to modify multilateral treaties between certain of the parties only

Allowed if the provision of modification is provided for in the treaty, or if the modification in
question is not prohibited by the treaty.

Treaties and third parties

Art. 34- General rule regarding third states

Treaties do not create either obligtions of third parties without their consent.
 • This is corollary to the principle of consent and of sovereignty and independence of states
• Based on latin maxim- agreements harm nor benefit third parties
• In exceptional cases- treaty can create obligations for third parties.

Art. 35- Treaties providing for obligation for third parties

Obligation exists for a third state from a provision of a treaty- only if party intends the provision
to be means of establishing obligation- and the third state expressly accepts the obligation in
writing.

Art. 36- Treaties providing for rights for third states

Right arises for third state if parties inted the provision to provide for a right for a third state (or a
group of states), and such third state assents thereto- this assent is presumed valid until contrary
intention is indicated

State exercising right in accordance with this paragraph- shall comply with conditions for exercise
provided in treaty or established in conformity with the treaty.

Art. 37- Revocatin or modification of obligations or rights of third parties

When obligation arises in conformation with third state in conformity with art. 35- obligation may
be revoked or modified only with consent of the parties to treaty and of the third state, unless it is
established that they had otherwise agreed.

When bligation is in conformity with art. 36- right may not be revoked or modified by third parties-
if established that the right was not revocable or subject to modification without consent of the
third state.

Art. 38- Rules in a treaty becoming binding on third states through international custom

Nothing in these provisions precludes rule set forth in treaty from becoming binding ob third state
as customary rule, recognized as such.
Invalidity of treaties

• VCLT does not provide conditions for validity of treaties. State parties invoking validity
of treaties therefore have a burden of proof. These grounds are
a. Breach of internal provisions regarding competence to conclude treaties- s.46
b. Restriction on authority to express consent (unless restriction was notified to
negotiating state prior to expressing such consent)- s.47
c. Error- if error relates to a fact/situation forming essential basis for that consent– s.48
d. Fraud- S.49
e. Corruption of state representative- S.50
f. Coerion of state representiatve- S.52
g. Conflict with jus cogens- S.53
h. Emergence of a new peremptory norm of international law- S.64
• Absolute and relative grounds
a. In cases covered under art. 8 and 51 to 53 of the VCLT- the treaty is void, or the
expression of consent to be bound by the treaty is without legal effect- if one of these
grounds are valid, then the agreement is void from the moment it was concluded.
b. Cases covered under art. 46-50 of VCLT- state may merely invoke vitiating factor as
invalidating treaty- effect of this formula- treaty is ‘voidable’ rather than void- treaty
is valid until state claims that it is invalid.
c. Doubtful whether this distinction is clearly established in custom as VCLT may
suggest.

Termination and suspension of treaties

• Principle of pacta sunt servanda- requires treaty obligation t obe carried out in good faith.
• Under certin circumstances treaty suspension is justified.
• Difference between suspension and termination
a. Treaty suspended is still valid but operation is suspended
b. Treaty termination is no longer in force as it has ended its existence
• Under VCLT treaty may be suspended in 6 cases
a. When all contracting parties agree to suspend the operation of treaty or some of its
provision
 b. Where two or more parties aree to suspend operation temporarily between themselves-
provided this is allowed under relevant treaty and are not prohibited.
c. S.59- when all contracting parties to an earlier treaty are also parties to a later treaty
and the two treaties relate to the same subject matter.
d. S.60- When another party commits a material breach of treaty
e. S.61- when it is impossible for a party to perform its obligation; supervening
impossibility of performance (Refer to slide 72)
f. S.62- where there is a fundamental change in circumstances since the treaty was
concluded.
• A treaty can be terminated in these cases
a. When it contains an express provision to this effect and contracting party is in
conformity to that provision
b. When all contracting parties agree (S.54 and 56)
c. When a new rule of jus cogens has emerged and existing treaty is in conflict with it.
(S.64)

Termination by parties conduct

d. Material breach- S.60 (means repudiation of a treaty in a maner not authorised by the
VCLT or in violation of a provision essential to the accomplishment of object and
purpose of treaty.)
e. Impossibility of performance- S.61
f. Fundamental change in circumstances- S.62

C- Namibia case- SA effected material breach of mandate over territory thus justifying
termination of mandate by UN.

C- Danube Dam- Hungary argued that it was entitled to terminate treaty because of prior
breach of Czechoslovakia

ICJ Art. 60- CIL breach of treaty not breach of other rules of IL could justify Hungary’s
termination- not entitled as Hungary could not rely on material breach by C when C alleged
creach a response to H earlier breaches.
 C- Macedonia v. Greece- Violation of interim accord by Greece by reason of FYRM pror
breach- material breach- object and purpose of treaty.

(Suprevening responsibility and reibus stic stantibus study from slides only)

Procedures and consequences

Art. 65- Procedure to be followed with respect to invalidity, withdrawal from or suspension of the
operation of treaty

Procedure to be followed with respect to invalidity, termination, withdrawal of a treaty…

(Notification shall indicate measure proposed to be taken with respect of treaty and reasons
thereof)- objection has to be raised within 3 months

Art. 69- Consequences of invalidity of a treaty

Art. 70- Consequences of the termination of a treaty

Art. 71- Consequences of invalidity of treaty which breaches peremptory norm of general
international law

Art. 72- Consequences of suspension of operation of treaty