PUBLIC INTERNATIONAL LAW - JULY – NOVEMBER 2022

TABLE OF CONTENTS

PIL READINGS.......................................................................................................................3

MODULE 1: INTRODUCTION............................................................................................ 5

I. THIRD WORLD APPROACHES TO INTERNATIONAL LAW: A MANIFESTO.............................9

II. FEMINIST APPROACHES TO INTERNATIONAL LAW............................................................11
I. WHAT IS TWAIL?............................................................................................................11
II. INTERNATIONAL LAW AND THE DEVELOPING WORLD: A MILLENNIAL ANALYSIS—
KEYNOTE ADDRESS.................................................................................................................12
III. INDIAN COURTS AND INTERNATIONAL LAW....................................................................13
IV. THE SUPREME COURT OF INDIA AND INTERNATIONAL LAW: A TOPSY-TURVY JOURNEY
FROM DUALISM TO MONISM....................................................................................................15

MODULE 2: SOURCES OF INTERNATIONAL LAW................................................... 21

B. CUSTOMARY INTERNATIONAL LAW...............................................................................22

C. GENERAL PRINCIPLES OF INTERNATIONAL LAW..........................................................23
D. GENERAL PRINCIPLES OF INTERNATIONAL LAW REPORTS.........................................24
I. FIRST REPORT ON GENERAL PRINCIPLES OF LAW................................................................24
II. SECOND REPORT ON GENERAL PRINCIPLES OF LAW...........................................................24
III. THIRD REPORT ON GENERAL PRINCIPLES OF LAW.............................................................24

MODULE 3: SUBJECTS UNDER INTERNATIONAL LAW......................................... 25

A. STATE................................................................................................................................25
B. INTERNATIONAL ORGANISATION....................................................................................26
C. INDIVIDUALS.....................................................................................................................29
D. LEGAL STATUS OF ICRC................................................................................................31
E. TREATMENT OF MNCS....................................................................................................32

MODULE 4: CREATION AND INCIDENCE OF STATEHOOD.................................. 32

MODULE 5: RECOGNITION............................................................................................. 33

MODULE 6: TERRITORY.................................................................................................. 36

MODULE 8: STATE RESPONSIBILITY.......................................................................... 37

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A. ATTRIBUTION/ IMMUTABILITY........................................................................................37
B. CIRCUMSTANCES WHICH PRECLUDE WRONGFULNESS..................................................37
C. CONSEQUENCES................................................................................................................40
I. U.S. REMARKS AT A MEETING OF THE SIXTH COMMITTEE ON AGENDA ITEM 74:
RESPONSIBILITY OF STATES FOR INTERNATIONALLY WRONGFUL ACTS DAVID BIGGE,,
ATTORNEY ADVISER.................................................................................................................41
D. CASES IMPORTANT FOR THE CA4..................................................................................42
II. MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARAGUA (EFFECTIVE
CONTROL).................................................................................................................................42
III. BOSNIAN GENOCIDE CASE (EFFECTIVE CONTROL)..........................................................42
IV. PROSECUTOR V. DUSKO TADIC (OVERALL CONTROL)......................................................43
V. RAINBOW WARRIOR CASE................................................................................................43
VI. THE CORFU CHANNEL CASE............................................................................................44
VII. TRAIL SMELTER CASE......................................................................................................44
VIII. GABˇCÍKOVO-NAGYMAROS PROJECT CASE....................................................................45
IX. UNITED STATES DIPLOMATIC AND CONSULAR STAFF IN TEHRAN CASE.........................45

MODULE 10: INTERNATIONAL LAW AND USE OF FORCE....................................47

A. READINGS ON THE USE OF FORCE...................................................................................47

I. INTERNATIONAL LAW AND ITS TRANSFORMATION THROUGH THE OUTLAWRY OF WAR...47
II. EKHURT RELEVANT PORTIONS..........................................................................................48
III. KELLOGG-BRIAND PACT 1928..........................................................................................49
IV. WHO KILLED ARTICLE 2 (4)?...........................................................................................49
V. USE OF FORCE AS SELF DEFENCE AGAINST NO-STATE ACTORS AND TWAIL
CONSIDERATIONS: CRITICAL ANALYSIS....................................................................................51
VI. FROM HUMANITARIAN INTERVENTION TO THE RESPONSIBILITY TO PROTECT..................53
B. HUMANITARIAN INTERVENTION.....................................................................................54

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PIL READINGS

S. NO. NAME OF TOPIC READING AUTHOR

1. Module 1 and 2 Third World Approaches to B.S. Chimni
International Law: A Manifesto
Feminist Approaches to International Hilary
Law Charlesworth et
al.
What is TWAIL? Makau Mutua
International Law and the Developing Christopher G.
World: A Millennial Analysis— Weeramantry
Keynote Address
The Supreme Court of India and Prabhash Ranjan
International Law: A Topsy-Turvy
Journey from Dualism to Monism
Indian Courts and International Law V.G. Hegde
2. General Principles Report 1 on GPL 2019 Marcelo
of International Vazquez-
Law Bermudez
Report 2 on GPL 2020 Marcelo
Vazquez-
Bermudez
Report 3 on GPL 2022 Marcelo
Vazquez-
Bermudez
3. Subjects of International Organizations and P.K. Menon
International Law Individuals as Subjects of
International Law
Reparation for Injuries Suffered in the Advisory
Service of the United Nations Opinion ICJ
The Role of the Individual in Andrew Clapham
International Law
The Position of the Individual in Alexander
International Law Orakhelashvili
Tools to do the Job: The ICRC’s Legal Els Debuf
Status, Privileges and Immunities
4. State Recognition Recognition of States in International H. Lauterpacht
Law
Recognition in International: Hans Kelsen
Theoretical Observations
Accordance with International Law of Advisory
the Unilateral Declaration of Opinion ICJ
Independence in Respect of Kosovo
5. Use of Force International Law and its Oona A.
Transformation through the Outlawry Hathaway and
of War Scott J. Shapiro
Who Killed Article 2(4) or: Changing Thomas M.

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Norms Governing the Use of Force by Franck

States
Kellogg-Briand Pact 1928
Use of Force as Self Defence against Srinivas Burra
Non-State Actors and TWAIL
Considerations: A Critical Analysis of
India’s State Practice
The Use of Force in the Nicaraguan William Schabas
Cases
From Humanitarian Intervention to the Gareth Evans
Responsibility to Protect
The Indian Way of Humanitarian Gary J Bass
Intervention
The Ukraine War and the Prohibition Claus Kreß
of the Use of Force in International
Law
6. State The Nicaragua and Tadic Tests Antonio Cassese
Responsibility Revisited in Light of the ICJ
Judgement on Genocide in Bosnia
Consent Precluding State Ademola Abass
Responsibility: A Critical Analysis
The Various Control Tests in the Law Stefan Talmon
of State Responsibility and the
Responsibility of Outside Powers for
Acts of Secessionist
Self Defence as a Circumstance Federica I
Precluding Wrongfulness: Paddeu
Understanding Article 21 of the
Articles on State Responsibility

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MODULE 1: INTRODUCTION

 Public (“PIL”) and Private International law

 In public international law, the focus is on the states. In the municipal or domestic law
citizens are the subjects.
 In public international law there will be a foreign element.
 Contract of sale between two citizens of UK to sell goods in Germany, when there is a
dispute there is a foreign element that is there.
 World Courts: ICJ (you sue the state) and ICC (you sue individuals). In the ICC we
will see whether or not the state took action against the individuals. If there is
unwillingness to take action by the state, it will be referred to the ICC by the UN or
prosecutor.
 Myanmar was sued by Gambia under the genocide convention. This was in the
Rohingya Muslim case.
 ICJ has its own statute. The ICC has its own statute- the room statute.

Course Structure
- Historical background of PIL: 16th and 17th century evolution of international law.
- Sources: Treaties, conventions and Customary International law.
- Subjects of International Law: states are subjects of international law but so are
certain organisations. What about those entities that don’t count as states- Kosovo,
Hong Kong, Palestine and the Holy See. There are certain states that have disputed
status such as Taiwan.
- Creation of States: whether the state on its own is a state.
o Recognition of states: how important is recognition in international law.
- Concept of territory: earlier it was legal to annex a state’s but now it is prohibited,
how do you acquire property – through war
- Nationality:
- State of Responsibility: what happens when there is a violation of international law.
USA entering into the territory of Pakistan to neutralise the threat of Bin Laden. This
violated Pakistan’s sovereignty.
- State jurisdiction
- Use of Force: permitted through self-defence, committee formed by USA determined
that there no so called WMDs, Condemnation of USA’s action in Iraq

 History and Evolution of PIL

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 Earlier there were monarchies so the idea of a state or nationality came later on with
the creation of states. The evolution of international law is the evolution of the state of
a period of time.
 Hugo Grotius father of PIL.
 Jeremy Bentham defined what the PIL.

Statutes being covered

- UN Charter
 Article 2
 Chapter 7: Article 51
- ICJ Statute- provisions relating to jurisdiction
- VCLT

Date: 5-7-22
Set of rules which are applicable in between the relation that states have with each other. This
is not the complete definition. It is meant to regulate the relation between states. This is the
sovereign entity known as state. The principal subjects of international law are states. There
is however an infiltration of non-state actors. It may be an international body like the WTO
also.

International law cannot technically be called a law. The general understanding is or has been
that international law is not a law. Holland a jurist mentions that international law is the
vanishing point of jurisprudence. The criticism here is that jurisprudence is the rationale
behind what law is. According to Austin it is because of the fear of sanction. For Hart it was
that law does not have a coercive element. Many people have internalised that they have to
follow law. The rationale behind a domestic law it is to be followed. One is permissive law,
one is coercive law. Contracts – permissive, IPC, NDPS- coercive law. In a domestic law
scenario, you can’t claim that the court doesn’t have jurisdiction, in international law you
can. The concept of precedence doesn’t apply in ICJ, it does in domestic law. In ICJ the
jurisdiction is brought about by consent only. In domestic law you don’t directly get to make
or choose the law, but in international law the state must consent to the action. Because there
is no sovereign international parliament or apex court, it is difficult to make the resolutions or
judgements binding.

No longer do we use law in the sense that it was used by Austin. If there is a command by
sovereign, it will be backed by sanction. But this is no longer accepted. Every state more or
else is a member of the UN, and the entities who are not members don’t necessarily don’t
become states. Each state seeks to have its embassy in different states because it is only
through those diplomats do you have discourse on that international level.

Even when states violate international law, they will never agree to doing it, they will simply
state that they were simply upholding the principles of the UN Charter. For example: in Iran,
Afghanistan etc USA stated that what they did came within the ambit of international law.

One argument is there that international law cannot be implemented. For example, in the
USA, very few cases go to litigation because there is the system of plea. There is therefore no
justice, only compromise. Most cases are not filed. That doesn’t mean there is no domestic
law.

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There are daily diplomatic relations that are reached. The diplomats and foreign secretaries
follow international law. The host states don’t arrest diplomats because they are
representative of the state. If some gruesome crime is committed and the state allows that, the
host state cannot take action but the sending state may allow the host state to withdraw the
diplomatic protection.

USA-Indian diplomatic Spat- Devyani Khobragade

 What happens when there’s a violation of law at an international level?

 Discussions: If we compare it to domestic law, if there’s an act of nuisance. India is
not a litigious society. The first thing that any rational person would do is by talking
to that person. This too is what happens at the international level. You will talk to the
countries representative. Back channel talks also for sensitive issues.
 Retortion: If the discussions fail with the state, the state who is the victim can use
retortion. You are taking an action which is inconvenient for the other state but not
illegal. For example: if there’s a dispute between state A and B. if state A did its part
under the agreement but B did not reciprocate, you will first discuss. Then you will
take actions such as complicate the visa process for that nation. You complicate the
agreement process for certain agreements as well. Whatever action you are taking
which per say is not illegal, those would be known as retortion. For example: any kind
of activity which comes within domestic jurisdiction of the state.
 Countermeasures or Sanctions: in the first-place use of force is prohibited in
international law. These measures in isolation are illegal but because another state
violated the agreement first, this measure is legal and justified provided certain
conditions are met.
o Intention: Intention should be to bring the other part to lien and should not be
seen as revenge. You want the state to complete its actions.
o Proportionate: if you take disproportionate action, then that countermeasure
cannot be sanctioned. For example, you took a resort that was far more
extreme than the breach.
 ICJ/ Dispute Resolution mechanism: you can submit the dispute to ICJ or another
organisation. You can be ad hoc members of the ICJ also. For example: some BITs
for example have their international dispute Mechanism.
 Military action: generally military action will mot ensue for situations where
agreements were breached.

If there were 100 provisions then you have to follow at least 90. You can do this by creating a
declaration in a multilateral treaty. There are two terms, such as reservations/ declarations. In
declaration you don’t say that you don’t follow the clause or treaty but you may provide your
understanding of what you deem that clause to me. For example: UK added same sex couples
within the interpretation of parent in a certain treaty. A restrictive declaration is a reservation.

Date: 6-7-22
Ref: Ekhurst International law
- There cannot be a specific date on which international law started developing
 4 different periods
1. 1st period- Peace of Westphalia to WW1: Peace of Westphalia was an
agreement to put an end to a war in 1648. This was the 30-year war. This was
marked by 1648-1914. Before the beginning of the phase, Europe was ruled by
the Holy Roman Empire. The feudal lords and vassals were given immense

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respect Who depending on the influence were given respect by the Empire. The
Roman Catholic Church was the powerful entity at that time. If the church didn’t
give legitimacy, you could not become emperor. Before 1648, if you did not
follow the authority of the catholic church, you wouldn’t have legitimacy. The
idea was that you had to take permission from the catholic church before
engaging in war. There was a need to reform the Christianity that was felt. Many
of the problems created at that point of time was created by the church. The
reformation started and a new schism called protestants started evolving. The
major difference between protestant and Catholics was that they were not given
legitimacy. The difference between the two divisions was in the scriptures
between the catholic and protestants. The protestants believed that the scriptures
were enough and there was no need to follow the catholic church. This division
ultimately led to the war which resulted in a lot of casualties. Finally, there was a
treaty called the Peace of Westphalia was entered into by the parties. This
eventually led to the downfall of the catholic church because the protestants were
to be identified as a separate entity. Another part of this treaty was that the states
were allowed to choose their religion. In the United States constitution today, we
see the division of church and states that can be located back to this treaty. This
was a watershed movement because all the entities realised that they shouldn’t go
to war and should get into an alliance itself. This was one of the reasons of the
prominence of the Europe Powers. They were also going through the industrial
revolution and were developing their naval power. All of these states were
essentially developing with some level of unity. This was supplemented by the
fact that they have a common ideological background. They next chose to exploit
the Americas, followed by Asia and Africa. The concept of nationality and
citizenship also started developing with this period.

There was a declaration of St. Petersburg in 1864, called upon by the Czar of
Russia at that time, which provided that there were certain arms and ammunition
(such as expanding bullets) that could not be used by the civilised state. The red
cross also started to expand at that time. When armed conflict happens, you want
to neutralise the other side and not torture the other side. To win, you need not
torture the other side indiscriminately. The arms were not to be used against
civilised states but by extension of the argument against who you could use it
against was the un-civilised people. One of the representatives at the deceleration
stated that “These nations are barbaric and savages, they are not rationale,
therefore against them these restrictions don’t apply”. Even Hugo Grotius
mentioned that not use extreme warfare was only limited to European nations not
against the so-called savages. This was a euro-centric approach.

The peace of Westphalia left the question of who is permitted to attack who. The
question was what will happen to the rest of the nation’s specially the newly
discovered Asian nature. There was a tow point approach to this- 1) Capitulation
System and 2) Conquest. Once the territories were discovered there was a race of
who would exploit these resources.

Capitulation
The Europeans thought they had an idea of the world. The world could be divided
into two parts. 1st was the nations who had monarchies and were unified such as
the Ottoman Empire, China and Japan who were strong. The Europeans sought to

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get them into agreements with unfair terms to weaken them, to eventually take
over. The agreements would seek to have trade with the countries, be allowed to
pray with their own religion and have their own courts to regulate them. This
allowed the Europeans to become more powerful in these types of countries.

Conquest
In countries that are tribal in nature or were always fighting with each other i.e
there was no unity, were very easy to exploit and capture. They came up with the
concept of Terra Nullius. A territory which does not have any ruler or master.
Which is essentially free for all. In territories where there was no nationality,
were open to capture.

In both these systems there was no reciprocity. If for example a European is not
captured or charged for crimes in Asian countries the same did not apply to
Asians who came to Europe. They had a conference on how to capture and divide
Africa. At the beginning of the conference, they sought to capture 10% but ended
up with trying to capture at least 90%. In some countries there was first
capitulation and then conquest.

2. 2nd Period-WW1 to WW2: this period started with WWI wherein there were two
groups’ Allies and Axis Powers. It started with the assassination of Archduke
Franz Ferdinand. The war was won by the allies and ended with axis Germany
was so humiliated after the WWI that it gave rise of the Adolf Hitler and later the
WWII. From the point of view of the WWI. The idea of secularism is practiced
the means and methods of warfare are not unlimited. When you go to war you
cannot use any arms and ammunitions. That was essentially the first phase of
codification of humanitarian law.

3. 3rd Period-WWII to Cold War: the end of the WWII there was something
brewing in Russia. The Russian revolution led to the Czar being removed. Within
Cambridge anti-monarchy started brewing as well and there was a group of
people called Cambridge spies. The British monarchy was advised to remove the
German line from its system to avoid complications of being associated with
Germany. On one hand there was USA with the capitalist ideology but there was
also a revolution in Russia wherein Lenin espoused the idea of socialism. Russia
challenged the ideas of the free market and capitalism that thrived in Europe.
USA was the last man standing with respect to being the flagbearer of capitalism.
Britain had many internal problems and the colonies were rebelling. Self-
determination was propounded by USSR for the nations and colonies. They stated
that they will support revolutions across the world. This offended the USA. USA
was worried that it would lead to socialist internationalism (spread of socialism
wherein the working class is revolting). On one hand this was done for the
betterment of people, but on the other hand USSR wanted to curb the spread of
US’s idea of Capitalism and compete with its ideology.
4. 4th Period- Present (1989/90):

Date: 18-8-22
The criteria laid down by the Positivist law that provides that a law should be supranational
has not been met.

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Holland: international law can indeed be described as law only by courtesy. It cannot be
described on legal terms as the rights can be easily violated and the concerns of international
law is not always taken into account and also cannot be implemented worldwide.

There is close connection between humanitarian intervention and Responsibility to protect.

A. APPROACHES TO INTERNATIONAL LAW READINGS

 Eurocentric Approach: the studies that are followed were largely by European
scholars like Kelson and Oppenheim.
 Asian African Approach: third world approach to international law, known as
dwellers. It states that IL needs to be reformed in order to take into account the pov of
third world states. Transnational corporations often have wealth more than certain
smaller countries.
 American Approach

I. Third World Approaches to International Law: A Manifesto

 End of the Third World?

However, the presence or absence of the third world, it is worth stressing, is not
something that is either to be dogmatically affirmed or completely denied. It is not to
be viewed as an either/or choice in all contexts. The category “third world” can
coexist with a plurality of practices of collective resistance. Thus, regional and other
group identities do not necessarily undermine aggregation at the global level.

 State and International Law in the Era of Globalization

First, international law is now in the process of creating and defining the “democratic
State.” It has led to the internal structure of States coming under the scrutiny of inter-
national law. An emerging international law norm requires States to hold periodic and
genuine elections. However, it pays scant attention to the fact that formal democracy
excludes large, in particular marginal groups, from decision making power.
Second, international law now aspires to directly regulate property rights. A key
feature of the new age is the internationalization of property rights. By
“internationalization of property rights” is meant their specification, articulation and
enforcement through international law or the fact that the change in the form and
substance of property rights is brought about through the intervention of international
law.
Third, at the level of circulation of commodities, international law defines the
conditions in which international exchange is to take place. It is a truism that ‘markets
can- not exist without norms or rules of some sort, and the ordering of market
transactions takes place through layers of rules, formal and informal’.
Fourth, international law increasingly requires the ‘deterritorialization of currencies’
subjecting the idea of a “national currency” to growing pressure.
Fifth, the internationalisation of property rights has been accompanied by the
internationalisation of the discourse of human rights. Human rights talk has come to
have a pervasive presence in international relations and law.
Sixth, labor market deregulation prescribed by international financial institutions and
international monetary law has caused the deterioration of the living conditions of
third world labor.
Seventh, the concept of jurisdiction is being rendered more complex than ever in the
past. Among other things, digital capitalism threatens to make ‘a hash of geopolitical

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boundaries’ and reduce the ability of third world States to regulate transnational
commerce.
Eighth, there has been a proliferation of international tribunals that subordinate the
role of national legal systems in resolving disputes.
Ninth, the State is no longer the exclusive participant in the international legal
process even though it remains the principal actor in law making.
Tenth, there is the refusal to affirmatively differentiate between States at different
stages of the development process. International law today articulates rules that seek
to transcend the phenomena of uneven global development and evolve uniform global
standards to facilitate the mobility and operation of transnational capital.
Eleventh, the relationship between the State and the United Nations is being
reconstituted. There is the trend to turn to the transnational corporate actor for
financing the organization. The corporate actor also has come to play a greater role
within different UN bodies.

 Ideology, Force, and International Law

o The Idea of Good Governance
o Human Rights as Panacea
o Salvation Through Internationalisation of Property Rights
o The Idea of Non-development
o The Use of Force

 The Story of Resistance and International Law

o The critique of dominant ideology is necessary if the interests of third world

peoples is to be safeguarded.

o A key issue from the perspective of a theory of resistance is the question of

agency. More specifically, it is about the role of old social movements (OSMs) in
ushering in a just world order. Increasingly today, the story of resistance is
coming to be identified with new social movements (NSMs) in the third world.

o From the standpoint of TWAIL, it is necessary first, to make the story of

resistance an integral part of the narration of international law.

o We should collaborate with feminist approaches to reconstruct international law to

address the concerns of women and other marginal and oppressed groups. Third,
we need to study and suggest concrete changes in existing international legal
regimes. The articulation of demands would assist the OSMs and NSMs to frame
their concerns in a manner as to not do harm to third world peoples.

 The Road Ahead: Further thoughts on a TWAIL Research Agenda

o Increasing Transparency and Accountability of International Institutions
o Increasing Accountability of Transnational Corporations
o Conceptualizing Permanent Sovereignty as Right of Peoples and not States
o Making Effective Use of Language of Rights
o Injecting Peoples Interests in Non-Territorialised Legal Orders
o Protect Monetary Sovereignty Through International Law
o Ensuring Sustainable Development With Equity

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o Promoting the Mobility of Human Bodies

II. Feminist Approaches to International Law

International law has thus far largely resisted feminist analysis. The concerns of public
international law do not, at first sight, have any particular impact on women: issues of
sovereignty, territory, use of force and state responsibility, for example, appear gender free in
their application to the abstract entities of states. Only where international law is considered
directly relevant to individuals, as with human rights law, have some specifically feminist
perspectives on international law begun to be developed.

Why has gender not been an issue in this discipline?

I. WHAT IS TWAIL?

Historically, the Third World has generally viewed international law as a regime and
discourse of domination and subordination, not resistance and liberation. This broad dialectic
of opposition to international law is defined and referred to here as Third World Approaches
to International Law (TWAIL).

TWAIL is driven by three basic, interrelated and purposeful objectives.

The first is to understand, deconstruct, and unpack the uses of international law as a medium
for the creation and perpetuation of a racialized hierarchy of international norms and
institutions that sub ordinate non-Europeans to Europeans. Second, it seeks to construct and
present an alternative normative legal edifice for international governance.

Finally, TWAIL seeks through scholarship, policy, and politics to eradicate the conditions of
underdevelopment in the Third World.

The term Third World is different from less-developed, crisis-prone, industrializing,

developing, underdeveloped, or the South because it correctly captures the oppositional
dialectic between the European and the non-European, and identifies the plunder of the latter
by the former. It places the state of crises of the world on the global order that the West has
created and dominates.

Checklist of TWAIL Scholarship and Political Action

1. TWAIL Is Antihierarchical

TWAIL believes that international law is necessary and important. But it sees the
current regime of international law as illegitimate because it is based almost entirely
on the intellectual, historical, and cultural experiences of one region of the world.

2. TWAIL Is Counterhegemonic

TWAIL opposes the global hegemony of the West, which the United Nations
legitimizes through the cloak of universality. TWAIL regards the structure of the
United Nations, and in particular its Security Council, as completely indefensible. The
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blatant disregard by the United Nations of crises in the Third World and the selective
use of UN organs to advance the foreign policies of Western powers stand in direct
contradiction of the high-sounding ideals of the world body

3. TWAIL Is Suspicious of Universal Creeds and Truths

While it is certainly true that a certain degree of universality is inevitable, and even
desirable, TWAIL frowns on attempts to confer universality on norms and practices
that are European in origin, thought, and experience. This has certainly been the case
with human rights and particular economic values, such as the protection of
intellectual property through the treaty on Trade Related Aspects of Intellectual
Property Rights (TRIPs). Thus, TWAIL does not believe that free-market, private
property, or trade values are superior to, or automatically trump, other human values.

4. TWAIL Is a Coalitionary Movement

TWAIL believes that forming coalitions with like-minded movements in all societies,
including in the West, is an essential strategy for combating powerlessness and the
victimization of the Third World and marginalized communities in the West. In this
respect, TWAIL seeks deliberate complicity and alliances with a number of scholarly
communities, particularly those advocating critical race theory (CRT) and new
approaches to international law (NAIL).

II. INTERNATIONAL LAW AND THE DEVELOPING WORLD: A MILLENNIAL ANALYSIS—

KEYNOTE ADDRESS

 By- Justice Christopher G. Weeramantry, Former Vice-President of the International

Court of Justice
 It is not so much the content of these rights and duties that is a Western construct, but
the fact that when modern international law evolved in the seventeenth century it
evolved for a select group of Western sovereign states that needed a modus vivendi
among themselves in the post-Westphalian era. So, Grotius, with the best of
intentions, developed a set of principles by which these countries were to govern
themselves, lest they otherwise fall back into the law of the jungle without any rules
of regulation. But what happened, and probably unwittingly, was that just as there
were rules that bound the members of this club, there was a total absence of rules for
those who remained outside.
 First, we should recognize the multicultural origins of international law. Much of the
world to this day still regards international law as a Western construct, as a product of
the Western mind that embodies exclusively the cultural traditions of the West. This
false view is generating, in many quarters of the world, a kind of resistance to the im-
position of these standards upon parts of the world that are foreign to that cultural
tradition.
 The Arab jurists, eight hundred years before Grotius, were composing treatises on
what we would today call international law. Those treatises covered such topics as the
sanctity of treaties, the treatment of diplomats, and the treatment of prisoners of war.
Example: Shaybani Muhammad ibn al-Hasan
 There is thus a stream of connection between the Islamic writers who formulated
international law concepts, that was adopted by later Spanish writers, and thereafter,
some of the later European writers.

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 There are various forms of injustice that currently prevail that international law can
help to mitigate.
 The next task is to broaden international law. As I have said, positivism has
ingrained itself too heavily into international law. We have to reintroduce that
humanistic dimension out of which international law was born and never forget its
roots.

III. Indian Courts and International Law

While the structures of Indian courts retained this colonial legacy, the response of the
political establishment of the new India towards international law was anti-colonial. In this
setting, India resisted acceptance of certain international legal norms in whose formulation it
had had no role to play. Joining with other Asian and African countries, India sought to
question the legality of some of the basic principles of international law, and consistently
argued that it in essence remained at the periphery of the international legal system.

 The Constitutional Context

The exclusive reference to international law in the constitution can be found in Art-
icle 51. This provision is hortatory in nature, as it exhorts the Indian state to make all
possible endeavours to adhere to and respect international law. Article 51, as part of
the Directive Principles of State Policy, refers to international law. It states that
The State shall endeavour to (a) promote international peace and security; (b)
maintain just and honourable relations between nations; (c) foster respect for
international law and treaty obligations in the dealings of the organized peoples
with one another; and (d) encourage settlement of international disputes by
arbitration.

Just a few years before the formulation of Article 51, India had participated in the
negotiations and adoption of the UN Charter. Thus, some imprints of the language of
the Charter could also be seen in the formulation of Article 51.

o The phrase ‘elimination of war as an instrument of national policy’ that had

appeared in the original draft was completely deleted. All these changes and
deletions suggest that India had perhaps anticipated future bitter engagements
with some of its neighbours.
o International legal norms are not directly enforceable within India sans
appropriate domestic legislation giving effect to these norms. Despite this,
Indian courts have largely succeeded in opening new windows to welcome
international legal norms through creative interpretative techniques, aligning
it, for example, with fundamental rights.
o Implementation is linked to Article 253 of the constitution that places power in
the parliament ‘to make any law for the whole or any part of the territory of
India for implementing any treaty, agreement or convention with any other
country or countries or any decisions made at any international conference,
association or other body’. Article 253 could be regarded as articulating a
‘transformation doctrine’, essentially a positivist–dualist position.

Cases
1. Gramophone Company of India Ltd v. Birendra Bahadur Pandey and Others
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‘Two questions arise, first, whether international law is, of its own force, drawn into
the law of the land without the aid of a municipal statute and, second, whether so
drawn, it overrides municipal law in case of conflict’.
Comity of Nations or no, Municipal Law must prevail in case of conflict. National
Courts cannot say yes if Parliament has said no to a principle of international law.
2. Vishaka and Others v. State of Rajasthan and Others
the Indian Supreme Court appeared to have moved from transformation doctrine to
incorporation doctrine. In this case the Court stated inter alia that ‘Any International
Convention not in- consistent with the fundamental rights and in harmony with its
spirit must be read into these provisions to enlarge the meaning and content thereof, to
promote the object of the constitutional guarantee.’
3. Additional District Magistrate, Jabalpur v. Shivakant Shukla
[I]f there be a conflict between the municipal law on one side and the international
law or the provision of any treaty obligations on the other, the courts would give
effect to municipal law. If, however, two constructions of the municipal law are
possible, the court should lean in favour of adopting such construction as would make
the provisions of the municipal law to be in harmony with international law or treaty
obligations.
4. Vellore Citizens Welfare Forum v. Union of India and Others
Even otherwise, once these principles are accepted as part of the Customary
International Law there would be no difficulty in accepting them as part of the
domestic law. It is almost accepted proposition of law that the rules of Customary
International Law which are not contrary to the municipal law shall be deemed to
have been incorporated in the domestic law and shall be followed by the Courts of
Law.

 The Territorial Context: 1947 To 1970

1. Maganbhai Ishwarbhai Patel v. Union of India and Another
The relationship between Articles 51 and 253 was first examined substantively by the
Indian Supreme Court in this case.
2. The Berubari Union and Exchange of Enclaves
Ordinarily an adjustment of a boundary which International Law regards as valid
between two Nations, should be recognized by the Courts and the implementation
thereof can always be with the Executive unless a clear case of cession is involved
when Parliamentary intercession can be expected and should be had.
3. Rev Mons. Sebastiao Fransisco Xavier Dos Remedios Monteiro v. The State of
Goa
Brought before the SC the issue of annexation of Goa in 1961 and its after-effects.
The question of nationality was an important issue. The argument was that India was
an occupying power under the 1949 Geneva Conventions and it had certain
obligations pursuant to that status.
India argued that ‘by occupation is meant occupation by armed forces or belligerent
occupation and occupation comes to an end by conquest followed by subjugation’.
The Supreme Court noted that ‘A territory is considered as occupied when it finds
itself in fact placed under the authority of a hostile army.

 The socio-economic context: 1971 to 1990

1. Additional District Magistrate, Jabalpur v. Shivakant Shukla
Supreme Court amplified the scope of Article 21 of the Constitution by referring to
Articles 862 and 963 of the Universal Declaration of Human Rights (UDHR).

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2. Jolly George Varghese and Another v. The Bank of Cochin

represents some of the emerging linkages between domestic procedural law and
human rights. It also, in one sense, shows the creative use of an international legal
norm to amplify the ambit of human rights in the context of an individual plight in the
peculiar conditions of a developing country. The Court, however, underscored
difficulty in reconciling the international legal principle as embodied in Article 11 of
the International Covenant on Civil and Political Rights (ICCPR) with provisions of
municipal law.

 The Development Context: 1991 And Beyond

A survey of the environment cases of the Indian Supreme Court shows that even in the
absence of comparable domestic norms, the Court continued to accept certain emerging
norms of international law as part of the law of the land. In The Vellore Citizens
Welfare Forum v. Union of India and Others the Court examined in detail the concept
of ‘sustainable development’. In Karnataka Industrial Areas Development Board v.
Sri C. Kenchappa and Others the Court dealt with issues concerning environmental
degradation and its consequences. References also should be made to Andhra Pradesh
Pollution Control Board v. M. V. Nayudu and Narmada Bachao Andolan v. Union of
India.

IV. The Supreme Court of India and International Law: A Topsy-Turvy Journey
from Dualism to Monism

International law is a law that governs the relationships between sovereign States whereas
national or municipal law applies within a country and governs the relations of its citizens
with each other and with the executive.
There are two theories that govern the relationship between international law and domestic
law:
1) Dualism
According to this theory, international law and national law are two separate legal systems.
Under this theory, State has the supreme authority within its domestic jurisdiction. For
international law to apply domestically within a national legal system, it must go through a
process of transformation by the State (such as by the sovereign parliament of the country)
into domestic legislation. This is known as the doctrine of transformation.

2) Monism
According to this theory, international law and national law are a part of an inseparable legal
framework. Here, international law is automatically incorporated into the domestic legal
system of the country.

MONISM DUALISM
- Both are one. - Both are separate.
- Process of transformation is - Process of transformation is not
required. required.

Note: States do not adopt a pure monist or dualist approach for all sources of the law. But
India gives importance to both theories.

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Main Point: Indian Constitution recognises India as a dualist nation. However, via
judgements, it has transformed into monist.

Indian Constitution
There are 4 important provisions dealing with international law:
1) Article 51(c)
Provision: The State shall foster respect for international law and treaty obligations in the
dealings of organised peoples with one another; and encourage settlement of international
disputes by arbitration.

“Treaty obligations” refers to obligations that will flow from an international treaty.
“International Law” refers to all obligations from all non-treaty sources of international
law, which will cover CIL.

2) Article 246(1) read with entry 14 of the Union List of the Seventh Schedule of the
Constitution
Article 246(1): Notwithstanding anything in clauses (2) and (3), Parliament has exclusive
power to make laws for any of the matters enumerated in List I in the Seventh Schedule (in
this Constitution referred to as the Union List).
Entry 14: Entering into treaties and agreements with foreign countries and implementing of
treaties, agreements and conventions with foreign countries.

3) Article 73(1)(a)
Provision: Subject to the provisions of this Constitution, the executive power of the Union
shall extend to the matters with respect to which Parliament has power to make laws;
Power of central government extends to entry 14 of the Union list. In the absence of
parliamentary legislation on entering into treaties, the central government, through a
combined reading of Article 73(1)(a) and Entry 14 has been entering into different
international treaties, ratifying them and thus binding India internationally.

4) Article 253
Provision: Notwithstanding anything in the foregoing provisions of this Chapter, the
Parliament has power to make any law for the whole or any part of the territory of India for
implementing any treaty, agreement or convention with any other country or countries or any
decision made at any international conference, association or other body.

For international law to become part of domestic law, it has to be legislatively transformed
by enacting enabling legislation.

DEALING WITH TREATIES

 M/S Entertainment Network v. M/S Super Cassette Industries
There are 6 purposes for referring to international law:
a) as a tool to interpret domestic law- SC has invoked international treaties not just as
a tool of interpretation but also to incorporate international law norms, not
inconsistent with domestic law, even without a legislative sanction.
b) to justify or fortify a position taken by the court

c) to fulfill the spirit of an international treaty, which India has entered into provided it
does not conflict with domestic law
d) to reflect international changes

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e) to provide a relief given in the treaty, but not in national law

f) to fill gaps in the law- this is possible only if the treaty is incorporated into the legal
regime.

Post-independence, the approach taken was largely dualist.

Doctrine of Transformation

 Jolly George Vergese v. Bank of Cochin

Facts

It involves the arrest and detention of an individual and deals with the enforceability of
Article 11 of the International Covenant on Civil and Political Rights (ICCPR) in Indian Law.

Judgement

The court held that ICCPR, in the absence of domestic legislation, is not an “enforceable part
of the corpus juris of India.” International treaty must go through the process of
transformation i.e. it should be transformed into municipal law through enabling legislation
for it to become part of India’s domestic law.

 State of West Bengal v. Kesoram Industries

Judgement

The doctrine of dualism, not monism, prevails in India. Thus, an international treaty signed
by India cannot become part of the Indian legal regime unless the parliament uses its power
under Article 253 of the Constitution.

Doctrine of Incorporation

 Gramophone Company v. Birendra Bahadur Pandey

Facts

This case involved the issue of innocent passage of goods from one country (Singapore) to
another country (Nepal - a landlocked nation) via India. The court, in this case, dealt with the
interplay between the Indian Copyright Act (the law under which the imports of goods to
India were challenged), and India’s trade treaty and transit treaty with Nepal.

Judgement

The doctrine of incorporation was introduced. This means that rules of international law are
incorporated into national law without going through the process of transformation. The
only caveat is that international law should not conflict with domestic law. In case of a
conflict, the court will attempt to harmonize the domestic and the international norm.
However, if such harmonization is not possible then the domestic norm will trump
international law.

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 Vishakha v. State of Rajasthan

Judgement

“any [i]nternational [c]onvention not inconsistent with the fundamental rights and in
harmony with its spirit must be read into these provisions to enlarge the meaning and content
thereof, to promote the object of the constitutional guarantee.”

An accepted rule of judicial construction is that the courts must take cognizance of
“international conventions and norms” such as for construing domestic law when there is
no inconsistency between them and there is a void in the domestic law.

 NALSA v. Union of India

Judgement

This case recognised transgender as the third gender. The court said: “if parliament has made
any legislation which conflicts with the international law, then Indian courts are bound to
give effect to the Indian law, rather than international law. However, in the absence of
contrary legislation, municipal courts in India would respect the rules of international law.”

The court then went on to judicially incorporate international treaties by stating that any
international convention, which is not inconsistent with fundamental rights, must be read into
the existing fundamental rights of the right to equality, right to freedom, and right to life and
personal liberty to enlarge their meaning and content.

Other examples like Puttaswamy can also be given.

Note: State of West Bengal v. Kesoram Industries came after Gramophone Company case.
There was no consistency in the application of the doctrines. After the introduction of the
doctrine of incorporation also, the doctrine of transformation (dualism) kept coming.

Important: Wherever possible domestic law should be interpreted in a manner that does not
contradict India’s obligations under international law.

Recent Case

 Union of India v. Agricas

Facts

Due to surplus production in India, India imposed quantitative restrictions (QRs) on the
import of pulses under the Foreign Trade Development and Regulation Act (FTDR). The
power to impose QRs is laid down in Section 9 of the FTDR. But in this case, they were
imposed under Section 3 of the FTDR Act. This was challenged.

Judgement

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In deciding this question, the SCI referred to Articles XI and XIX of the General Agreement
on Tariffs and Trade (GATT) of the World Trade Organization (WTO). This case again went
back to dualism and doctrine of transformation. The court, in this case, held that Article XI of
GATT, which regulates the imposition of QRs on imports, has not been statutorily
transformed into domestic law. Therefore, according to the court, Article XI of GATT is of
limited use in determining India’s imposition of QRs on imports of pulses, which has to be
decided as per domestic law.

Important: The court, in this case distinguished the current case that involved an economic
issue from those cases where international treaties on human rights or the environment
were relied upon and given effect domestically.

Note: The SC has often judicially incorporated even those treaties that India has not signed.

Customary International Law

SC has followed the doctrine of incorporation in the case of CIL. The customary norms that
are not inconsistent with Indian law shall automatically become part of the Indian legal
regime.

CIL cannot be determined by mentioning soft law instruments. Determination of CIL requires
the double requirement of State practice and opinio juris.

State Practice: actual practice of the States i.e., the material or objective requirement.

Opinio Juris: subjective or psychological factor. It refers to the belief by the State that it is
behaving in a particular manner because it is under a legal obligation to do so.

SC did not identify CIL norms based on determining State practice and opinio juris.
Incorporating an alleged rule of CIL without establishing that it is a valid international law
rule would mean that those norms that have not attained the status of a customary norm under
international law may nonetheless become part of the domestic legal regime without any
legislative sanction.

Some Indian scholars like Chimni, who advocate the third-world approaches to international
law, critique the tendency of the SC to so uncritically incorporate CIL into the domestic legal
framework. The TWAIL argument is that given the eurocentric and imperialistic history of
international law, the growth of CIL, over the years, reflects the interests of the developed
countries, not of third world countries like India. Developing countries played a very limited
role in the evolution of CIL. However, the SC, while dealing with CIL, has remained agnostic
about this historical account of the growth of CIL. Accordingly, TWAIL scholars like Chimni
assert that SCI’s practice reflects a certain “naivety about the international legal process”

Recent Case

 Mohamad Salimullah v. Union of India

Facts

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This case arose when a petition was filed before the SC seeking to stop the deportation of
Rohingya refugees to Myanmar where they face persecution. The petitioner invoked the
principle of non-refoulment in international law.

Belief: The principle of non-refoulment has been widely recognized as part of CIL. Thus, this
principle is binding on India even though it is not a signatory to the Refugee Convention.

Judgement

SC did not answer the question. Since the court did not deal with the question of whether
non-refoulment is part of CIL, the issue of incorporation did not arise. It is deeply troubling
verdict because it allows for the deportation of Rohingyas to Myanmar where they face
persecution.

CONCLUSION – IS THIS GOOD OR BAD?

Why it is bad

 Judicially incorporating international law without parliamentary scrutiny legitimizes a

democratic deficit.
 It amounts to the judiciary riding roughshod over the parliament.

Why it is good

 There is progressive development of law when the executive and the parliament for
ideological or political persuasions fail to enact laws transforming a liberal
international legal norm into domestic law.

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MODULE 2: SOURCES OF INTERNATIONAL LAW

 Rules of IHL

1929 PCIJ Nuremberg

 Human Rights treaties

 UNDHR
 ICCPR
 Convention against torture

ILC: Article 13(1) UN Charter, make recommendations to UNGA, makes law on certain
subjects by codifying, they appoint special rapporteurs, they have 34 state representatives,
there are comments taken from all reps and this report of the ILC goes to the 6 th committee –
UNGA Legal. Laws of crimes against humanity.

Article 7 of the Rome statute

According to Article 7 (1) of the Rome Statute, crimes against humanity do not need to be
linked to an armed conflict and can also occur in peacetime, similar to the crime of genocide.

Article 7
Crimes against humanity
For the purpose of this Statute, "crime against humanity" means any of the following acts
when committed as
part of a widespread or systematic attack directed against any civilian population, with
knowledge of the attack:
a) Murder;
b) Extermination;
c) Enslavement;
d) Deportation or forcible transfer of population;
e) Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of
f) international law;
g) Torture;
h) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization,
or any other form
i) of sexual violence of comparable gravity;
j) Persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural,
k) religious, gender as defined in paragraph 3, or other grounds that are universally
recognized as
l) impermissible under international law, in connection with any act referred to in this
paragraph or
m) any crime within the jurisdiction of the Court;
n) Enforced disappearance of persons;
o) The crime of apartheid;
p) Other inhumane acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health.

Date: 19-8-22

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B. Customary International Law

1. State Practice: actions by executive, legislature and judiciary.

For example: whether or not protection of human rights is a state practice, in India the
state practice can be determined by seeing what the courts, parliament, and
executive bodies do for the protection of human rights. These examples are given to
access what the Indian state practice looks like. We will also see what practice India
follows on an international level, if there are certain human rights treaties and
frameworks adopted by India, India has applied something through ratification,
signature etc. Universal periodic review takes place every 3 years or so wherein the
UNHRC looks at the state of human rights within the country. Through statements of
HOD, Cabinet ministers etc you can gather what the state practice is but you must
see if it’s their intention by these statements to be bound by the statement.
Attitude that the state has towards a particular treaty. There are some norms that are
pre-emptory in nature and they are jus cogen norms (Article 53) and they should
be applied regardless of state practice. It should be uniform in their application of
these jus cogens norm.
2. Opinio Juris
We are using state practice itself to ascertain opinion juris to a great extent.

Now we’ll try to identify where we’ll find customary international law.

State Practice during negotiation of Rome statute

Reference to the ICC: pre–Rome Statute
 By UNSC: Yugoslavia & Rwanda
 By state referral

India is not party to the Rome Statute.

Formal Sources
 The law making takes place in the formal manner.

Material Sources
 Writings and teachings of judges
 Commentaries
 ILC reports

How will you locate and identify customary international law?

 Treaties
UNCLOS: United Nations Convention on the Law of the Sea was adopted in 1982. It
lays down a comprehensive regime of law and order in the world's oceans and seas
establishing rules governing all uses of the oceans and their resources. There were
already customs between states in practice for the usage of the oceans.
 Judgements of the National Courts, ICJ, Tribunals etc
The opinion of the court was also used in the preparation of the UNCLOS.
 Writings

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To whatever customs the states consent to it becomes easier to allocate them as

customary international law.

The application of customary law is not

 Persistent objection of the customs: the states who has objected to the custom from
its formation. This is persistent objection to the development of a certain rule of
customary law. These objections must be expressed and persistent. When you don’t
expressly deny the application of a custom nor. Then you are giving your tacit
consent, this is acquiescence or implied consent.
 Local customs

Types of Customary International Law

Peremptory norms of general international law (jus cogens).
1. General Customs: The Scotia Case (USA vs. UK, 1871)
2. Local Customs: Right of Passage over Indian Territory (Portugal Case)

Date: 20-8-22

Erga omnes is a Latin phrase which means “towards all” or “towards everyone”. In legal
terminology, erga omnes rights or obligations are owed toward all. For instance, a property
right is an erga omnes entitlement, and therefore enforceable against anybody infringing that
right.

C. General Principles of International Law

Article 38 (c) ICJ Statute

There are certain principles that are common to all civilisations across the world:-
1. Natural justice
2. Res judicata
3. Right to a free and fair trial
4. Prohibition against discrimination
5. Good Faith
6. Equality

Although there is no hierarchy of law, lex specialis prevails over lex generalis. When there
is a gap for a tribunal to find a treaty or custom on the subject matter, they will rely on The
term non liquet originated in Roman law and means “it is not clear.” It refers to a situation
in which a competent court or tribunal fails to decide the merits of an admissible case for
whatever reason, be it the absence of suitable law, the vagueness or ambiguity of rules,
inconsistencies in law, or the injustice

 Pre PCIJ
Pre league of nations there were efforts to make a uniform international law. In the
treaties and conferences. In these treaties and conferences, they used certain words,
natural justice, humanity, etc.

Before Nuremberg, there was crimes against humanity but it was not codified. W ecan
trace its origin from other documents. Martins Clause:

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Hague Convention with respect to laws and customs for war on land. “Regulations
adopted by them, the inhabitants and the belligerents remain under the protection and the
rule of the principles of the law of nations, as they result from the usages established
among civilized peoples, from the laws of humanity, and the dictates of the public
conscience.” There is no concept of humanity prior to Martins Clause

The term humanity was picked up and then used to form the Crimes against humanity.
This term was coined in 1940s.

 Important Cases
1) Alabama Arbitration case
2) Corfu Channel Case
3) Barcelona Traction Case (1970)
4) ICJ Advisory opinion on the reservation on the convention on genocide (1951)

General principles come from municipal legal system and from international legal system.

 Important Readings
1) Para 237, Para 239: ICJ Advisory opinion on the reservation on the convention on
genocide (1951)
2) Right of Passage Case
3) legality of the threat Use of nuclear weapons case (1996)
4) Report on General principles of law (2019)

Post PCIJ/ Post ICJ

D. GENERAL PRINCIPLES OF INTERNATIONAL LAW REPORTS

I. First report on general principles of law

II. Second report on general principles of law

III. Third report on general principles of law

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MODULE 3: SUBJECTS UNDER INTERNATIONAL LAW

Subjects of IL
1. States
2. International Organisations
3. Individuals and Non-state actors: MNCs, Extremist orgs, NGOs, ICRC.

A. STATE

The entity which has legal personality. It has legal obligations and reprimanded. There are
certain duties which the states have to be bound by. Post WW1, a number of states came into
existence as well as more international organisations.

 Hugo Grotius
State is the complete association of free men joined together for the enjoyment of rights and
common interests.

 Vattel
States are political bodies, societies of men who have united together and combined their
forces in order to procure their mutual welfare and security

 External and internal sovereignty

Internal sovereign affairs of the state. External sovereignty is the ability to enter into treaties
on own accord etc.

 Legal Criteria of statehood

Montevideo Convention: Article 1. Customary International law
1. Permanent population: there is no upper or lower limit on population, any number
of people can compose the population. The richness of the population does not matter.
The population is not to be categorised on the basis of caste, race, creed etc.
2. Territory: there should be fixed geographical territory that is subject to change. To
have recognition of statehood the boundary or territory need to be demarcated
beforehand. Phillip Jessup said “that one does not find in the general classic
treatment of this subject any insistence that the territory of a state must be exactly
fixed by the definite frontiers. The formula in the classic treaties somewhat vary both
either reason and mystery demonstrate that the concept of territory precise
delimitation of the boundaries of the territory. There must be some portion of the
Earth’s surface which its people inhabit and over which its government exercise
authority. No one can deny that the state of Israel responds to its requirement.
Case Law: supported the idea that the land frontiers of the state claiming statehood
would be fully defined- North Sea Continental Shelf, Germany v Denmark, Order,
[1968] ICJ Rep 9
3. Government: people in the state pay habitual obedience to a given sovereign or state.
Several forms of govt. the committee of jurists at the League of nations reported that
Finland at that time for a want of settled and orderly govt. Ref: James Crawford, the
creation of states in international law.

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4. Capacity to enter into international relations: limited international personality such

as colonies, they were not provided full statehood but were still members of the UN
and league of nations. Before the treaty it didn’t have definite territory but it engaged
in international relations.
Holy See after the Treaty of Lateran 1929, it was given separate legal personality and
statehood. It was engaged in entering into international relations etc. LLP of certain
entities. Colonies were not the sovereign equal states but they were used to increase
voting rights at international conferences and orgs.

 Constitutive theory
 All 4 requirement plus international recognition by other states

 Declaratory Theory
 The recognition is enough by meeting the 4 requirements of statehood

B. INTERNATIONAL ORGANISATION

 Advisory opinion by ICJ for Reparation for Injuries Suffered in the Service of the
United Nations

1. Did the UN have a separate international legal personality (“ILP”) to seek reparations
2. If UN had an international legal personality and if it had right to seek reparations for
damages suffered by its personnel, does this right come in conflict of the rights of the
state.

 Facts
As a consequence of the assassination in September 1948, in Jerusalem, of Count Folke
Bernadotte, the United Nations Mediator in Palestine, and other members of the United
Nations Mission to Palestine, the General Assembly asked the Court whether the United
Nations had the capacity to bring an international claim against the State responsible with
a view to obtaining reparation for damage caused to the Organization and to the victim . If
this question were answered in the affirmative, it was further asked in what manner the
action taken by the United Nations could be reconciled with such rights as might be
possessed by the State of which the victim was a national.

Can the UN go to the states where the representative and agents were deployed. Only if
the UN had ILP, could it seek reparations for harm suffered to its agents.

First, you will look at the UN Charter. Nothing specific in the UN Charter.
Second, you will try to attain the objective of international peace and security and see
what rights and they have and see how they should be protected. This is based on Article
104 and 105 of the UN Charter.

Diplomatic protection is granted to the agents and representations of the state.

 Case of Kulbhushan Jadhav
 Was caught by Pakistan. Was not given consular help.
 Pakistan did not fulfil its obligations under the Vienna Convention on Consular
Relations (VCCR).

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 India went to the ICJ. The main entity or the main player of international law is state
and not an individual. Only states can go to the IC because they are primary subjects
of international law.

Does such right of diplomatic protect also lie with the UN the same way it is for a state.
Rights, capacities and obligations arising out of international law are also to be regarded to
IOs.

I. 3 questions
1. Does UNO have international legal personality
2. Can it seek reparations
3. Can it seek reparations from its agents/ victims

II. Who will enforce this right? State or UNO

 ICJ in the advisory opinion

1. In the event of an agent of the United Nations in the performance of his duties
suffering injury in circumstances involving the responsibility of a State, has the
United Nations, as an Organization, the capacity to bring an international claim
against the responsible de jure or de facto government with a view to obtaining the
reparation due in respect of the damage caused (a) to the United Nations, (b) to the
victim or to persons entitled through him ?
2. In the event of an affirmative reply on point 1 (b), how is action by the United Nations
to be reconciled with the siicli rights as may be possessed by the State of which the
victim is a national ?'

Competence to bring an international claim is, for those possessing it, the capacity to resort to
the customary methods recognized by international law for the establishment, the
presentation and the settlement of claims. Among these methods may be mentioned protest,
request for an enquiry, negotiation, and request for submission to an arbitral tribunal or to the
Court in so far as this may be authorized by the Statute.

States and IOs are not identical in nature.

Article 104

The Organization shall enjoy in the territory of each of its Members such legal capacity as may be
necessary for the exercise of its functions and the fulfilment of its purposes.

Article 105

1. The Organization shall enjoy in the territory of each of its Members such privileges
and immunities as are necessary for the fulfilment of its purposes.
2. Representatives of the Members of the United Nations and officials of the
Organization shall similarly enjoy such privileges and immunities as are necessary for
the independent exercise of their functions in connection with the Organization.
3. The General Assembly may make recommendations with a view to determining the
details of the application of paragraphs 1 and 2 of this Article or may propose
conventions to the Members of the United Nations for this purpose.

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There are certain tasks and functions that are to be carried out by the UN. Wherever the UN
agents go they should be afforded immunity. By this provision the implied legal personality o
he UN is being established.

Q.1
It cannot be doubted that the Organization has the capacity to bring an international claim
against one of its Members which has caused injury to it by a breach of its international
obligations towards it. The damage specified in Question 1 (a) means exclusively damage
caused to the interests of the Organization itself, to its administrative machine, to its property
and assets, and to the interests of which it is the guardian. It is clear that the Organization has
the capacity to bring a claim for this damage. As the claim is based on the breach of an
international obligation on the part of the Member held responsible by the Organization, the
Member cannot contend that this obligation is governed by municipal law, and the
Organization is justified in giving its claim the character of an international claim.

In the first place, this rule applies to claims brought by a State. But here we have the different
and new case of a claim that would be brought by the Organization. In the second place, even
in inter-State relations, there are important exceptions to the rule, for there are cases in which
protection may be exercised by a State on behalf of persons not having its nationality.

 Functional Protection introduced

Upon examination of the character of the functions entrusted to the Organization and of the
nature of the missions of its agents, it becomes clear that the capacity of the Organization to
exercise a measure of functional protection of its agents arises by necessary intendment out of
the Charter.

In particular, lie should not have to rely on the protection of his own State. If he had to rcly
on that State, his independence might will be compromised, contrary to the principle applied
by Article ~oof the Charter. And lastly, it is essential that- whether the agent belongs to a
powerful or to a weak State; to one more affected or less affected, by the complications of
international life; to one in sympathy or not in sympathy with the mission of the agent-he
should know that in the performance of his duties he is under the protection of the
Organization. This assurance is even more necessary when the agent is stateless.

Q.2
When the victim has a nationality, cases can clearly occur in which the injury suffered by him
may engage the interest both of his national State and of the Organization. In such an event,
competition between the State's right of diplomatic protection and the Organization’s right of
functional protection might arise, and this is the only case with which the Court is invited to
deal.

In such a case, there is no rule of law which assigns priority to the one or to the other, or
which compels either the State or the Organization to refrain from bringing an international
claim.

The Court sees no reason why the parties concerned should not find solutions inspired by
goodwill and common sense, and as between the Organization and its Members it draws
attention to their duty to render “every assistance” provided by Article 2, paragraph 5, of the
Charter.

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Although the bases of the two claims are different, that does not mean that the defendant
State can be compelled to pay the reparation due in respect of the damage twice over.
International tribunals are already familiar with the problem of a claim in which two or more
national States are interested and they know how to protect the defendant State in such a case.

The identity of the agent working for the UNO should be different from the identity of the
agent to his nationality. As far as international organisations there are no contentious cases,
but there have been cases of states with multiple treaties.

 Doctrine of Implied Power

 Prof Rahamutullah Khan

Reparations: This capacity certainly belongs to the State; a state can bring an international
claim against another State. Such a claim takes the form of a claim between two political
entities

Meaning of Damage: As this question assumes an injury suffered in such circumstances as to

involve a State's responsibility, it must be supposed, for the purpose of this Opinion, that the
damage results from a failure by the State to perform obligations of which the purpose is to
protect the agents of the Organization in the performance of their duties.

C. INDIVIDUALS

First we need to understand who has personality- we will borrow our understanding of
capacity from the reparations case. Can we apply the capacity formula to individuals?
Focus on Development of international law post WWII. If we look at the preamble of the UN,
it starts with we the people nation, this shows that UN recognises individual people.

What was the condition of civilians during the war? They were the ones most attacked. The
role or the iron cage that the concept of sovereignty puts on its people. Other states cannot
interfere in the domestic matters of the other states but that changed in the WW era.

In the post WWII scenario, certain international criminal tribunals including Tokyo and
Nuremberg were established.

The individual was held liable for crimes against individuals and crimes against humanity.
Law and order is a state subject and it has nothing to do with international bodies. With the
gross violation and systematic violence, if all these ingredients are met by the domestic
territory, it will demand some attention from the international community.

Hersh Lauterpacht: Crimes against Humanity

Raphael Lemkin: Genocide (requires special intent)

Several treaties such as ICCPR, Rome Statute, convention against torture, CEDAW, Conv
against racial discrimination.

 Jurists who either rejected or recognised Individuals as subjects of IL

1) Oppenheim
2) Waldock

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3) Friedmann
4) Rosalin Higgins: remove the idea of subject from IL, there are only participants of
international law

Extra
 Laut
 Kelsen

Date: 25-8-22

 Diplomatic Protection

George Scelle
The general view is that states are mere fictions of international law. But all the rights and
duties are ultimately.

How legal personality to states are given?

 ILP of states: Art. 1 of Montevideo Convention + Recognition
 ILP of IOs: they function on the basis of their constituent charter/ document
ILP of individuals: The individual does not have any legal capacity under general
international law. The individual cannot bring a claim against a State when the State
is alleged to have violated his rights, only the State of the individual's nationality can
bring a claim in international forums, such as the International Court of Justice.
Furthermore, the domestic remedies available in the host State must be exhausted
before the international forum can be utilized.

 Erga Omnes
The individual does not have any legal capacity under general international law. The
individual cannot bring a claim against a State when the State is alleged to have violated
his rights, only the State of the individual's nationality can bring a claim in international
forums, such as the International Court of Justice. Furthermore, the domestic remedies
available in the host State must be exhausted before the international forum can be
utilized.
The requirement of exhaustion of local remedies will also not apply in certain cases when
the violations concerned are large in extent, have mas-sive and systematic character,
or constitute the policy and practice of the State concerned. But here the differences
with the bilateralism model end.

In cases where erga omnes obligations have been violated, individuals dom not
acquire any direct standing or other feature of capacity under international law. The
subjects of international law react not to violations of the rights of the individual purely
and simply, but to violations that result in the injury to the interests of the international
community on behalf of which they are entitled to claim. Though looking ironic, the
importance of the obligations violated does not have any impact on the discretion of
States in presenting the claim and demanding cessation and reparation.

Though having moral duties in this respect, legally the States remain at liberty to do or to
not
do this. Also, the U.N. Security Council, with the authority and capability to suppress
gross violations of human rights that threaten international peace and security, retains

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complete discretion in applying non-military or military measures with a view to

countering such breaches. The general international law does not recognize the capacity
of the individual other than that of a (passive) beneficiary of the rules of international law.

 Enforcement of Rights and Obligations of individuals in IL

- Monism: Municipal law and international law is one thing
- Dualism: International law and municipal law is different

- The optional protocol to ICCPR allows individuals to enforce their rights. However,
this can only happen if the state is a party to the ICCPR.

- Individual criminal responsibility

Date: 26-8-22

D. LEGAL STATUS OF ICRC

 Henry Dunant
Henry Dunant, was a Swiss humanitarian, businessman and social activist. He was the
visionary, promoter and co-founder of the Red Cross.

 Role of ICRC
1. Promoters of IHL
2. Neutral Intermediary
3. Protection of people – soldiers, civilians

 Derives its powers from

 Geneva Convention
 Additional Protocols of the GC
 Statute of the ICRC

 Status of the ICRC with the UN

 First there was consultative status to the ECOSOC
 Then by a UNGA RES in 1990

Debates on Resolution 45/6, several States took care to point out the unique nature and role
of the ICRC: -

 Statements given by
1. Italy
2. India
3. USA

They all stated that this case of ICRC was a unique position and was not a precedent for
other organisations.

Though it is an international legal personality, it is one of different nature and limited nature.

 Haiti and the ICRC

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[T]he International Committee of the Red Cross is a private association under Swiss law with
its headquarters in Geneva .... Considering, however, the special status granted to the
International Committee of the Red Cross by international humanitarian law, its status as
permanent observer to the United Nations and its specificity recognized by both the
International Criminal Tribunal for the former Yugoslavia and the International Criminal
Court [and] [c]onsidering that to ensure the tasks entrusted to it by the international
community, the International Committee of the Red Cross must benefit from the protection of
the law; it is therefore appropriate that the Republic of Haiti should grant it a special status; ...
The International Committee of the Red Cross ... [enjoys] privileges and immunities identical
to those granted to the United Nations.

 International legal order

The ICRC’s international legal personality – which devolves directly from its treaty mandate
– has been discussed in detail above. With regard to the ICRC’s privilege of non-disclosure
of confidential information, the International Criminal Tribunal for the former Yugoslavia
explained in the Simić case that this privilege too is both implicit in the treaties that enshrine
the ICRC’s international mandate and part of customary international law: FUNCTIONAL
PRIVILEGE WAS GIVEN TO ICRC, THE SAME WAY IT WAS GIVEN TO UNO

72. The ICRC has a pivotal role in the regime established by the Geneva Conventions and
their Protocols to guarantee the observance of certain minimum humanitarian standards. This
role is unique. ... The Geneva Conventions and their Protocols must be construed in the light
of their fundamental objective and purpose as described above, and for that reason they must
be interpreted as giving to the ICRC the powers and the means necessary to discharge its
mandate effectively.

E. TREATMENT OF MNCS
Limited status like individuals

MODULE 4: CREATION AND INCIDENCE OF STATEHOOD

 Introduction
As and when the development of international law has grown, the states have gotten a legal
personality. Art. 1 of Montevideo convention.
 Mandate territories: certain countries were given the responsibility to
 Territorial integrity and Right to self-determination: Right to self-determination of an
individual
 Article of Hans Kelson, he made 13 observations, in order to establish a norm you
have to have a higher norm that it flows from.
 Kelsen – 1) Political recognition 2) legal recognition: The political act of recognition,
since it has no legal effect whatsoever, is not constitutive for the legal existence of the
recognized state or government. Political recognition presupposes the legal existence
of a state or government to be recognized.
 LaGrand Case:
 The legal obligation can be raised by a treaty between both the states.

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 Kelson
1. Population:
2. Territory:
3. Govt.:
4. Capacity: this is verifiable, this connotes to the legal recognition, this relates to
Capacity. The capacity depends on the recognition of another state. With the state’s
rights to conduct its external affairs. Until and unless another state validates the
aforementioned facts, personality may not be granted under international law

1. Colonies
2. Protectorates
3. Mandate/ Trust Territory
4. Federation Territory

MODULE 5: RECOGNITION

 United Nations Declaration on Principles of International Law Friendly Relations

and Co-Operation Among States in Accordance With The Charter Of The United
Nations

(a) To promote friendly relations and co-operation among States; and

(b) To bring a speedy end to colonialism, having due regard to the freely expressed will of the
peoples concerned; and bearing in mind that subjection of peoples to alien subjugation,
domination and exploitation constitutes a violation of the principle, as well as a denial of
fundamental human rights, and is contrary to the Charter. Every State has the duty to promote
through joint and separate action universal respect for and observance of human rights and
fundamental freedoms in accordance with the Charter. The establishment of a sovereign and
independent State, the free association or integration with an independent State or the
emergence into any other political status freely determined by a people constitute modes of
implementing the right of self-determination by that people

Every State has the duty to refrain from any forcible action which deprives peoples referred
to in the elaboration of the principle of equal rights and self-determination of their right to
self-determination and freedom and independence.

This declaration has become a part of customary international law.

It has been relied upon by the ICJ in the Nicargua v. USA. Therefore, the territorial claims
will be given preference over secessionist claims. If the state comes into existence after
violating certain jus Cogen norms, then states wont recognise it.

 Nambia and South Africa Case

 The occupation of Nambia by South Africa.

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 SC directed Namibia towards elections.

 South Rhodesia Case

 Statehood claim was discarded due to the racial discrimination of its existence and
regime.

Till now we have discussed state recognition, now we will discuss recognition of govt.

Such regime is overthrown by the constitutional machinery. The earlier established regime of
the previous dictatorial government. Does it have any repercussion on the status of states.
Sometimes when this government or territory is in control of some foreign power or is
occupation with a foreign state. There are implications

The issue was of effective control over the territory. When there is doubt over the territory,
entitlement will prevail over effective control. The country who had effective control was in
violation of UN charter. This effective control argument does not hold for these states which
was illegally occupying. Difference between statehood, recognition of statehood and govt.
this was not a legally right position.

 Traditional view
The states don’t venture into recognition of government. But there are opposing views on it.
Those governments who have been established after violating certain jus cogens norms, their
recognition can be contested. We refer to the case Tinoco Claims Arbitration (Great Britain
v. Costa Rica). he Tinoco regime, which was the former government of Costa Rica, was
alleged by Great Britain to have granted oil concession to a British company that had to be
honoured by the present regime. It was contested that the Tinoco regime was not a legitimate
government because it is dictatorial in nature. The states responsibility would flow from the
act of its previous government as well.

Generally, recognition of govt. is a domestic issue.

When this government or territory is in control of some foreign power or is in occupation of

some other states then it also has the questions for implications for recognition. When south
africa was s country namibia was under the mandate of south africa and south africa
continued with illegal occupation. Whether the terrotory of namibia has a separate or distinct
identities?

This state has effective control and has the title but it tis bound by the UN charters where it
will respect the territorial sovereignty of the state. In the case of terriyorial or cessionist
claims territorial will prevail.

Namibia is entitled to a separate or a distinct identity away from his occupier.

Few states say that those govts. Who has been established after violating certain jus cogens
norms, their recognition can be contested.

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https://www.casebriefs.com/blog/law/international-law/international-law-keyed-to-
damrosche/chapter-5/tinoco-claims-arbitration-great-britain-v-costa-rica/

The regime had granted recognition of certain British corporations. The new government
overturned the new bank and trade concession that were granted to the corporations and held
that the govt. was not a real govt. but a dictatorial regime. This brings us to the concept of
state responsibility

1. Tobar- Ecuador, This is a doctrine of non-recognition of governments first enunciated by

Carlos Tobar, the Minister of Foreign Relations of Ecuador, recognition of government
should only be granted if its administration came to power by legitimate democratic means.
2. Estrada- Mexico, change of gov is an internal matter and does not concern international
law and other states

 Non recognition and Sanctions

Granting of recognition is not a duty under international law. Grant of recognition depends on
the will of the state. Now there are certain situations in which it becomes the duty of the state
not to give recognition.
For example: South Africa’s annexation of Namibia was illegal and ultra vires the UN
Charter. The govt run by South Africa was not to be recognised as per the UN. States like
Bantwostan and South Rhodesia also were not recognised under the same.

 Article 41(2) ARSIWA

2. No State shall recognize as lawful a situation created by a serious breach within the
meaning of article 40, nor render aid or assistance in maintaining that situation.
This opinion was also confirmed in the advisory opinion (2004) “Israeli activities in
the occupied territory in the consequence of the construction of the Wall in the
occupied Palestinian Territory”. Therefore, it becomes important to not give
recognition to states and territories which come into existence after the violation of
certain pre-emptory norms. It is like a sanction on these entities.

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MODULE 6: TERRITORY

1) Intertemporal Law
2) Uti Possedetis
3) Territory
a) Cession: Cession is when one nation voluntarily gives up territory to another,
typically via a treaty or sale.
b) Accretion: state’s territory increases by natural processes, such as deposits from
rivers or volcanic eruptions
c) Prescription: acquiring of rights after a certain period of time
d) Use of Force

Bella gerant alii, tu felix Austria nube: let others wage war, thou, happy Austria, marry

Examples of Transfer of Territory

 Bombay was gifted as a territory in 1662 to Charles II of England
 Some Territories were sold: USA bought Florida from Spain

Earlier, Discovery + Occupation = Title

I. Intertemporal Law
 It is a rule of interpretation when a dispute arises between states. If any dispute arises
as to the legality of the act, you would consider the legal developments of that time.

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 Every legislation reflects the political reality of that time.

 The doctrine of intertemporal law says that the legal effect of the conduct is to be
determined in accordance with the law as it was at the time of the conduct. Since
the outlawing of the use of force in IR, it has been unlawful to gain territory through
the use of force. However large areas of the world were acquired by the use of force
when it was still lawful therefore states who did gain territory through the use of force
still maintain good title.
 However, states must keep up with the changing demands of the law. Acquisition of
territory through use of force in the 21st century will not be permitted.

 Cases
1. Aegean Sea Continental Shelf Case
2. Island of Palmas Case

II. Uti Possedetis

 Meaning: as you possess, so shall you possess
 If there is no treaty, then you look at CIL
 There must be an attempt to preserve the boundaries of colonies emerging as states.
 The doctrine arose from Latin American States who seceded from Spain.

 Cases
1) Burkina Faso v. Mali [Case Concerning the Frontier Dispute]

MODULE 8: STATE RESPONSIBILITY

1. An obligation
2. Act/ Omission
3. Injury/ Damage
This would entail state responsibility. The requirement for injury and damage is extinguished

A. ATTRIBUTION/ IMMUTABILITY

 Article 2.
Elements of an internationally wrongful act of a State There is an internationally wrongful act
of a State when conduct consisting of an action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.
For example:
Obligation of India is to share water with Pakistan under IWT. Art. 4 and Art. 5 of ARSIWA.

 Art. 5
Conducts of persons or entities exercising govt authority. Even the entities or the group of
persons which have overall or effective control results in internationally wrongful act. State
exercised authority over the acts and exercised control.

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Para Statal Entities: which are exercised with carrying out certain sovereign functions.
Sometimes these sovereign functions are also given to private entities.
Degree of control: Nicaragua - State should being effective control of the entity. Tadic Case-
ICT Case- overall control. Overall control wider ambit. Tadic is a case of individual criminal
responsibility (ICR) whereas Nicaragua is a case of State Responsibility. In order to fix ICR
the threshold is higher therefore we cannot apply a wider threshold. Therefore, in the case of
Bosnia Serbia (Genocide Case) we went back to effective control because the state cannot be
held responsible for all the criminal acts of an individual.

 Bosnia Case
“The conduct of any organ of the state must be regarded as an Act of that state, the ICJ in
Genocide convention case regard it as one of the cornerstones of the law of state
responsibility it is also CIL. That the conduct of and it would clearly cover units and sub
units within a state.”

 Behrami v. France (ECJ)

If one individual or agent is a member of I.O and a state and both of these entities have
control.

 United States Diplomatic and Consular Staff in Tehran (United States of

America v. Iran)

B. CIRCUMSTANCES WHICH PRECLUDE WRONGFULNESS

Chapter V of the ARSIWA sets out the circumstances precluding wrongfulness, namely,
consent, self-defence, countermeasures, force majeure, distress, and necessity (Articles
20-25). It can be inferred, a contrario, from the text of Article 27(a) that the State would be
under no obligation to make reparation for conduct incompatible with the obligation while
the circumstance precluding wrongfulness lasts: after all, while the circumstance is in place,
the State is not required to comply with that obligation.

 Article 20. Consent

Valid consent by a State to the commission of a given act by another State precludes the
wrongfulness of that act in relation to the former State to the extent that the act remains
within the limits of that consent.

 Article 21. Self-defence

The wrongfulness of an act of a State is precluded if the act constitutes a lawful measure of
self-defence taken in conformity with the Charter of the United Nations.

 Article 22. Countermeasures in respect of an internationally wrongful act (rt. Art. 49

Object and limits of countermeasures)

The wrongfulness of an act of a State not in conformity with an international obligation

towards another State is precluded if and to the extent that the act constitutes a
countermeasure taken against the latter State in accordance with chapter II of Part Three

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 Art 49. requirements

1. may only take countermeasures against a State which is responsible for an

internationally wrongful act in order to induce that State to comply with its
obligations. A fundamental prerequisite for any lawful countermeasure is the
existence of an internationally wrongful act which injured the State taking the
countermeasure. This point was clearly made by ICJ in the Gabcˇíkovo Nagymaros
Project case, in the following passage: “In order to be justifiable, a countermeasure
must meet certain conditions ...In the first place it must be taken in response to a
previous international wrongful act of another State and must be directed against that
State.”
2. Are limited to the non-performance for the time being of international obligations
of the State taking the measures towards the responsible State. The phrase “for the
time being” in paragraph 2 indicates the temporary or provisional character of
counter-measures.
3. Taken in such a way as to permit the resumption of performance of the obligations in
question. States should as far as possible choose countermeasures that are reversible.
However, the duty to choose measures that are reversible is not absolute. It may not
be possible in all cases to reverse all of the effects of countermeasures after the
occasion for taking them has ceased. (Rw. Article 53 Countermeasures shall be
terminated as soon as the responsible State has complied with its obligations)

* The system of Article 52: Conditions relating to resort to countermeasures builds upon
the observations of the tribunal in the Air Service Agreement arbitration. The first
requirement, set out in paragraph 1 (a), is that the injured State must call on the responsible
State to fulfil its obligations of cessation and reparation before any resort to
countermeasures.

 Article 23. Force majeure

1. The wrongfulness of an act of a State not in conformity with an international

obligation of that State is precluded if the act is due to force majeure, that is the
occurrence of an irresistible force or of an unforeseen event, beyond the control of the
State, making it materially impossible in the circumstances to perform the obligation.

2. Paragraph 1 does not apply if:

countermeasure taken against the latter State in accordance with chapter II of Part
Three.

(a) the situation of force majeure is due, either alone or in combination with other
factors, to the conduct of the State invoking it; or

(b) the State has assumed the risk of that situation occurring.

Article 23 formulates three conditions that needs to be met for a situation of force
majeure to preclude wrongfulness of a State’s conduct.

1. The act or omission of the state must be the result of an irresistible force or
unforeseen event.

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2. The irresistible force or unforeseen event must be beyond the State’s control.
3. The situation must make it materially impossible for the State to fulfil their obligation.

 Article 24. Distress

1. The wrongfulness of an act of a State not in conformity with an international obligation of

that State is precluded if the author of the act in question has no other reasonable way, in a
situation of distress, of saving the author’s life or the lives of other persons entrusted to the
author’s care.

2. Paragraph 1 does not apply if:

(a) the situation of distress is due, either alone or in combination with other factors, to the
conduct of the State invoking it; or

(b) the act in question is likely to create a comparable or greater peril.

Article 25. Necessity

1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an
act not in conformity with an international obligation of that State unless the act:

(a) is the only way for the State to safeguard an essential interest against a grave and
imminent peril; and

(b) does not seriously impair an essential interest of the State or States towards which the
obligation exists, or of the international community as a whole.

2. In any case, necessity may not be invoked by a State as a ground for precluding
wrongfulness if:

(a) the international obligation in question excludes the possibility of invoking necessity; or

(b) the State has contributed to the situation of necessity.

The State’s international obligation is not necessarily terminated or suspended by the claim of
circumstances precluding wrongfulness. The obligation continues to exist, but the State is
excused for their non-performance of the obligation for as long as the circumstance
continues.

 Gabčíkovo-Nagymaros Project case

This is illustrated in the Gabčíkovo-Nagymaros Project case. Hungary and Slovakia had
concluded a treaty about the constructions of dams and other projects on a river that bordered
both States. Hungary suspended the work at Nagymaros and Dunakiliti and later abandoned
the project at Nagymaros. Negotiations between the States were held at this time and did not
solve the problem and Hungary then terminated the treaty. The Court found that Hungary’s
action is to be interpreted as unwillingness to follow some of the provisions in the treaty that
establish the cooperation of the Gabčíkovo-Nagymaros Project. Hungary’s conduct made it
impossible to finish the work of the project. Hungary invoked a state of necessity to justify

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their breach of international obligations put upon them by the treaty. The Court found that
even if Hungary were in a state of necessity that was linked to their performance in
accordance with the treaty, they could not rely on that to justify their actions since they
helped causing the state of necessity. It is also observed by the Court that a state of necessity
is not a valid ground for termination of a treaty. Necessity can only be used to excuse the
State from its responsibility if that State has failed to implement the treaty. The treaty is
ineffective for as long as the state of necessity exists and when it ceases to exist the
obligations in the treaty are to be complied with again unless the parties agree to terminate
the treaty.

C. CONSEQUENCES

 Reparations:
1. Restitution: Restoring the original position
2. Compensation:
3. Satisfaction: Issuing an apology

 Article 31. Reparation

1. The responsible State is under an obligation to make full reparation for the injury
caused by the internationally wrongful act.
2. Injury includes any damage, whether material or moral, caused by the internationally
wrongful act of a State.

 Article 35. Restitution

A State responsible for an internationally wrongful act is under an obligation to make
restitution, that is, to re-establish the situation which existed before the wrongful act was
committed, provided and to the extent that restitution:
a) is not materially impossible;
b) does not involve a burden out of all proportion to the benefit deriving from restitution
instead of compensation.

 Definition
Restitution in kind is the obvious method of performing the reparation, since it aims to re-
establish the situation which existed before the wrongful act was committed.

 Article 36. Compensation

1. The State responsible for an internationally wrongful act is under an obligation to
compensate for the damage caused thereby, insofar as such damage is not made good by
restitution.
2. The compensation shall cover any financially assessable damage including loss of profits
insofar as it is established.
(2) Of the various forms of reparation, compensation is perhaps the most commonly
sought in international practice. In the Gabˇcíkovo-Nagymaros Project case, ICJ declared:
“It is a well-established rule of international law that an injured State is entitled to obtain
compensation from the State which has committed an internationally wrongful act for the
damage caused by it.” It is equally well established that an international court or tribunal
which has jurisdiction with respect to a claim of State responsibility has, as an aspect of that
jurisdiction, the power to award compensation for damage suffered.

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 Pecuniary compensation
Pecuniary compensation is usually an appropriate and often the only remedy for injury
caused by an unlawful act. Under ARSIWA Article 36 whenever restitution is not possible
compensation becomes the standard consequence for injury, covering ‘any financially
assessable damage including loss of profits’. This is consistent with the long-standing
jurisprudence of international courts, tribunals, and claims commissions. In its judgment in
Gabčíkovo-Nagymaros Project, the Court reaffirmed the ‘well-established rule of
international law that an injured State is entitled to obtain compensation from the State which
has committed an internationally wrongful act for the damage caused by it’.

 Article 37. Satisfaction

1. The State responsible for an internationally wrongful act is under an obligation to give
satisfaction for the injury caused by that act insofar as it cannot be made good by
restitution or compensation.
2. Satisfaction may consist in an acknowledgement of the breach, an expression of
regret, a formal apology or another appropriate modality.
3. Satisfaction shall not be out of proportion to the injury and may not take a form
humiliating to the responsible State

 Definition
Satisfaction may be defined as any measure which the responsible state is bound to take
under customary law or under an agreement by the parties to a dispute, apart from restitution
or compensation.
Satisfaction may take many forms, which may be cumulative: apologies or other
acknowledgement of wrongdoing by means of a payment of an indemnity or a (somewhat
outmoded) salute to the flag; the trial and punishment of the individuals concerned, or the
taking of measures to prevent a recurrence of the harm

 Examples
 Case of Stolen Generations Australian President issued apology
 Case of Girmityas

I. U.S. Remarks at a Meeting of the Sixth Committee on Agenda Item 74:

Responsibility of States for Internationally Wrongful Acts David Bigge,,
Attorney Adviser

October 13, 2022

The draft articles on the responsibility of States for internationally wrongful acts, with
commentaries, were adopted by the International Law Commission in 2001. Along with its
recommendation to take note of the draft articles, the Commission recommended that the
General Assembly consider, at a later stage, the possibility of convening an international
conference with a view to concluding a convention on the topic.
Over the years, it has become clear that the range of views expressed in meetings in the Sixth
Committee and in its working group to date indicates that consensus is unlikely.
The U.S. position has been, and remains, that the articles are most valuable in their current
draft form. The draft articles have provided useful guidance to States and other actors on the
customary international law of state responsibility. The United States appreciates the ILC’s
efforts, as well as this Committee’s thoughtful contributions to this body of work.

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D. CASES IMPORTANT FOR THE CA4

1. Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America)
2. Bosnian Genocide Case: Bosnia and Herzegovina v Serbia and Montenegro
3. Prosecutor v. Dusko Tadic
4. Rainbow Warrior Case: Case concerning the difference between New Zealand and
France concerning the interpretation or application of two agreements concluded on 9
July 1986 between the two States and which related to the problems arising from the
Rainbow Warrior Affair
5. The Corfu Channel Case
6. Trail smelter case (United States, Canada)
7. Gabˇcíkovo-Nagymaros Project case
8. Tehran Hostages

II. Military and Paramilitary Activities in and against Nicaragua ( Effective

Control)
Facts: In 1909, the United States of Americas’ military and marine rule deposed the
President of Nicaragua and established their rule by occupying the territory of Nicaragua. A
Pro-US government was constituted which led to the formation of several treaties between
the two States. These treaties gave exclusive rights and privileges of trade, transport,
commerce, and access of Nicaragua to the United States.
The Nicaragua case dealt with the support the United States gave to the contras, a group of
rebels fighting against the government of Nicaragua, and the international responsibility of
the US for violations of international law evoked by the support. Since the contras were not
de jure organs of the US, the ICJ drafted a test of control to define, whether the US control
over the
Issue: The question was whether the conduct of the contras was attributable to the United
States so as to hold the latter generally responsible for breaches of international humanitarian
law commit- ted by the contras. This was analysed by ICJ in terms of the notion of “control”.
Judgement: The degree of control which must be exercised by the State in order for the
conduct to be attributable to it was a key issue in the Military and Paramilitary Activities in
and against Nicaragua case.
In the course of their reasoning, the majority considered it necessary to disapprove the ICJ
approach in the Military and Paramilitary Activities in and against Nicaragua case. But the
legal issues and the factual situation in the Tadic ́ case were different from those facing the
Court in that case. The tribunal’s mandate is directed to issues of individual criminal
responsibility, not State responsibility, and the question in that case concerned not
responsibility but the applicable rules of international humanitarian law.

III. Bosnian Genocide Case (Effective Control)

Issue: Bosnia and Herzegovina requested the International Court of Justice to adjudge and
declare: That Serbia and Montenegro, through its organs or entities under its control, has
violated its obligations under the Convention on the Prevention and Punishment of the Crime
of Genocide by intentionally destroying in part the non-Serb national, ethnical or religious
group within, but not limited to, the territory of Bosnia and Herzegovina, including in
particular the Muslim population.
Judgement: The Court is however of the view that the particular characteristics of genocide
do not justify the Court in departing from the criterion elaborated in the Judgment in the case
concerning Military and Paramilitary Activities in and against Nicaragua. The Rules for
attributing alleged internationally wrongful conduct to a State do not vary with the nature of

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the wrongful act in question in the absence of a clearly expressed lex specialis. Genocide will
be considered as attributable to a State if and to the extent that the physical acts constitutive
of genocide that have been committed by organs or persons other than the State’s own agents
were carried out, wholly or in part, on the instructions or directions of the State, or under its
effective control. This is the state of customary international law, as reflected in the ILC
Articles on State Responsibility.
It must next be noted that the “overall control” test has the major drawback of broadening the
scope of State responsibility well beyond the fundamental principle governing the law of
international responsibility: a State is responsible only for its own conduct, that is to say the
conduct of persons acting, on whatever basis, on its behalf. That is true of acts carried out by
its official organs, and also by persons or entities which are not formally recognized as
official organs under internal law but which must nevertheless be equated with State organs
because they are in a relationship of complete dependence on the State. Apart from these
cases, a State’s responsibility can be incurred for acts committed by persons or groups of
persons — neither State organs nor to be equated with such organs — only if, assuming those
acts to be internationally wrongful, they are attributable to it under the rule of customary
international law reflected in Article 8

IV. Prosecutor v. Dusko Tadic (overall control)

Facts: For committing war crimes at a Serb-run concentration camp in Bosnia-Herzegovina,
Tadic (D) was prosecuted in Court. The jurisdiction of the tribunal was however challenged
by Tadic (D) on the ground that it exceeded the authority of the U.N. Security Council. This
argument of Tadic (D) was dismissed by the trial court but Tadic (D) appealed.
Issue. Can plea against the International Tribunal jurisdiction be examined by the
International Tribunal based on the invalidity of its establishment by the Security Council?
Judgement: The Appeals Chamber held that the requisite degree of control by the
Yugoslavian “authorities over these armed forces required by international law for
considering the armed conflict to be international was overall control going beyond the mere
financing and equipping of such forces and involving also participation in the planning and
supervision of military operations”.
In order to attribute the acts of a military or paramilitary group to a State, it must be proved
that the State wields overall control over the group, not only by equipping and financing the
group, but also by coordinating or helping in the general planning of its military activity.
Only then can the State be held internationally accountable for any misconduct of the group.
However, it is not necessary that, in addition, the State should also issue, either to the head or
to members of the group, instructions for the commission of specific acts contrary to
international law.

V. Rainbow Warrior Case

Facts: In July 1985 a team of French agents sabotaged and sank the Rainbow Warrior, a
vessel belonging to Greenpeace International, while it lay in harbour in New Zealand. One
member of the crew was killed. Two of the agents, Major Mafart and Captain Prieur, were
subsequently arrested in New Zealand and, having pleaded guilty to charges of manslaughter
and criminal damage, were sentenced by a New Zealand court to ten years' imprisonment. A
dispute arose between France, which demanded the release of the two agents, and New
Zealand, which claimed compensation for the incident. New Zealand also complained that
France was threatening to disrupt New Zealand trade with the European Communities unless
the two agents were released.
Issue:

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Judgement: The arbitral tribunal in the “Rainbow Warrior” affair referred to “any violation
by a State of any obligation”. In practice, terms such as “non-execution of international
obligations”, “acts incompatible with international obligations”, “violation of an international
obligation” or “breach of an engagement” are also used.
In the “Rainbow Warrior” arbitration, the tribunal affirmed that “in the field of inter- national
law there is no distinction between contractual and tortious responsibility”. As far as the
origin of the obligation breached is concerned, there is a single general regime of State
responsibility. Nor does any distinction exist between the “civil” and “criminal”
responsibility as is the case in internal legal systems.
Similarly, in the “Rainbow Warrior” arbitration, the ar- bitral tribunal held that, although the
relevant treaty obligation had terminated with the passage of time, France’s responsibility for
its earlier breach remained

VI. The Corfu Channel Case

Facts: This dispute gave rise to three Judgments by the Court. It arose out of the explosions
of mines by which some British warships suffered damage while passing through the Corfu
Channel in 1946, in a part of the Albanian waters which had been previously swept. The
ships were severely damaged and members of the crew were killed. The United Kingdom
seised the Court of the dispute by an Application filed on 22 May 1947 and accused Albania
of having laid or allowed a third State to lay the mines after mine-clearing operations had
been carried out by the Allied naval authorities. The case had previously been brought before
the United Nations and, in consequence of a recommendation by the Security Council, had
been referred to the Court.
Issue: The British government claimed the minefield which caused the explosions was laid
between May 15th, 1946, and October 22nd, 1946, by or with the approval or knowledge of
the Albanian Government. Thus Albania was responsible for the explosions and loss of life
and had to compensate the UK government.
Judgement: ICJ held that it was a sufficient basis for Albanian responsibility that it knew,
or must have known, of the presence of the mines in its territorial waters and did
nothing to warn third States of their presence.
Alternatively, a State may be required by its own international obligations to prevent certain
con- duct by another State, or at least to prevent the harm that would flow from such conduct.
Thus, the basis of responsibility in the Corfu Channel case was Albania’s failure to warn the
United Kingdom of the presence of mines in Albanian waters which had been laid by a third
State. Albania’s responsibility in the circumstances was original and not derived from the
wrongfulness of the conduct of any other State.
In the Corfu Channel case, for example, the United Kingdom recovered the full amount of its
claim against Albania based on the latter’s wrongful failure to warn of the mines even though
Albania had not itself laid the mines.

VII. Trail smelter case

Issue:
 Whether damage caused by the Trail Smelter in the State of Washington has occurred
since the first day of January, 1932, and, if so, what indemnity should be paid?
 In the event of the answer to the first part of the preceding question being is positive,
to what extent should there be compensation?
 In light of the answer to the preceding question, what measures or regime, if any,
should be adopted or maintained by the Trail Smelter?
 What indemnity or compensation, if any, should be paid because of any decision or
decisions rendered by the tribunal pursuant to the next two preceding questions?
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Judgement: the obligation to prevent transboundary damage by air pollution, dealt with in
the Trail Smelter arbitration, was breached for as long as the pollution continued to be
emitted.
The tribunal provided compensation to the United States for damage to land and property
caused by sulphur dioxide emissions from a smelter across the border in Canada.
Compensation was assessed on the basis of the reduction in value of the affected land.

VIII. Gabˇcíkovo-Nagymaros Project case

Judgement: In the Gabcˇíkovo-Nagymaros Project case, the Court noted that: [E]ven if a
state of necessity is found to exist, it is not a ground for the termination of a treaty. It may
only be invoked to exonerate from its responsibility a State which has failed to implement a
treaty. Even if found justified, it does not terminate a Treaty; the Treaty may be ineffective as
long as the condition of necessity continues to exist; it may in fact be dormant, but—unless
the parties by mutual agreement terminate the treaty—it continues to exist. As soon as the
state of necessity ceases to exist, the duty to comply with treaty obligations revives.
In the Gabcˇíkovo-Nagymaros Project case, ICJ clearly accepted that countermeasures might
justify otherwise unlawful conduct “taken in response to a previous inter- national wrongful
act of another State and ... directed against that State”, provided certain conditions are met.
The degree of difficulty associated with force majeure as a circumstance precluding wrong-
fulness, though considerable, is less than is required by article 61 for termination of a treaty
on grounds of supervening impossibility, as ICJ pointed out in the Gabcˇíkovo- Nagymaros
Project case:
Article 61, paragraph 1, requires the “permanent disappearance or destruction of an object
indispensable for the execution” of the treaty to justify the termination of a treaty on grounds
of impossibility of performance. During the conference, a proposal was made to extend the
scope of the article by including in it cases such as the impossibility to make certain
payments because of serious financial difficulties ... Although it was recognized that such
situations could lead to a preclusion of the wrongfulness of non-performance by a party of its
treaty obligations, the participating States were not prepared to consider such situations to be
a ground for terminating or suspending a treaty, and preferred to limit themselves to a
narrower concept.
Thus, in the Gabcˇíkovo-Nagymaros Project case, ICJ considered that because Hungary had
“helped, by act or omission to bring about” the situation of alleged necessity, it could not then
rely on that situation as a circumstance precluding wrongfulness.405 For a plea of necessity
to be precluded under paragraph 2 (b), the contribution to the situation of necessity must be
sufficiently substantial and not merely incidental or peripheral. Paragraph 2 (b) is phrased in
more categorical terms than articles 23, paragraph 2 (a), and 24, paragraph 2 (a), because
necessity needs to be more narrowly confined.

IX. United States Diplomatic and Consular Staff in Tehran case

Facts: The case was brought before the Court by Application by the United States following
the occupation of its Embassy in Tehran by Iranian militants on 4 November 1979, and the
capture and holding as hostages of its diplomatic and consular staff. On a request by the
United States for the indication of provisional measures, the Court held that there was no
more fundamental prerequisite for relations between States than the inviolability of
diplomatic envoys and embassies, and it indicated provisional measures for ensuring the
immediate restoration to the United States of the Embassy premises and the release of the
hostages.
Issue:

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Judgement: In considering Hungary’s argument that the wrongfulness of its conduct in

discontinuing work on the Project was precluded by a state of necessity, the Court remarked
that “[a]s soon as the state of necessity ceases to exist, the duty to comply with treaty
obligations revives”
In the United States Diplomatic and Consular Staff in Tehran case, the Islamic Republic of
Iran was held to be fully responsible for the detention of the hostages from the moment of its
failure to protect them. In the United States Diplomatic and Consular Staff in Tehran case, it
pointed out that, in order to establish the responsibility of the Islamic Republic of Iran: [f]irst,
it must determine how far, legally, the acts in question may be regarded as imputable to
the Iranian State. Secondly, it must consider their compatibility or incompatibility with the
obligations of Iran under treaties in force or under any other rules of international law that
may be applicable
In the United States Diplomatic and Consular Staff in Tehran case, the Court concluded that
the responsibility of the Islamic Republic of Iran was entailed by the “inaction” of its
authorities which “failed to take appropriate steps”, in circumstances where such steps
were evidently called for.

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MODULE 10: INTERNATIONAL LAW AND USE OF FORCE

Read

 Tehran Hostages
 Falkland and Argentina

Art 2(4)

Armed reprisals are not allowed. States cannot exercise self-defence for armed reprisals. US
attack on Libya

Art 51

 Only available against actual armed attack,

 Most and less grave form. Most grave- significant gravity and state responsibility.

Right to Self-Defence

 Caroline Case

A. READINGS ON THE USE OF FORCE

I. International law and its transformation through the Outlawry of War

 New World Order (Important Parts)

 The transformation set in motion by the pact

In the article, Levinson argued that the outlawry of war must obliterate the right of conquest.
‘If it is unlawful to wage war, conquests by war should furnish no legal title.’ War might still
be waged, but it would no longer work as before, for it would mean that ‘never again can a
nation bent upon conquest acquire indefeasible title to anything’.
Henry Stimson, the American Secretary of State drafted a diplomatic note to the governments
of China and Japan after the invasion of Manchuria in 1931. The note set out Levinson’s
policy of non-recognition—what would later come to be called the ‘Stimson Doctrine’: ‘The
American Government … does not intend to recognize any situation, treaty or agreement
which may be brought about by means contrary to the covenants and obligations of the pact
of Paris of August 27, 1928.’ The League of Nations quickly followed suit, calling on its

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member states not to recognize any conquest ‘brought about by means contrary to the
Covenant of the League of Nations or to the pact of Paris’.
It would take the outlawry of war in 1928 to end the legal recognition of conquest. As long as
there was a right of war, there had to be a right of conquest. Only once that right was
renounced could the right of conquest truly be challenged.
The end of WWII, also brought the Nuremberg Trials, and with them a definitive declaration
that there would be no more impunity for waging aggressive war. When war was legal, those
who waged it could not be held criminally responsible. But now that war was illegal, the
world declared that waging aggressive war was not only wrong—it was criminal.

 International law in the new world order

The fundamental difference is in fact that the League of Nations was a creature of the old-
world order, and as such retained the right of states to resort to war at its core. As we have
seen, the Covenant merely attempted to curtail the right, to slow down its exercise and to put
peaceful dispute resolution in its place. But ultimately it allowed states to do what they had
long done: go to war to enforce their rights as they saw them. The United Nations, by
contrast, is best understood as the culmination of the outlawry vision. Its authors placed the
prohibition on the ‘use of force’ at its core: article 2(4) of the UN Charter prohibits states
from resorting to the ‘threat or use of force’ against another state. The Charter then
created an institutional structure around this prohibition to maintain international peace and
security.
The rules of the new world order that provide so much benefit protect all states from the use
of force, including those we do not want to protect because they are too weak, chaotic,
authoritarian or, for lack of a better word, evil. To see the difficulty that would arise from
giving states the option to use force when they believed they were acting justly, one need
only look at Syria and Ukraine, two places where the rules against force have broken down.
For the prohibition on war not only prevents states from intervening to protect the rights of
others unless the Security Council agrees to authorize an intervention or a state requests
assistance defending itself from armed attack; it also prohibits states from using force to
protect their own rights (except in cases of self-defence).
In short, international law prohibits states from using force to enforce international law
unilaterally.

 Conclusion
The old-world order had rules governing neutrality, criminal liability, conquest and gunboat
diplomacy. The new world order that governs today has rules for all these, too—but they are
precisely the opposite. In the new world order, aggressive wars are illegal. And because
aggressive wars are illegal, states no longer have the right to conquer other states; waging an
aggressive war is a grave crime; gunboat diplomacy is no longer legitimate; and economic
sanctions are not only legal, but the standard way in which international law is enforced.

II. Ekhurt Relevant Portions

A confirmation of the broad normative scope of the prohibition of armed force in

international relations may be found in the Friendly Relations Declaration. Therefore, Article
2(4) should be interpreted as totally prohibiting the threat or use of force, regardless of the
aims or motives driving it. This view is further reinforced by the Definition of Aggression
under General Assembly Resolution 3314(1974), whose Article 3 provides an illustrative list
of acts that amount to aggression.

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 Nationals
Attacks on a State’s nationals resident abroad do not constitute attacks on a State and
thus they do not entitle the State to use force in order to defend its nationals without the
consent of the foreign government
 Armed Reprisals
Self-defence does not include a right of armed reprisal; if terrorists enter one State from
another, the first State may use force to arrest or expel the terrorists, but, having done so, it is
not entitled to retaliate by attacking the other State.
 Self Defence
The words “if an armed attack occurs” imply that the armed attack must have already
occurred before force can be used in self-defence. There is, thus, no right of anticipatory or
preventive self-defence.
 Necessity and Proportionality
With regard to customary international law, in the Nicaragua case the ICJ stated that “there is
a specific rule whereby self-defence would warrant only measures which are proportional to
the armed attack and necessary to respond to it, a rule well established in international
law”. The Court confirmed that this dual condition applies equally to Article 51 of the
Charter, “whatever the means of force employed”, in its advisory opinion in the Legality of
Nuclear Weapons case.

 Collective Self Defence

Article 51 of the Charter speaks of “individual or collective self-defence”. There are treaty
arrangements on collective self-defence. Under the 1949 North Atlantic Treaty, each party
undertakes to defend every other party against attack. However, this obligation is activated
when the general international law requirements for collective self-defence are met, not
simply upon invocation of Article 5 by NATO as happened, for instance, in the wake of the
September 11, 2001 terrorist attacks in the United States.
In Nicaragua v. USA, the United States admitted that it had been aiding the contras, but
argued that such aid was justified as a form of collective self-defence because Nicaragua had
been supplying weapons to insurgents in El Salvador. The point at issue in Nicaragua v. USA
was whether Nicaragua’s alleged assistance to insurgents in El Salvador justified the United
States’ assistance to insurgents in Nicaragua, not whether Nicaragua’s alleged assistance to
insurgents in El Salvador justified the United States’ assistance to the government of El
Salvador. But the Court’s ruling that collective self-defence can be exercised only in response
to an armed attack, and its restrictive definition of armed attack, apply to all forms of
collective self-defence against subversion.

 Humanitarian Intervention
This is a doctrine of intervention professing to protect citizens from the oppression of their
own government. The UN Charter does not permit ‘humanitarian intervention’. On the
contrary, as typically consisting of invasion and bombardment of State territory,
‘humanitarian intervention’ is a prime example of aggression under General Assembly
Resolution 3314

III. Kellogg-Briand Pact 1928

IV. Who killed Article 2 (4)?

 Under the article,

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Factors given for demise –

 The basic assumption that Big-Five would sustain their alliance for policing peace has
failed.
 Charter itself provided enough exceptions and ambiguities to open the rules to
deadly erosion
 State practice – States that have succumbed to using force against other states to
settle past scores or any disputes inconsistent with Art. 2 (4).
 Ineffective measures taken by the UNSC against violation of Art. 2 (4)

 Restoring peace and security; one of the purposes of the UN-protected by Art. 2 (4) also
provides for collective actions to be taken in restoring peace and security. Under Art. 41
of UN Charter, States can take collective actions such as providing for economic
embargoes against violating states as done in the Russ-Ukraine Conflict as well.

The problem is to assess the threat under Article 39 by UNSC against the use of force or
threat of peace to any state by another. There’s only been one instance where this collective
mechanism was deployed against North Korea to aid South Korea during the Korean War.
This paucity of action doesn’t denote a peaceful world transition pose WW.

 Exception overwhelming the rule – The mechanism to assess the aggressor and
aggrieved state vests with UNSC which under Article 39 has to take unanimous decisions
under Art. 27 (3) of the charter. The problem arises as there is no objective fact-finding to
assess the threat or breach of the peace which is alleged in violation of Art. 2 (4).

Also, that there is probability that one of the Big Five may have interest in one of the states
involved in the conflict and exercise their veto power against identification of such threat.
The failure of this resulted in more expansive use of Art. 51 by states to counter off hostility
against the other state in aggressor-aggrieved situation.

This has resulted in only one instance of collective mechanism being passed (Korean War)
whereas the number of hostility b/w states surpasses 100.

 Simple Right Accorded under A.51

Also, the simple right accorded of self defense under Art. 51 was originally for wars where
there were mobilizations of army personnel of state and formal declarations of war, but with
new warfare methods like cyber warfare, terrorist infiltration, biological weapon agents etc.
Also, that there are too small warfare of liberation movements and agitations which cannot be
considered enough a threat to be assessed under A.39 of the charter and at the same time,
there is too big a warfare like nuclear warfare which can nearly paralyze a state in one blow
and mandates the operation of self-defense under A.51 and cannot wait for collective
mechanism under chapter VII of charter.

 Small Scale Warfare

 Nazi aggression against Mainland Europe during WWII included small scale
guerilla tactics which later on became widespread during the Cold War as well but
aren’t recognized by Article 51 directly. During the national communalist movements
in different states, communists gave help to socialists by sending bands of personnel
in form of guerilla movements. These new kinds of assistance do not fit comfortably
into conventional international legal concepts and categorization.

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 Ex – Benes-Masaryk Government of Czechoslovakia: The government was

overthrown by internal communist minority group. The govt. states that this was only
possible with help and aid of USSR by giving them a promise for help in effectuating
this purpose. Now we see this example through the lens of Art. 51 right of self-
defense but there is no armed attacked by the aggressor states, so cannot be invoked
as such situation not envisioned by it.

 Two dilemmas under Art. 2 (4) –

 Deciding the question of who is attacking whom (for purposes for invoking the
collective mechanism under Ch. VII to restore peace).
 Defining the level of foreign intervention which should suffice to permit counter
intervention by way of individual or collective self-defense.

 Lebanon Crisis (1958): There was a Middle East crisis in which Arab countries were
having civil wars and overthrow of regimes. One such example was Lebanon – Govt. of
Lebanon alleged that United Arab Republic (Union of Egypt and Syria) was a supply of
arms to subversive and training of personnel and terrorist on their territories to aid in the
war. Also, there was a radio and press propaganda going on in UAR to incite Lebanese
natives to overthrow their govt. None of the charges however amounted to an armed
attack. The Govt. submitted the dispute to UNSC that UAR is threatening its peace by
doing such activities. UNSC sent an observer group to Lebanon to see if there is any
illegal transgression across the borders. The observer group assured that situation was
under control. But adjacently US troops advanced to Lebanon shores on the rationale that
there was a need to save native Americans as well as for collective self defense of
Lebanon under Art. 51 of UN Charter.

REPORT OF THE SPECIAL COMMITTEE ON THE QUESTION OF DEFINING

AGGRESSION

It recommended that indirect use of armed force be included in definition of aggression.

 Conclusion
The small-scale and diffuse but significant and frequent new wars of insurgency have, by
their nature, made clear-cut distinctions between aggression and self-defense, which are
better adapted to conventional military warfare, exceedingly difficult. The new tactics makes
it all the more difficult to identify the aggressor and aggrieved making the mechanism of Art.
39 of Charter redundant and a major factor in the death of Art. 2 (4).

V. Use of force as self defence against no-state actors and twail considerations:
critical analysis
In accordance with the text of Article 51, it is generally understood that the use of force as
self-defence takes place by a state against another state. However, in the recent instances of
uses of force, it is asserted that this right of self-defence can be invoked by a state while using
force against nonstate actors (NSAs) operating from another state.

 India’s State Practice

Though the discussion around the scope of Article 51 and the right of self defence existed
prior to the September 11 incident, post this incident, discussions shifted towards self defence

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against non-state actors operating from another state. It is also important that the UN Security
Council adopted resolutions 1368 and 1373 after the September 11 incident.

 Surgical Strikes of 2016

Some other scholarly writings also favored categorizing Indian surgical strikes as justifiable
under the right of self defence. They argued that “self defence” provides a solid
international legal basis for Indian surgical strikes against terror launch pads, bases, or even
states that provide ‘aid’ and ‘assistance’ to such terror groups to play havoc in India”. There
was an opinion favoring its justification under customary international law, rather than under
Article 51 of the UN Charter, as the right to use armed force pre-emptively for self-defense.
Another view attempted to justify it under the “unable and unwilling” version of right of
self defence. It argued that: [U]nder the emerging customary status of the ‘unable and
unwilling’ test, India has the right to use force in self-defence based on Pakistani inability
or failure to prevent its territory from being a safe haven for terrorists. This is perhaps
India’s strongest argument not only to justify the strikes, but also to legitimately sanction
further use of force against terrorists in Pakistan.
The important implication here is that any use of force under international law effectively
amounts to an armed conflict between two states in the legal sense. This imposes
responsibility on India to justify its actions in accordance with the UN Charter and further
legal and diplomatic assertions from Pakistan.

 2019 Balakot
The statement claimed that it was a non-military preemptive action targeted specifically at
the JeM camp. Pakistan condemned the airstrikes and called it as “Indian violation of
Pakistan’s sovereignty and territorial integrity”. Pakistan also referred to it as “Indian
aggression”. On February 27, Pakistan declared that their “Air Force undertook strikes across
Line of Control from within Pakistani airspace”. Pakistan further stated that their action was
not retaliation to Indian belligerence and that its sole purpose was to demonstrate their
“right, will and capability for self-defence”.
India relied upon international humanitarian law in seeking the release of its pilot who went
missing. India’s reference here to the Geneva Convention seemed to point to the third Geneva
Convention dealing with the protection of prisoners of war. The Geneva Conventions,
including the third Convention, would apply in situations of international armed conflicts.
India’s insistence on the Geneva Conventions implied the existence of an armed conflict.
This military exchange is another instance to evaluate India’s state practice on the issue of the
use of force, particularly on the right of self defence.
India could have invoked the right of self defence by attributing the actions of JeM to
Pakistan. However, attribution was avoided by India. Instead, the Foreign Secretary informed
that “non-military preemptive action was specifically targeted at the JeM camp”. Reference
to “non-military” must have been intended to convey that the attack only targeted the non-
state actor on the territory of Pakistan and was not in violation of Pakistan’s territorial
sovereignty or political independence. However, this distinction does not serve much purpose
as it does not help in creating any legal distinction between two positions.
Distinguishing between forcible measures within but not against the State does not, therefore,
provide a solution for the jus ad bellum concerns. As a consequence, the use of force in such
circumstances will not be lawful unless justified by self-defence or Security Council
authorisation. By accepting that self-defence may be invoked against a non-state actor located
in another State, even absent attribution to this other State, the ensuing non-consensual force
would not be a violation of Article 2(4) as it would be a lawful exercise of an exception to the
prohibition.

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While looking at the state practice in relation to the “unwilling or unable” doctrine, a study
identified India’s position as falling under the ambiguous cases. The study said that
ambiguous cases are those states “that have used force against non-state actors in third
countries without clearly expressing their views on the legality of their actions under
international law, and States that provided legal justifications but did not invoke the
‘unwilling or unable’ test or a similar concept in their justifications”

 TWAIL View

A TWAIL critique in general arguably, predominantly underlines the historical continuities in

structurally oppressive international law. This structurally oppressive nature of international
law’s origin and its evolution took shape during the colonial period.
Extending this structural continuity argument to the current debates on international law on
the use of force, it is argued that the structural bias of the past continues to occupy the
substance of the present. In other words, the civilised and uncivilised distinctions of colonial
times are reenacted in the arguments of the “unwilling or unable” doctrine debates.
Therefore, TWAIL’s emphasis on international law’s historical complicity in colonial
oppression and its continuing role in perpetuating similar oppressions in the present cannot be
seen as mechanical extension of TWAIL’s methodological contours. Rather, it needs to be
seen as underlining international law’s historically embedded oppressive and instrumentalist
role in different forms, while also recognizing the transformations that international law
undergoes.
Based on this proposition, the TWAIL argument may be built by seeking the need for
confining to the textual position of Article 51 of the UN Charter or invocation of chapter VII
“Powers of the UN Security Council”, rather than relying on the conceptually flawed
“unwilling or unable” doctrine.

VI. From humanitarian intervention to the responsibility to protect

 The Use of Force in the Nicaraguan Cases

In 1966, in its Commentary on the draft articles on the law of treaties, the International Law
Commission said that the prohibition of the use of force ‘constituted a conspicuous example
of a rule in international law having the character of jus cogens’.
Four years later, in the Barcelona Traction case, the International Court of Justice described
the ‘outlawing of acts of aggression’ as an obligation erga omnes. This profoundly
important legal development may well have been crowned by the International Court of
Justice in its judgment of 27 June 1986 in Military and Paramilitary Activities in and against
Nicaragua.

 Jurisdiction
The United States argued, in its Counter-Memorial, that charges concerning the unlawful use
of force were reserved to the Security Council by article 39 of the Charter of the United
Nations. The United States also contended that dealing with Nicaragua’s suit would require it
to rule on the application of article 51 of the Charter, a matter it said was also the prerogative
of the Security Council. Moreover, it said that subjecting such claims to judicial examination
in the course of a conflict would impair the exercise of the right of self-defence.

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Rejecting Washington’s objections, the Court cited article 24 of the Charter whereby the
Security Council has primary but not exclusive responsibility in matters of international
peace and security.

 Merits
The Court imputed two manifestations of the use of force to the United States: the laying of
mines in Nicaraguan internal or territorial waters in early 1984 and certain attacks on
Nicaraguan ports, oil installations and a naval base in 1983 and 1984.
The Court concluded that although there was no evidence that the United States had actually
participated in military or paramilitary operations within Nicaragua, it said it was ‘clear’ that
such operations conducted by contras ‘were decided and planned, if not actually by United
States advisers

 Individual and collective self defence

The Court required that the State that is the victim of the armed attack ‘must form and declare
the view that it has been so attacked. There is no rule in customary international law
permitting another State to exercise the right of collective self-defence on the basis of its own
assessment of the situation.
According to the Court, the Central American States themselves did not appear to consider
that they had been victims of an ‘armed attack’ at the relevant times. Thus, what the Court
described as a sine qua non for exercise of ‘collective self defence’ was simply not present.
The Court concludes that the requirement of a request by the State which is the victim of the
alleged attack is additional to the requirement that such a State should have declared itself to
have been attacked.

 CIL and Use of Force

Observing that the United States appeared to take the view that ‘the existence of principles in
the United Nations Charter precludes the possibility that similar rules might exist
independently in customary international law, either because existing customary rules had
been incorporated into the Charter, or because the Charter influenced the later adoption of
customary rules with a corresponding content.
In a formulation that has frequently been referred to, the Court said it was necessary to
distinguish ‘the most grave forms of the use of force (those constituting an armed attack)
from other less grave forms’, given the importance of the latter in the dispute between
Nicaragua and the United States. Although such ‘less grave forms’ of the use of force could
not provide a justification for exercise of the right of self-defence, they might be invoked to
answer charges that the principle of non-intervention in the internal affairs of a State had
been breached

 Subsequent case law of the Court and the Judgment in Military and Paramilitary
Activities

In its 1996 Advisory Opinion on nuclear weapons, the Court repeated its pronouncement in
Military and Paramilitary Activities in and against Nicaragua about the requirement that any
measures of self-defence meet conditions of necessity and proportionality.

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The exception of use of force under the UN Charter was only to be given to states against
other states. This is cause of the traditional view. However now the understanding has
evolved to non-state actors as well.

 Armed attack
 Facts
 The ICJ in 1996 provided, a narrow view of Art. 51, a state’s right to self-defence is
subject to the state having suffered an actual armed conflict.
 Tadic Case the court relied on the overall control test whereas the
 The court in the paramilitary case sub classified the use of force. It spoke about the
most grave form of use of force. There was a categorisation of most grave forms of
use of force and less grave forms of use of force.
 In cases of less grave use of force, right to self-defence would not apply.
 While determining my right to self-defence I should be viewing it from my ability
 The ICJ held that the right to self-defence is subject to an actual armed conflict
 Oil platforms case, the ICJ confirmed that an armed conflict is still a prerequisite
element. Armed attack should be one of Sufficient Gravity.
 UNGA Res 3314: definition of aggression, lists the acts that
 R2P must be first fixed on the state, only then can a right to self-defence may be
affixed.

B. HUMANITARIAN INTERVENTION

When one state interferes in the political affairs and independence of a country for
humanitarian reasons it’s known as humanitarian intervention. How article 2(4) has been
misinterpreted by the states? In 1970s, academics believed that 2(4) has become useless.

 India-Pak (1970s)

 East Pakistan was dominated by those who spoke Bengali whereas West Pakistan was
dominated by Punjabi, Urdu speaking individuals. West represented the elite Pakistan
and east were those that were politically and economically weaker. The awami league
got a majority headed by Sheik Mujhibir Rehman. This was not acceptable to the
military leader.
 India was providing support to Mukti Vahini.
 When Bengali speaking people had their rights violated, they sought refuge in India.
This was causing economic pressure on India.
 Before going for war, India put pressure on the SC to have this resolved by putting
pressure on Pakistan. India did not get support. It was highly criticised for its actions
 Post 1971, Indira Gandhi emerged as a world leader.
 India did not get, Thomas Frank stated that India’s action could be comparable to
Japan in Manchuria, and Hitler in
 India based its claims on 4 arguments
1. Intervention
2. Genocide Humanitarian
3. Indian sovereignty
4. Right to self determination

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 This was the time where several humanitarian treaties came into being. UNGA
friendly declaration also came around the same time. To push for decolonisation
 After the Charter coming into force, the UN and the states came up with the Genocide
Convention as well.
 UNGA Resol 3314/1974- humanitarian intervention is not allowed.

 Sovereignty and Humanitarian intervention

 Other states cannot come and dictate guidelines on how India should maintain its
sovereign function.
 Complementarity: international criminal code is complimentary to your national
codes. When national codes become unavailable to prosecute a case or when the
bodies that have to enforce and engage in the prosecution of international crimes, you
can go to ICC. India however believes that there is strong judiciary and rule of law
therefore it need not go to ICC.
 How is the jurisdiction of ICC triggered, 1) office of prosecutor 2) UNSC Res, 3)
State reference.

 1990s
 This was the time when the Rwanda Genocide, Srebrenica, Serbia, Kosovo took
place.
 UNSC was not as effective in curbing these crimes against humanity.
 UNSC also established international crimes tribunal for Yugoslavia.
 In 2000 Kofi Anan, challenged international community to strengthen its protection
of the vulnerable populations.
 Canada established the international convention on Intervention and State
Sovereignty. Evans was the chairperson of this commission.
 In larger freedom; towards development security and human rights for all.

 2000s
 The duty to protect the rights of the citizens rests with all the states.
 Para 138 and Para 139 of the World Summit outcome document, gave a legal status to
the R2P and was adopted by general assembly
 At NAM Summit, in 2004, humanitarian intervention was not seen as a valid reason
to use of force.

 The relevant paragraphs are as follows:

138. Each individual State has the responsibility to protect its populations from genocide,
war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the
prevention of such crimes, including their incitement, through appropriate and necessary
means. We accept that responsibility and will act in accordance with it. The international
community should, as appropriate, encourage and help States to exercise this
responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility
to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with
Chapters VI and VIII of the Charter, to help protect populations from genocide, war
crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to

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take collective action, in a timely and decisive manner, through the Security Council, in
accordance with the Charter, including Chapter VII, on a case-by-case basis and in
cooperation with relevant regional organizations as appropriate, should peaceful means be
inadequate and national authorities manifestly fail to protect their populations from
genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need
for the General Assembly to continue consideration of the responsibility to protect
populations from genocide, war crimes, ethnic cleansing and crimes against humanity and
its implications, bearing in mind the principles of the Charter and international law. We
also intend to commit ourselves, as necessary and appropriate, to helping States build
capacity to protect their populations from genocide, war crimes, ethnic cleansing and
crimes against humanity and to assisting those which are under stress before crises and
conflicts break out.

 Rests upon three pillars of equal standing: the responsibility of each State to protect
its populations (pillar I); the responsibility of the international community to assist
States in protecting their populations (pillar II); and the responsibility of the
international community to protect when a State is manifestly failing to protect its
populations (pillar III).
 Refers to Evans

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