Introduction

Each country in the world formulates laws to govern society in efficient manner and ensure
peace and security. Similarly, at the international level, when countries come together at a
common platform to formulate law that governs intercourse between them, it is referred
as international law.
• Countries come together to make binding rules that they believe will benefit their
citizens. International Laws promote peace, justice, common interests and trade. States
work together to strengthen International Law because it plays an important role in
society.
Eg- 1) The United Nations Charter is a treaty that establishes the United Nations and sets
out its basic rules and principles. It is the most important treaty in international law.
2) The World Trade Organization (WTO) is an international organization that sets rules for
trade between member states. The WTO's rules are designed to promote free and fair trade.
Definitions of International Law
The term was coined by the English philosopher Jeremy Bentham (1748-1832).
International law, also called public international law or law of nations, the body of legal
rules, norms, and standards that apply between sovereign states and other entities that
are legally recognized as international actors.
According to Fenwick
It is the body of rules accepted by the general community of nations, as defining their
rights and the means of procedure by which those rights may be protected or violation
of them is redressed.
According to J.G. Starke
It is that body of law comprised of greater part of its principles and rules of conduct,
which States feel themselves bound to observe and therefore do commonly observe in
their relations with each other.
According to Prof. L Oppenheim
Law of nations of international law is the name for the body of customary and
conventional rules which are considered legally binding upon civilized states in their
course with each other.
Definitions of International Law
> The term was coined by the English philosopher Jeremy Bentham(1748-1832).
> International law is the law of the international community.
> International law, also called public international law or law of nations, the body of legal
rules, norms, and standards that apply between sovereign states and other entities that
are legally recognized as international actors.
Strengths of International Law
Protection of Interests of States
It can be said without a doubt that International laws have protected the interests of states,
especially of those, which have no power to protect their own interests.
For example, the World Food Programme, a part of the UN, which is a subject of
international law, is a large humanitarian agency which fights hunger worldwide and
delivers food assistance in case of emergencies.
World bank helps poor countries in developing infrastructure.
Human Being Welfare
It has played a vital role in the welfare of human beings.
For example, there are various international treaties for the promotion of fundamental
human rights, justice and equality, like the Universal Declaration of Human Rights.
Unity and Strength
This law has brought unity among different nations/states as no one state can be
separated from the other. Every state has become the need of the other one.
For example, the problem of global warming. Every country emits greenhouse gases
which is further contributing to global warming and the impact of the same will be felt
by all the countries.
So, no country can combat global warming alone and will need international laws and
cooperation to curb the problem.

Weaknesses of International Law

No Apparent Authority
The greatest shortcoming of International Law is that it lacks an effective executive
authority to enforce its rules. Only the International Court of Justice is present but it
can't settle certain matters. Moreover, once a decision is given by it, there is no such
power or authority which can get it enforced.
No Legislative Machinery
As the international laws are based on treaties and conventions, they are interpreted by
states according to their self-interests. Many rules of International Law are uncertain and
vague.
The International court of Justice lacks compulsory jurisdiction
The International court of Justice which is situated in Hague (Netherland) is not
authorized to take cases of all states. The cases can be filed in this court with the mutual
consent of concerned states.
Lack of Effective Sanctions
Due lack of effective sanctions, rules of International Law are frequently violated.
There is no sense or fear of sanction in the International Law with the results the laws
are violated frequently by the States.
Lack of right to intervene in Internal Affairs
As per article 2(7) of UNO Charter, UNO is not competent to interfere in the domestic
matters of states. International law cannot interfere in the domestic matters. Keeping in view
these facts in several cases International Law proves to be ineffective and weak.
Uncertainty
There is one more reason behind the weakness of International Law is its uncertainty.
It is not certain as the laws of states as well as Municipal law. In addition to this it has not
been able to maintain international peace and order.

Introduction
International Law grew out of necessity.
As International engagement increased, International Law expanded.
International Law is the most convenient form of regulating world order in the present-day
world.
International Law aims to maintain international peace and security, which provide for
fundamental rights, freedoms, and human rights, to refrain the State from the use of threat
or force against the territorial integrity of any other State, to provide for the right of self-
determination to people, to solve International problems by achieving International
cooperation, to use peaceful means for settlement of international disputes.
• International law differs from state-based legal systems.
• International law is primarily applicable to countries than to private citizens.
• International Law is consent-based governance - a state member of the international
community is not obliged to abide by this type of international law, unless it has
expressly consented to a particular course of conduct
Nature of International Law
One of the most controversial issues that has long been debated and discussed and on which
the opinions of the jurists are sharply divided since the beginning of the sciences of law of
nations concerns the status of International Law.
Although rules regulating the relations of States are referred to International Law in
practice consistently since 200 years, a number of jurists have expressed doubts on the
question: Is International Law really law?
One School of Thought
One view is that International Law is not a true law. It is a code of rule of conduct of moral
force only.
Second School of Thought
Another view is that International Law is a true law, and it is to be regarded as law in the
same way as that of ordinary laws of a State which are binding upon the individuals.

John Austin a leading English writer on Jurisprudence answered the question in negative.
According to him, International Law is not true law, but a code of rules and conduct of moral
force only. He holds that International Law is no law as it does not emanate from a law giving
authority and has no sanction behind it. Austin described International Law as positive
international morality consisting of opinion or sentiments current among nations generally.

Holland- observed that International Law differed from ordinary law and not supported by
the authority of a state. According to him, the law of nations is but private law 'writ large'.
In this view of the matter, he called "International Law as the vanishing point of
Jurisprudence". According to him, rules of International Law cannot be kept into the
category of law because it lacks sanction, which is an essential element of municipal law.

Jeremy Bentham And Jethro Brown are the other prominent jurists who also deny the
legal character International Law.

International Law Is A Law (Oppenheim, Starke, Pollock, Brierly)

• Modern jurists like Hall And Lawrence accept that international law is real law.
* According to them, International Law is derived from custom and precedents which are a
source of law and it is habitually treated like a certain kind of positive law.
The main arguments of modern jurists are
• Many states (USA, UK, France, and Germany) have incorporated international law as
part of the law of the land in their constitution. The US constitution lies down that treaty
are the supreme law of the land. In the Paquete Havana case (1900), Justice Gray of the
USA Supreme Court observed that it is part of their laws.
• Customary rules of international law are diminishing and are being replaced by
lawmaking treaties and conventions.
While dealing with international law states rely on treaties, precedents and opinion of
experts.
International conventions and conferences also treat international law as true law.
International law and Municipal law
• International law works in a decentralized system, while Municipal law works in a
centralized system.
•Once we accept this fact it is obvious to understand that the comparison between the
two systems is not proper.
• Because municipal law and international law are different for they operate under a
different set of circumstances.
International Law is weak Law
International law is not equivalent to municipal law. It is not only less explicit than state
law, but it also lacks the coercive force of state law. There is no sanction for violation of
international law. Some of the weaknesses of International law are as follows:
No central Legislature
It lacks effective legislative machinery. There is no world parliament.
No Universal Jurisdiction of courts
Though International Court of Justice has been established, still it does not exercise universal
compulsory jurisdiction for setting legal disputes between States since the court acts with the
consent of other states only.
No effective executive authority
It lacks an executive authority to enforce its rules. The UNO cannot take appropriate
executive action in cases which call for an immediate solution.
No enforcement machinery
There is an absence of international police or military force. This creates a vacuum in so far
as the executive role of the UNO is concerned.
Introduction
• There are different views of the international jurists on the question as to what is the basis
International law.
• Some jurists propounded their theories on the law of nature whereas some of the jurists
gave emphasis on the consent of the state the different opinion has led to the emergence
of various theories of basis of international law.

BASIS OF INTERNATIONAL LAW

There are two main theories which attempt to explain the basis of international law;
i)Theories as to law of nature
In 16th and 17th century, the jurists were of the view that the international law is based on
law of nature. according to this theory, International law has been followed by States because
it is the law of nature which is a higher law. It was regarded as the divine law.
Law of nature- fundamental law that is based on moral values such as right or wrong.
According to Hugo Grotius (Father of Modern Law of Nature) natural law, is the 'dictate of
right reason'. His followers applied the law of nature as an ideal law which was founded on
the nature of man as a reasonable being.
Criticism: This theory has been criticized. The definition of the term 'natural law' is very
vague and uncertain as each follower gives a different definition.
Different meanings are ascribed such as reason, justice, utility, general interest of
international community etc. It must be admitted that the law of nature has greatly influenced
the growth of international law, but the theory is not based on realities and actual practice of
the States.
il) POSITIVISM
This theory is based on actual practice of the States. It has been pointed out that the will of
States is the main source of international law. It is said that the international law is binding
because States have consented for the rules of international law. Bynker-Shoek, one of the
chief exponents of the positivist school. "according to him "will of the States is the main
source of inernational law." The consent of the states may be of 2 types.
1. EXPRESS CONSENT.
2. IMPLIED CONSENT
Martens & Anzilotti were the other exponents of this theory.
Criticism- Many jurists have criticised this theory. Following are the main points of
criticism:
a) The concept of will of State is metaphorical. The will of the State is nothing but the will of
the people who compose it.
b) All the rules of international law are not made only by treaties and customs.
c) The positivists have based their theory on consent which has been severely criticised by
the jurists. There are certain Drinciples of international law which are applicable to non-
members of the U.N. although they had never given their consent for it.
Aa per Article 36 of Vienna Convention on the Law Of Treaties "A treaty may apply to third
state, without its consent.

Realist theory
some jurists have expressed the view that only states are the subjects of international law. In
their view International Law regulate the conduct of states and only States alone are the
subject of international law.
According to this theory, the person lacks international legal personality. Because they have
neither rights nor duties under international law. If they have any right then it can be claimed
only through the states.
Criticism: This theory has been criticized prominently by modern international law
practitioners on the basis that certain rights and duties have been given by the rules of
international law to entities other than states. And so they too have an international
personality. The assertion that only ‹lates are subjects of international law is no longer valid.
Of course, the theory of realists was only true until other units were given the ability to hold
rights and duties under international law.

Fictional theory:
just contrary to the above theory, there are certain jurists who have expressed the view that in
the ultimate analysis of international law it will be evident that "only individuals are the
subjects of international law". This is because the state does not have the ability to manifest
its will. The state is the abstract structure acting through individuals. And the Nation States
are nothing except the aggregate of the individuals. This theory is therefore called the
fictional principle, because according to this, the state has been considered as mere
imagination.
The chief exponent of this theory is Prof Kelsen. Kelsen is of the view that the rules of
national law and international law are aimed at humans. National law is directly binding on
them.
Whereas international law is international law". This is because the state does not have the
ability to manifest its will. The state is the abstract structure acting through individuals. And
the Nation States are nothing except the aggregate of the individuals. This theory is therefore
called the fictional principle, because according to this, the state has been considered as mere
imagination.
The chief exponent of this theory is Prof Kelsen. Kelsen is of the view that the rules of
national law and international law are aimed at humans. National law is directly binding on
them. Whereas International law is binding indirectly through states. This principle is based
on the hypothesis that the rights and duties of the states are the rights and duties of the
persons from whom it is formed. And so ultimately individuals are subjects of international
law.
Functional theory: The third view not only combines the 1st and 2nd views but goes a step
ahead to include international organisation and certain other non-state entities as subjects of
international law. This view undoubtedly appears to be far better than the first two views.
Conclusion: - If all the above theories are to be analyzed philosophically then it may be
concluded that Functional Theory seems to be more accurate

Danzing Railways official case 1928:

In this case, Poland entered into an agreement with a Danzing Railways company. Under the
said agreement Poland had agreed to provide certain facilities to the officials of the said
Railway company.
Subsequently Poland refused to provide those facilities to the officials of the company.
Poland argued that since the said agreement was in the form of an international Treaty. it
created rights and duties only in respect of the parties to the Treaty and hence the individual
as such cannot possesses any rights under the said treaty. The permanent Court of
international justice rejected the contention of Poland and ruled that if in any Treaty the
intention of the parties is to conferred certain rights upon some individuals then International
Law will recognise such rights and will enforce them.
4-Introduction
International Law is comprehensive in nature and due to that it is an amalgamation of various
sources, there exists no single system of laws which can interpret and extend the law but
international law still exists and is ascertainable.

Sources of International Law

According to Jurists
Lawrence: According to Lawrence, there is one source of International law and that is consent
of Nations. This consent may be either tacit (custom) or express (treaties).
Oppenheim: According to Oppenheim Treaties and Customs are regarded as the exclusive
sources of International Law.
Brierly: According to Professor Brierly the main Sources of International law are
custom. and reason.
Westlake: Westlake also says that custom and reason are two sources of International. aw.

Sources of International Law According to Statute of the International Court of Justice

Sources of International Law are Identified in Article 38 (1) of the 1945 Statute of the
International Court of Justice (established by the Charter of the United Nations) defines the
Sources of International law as under:
 • International conventions, whether general or particular, establishing rules expressly
recognized by the contesting states.
• International custom, as evidence of a general practice accepted as law;

• The general principles of law recognized by civilized nations

• Article 38(1)(d) forms part of the material source of International Law also

known as the secondary source. It states that judicial decisions and the teachings
of the most highly qualified publicists of the various nations also help in guiding
the formation of international law, however they are not binding but merely
advisory in nature.

Sources of International Law

• International Conventions or Treaties
• Customs
• The General Principles of Law
• Judicial Decision
• Text writers, Juristic Works and Commentators
• Decision or determinations of the organs of International Institutions

Sources of International Law

International Conventions or Treaties * I
• it is the first and Important Source of International law. There is no Legislative organ in
the field of International Law, comparable to legislatures within the State, the
enactments of which could bind all the States.
• The Contracting Parties may, however, establish an international organization by means
of the treaty with authority to bind them by its resolutions or may even lay down rules
for their mutual conduct. In this sense, Multilateral treaties are a feeble approach to
International Character.

Treaty giving general principles

These treaties are entered into and signed by a large number of countries giving thereby general
principles of International Like. Geneva Convention on Law of sea and Vienna Convention on
Diplomatic Relations, 1961 are examples of such a treaty
Treat Contracts
These are the treaties which are entered into by two or more States. The provisions of such
treaties are binding only on the parties to the treaty. Such type of treaties are also the source of
International Law because they help in the development of customary rules of International
Law.

Customs
• Custom is as such Second Important source of International Law.
• Custom is the older and original Source of International Law.
• The customs are evolved through the practices of and usages of the nation and their
recognition by the community of nations.
• Customary rules are those rules which are practiced by most of the States by way of habit
for a pretty long time.
• international custom has developed by spontaneous practice and reflects a deeply
felt community of law.

The General Principles of Law

• There is another Source of International Law that is General Principles of Law.
• General Principles are based on moral Principles and law of nature, it has relation with
the State Practice.
• The statute of the International Court of Justice (ICJ) Authorities the Court to apply the
general principles of law recognized by civilized nations in addition to international
conventions and custom, which are the two main sources of international law.
• It makes national legal systems as a source of law for the creation of International Law.

Example
• The special arbitral tribunal between Germany and Portugal also applied the general
principles of law in the Maziua and Naulilaa case where the arbitrators observed that in
the absence of rules of International law applicable to the Facts in dispute, they were of
opinion that it was their duty to fill the gap by principles of equity fully taking into
 account the spirit of International Law, which is applied by way of analogy and its
evolution.

Judicial Decision
• According to Article 38 of the Statute of the International Court of Justice, Judicial
Decisions are subsidiary sources of International Law.
• They are not the automatic sources of law. Judicial Decisions by International Court
of Justice, Permanent Court of Justice, International Arbitral Tribunal and Municipal
Courts.
• Article 59 of the Statute of the International Court of Justice expressly provides that
the decisions of the court have no binding force except between the parties and in
respect of that particular case.
• That means Judicial decisions are binding only on the disputed States.

Equity
• Equity is used in the sense of consideration of fairness, reasonableness and policy often
necessary of the sensible application of the more settled rule of law.
• Though equity cannot be the direct source of International Law, It is of great importance
in those fields where rules are not readily available. Some jurist says that it is not
the formal source of law but it is a source of law.
• Equity principles originate from culture and interest of State concerned, equity principles
varies from State to State.
• Equity in international law is uncertain. It is subjective, and to bring objectively to the
principles of equity as a principle of natural law are considered.

Decision or determinations of the organs of International Institutions

• In the modern age the decisions or determination of the organs of
international Institutions are also treated as sources of International Law.
• In the view of constant change in the forms and content of the International Law,
International organizations have also become a subject of International law.
 • The decisions and determination of the organs of such institution are also,
therefore, regarded as the sources of International Law because they help in the
development of customary rules of International Law.

5-Introduction

• It has not certain period of its beginning. It is explored that it came into existence right
from the commencement of human life on earth.
• States had established mutual relationship and played an important role in social life.
• International Law has been developing time to time and its form has been changing
with the passage of time

Origin of International Law

• In thirteenth century B. C. a contract took place between the Egyptian King Pharaoh
and Syrian King after a war. It was written on a silver plate.
• It was consisted on the conditions of peace and co-operation and land acquisition.
• It reveals that no doubt this system was available since long before and states were
made treaties as the same now is. In old time there was neither travelling
arrangements nor concept of states, but agreements were made.
• There was also diplomatic representation. Disputes were settled with arbitration.
• There was tradition of asylum in that age.

Stages of Development of International Law

First period

• Started right from the beginning of human history and ends at formation of Roman
empire.
• In this period there was respect of same race and same religion.
• For the achievement of peace, ambassadors were sent. They had certain immunities.
• War was ceased upon the peace and dition of internationalism became ceased after the
fall of Roman Empire.
• Geographic boundaries were not defined. They were united upon a common race.
• Kings were the rulers over certain territories.
• Romans applied rules relating with peace and war.
• Same principles of International Law had been developed in this age.

Christian influence
• Christian religion gone to Italy. It became official religion of Italy State.
• This era eliminated the question of International Law. Continuous crusades were
started.
• They treated Muslims their great enemy. Their revenge passions grown up after the
concurrence over Bait-ul-Magdas of Muslims
 • Christian priests declared all the agreements prohibited with Muslims from
religious point of view.
• The crusades were remaining in operation till long. Despite of the fact, agreements
were made. In that age, there was also trend toward International Law.

Islamic influence
• After the dawn of Islam, complete change took place. Infidels started harassment to
Hazrat Muhammad . In these circumstances they migrated from Makka to Madina.
• They founded state, which became first Islamic State over the global map.
• They fought many wars. Muslims were martyred and concurred. Moral values were
taken into consideration.
• Killing of women, children, and aged people, if they remain peaceful, transgression of
limits, devastation of crops, destruction of buildings and houses, ruin of gardens,
killing of animals, and arson of public places became prohibited.
• Weaker people were remitted. Muslims were spread over from east to west.

Third period
• There was a long war between king and church. In an agreement Pope took over the
matters of religion and secular matter left for king.
• Despite of this agreement the war period remains continue.
• In fifteenth century Pope became weaker.
• In seventeenth century many small states came into existence that made mutual treaties.
• The fall of the church lead to the secularization of the political force and with the fall of
the Roman Empire along with the rise of national sovereign states led to the
emergence of nation-states on the Continent of Europe.

International Law in the 19th Century

• It is in the 19th century that the law started looking beyond the Treaty and Customs.
• The law saw many International Conferences taking place.
• The Congress of Vienna of 1815 marks the starting point of what may be called.
international legislation.
• This congress formulated various rules regarding the principle of legitimacy,
diplomatic representations and navigation in international rivers.
• The Declaration of Paris (1856) on the regulation of maritime warfare,
• The Geneva Convention (1864) of Red Cross aimed at the amelioration of the
conditions of the sick and wounded in armies in land warfare,
• The Declaration of ST. Petersburg (1868) prohibiting the use of explosive bullets in the
war were some of the important achievements towards the treaty-making in
international law.
• The Hague Conference of 1899 established principles of rules of war.
• The Hague Conference of 1907 was about how to start a war, what to do with enemy
nationals and roles / rights / responsibilities of Neutral states.
• International Law in the 20th Century
• The League of Nations after the First World War was the first international
organization designed to maintain international peace and promote
cooperation among nations.
• Permanent Court of International Justice in 1921 was succeeded by the
present International Court of Justice in 1946.
After the second world there were various developments in the field:
• The establishment of the United Nations Organization (UNO) in 1945.
• A large number of permanent international institutions like International
Labor Organization (ILO), World Health Organization (WHO) and
International Civil Aviation organization etc.
• International Law Commission (ILC) was created in 1947 which played a
very significant role in the codification and progressive development of
international law.
• The protection of Human rights movement led to the formation of the
Universal Declaration of Human rights (UDHR) of 1948.
• The most important measure for the implementation of Human rights is
International Covenant on Civil and Political Rights, Its Optional Protocol
and International Covenant on Economic, Social and Cultural Rights.
• There are various regional organizations are created for reasons of Military
security like NATO, and the Warsaw Pact organized by the Soviet Union and
others to promote regional and cultural identity like the African Union and the
Organization of the American States and European Union (EU).

Modern International Law

• Since the 1980s, globalization has increased the number and sphere of influence of
international and regional organizations and required the expansion of international
law to cover the rights and obligations of these actors.
• The nuclear age and the space age have led to new developments in international law.
The basis of space law was developed in the 1960s under United Nations auspices.
• Treaties have been signed mandating the Internationalization of outer space (1967)
and other celestial bodies (1979). The Law of the Sea treaty1982) clarified the status
of territorial waters and the exploitation of the seabed.
• Environmental issues have led to a number of international treaties, including
agreements covering fisheries (1958), endangered species (1973), global warming and
biodiversity (1992).
• Since the signing of the General Agreement on Tariffs and Trade (GATT) in 1947,
there have been numerous international trade agreements.

6-Introduction

• Subjects of international law can be described as those persons or entities who possess
international personality.
• It is referred to as entities who have a legal personality, with certain rights and duties
under the international legal system.
• Throughout the 19th century, only states qualified as subjects of international law, but
this scenario completely changed after the conclusion of the Second World War with
more and more new actors joining the international legal arena.
• Intergovernmental organizations created by the states
• non-governmental organizations (NGOs) created by individuals
• natural persons like individuals emerged as new actor

Subjects of International Law

The subjects of international law can be categorized into:
States
States are the original subjects of international law, and the branch of international law was
originally established to regulate relations between the states.
Individuals
Common people of any state are also believed to be the subject of international law.

International Organizations
It is an association of states, established by a treaty between two or more states.
International Organizations too have a legal personality and are considered to be the
subject of international law. For example, the United Nations.

Multinational Companies

They own and operate their corporate entities in at least one other country aside from the
place where it was incorporated, therefore it is established in more than one nation.

Rights and Duties of Subjects

• The rights, powers, and duties of different subjects change according to their status and
functions.
• For example, an individual has the right of freedom from torture under international
law.
• States have a duty under international law not to torture individuals or to send them to a
country where there is a likelihood of that person being tortured.
• This right exists under treaty law, for example, under the International Covenant on
Civil and Political Rights and under customary international law.

Legal personality also includes the capacity to enforce one's own rights and to

compel other subjects to perform their duties under international law.

For example, this means that a subject of international law may be able to:

• bring claims before international and national courts and tribunals to enforce their
rights.
• have the ability or power to come into agreements that are binding under international
law (for example, treaties).
• enjoy immunity from the jurisdiction of foreign courts (for example, diplomatic
immunity).

Theories regarding the subjects of International Law

Jurists of the world are divided into two groups. However, some moderates try to bring about
a compromise between them. The difference of opinion among jurists as to what entities are
deemed to be the subjects of international law had led to the emergence of three popular
theories.
• Realist theory
• Fictional theory
• Functional Theory

Realist Theory
• According to this theory, only the Nation/States are considered to be the subject of
international laws.
• It relies on the principle that it is for the nation/state that the concept of international
law came into existence.
• These nations/states are distinct and separate entities, capable enough to have their own
rights, obligations, and duties, possessing the capability to maintain their rights under
international law.
• Prof. L. Oppenheim being the strong supporter of this theory believes
that as the law of nations is primarily a law between the states, to that
extent, subjects of the law should be nations only.
• However, the theory has been criticized on the fact that it fails to explain the case of
slaves and pirates as under international law, slaves have been
conferred with some rights, while the pirates are treated as enemies of mankind.

Fictional Theory
• Supporters of this theory suggest that the subjects of international law are the
individuals only and that legal order is for the well-being of the
individuals.
• They firmly believe that the Nation/state are nothing but aggregate of
individuals as subjects.
• Prof. Kelsen is the supporter of the theory and believes that the duties of the states are
ultimately the duty of the individuals of the states and there is no difference between
the international law and municipal law and have been made to be applicable on the
individuals only.
• From the purely theoretical standpoint, and in logic, Kelson's view is undoubtedly
correct.
• But so far as regards the practice of states is concerned, the primary concern of the
international law is with the rights and duties of the states.

Functional Theory
• Both the Realist and the Fictional Theory take on an extreme course of opinion, but,
according to Functional Theory, neither state nor individuals are the only subjects.
• They both are considered to be the subiects of modern International law as they both
have recognized rights, duties and obligations.
• Along with them, several other entities, like African Union, have been accepted as
subiects of international law.
• In the present times, individuals have been conferred with certain rights and duties, for
example, International Covenant on human rights.
• Moreover, it is agreed that international organizations are also the subjects of
international law.
• The International Court of Justice held that the United Nation is an international person
and is a subiect of international law, capable of having rights and duties.

7-Introduction
• The state plays a vital role in the governance of the country. Traditionally, the state's
defined role had merely local laws to govern the state.
 • The laws were only limited to protecting the citizens of the country. But, as there was the
evolution of societies, international laws also became necessary for society to make
cordial relations with them.
• Therefore, the state's role became complex and not limited to the inner administration. It
has to reduce rivalries among various states as there is massive interdependence among
the states as a part of globalization.
• So, all these factors lead to the emergence of international laws. But, at the same time,
there emerged a conflict as to which law is superior and which is to be overruled.
• We must understand the relationship between international and municipal laws for this
answer
What is International Law?
• International laws are a set of rules, regulations, norms, and principles for a state
accepted internationally as a guideline for a state to interact with another state in
various sectors such as war, diplomacy, human rights, trade, and other matters.
• In other words, according to Black Law's Dictionary, it is a system that governs the
relationship between nations which considers individuals and international
organizations.
• Some international laws are Sea law, Treaties among the countries, international laws
for criminals, and many other laws.
There are two branches of International Law:
Jus Gentium: It is a body or organization that makes the law applicable to all the nations of
the world.
Jus Inter Gentes: It is related to the agreements between two nations that do not apply to other
nations.

What is Municipal Law?

• According to Black Law, it is the ordinance and laws applicable in the city, town, and
other local entity of the society.
• Therefore, a municipal law is considered a local or national law applicable within a
defined territory.
• It is for the domestic and internal purposes of a sovereign state against the essence of
international law.

Relationship between International and Municipal Laws

• It is always essential to study the relationship between international and municipal laws
because there are some instances where international law becomes a part of domestic
law.
• So, if such a situation arises, which rule must be followed?
• To explain such a situation, we must understand the relationship between these two
laws, and for this, there are some theories.

Monism (Monistic Theory)

• As the name suggests, the monist approach considers laws as a single entity, and they
are against the idea of separating these two branches as international and municipal
laws.
• The monist theory is based on the Kantian philosophy of law which follows the unitary
conception for laws.
 • It says that the laws are derived from one single source, and any local or domestic law
contradictory to international law is invalid.
• It does not believe in the claim of dualism that there is a need to transform
internationallaw into municipal law.

• The example for this claim is that if a state has ratified the international law of human
rights, and any municipal law violates an individual's freedom, that person can claim
that the municipal law violates the international law.
• So, in this case, the municipal law will be considered invalid, and international law
prevails.
This theory always considers international law superior to municipal laws, and if any
conflict arises between these two laws, international law will prevail.
Delegation Theory
This theory explains that there are constitutional provisions in international laws, which
claims that it is on the state to decide which international law must be applied to the internal
matters of the state or individual and in which condition.

So, here the power is in the state to decide which international law is applicable in its
municipal law. There is no superiority concept in this theory.

Dualism (Dualist Theory)

• Dualism is a theory that considers local or municipal law and international law as two
different branches of law.
• According to this theory, as per their sources, principles, and subjects, these two laws
must act independently.
• It stresses the rules that international and municipal law exists in two different
scenarios, and therefore they do not overrule each other.
• According to the dualism theory, any international law cannot affect an individual from
the state until it has been transformed into a state or domestic law. The transformation
of such laws is the crucial doctrine of dualist theory.

Transformation or specific adoption theory

This theory is related to the dualist theory. Dualists believe that international law cannot be
applied directly within the spheres of municipal law. The rules of former becomes applied
into the later only if, transformed into municipal law.

In simple words, this theory states that, no rule of international will be applied on the
municipal law by its own force, unless they through the transformation theory or they are
specifically adopted by the municipal courts and systems.

This theory also marks the difference between international treaties which are
promising in nature while the municipal law which the commanding in nature.

Harmonization Theory

• It is a separate approach from the dualist and monist approach. It was formulated
by Rousseau and Fitzmaurice, who tried to explain that each law is supreme in
its sphere. The dualist and monist theory does not successfully define the
relationship between international and municipal
 laws as to which law is superior to others.
• Harmonization seeks to 'effect an approximation or coordination of different legal
provision or systems by eliminating major differences and creating minimum
requirements or standards'". Harmonization can be seen as a step towards unification
and, in a way, harmonization aims or strives towards unification.
• It suggests that the courts must try to minimize the differences between these two laws
through the harmonization process, ultimately leading to equivalent positions for
both these .

Conclusion

The debate of the relationship between international and municipal law is complicated.
• Every state has to oblige the international treaties and face the brunt of its breaches.
However, they also maintain their municipal laws separate from the international
treaties.
• Still, we can find the penetration of international laws into municipal laws, and
therefore this debate is intensified.
• It is seen in the world that states practice international law when it is in their favor, and
thus, it minimizes the differences and intensifies the harmonized judicial process.

Sources of International Law

In the realm of international law, at its core, we find a system of norms governing the
behavior of sovereign States and their interactions. It is essential to note that the scope of
international law extends beyond the mere rights and obligations of States. This body of
law also acknowledges that individuals can be held accountable under international law, and
even corporations are not exempt from its reach.

Furthermore, over the past century, international organizations have assumed an

increasingly significant role in shaping the landscape of international law. Nonetheless, it
remains an indisputable fact that States continue to be the primary subjects of international
law. Every legal system requires sources from which its laws emanate. For example, in
Israeli law, these sources include legislation from the Knesset, governmental regulations, and
judicial precedents, among others, which all carry the weight of binding legal authority.

In the context of international law, while its primary sources are well-established, as we will
elucidate below, the process of identifying these sources can at times be intricate. The widely
accepted articulation of international law's sources is encapsulated in Article 38(1) of the
Statute of the International Court of Justice (ICJ). It is worth noting that the ICJ Statute is
heavily derived from the Statute of the Permanent Court of International Justice, its
predecessor. Article 38(1) of the ICJ Statute sets forth the following sources:

International Conventions: These encompass both general and specific agreements that
establish rules explicitly recognized by the parties involved in the dispute.

International Custom: This source relies on the evidence of a general practice

acknowledged as law. It reflects the customary behavior of states in international relations.

General Principles of Law: These principles are recognized by civilized nations and are
applicable across various legal systems. They serve as foundational norms in international
law.

Judicial Decisions and Publicists: Subject to the provisions of Article 59, judicial decisions
and the writings of highly esteemed international law scholars serve as auxiliary means for
ascertaining legal rules.

These sources can be categorized into three primary pillars: treaties, customs, and general
principles of law. Moreover, two supplementary sources are available to help identify norms
derived from these primary sources: judicial decisions and the teachings of eminent
international law scholars.

In the realm of international law, the concept of sources pertains to the historical origins from
which rules of conduct within this domain emerge. These sources encompass both formal
methods or procedures for creating general rules and the material evidence attesting to the
existence of these rules.

Some legal scholars, such as Oppenheim and Lawrence, have expressed the view that
common consent is the solitary source of international law. This consent may manifest either
explicitly or implicitly, resulting in two principal sources: treaties, reflecting express consent,
and customs, rooted in tacit consent.
In sum, international law, a multifaceted legal framework governing States and more, derives
its norms from a set of established sources, encompassing treaties, customs, and general
principles of law, with judicial decisions and the wisdom of distinguished international law
scholars serving as supplementary aids in the determination of legal rules.

It is important to note that Article 38 also allows the Court to decide a case based on
considerations of fairness and good faith (ex aequo et bono) if both parties agree to this
approach, even if it deviates from established law.

While Article 38 enumerates these primary sources, it's crucial to recognize that international
law's evolution and the complexities of the modern world have given rise to additional
sources. Some of these sources include decisions and determinations made by
international institutions, international comity, state documents, guidance for state
officials, considerations of equity and justice, resolutions from international
conferences, and rulings from municipal courts on matters involving foreign nationals
or other states.

In summary, Article 38 of the ICJ Statute provides a structured hierarchy of sources for
international law. Treaties take precedence, followed by customs, general principles of law,
judicial decisions, and writings of experts. However, it's important to acknowledge that this
list is not exhaustive, as new sources of international law can emerge to meet the evolving
challenges of the international community. The Court is expected to consider these sources in
the order mentioned, with international conventions having primacy, followed by customs,
and general principles of law when conventions and customs are not applicable. Judicial
decisions and expert writings are considered supplementary means for determining legal
rules.

International Custom as a Source of International Law

International custom is one of the oldest and most foundational sources of international law,
shaping the rules that govern nations in their interactions. The development of customary
rules in international law is a gradual historical process. Here, we explore how custom is
formed and its essential elements:
Formation of a Custom
a) Custom and Usage: Custom represents an international practice that carries the weight of
law, while usage is an international habit that hasn't yet attained legal status. Custom begins
where usage ends. When states consistently behave in a particular manner in specific
situations (usage), it is expected that they will continue to do so in similar circumstances.
When this usage gains widespread recognition among states in their interactions, it evolves
into a custom.

Definition: Custom can be defined as the accepted line of conduct that society considers
obligatory.
The transformation of usage into custom is evidenced by state conduct in diplomatic
relations, actions or statements of states, foreign policy documents, speeches at international
conventions and conferences, and the practices of international organizations like the UN and
ICJ. Moreover, decisions from domestic courts, military tribunals, and administrative bodies,
when following a specific usage in their proceedings, can solidify a usage into a custom. The
crucial test for the crystallization of a usage into a custom is its approval by the common
consent of civilized nations or a general consensus of opinions.

Opinio juris sine necessitatis: As per Article 38 of the ICJ Statute, international custom
must be based on general practice accepted as law. This acceptance by states that their actions
constitute legal obligations is termed "opinio juris sine necessitatis."

b) Generation of Customary Rules by Treaty: Sometimes, a provision within a treaty can

give rise to a rule of customary international law. However, for this to occur, the treaty
provision must have a fundamentally non-creating character, serving as a basis for a general
rule of law. Time is not necessarily a barrier to the formation of a new customary rule, but
extensive and nearly uniform state practice within a specific period, along with a general
recognition of a legal obligation (opinio juris), are essential.

Essential Elements of a Custom

Article 38 of the ICJ Statute outlines two key requirements for the existence of international
custom: uniform state practice and the belief that such practice is obligatory (opinio juris).
In the Paquete Habana Case (U.S. Supreme Court, 1900), the court considered state laws,
practices, treaties, publicists' writings, and court decisions as evidence of a valid customary
rule granting immunity to small fishing vessels during wartime.

The Asylum Case (ICJ Rep. (1950)) illustrated the recognition of special or regional customs,
which, while deviating from general customary law, bind only states that support them.

Generality of Practice
While universality of practice is not mandatory, the practice should have been generally
observed or repeated by numerous states. If a state's actions seem incompatible with a
recognized rule but are justified based on exceptions or justifications within that rule, it
reinforces rather than weakens the rule (Nicaragua Case, ICJ Reports, 1986).

Opinio juris et necessitates

The S.S. Lotus Case (1927) demonstrated that opinio juris is essential for the creation of a
new customary rule in international law.

Application of International Custom: Challenges

International courts like the ICJ cannot automatically presume a custom as a guiding factor.
Establishing an international custom before such a tribunal is challenging because:

• The very existence of the custom must be proven.

• It must be demonstrated that the custom has been continuously practiced by a large
number of states consistently and without variation.
• Proving opinio juris is difficult, and this subjective element can be deduced from
treaties, UN General Assembly resolutions, international conferences, and statements
by state representatives.

International Treaties in the Modern Era

International treaties hold a paramount position as a source of international law, and Article
38 of the ICJ Statute recognizes them as the primary source. The term "convention"
encompasses treaties, conventions, protocols, and agreements. Treaties can be categorized
into two main types:
1. Law-Making Treaties: These treaties involve a large number of parties and establish
general or universal norms. They can be further classified into two categories: those outlining
universal rules (e.g., the United Nations Charter) and those setting forth general rules (e.g.,
the 1958 Geneva Convention on the Law of the Sea and the Vienna Convention on the Law
of Treaties, 1969).
2. Treaty-Contracts: These are treaties between two or only a few states, addressing specific
matters that concern those states exclusively.
A series of treaties or the recurrence of treaties stipulating a similar rule can contribute to the
development of a customary international law principle. Subsequent independent acceptance
may transform a treaty originally concluded by a limited number of states into a customary
rule. Therefore, treaties are of significant evidentiary value in establishing the existence of a
rule that has evolved into law through an independent developmental process. International
treaties represent contractual agreements between states or organizations of states, creating
legal rights and duties (Oppenheim). It's important to note that other subjects of international
law, such as international organizations, can also enter into treaties (Art. 3 of the Vienna
Convention, 1969).
Pacta Sunt Servanda (Basis of the Binding Force of Treaties)
Pacta sunt servanda signifies that states are obligated to fulfill their treaty obligations in good
faith, emphasizing the sanctity of contracts. According to Starke, treaties aim to impose
binding obligations on the parties. Lauterpacht underscores that treaties are legally binding
due to a customary rule of international law that deems treaties binding.
The Vienna Convention on the Law of Treaties establishes:
• Every treaty in force is binding upon the parties and must be performed in good faith
(Art. 26).
• Art. 27 reinforces this principle by stating that no party to a treaty can justify the failure
to fulfill its treaty obligations by invoking its domestic law.
Thus, the most fundamental principle of international law, and the cornerstone of treaties, is
pacta sunt servanda.
Exceptions to the Principle
Exceptions to this principle include situations where a new state arises through revolt, which
typically does not consider itself bound by treaties concluded by the predecessor state. The
principle may also not apply if treaty obligations pertain to a part of the territory that has been
ceded or merged with other states. Additionally, the doctrine of rebus sic stantibus, an
implied clause in every treaty, suggests that the agreement is binding only as long as the
material circumstances on which it is based remain unchanged. Pacta sunt servanda is not an
absolute principle, as it doesn't account for the binding force of customary rules of
international law.
Custom and Treaties: Interrelationship
Custom and treaties have coexisted as methods for creating legally binding rules within the
international community. Both are rooted in the consent of states, with treaties reflecting
explicit consent and customary rules implying consent. While customary rules can be
imprecise, treaty rules are clear and precise. This has led to the transformation of many
customary rules into treaty rules.
The existence of identical rules in international treaty law and customary law is recognized.
Treaties and custom have equal legal force and mutually reinforce each other. They do not
contradict each other but rather complement and interact. In cases of apparent conflict,
treaties prevail over custom (S.S. Wimbledon Case, ICJ, 1923). However, instances exist
where custom has overridden treaty law, as seen in the law of the sea, where the custom that
emerged in the late 1960s and 1970s ultimately led to the codification of the UN Convention
on the Law of the Sea in 1982.

General Principles of Law in International Law

Article 38(1)(c) of the ICJ Statute identifies "General principles of law recognized by
civilized States" as the third source of international law, distinct from customary law or
treaties. These principles are characterized by their generality, applying across legal systems
that have reached a comparable level of development. The inclusion of general principles of
law in the sources of international law is justified by the notion that principles widely
accepted by civilized legal systems are inherently reasonable and necessary for the
administration of justice under any legal system.
Examples of such principles include:
1. Pacta Sunt Servanda (Contracts Must Be Kept): This principle emphasizes the
binding nature of agreements.
2. Nemo Debet Esse Judex In Propria Causa (No One Should Be a Judge in Their
Own Cause): This principle underscores the importance of impartiality and avoiding
conflicts of interest.
3. Right of Self-Defense: A fundamental principle allowing states to defend themselves
when faced with aggression.
These principles, even if recognized by many states, do not automatically become part of
international law; they must be acknowledged by the World Court.
Before applying such a principle, certain criteria are considered:
1. Generality: The rule is a general principle of law, not limited in scope.
2. Recognition: The rule is recognized by most states in the global community.
The term "recognized" implies that the rule exists within municipal (domestic) law. General
principles of law encompass both substantive and procedural principles. Some common
general principles of law found in municipal legal systems include:
• Res Judicata (A Matter Settled by Judgment): Once a matter is judicially decided, it
is considered finally resolved, barring further action on the same claims or issues.
• Prescription (Claim Founded on Enjoyment): This principle pertains to the
acquisition of rights through long-term possession or enjoyment.
• Subrogation (Stepping into the Shoes of Another): It involves one party stepping
into the legal position of another.
• Estoppel (Preclusion): States are bound by their prior actions or positions when they
contradict their claims in a dispute.
• Equity (Reasonableness and Fairness): The ICJ has increasingly referenced equity in
recent judgments.
• Other Principles: The principle that any violation of an engagement requires
reparation (addressing wrongdoing) is recognized. The territoriality of criminal law is
also acknowledged.
Status of General Principles of Law:
While positivists argue that customs and treaties are the sole sources of international law
since they rely on state consent, most international legal scholars believe that general
principles of law are a primary source of international law. These principles are deemed
universal across human societies (Judge Tanka's dissenting opinion in the South West Africa
case, ICJ Rep. 1966). General principles of law serve as a safety valve and enrich
international law as an inexhaustible reservoir of legal principles from which tribunals can
draw to develop and enhance international law (Art. 38(1)(c)).

Judicial Decisions and Juristic Works as Sources of International Law

Article 38(1)(d) of the ICJ Statute recognizes judicial decisions and the teachings of eminent
scholars as subsidiary means for the determination of rules of international law, subject to the
provisions of Article 59. These sources are considered indirect and subsidiary sources of
international law.
Judicial Decisions:
• ICJ Decisions: The decisions of the International Court of Justice (ICJ) do not
establish binding general rules of international law. Article 59 of the ICJ Statute
clarifies that ICJ decisions have binding force solely between the parties involved and
only in the context of the specific case. While the ICJ does not strictly adhere to the
common law doctrine of precedent (stare decisis), the principles and rationales
underlying its decisions are influential.
• Advisory Opinions: Advisory opinions issued by the ICJ are not binding at all.
However, they serve to elucidate specific points or issues of international law.
• Influence of ICJ Decisions: In practice, ICJ decisions carry significant weight and can
shape international law. For example, the equitable principles articulated in the North
Sea Continental Shelf Cases have been widely adopted and further developed,
including in the United Nations Convention on the Law of the Sea (1982).
State Judicial Decisions:
• Limited Value: Decisions from the domestic courts of individual states hold limited
value in international law. However, when the courts of numerous states consistently
issue uniform decisions on matters intertwining international and domestic law, they
can provide evidence of international custom. This is particularly relevant in areas
such as nationality, extradition, and diplomatic immunities.
Writings of Jurists:
• Final Resort: Juristic works, including writings and commentaries by legal scholars,
may serve as a final resort in resolving international law disputes when other sources
listed in Article 38 have proven inadequate.
• Influential Opinions: At times, juristic opinions have contributed to the development
of international law. Examples include the Calvo Clause and Drago Doctrine, which
were influenced by juristic writings.
• Use of Juristic Works: In cases where there is no applicable treaty, executive or
legislative act, or judicial precedent, customary practices and usages, as well as
juristic works, can be consulted to ascertain principles and norms. Legal scholars who
have dedicated years to researching and studying specific areas of international law
can provide valuable insights and interpretations.
In the Paquete Habana Case, Justice Gray noted the importance of referring to customs,
usages, and the works of legal commentators when other sources are insufficient to resolve a
legal matter. These writings serve as a valuable resource for understanding and clarifying
aspects of international law.

Resolutions of the General Assembly as a Modern Source of International Law

Following the establishment of the United Nations (UN), the development and codification of
international law have largely occurred through the efforts of international organizations. The
General Assembly, one of the principal organs of the UN, played a significant role in this
process and established the International Law Commission. While not explicitly mentioned in
Article 38 of the ICJ Statute as traditional sources, the decisions and determinations of
international organs are now recognized as important sources of international law.
It is essential to note that resolutions of the General Assembly do not possess legal character,
and therefore, they are not legally binding on member states. Regardless of whether they are
adopted unanimously or by an overwhelming majority, and even if they pertain to matters of
common interest, these resolutions do not impose legal obligations on member states.
However, certain cases, such as the South West Africa Voting Procedure Case (ICJ, Rep.
1955), the Anglo-Norwegian Fisheries Case (ICJ, Rep. 1951), and ICJ's advisory opinions on
Namibia and the Western Sahara Case, demonstrate that collective pronouncements of the
General Assembly can have legal effects despite their non-binding nature.

Conclusion:
In the absence of a world government, there is no global congress or parliament to create
international law in the same way that domestic legislatures create laws for individual
countries. Consequently, determining the exact nature of international law can be
challenging.
Various sources contribute to international law, with treaties between states being considered
the most authoritative statements because they represent consensual agreements.
Additionally, customary state practice, general principles of law common to many countries,
domestic judicial decisions, and legal scholarship also play roles in shaping international law.
These sources collectively form the foundation of international legal norms and principles.
 Recognition of state
Recognition of state under the International Legal System can be defined as “the formal
acknowledgement or acceptance of a new state as an international personality by the
existing States of the International community”. It is the acknowledgment by the existing
state that a political entity has the characteristics of statehood.

Essentials for recognition as a state:

Under the International Law, Article 1 of the Montevideo Conference, 1933 defines the
state as a person and lays down following essentials that an entity should possess in
order to acquire recognition as a state:
1. It should have a permanent population.
2. A definite territory should be controlled by it.
3. There should be a government of that particular territory.
4. That entity should have the capacity to enter into relations with other states.
Legal Effects of such recognition
When a state acquires recognition, it gains certain rights, obligations and immunities such as.
1. It acquires the capacity to enter into diplomatic relations with other states.
2. It acquires the capacity to enter into treaties with other states.
3. The state is able to enjoy the rights and privileges of international statehood.
4. The state can undergo state succession.
5. With the recognition of state comes the right to sue and to be sued.
6. The state can become a member of the United Nations organisation.

Theories of recognition
The recognition of a new entity as a sovereign state is based on two main theories:
• Consecutive Theory
• Declaratory Theory
1. Consecutive Theory
The main exponents related to this theory are Oppenheim, Hegal and Anziloti.
According to this theory, for a State to be considered as an international person, its
recognition by the existing states as a sovereign required. This theory is of the view that only
after recognition a State gets the status of an International Person and becomes a subject to
International Law. So, even if an entity possesses all the characteristics of a state, it does
not get the status of an international person unless recognised by the existing States.
This theory does not mean that a State does not exist unless recognized, but according to this
theory, a state only gets the exclusive rights and obligations and becomes a subject to
International Law after its recognition by other existing States.
Criticism of the theory
This theory has been criticised by several jurists. Few of the criticisms of this theory are:
• This theory is criticised because unless a state is recognised by other existing states,
rights, duties and obligations of statehood community under International Law
is not applicable to it.
• This theory also leads to confusion when a new state is acknowledged and
recognised by some of the existing states and not recognised by other states.
2. Declaratory Theory
The main exponents of the Declaratory Theory of Statehood are Wigner, Hall, Fisher and
Brierly. According to this theory, any new state is independent of the consent by existing
states. This theory has been laid down under Article 3 of the Montevideo Conference of
1933. This theory states that the existence of a new state does not depend on being recognised
by the existing state. Even before recognition by other states, the new state has the right to
defend its integrity and independence under International law.
The followers of the theory consider the process of recognition as merely a formal
acknowledgement of statehood by other states.
Criticism of the theory
The declaratory theory of statehood has also been criticised. This theory has been criticised
on the ground that this theory alone cannot be applicable for recognition of a state. When a
state having essential characteristics comes into existence as a state, it can
exercise international rights and obligations and here comes the application of declaratory
theory, but when other states acknowledge its existence and the state gets the legal rights of
recognition, the consecutive theory comes into play.,
Modes of Recognition
There are two modes of recognition of State:
1. De facto Recognition
2. De Jure Recognition
1. De facto Recognition
De facto recognition is a provisional recognition of statehood. It is a primary step to de jure
recognition. It is a temporary and factual recognition as a state, and it can either be
conditional or without any condition.
This mode recognition is granted when a new state holds a sufficient territory and control
over a particular territory, but the other existing states consider that it does not have enough
stability or any other unsetting issues. So, we can consider it as a test of control for newly
formed states. De facto recognition is a process of acknowledging a new state by a non-
committal act.
The state having de facto recognition are not eligible for being a member of the United
Nations. e.g., Israel, Taiwan, Bangladesh.
2. De jure Recognition
De jure recognition is the recognition of a new state by the existing state when they
consider that the new state fulfils all the essential characteristics of a state. The de jure
recognition can be granted either with or without granting de facto recognition. This
mode of recognition is granted when the newly formed state acquires permanent
stability and statehood The De jure mode of recognition grants the permanent status of
a newborn state as a sovereign state.
In the case of Luther v. Sagar, it was held in this case that for the purpose of giving effect
to the internal acts of the recognised authority there is no distinction between de facto
and de jure.

Example of de facto and de jure recognition:

• One of the examples of de facto and de jure recognition is the recognition of the Soviet
Union was established in 1917. It was de facto recognised by the government of UK
in 1921 but it was not given de jure recognition until 1924.
• Bangladesh was established in March 1971. India and Bhutan recognised it just after 9
months of establishment but the United States gave it legal recognition after
nearly 1 year in April 1972.
Forms of Recognition
When a newly formed state is recognised, its declaration can be made in two forms:
1. Expressed Recognition
2. Implied Recognition
1. Expressed Recognition
When an existing state recognizes a new state expressly through official declaration or
notification, it is considered to be the expressed form of recognition. Express recognition can
be made through any express or formal means such as sending or publishing declaration
or statement to the opposite party. When a state is recognised by expressed ways, it is
a de jure recognition unless provided otherwise by the recognising state in the declaration.
2. Implied Recognition
When the existing state recognizes a newly formed state through any implied act, then it is
considered as an implied recognition. Implied recognition can be granted through any
implied means by which a current state treats the newly formed state as an international
person. The implied credit not granted through any official notification or declaration.
The recognition through implied means varies from case to case.
Conditional recognition
The recognition of state with which certain conditions are attached in order to obtain its
status as a sovereign state is conditional recognition. The conditions attached varies from
state to state such as religious freedom, the rule of law, democracy, human rights etc. The
recognition of any state is already associated with the essential conditions to be fulfilled for
the status of a sovereign state but when addition condition is attached it is conditional
recognition.
Criticism
Many jurists criticise conditional recognition. The conditional recognition is criticised on the
ground that recognition is a legal procedure, and no additional conditions should be
attached with it other than the conditions recognised by law. Another reason for criticism
is that the recognised state if it does not fulfil the condition attached to its recognition,
recognition is not extinguished and it should still be valid.
Withdrawal of Recognition
1. Withdrawal of De facto recognition
Under international law when a state having de facto recognition fails to fulfil the
essential conditions of statehood, its recognition can be withdrawn. The recognition can
be withdrawn by the recognizing state through declaration or through communicating
with the authorities of the recognized states. The withdrawal can also be done by issuing a
public statement.
2. Withdrawal of De Jure recognition
Withdrawal of de jure recognition is a very debatable issue under the International
Law. Withdrawal of a de jure recognition is a very exceptional event. If strictly interpreted,
the de jure recognition can be withdrawn.
Even though the process of recognition is a political act, de jure recognition is of legal nature.
Jurists who consider de jure recognition as a political act considers it revocable. Such
revocation of de jure recognised states can be withdrawn only when a state loses the essential
characteristics of statehood or any other exceptional circumstances. This type of
revocation can be done expressly by the recognising state by issuing a public statement.
Recognition of government
For any statehood, the government is an important element. When a state is formed, its
government changes from time to time. When the government changes as an ordinary
course of political action, the recognition of government by the existing state is not required
but when the government changes due to any revolution, then its recognition by the existing
state is required.
For recognising the new government established out of revolution, the existing states need to
consider that:
1. The new government have sufficient control over the territory and its people or not.
2. The new government is willing to fulfil the international duties and obligations or
not.
When the existing states are satisfied that the new government resulting out of the revolution
is capable of fulfilling the conditions as mentioned above, then the new government can be
recognised by the existing states.
Conclusion
The recognition of the state is an essential procedure so that it can enjoy all the privileges
of a statehood community under international law. There is a controversy between
Consecutive Theory and Declaratory theory of Recognition by different jurists, but we can
conclude that the theory followed for recognition is in between the consecutive and
declaratory theory.
The recognition being either de facto or de jure, it provides rights, privileges and obligations.
When a state gets its de facto recognition, the rights, privileges and obligations are less but
when it is recognised de jure, it gets absolute rights, liabilities and privileges. The recognition
of the state is too much politically influences on the International platform.
There have been many instances where the powerful states create obstructions in recognition
of a newly formed state. It can even be withdrawal when the recognising state feels that the
new state is not fulfilling the prerequisites for being a sovereign state. The recognition can be
done either by express form or implied form and its mode, i.e., de facto and de jure
recognition varies from case to case basis.
Belligerency and Insurgency
When a state goes in a state of belligerency where the rebels have a considerable control over
a substantial territory of nation, the rebels may be recognized by the existing state. Such
recognition is said to be recognition of belligerency.

There are following conditions by the movement of rebels to recognize by other states:

• That the movement shall be of a general character.

• That rebels shall have in possession a substantial part of the national territory.
• That they are giving respect and bind themselves for the warfare laws and other
international duties.
• That they have a proper force. If the above conditions have been fulfilled by rebels then
they may recognized by other existing states, and shall enjoy the international rights.
• The recognition by existing states the de facto authority over a large territory of the
rebels is said to be insurgency. In case of insurgency the rebels or the insurgents
occupy a large part of the national territory which was formerly governed by the
parent government. And if they are capable to control over that occupied part then the
existing states may recognize it.

Prior to recognize the insurgency it is necessary for the recognizing state to satisfy the
following conditions;
• Firstly, when insurgents occupies a considerable parent state’s territory,
• Secondly, they have a support from the majority of the citizens of the parent state,
• Thirdly, they are acting under a proper command and,
• Fourthly, they have good control over the occupied territory.
• When the in case of an insurgency the above requirements have been complied with
then it is on the discretion of the existing state weather to recognize or not.

International law has been transformed from a European-based system enabling sovereign
states to interact in a relatively limited number of areas to a truly international order with
profound and increasingly cooperative requirements. Globalization has ensured that the
doctrine of the sovereignty of states has in practice been modified, as the proliferation of
regional and global international organizations demonstrates. With the growing interaction of
states amongst each other, it only makes sense that the recognition of new upcoming states
turn beneficial to a few.

State Succession under International Law

Introduction
State succession refers to the merging of two or more States. It is different from government
succession in the sense that in government succession there’s a change of government
whereas in State succession the State loses control over its partial or whole territory. Art
2(1)(b) of the Vienna Convention on the succession of States in respect of treaties in 1978
defines the term State succession as ‘the replacement of one State by another in the
responsibility for the international relations of territory’.
In essence, it deals with the succession of one state with another and the transfer of rights and
obligations. This concept has assumed greater importance since World War II owing to its
effects on the legal obligations of the States.

Circumstances of State Succession

State succession can arise in a number of defined circumstances, which mirror the ways in
which political sovereignty may be acquired. They are:
Decolonization of all or part of an existing territorial unit: This refers to situations where
the nation partially or completely overcomes itself from the holding of a superior nation.
The dismemberment of an existing State: This refers to a situation when the territory of the
predecessor State becomes the territory of two or more new States who take over it.
Secession: This refers to a situation where a part of the State decides to withdraw from the
existing State.
Annexation: This refers to a situation where a State takes possession of another State.
Merger: This refers to the fusion of two or more free States into a single free State.

Types of State Succession

In each of these cases, a once-recognized entity disappears in whole or in part to be
succeeded by some other authority, thus precipitating problems of transmission of rights and
obligations. There are two types of State succession and they are discussed below:
Universal Succession
This is also referred to as Total Succession. When the entire identity of the parent State is
destroyed and the old territory takes up the identity of the successor State, it is known as
Universal Succession. This can happen in cases of:
• Merger
• Annexation
• Subjugation
In certain cases of universal succession, the old State gets divided into multiple States. The
dissolution of Czechoslovakia is an example of universal succession. The new States of the
Czech Republic and Slovakia are both successor States.

Partial Succession
Partial Succession occurs when a part of the territory of the State gets severed from the parent
State. This severed part now becomes an independent State. This can occur when there is a
civil war or a liberalization war.
There are two important examples of partial succession.
• One is the separation of Pakistan from India.
• The other is the separation of Bangladesh from Pakistan.
The existing States continued with their legal obligations and duties while the new States got
their own recognition and carried no rights or duties of the parent States.

Theories of State Succession

Universal Succession Theory
This is the oldest theory of succession propounded by Grotius, using the Roman analogy of
succession on the death of any natural person. According to this theory, the rights and duties
of the old State i.e., the predecessor State pass on to the new State i.e., the successor State
upon succession without any exceptions and modifications.
In fact, there are two justifications behind this theory.

First that the State and the Sovereign gain all their power from God and a mere change in
Government shouldn’t cause any change in the powers.
Second, it is permanent and nothing can cause it to secede.
The application of this theory can be seen in cases of fusion in the 20th century. The fusion of
Syria and Egypt, Somali Land and Somalia, Tanganyika and Zanzibar are examples of this.
However, this theory failed to get any attention from the majority of States from the world
and has also been criticized by scholars from the world due to its Roman law analogy, a poor
distinction between succession and internal change in governments, etc.

Popular Continuity Theory

The Popular Continuity Theory can be described as another version of the Universal
Succession theory that was propounded by Fiore and Fradier following the unification of the
German and Italian nationals. According to this theory, the State has a

Political personality: It basically refers to the rights and obligations of the State towards the
government.
Social personality: lt basically refers to the territory and the population of the State.
Hence, upon succession, the political personality gets changed whereas the social personality
remains intact. So, a State succession would not alter the rights and duties of the populace.

However, this theory has not found its application in any country outside Europe and also has
been criticised on the grounds that it functioned according to the municipal laws i.e, the local
laws, which is why it was difficult to understand the effect of State succession using this
theory.

Organic Substitution Theory

According to this theory, the rights and duties of the State continue even after succession by
another State. Von Gierke had published a paper in 1882 regarding The execution of rights
and obligations of a social body after its dissolution. It was from here that Max Huber derived
his organic substitution theory. Huber drew the analogy that the problem of State succession
was similar to that of dissolution of a social institution.

The factual element of the people and the territory have an organic bond i.e., the bond
between the people and elements of State and upon succession by a new sovereign, the
organic bond remains intact and only the juridical element changes. It offers a new
explanation to the continuity of rights and duties i.e., the substitution of a successor State in
the personality of its predecessor State. But, just like the other theories, this theory too has
had no practical application and has been criticized for the same.

Self Abnegation Theory

This theory was propounded in 1900 by Jellinek and is another version of the universal
theory of continuity. According to Jellinek, the successor State agrees to observe the rules of
international law and performs the obligations towards other States created under them.
Although, this theory considers that the performance of the international obligation, is merely
‘moral duty’ of the successor State, but at the same time it gives the right to the other States,
to insist upon the successor State to perform the existing obligation. If the successor State
refuses to accept, the other States may even withhold its recognition or make the recognition
conditional upon the acceptance of the predecessor’s commitment towards them.

Negative Theory
This theory was developed during the mid-19th and early 20th centuries. After World War II,
the jurists of the Soviet Nations started emphasizing on the right of self-determination and on
giving complete freedom to the States to maintain their international relations. According to
this theory, the successor State doesn’t absorb the personality of the predecessor State in its
political and economic interests.
Upon succession, the new State is completely free of the obligations of the predecessor State.
The successor State does not exercise its jurisdiction over the territory in virtue of a transfer
of power from its predecessor but it has acquired the possibility of expanding its own
sovereignty.

Communist Theory
According to the Communist Theory of State Succession, a successor State is burdened by
the economic and political commitments of the predecessor. Thus, this comes as something
completely contrary to the Negative Theory of State Succession and unlike the Negative
Theory, it doesn’t free the successor State from the obligations of the predecessor State.

The Successor State is bound to adhere to the commitments of the predecessor State. Political
commitments involve peace, war and territorial treaties and agreements while economic
commitments include any amount of money borrowed or lent. All these have to be fulfilled
by the new State.

Rights and Duties arising out of State Succession

The laws regarding State succession are still in a very nascent stage and keeps evolving with
the changing times. As seen above, along with the territorial and power transfers, there are
transfers with regard to duties too. This section gives a brief idea about the transfer and non-
transfer of political as well as non-political rights and duties.
Political Rights and Duties
• No succession takes place with regard to political rights and duties of the States.
• The peace treaties or the treaties of neutrality entered into by the previous State aren’t
binding on the new State.
• But the only exception here is in case of human rights treaties since it would be
desirable for the new State to adhere to such terms.
• Other than this, the new State would have to enter into new political treaties of its own.
Rights of Natives or Local Rights
• Unlike the political rights and duties, the local rights of the people do not secede with
the succession of the States.
• These rights refer to the rights such as property rights, land rights or rights relating to
railways, roads, water etc.
• In cases like these, the succeeding States are bound by the duties, obligations and rights
of the extinct State.
Fiscal Debts (State or Public Debts)
• These refer to the financial obligations or debts of the predecessor State. The successor
State is bound to pay back the debts of the predecessor State.
• This is because if the new State is enjoying the benefits of the loans, it becomes a moral
obligation as well to pay back the money.
• Next, if there is a split in the State then the entire debt amount gets divided between the
predecessor and successor State in accordance with the territory and population of
each.
Effect of State Succession on Treaties
The law on State succession with regard to treaties has for a long time been dominated by
two principles in general:
• One is the alleged principle of universal succession and
• The other is the tabula rasa approach i.e., clean State doctrine not granting State
succession to treaties.
While the former principal keeps in mind, the interests of third States regarding upholding or
not upholding treaties, the latter favours a rather strict understanding of sovereignty i.e.,
functions only according to the interests of the successor and predecessor State. Neither of
the two principles can, however, offer a practical solution for various scenarios where State
succession takes place. Accordingly, under customary international law more nuanced
solutions have been developed in the past or, at the least, are in the process of being formed.
The Vienna Convention on State Succession provides that:
• In case of the border treaties, no such significant changes would be observed and the
treaties would pass to the successor State.
• This is done keeping in mind the greater interests of the International Community.
Similarly, other forms of local treaties related to land, territory, etc. would also pass
on to the successor State upon succession.
• Treaties relating to Human Rights are passed on to the successors with all their rights,
duties and obligations. In the case of treaties relating to peace or neutrality, no
succession takes place.

Effect of State Succession on UN Membership

When Pakistan was separated from India, it claimed itself to be a member of the United
States since India was a member of the UN. The then Secretary-General of the UN had then
brought up the following:
• From the perspective of International Law, the circumstance is one in which part of the
State breaks off from the original State.
• When Pakistan separated from India, there was no change in the status of India. India
continued with all its treaties, rights and obligations.
• On the other hand, Pakistan didn’t have any of those rights or obligations and of course,
had lost the UN Membership.
• In International Law, the situation is similar to the separation of the Irish Free State
from Britain, and Belgium from the Netherlands. In these cases, the portion which
 separated was considered a new State, and the remaining portion continued as an
existing State with all the rights and duties which it had before.
• Thus, in the case of succession, the UN Membership doesn’t get transferred.

Conclusion
Given the current status of the law with regard to the idea of State succession, it can be very
well inferred that the law needs a lot more evolution and clarity. Even though lately, it has
been seen that there has been some consensus on certain levels and that succession doesn’t
necessarily lead to disruption in all legal practices and methods there is a lot more work that
needs to be done in this field.