Syllabus – PIL

MODULE - I
1. Introduction to International Law

1.1 Nature and development of international law

1.2. Is International Law Really Law?

1.3. The Traditional Schools of International Law

The Naturalist School

The Positivist School

1.4. The Modern Schools of International Law

The Third World's "Activist School"

References
R.P. Anand, Studies in International Law and History: An Asian Perspective. Holland;
Boston: Martinus Nijhoff Publishers, 2004.
Antony Anghie , Imperialism, Sovereignty and the Making of International Law,
Cambridge University Press, (2007).
C.G. Weeramantry, “International Law and the Developing World: A Millenial
Analysis” (Keynote address), HILJ, Vol 41, No2 2000, pp. 277-86

1.5. Subjects of International Law

References

Kate Parlett’s, The Individual in the International Legal System: Continuity and
Change in International Law, Cambridge University Press, (2011).
David Armstrong, Theo Farrell, Halane Lambert, International Law and International
Relations, Cambridge University Press,, (2007).
Christian Reus-Smit, (Eds.), The Politics of International Law, Cambridge University
Press, (2004).

MODULE – II
2. The Sources of International Law
2.1. Treaties and Conventions
2.2. Custom
Usus (usage)/state practice

cases:
THE PAQUETE HABANA, 175 U.S. 677 (1900)

Opinio juris sive necessitatis

cases:
1. Steamship Lotus (France v. Turkey) (1927), P.C.I.J. (Ser. A) No. 10
2. North Sea Continental Shelf Cases (FRG v. Denmark & Netherlands), [1969]
I.C.J. Rep. 3.
3. Continental Shelf (Libyan Arab Jamahiriya/Malta), I.C.J. Reports 1985, pp. 29-30,
para. 27.
4. Military Activities In and Against Nicaragua, [1986] I.C.J. Rep. 14. [pp. 97-98], [pp.
99-101], [pp. 106-109]

Exceptions to the Application of Custom

Persistent objector
cases:
1. Asylum Case (Columbia v. Peru), [1950] I.C.J. Reports 1950, p. 266
2. Fisheries Case United Kingdom of Great Britain and Northern Ireland v. Norway,
Judgment of 18 December 1951, ICJ Reports 1951, p. 116.

Regional or Special customary international law

cases:
1. Asylum Case (Columbia v. Peru), [1950] I.C.J. Reports 1950, p. 266
2. Right of Passage over Indian Territory Case, [1960] I.C.J. Reports 1960, p. 6.

Instant Custom

References
1. Bin Cheng, "United Nations Resolutions on Outer Space: 'Instant' International
Customary Law?" 5 Ind. J. Int'l 1. 23, 35, 36 (1965).
2. North Sea Continental Shelf Cases (FRG v. Denmark & Netherlands), [1969]
I.C.J. Rep. 3.

2.3. General Principles

MODULE - III
SUBSIDIARY SOURCES OF INTERNATIONAL LAW
3.1. Decisions of International Courts and Tribunals
3.2. Writings of Publicists

References
Brian Richardson, The Use of Vattel in the American Law of Nations, American
Journal of International Law, Vol. 106, (2012), pp. 547-571.
M. KOSKENNIEMI (ed), SOURCES OF INTERNATIONAL LAW, (Ashgate, 2000)
Ige F. Dekker, Harry H. G. Post, (Eds.), On the Foundations and Sources of
International Law, Cambridge University Press, (2003).

3.3. Jus Cogens

References
1. Joost Pauwelyn , Conflict of Norms in Public International Law, Cambridge
University Press, 2003
2. Christian J. Tams, Enforcing Obligations Erga Omnes in International Law,
Cambridge University Press, (2005).
3. Alexander Orakhelashvili, Peremptory Norms in International Law, Oxford
University Press, 2006.
4. Gennady M. Danilenko, “International Jus Cogens: Issues of Law-Making,”
European Journal
of International Law, vol. 2, No. 1.

Cases
1. The S.S. Wimbledon case, UK, France, Italy, Japan v. Germany, 1923 06 28:
Order (Intervention) (PCIJ, Ser. A., No. 1, 1923)
2. Barcelona, Traction Light and Power Co. Case, [1970] I.C.J. Rep. 3. 32, paras 33,
34, 35.
3. Military Activities In and Against Nicaragua, [1986] I.C.J. Rep. 14. [pp. 100-101]
4. Application of the Convention on the Prevention and Punishment of the Crime of
Genocide, Provisional Measures, Order of 13 September 1993, I.C.J. Reports 1993,
p. 325 [pp. 439-441 S.O. Lauterpacht].
5. East Timor case (Portugal v. Australia) Judgment - 30 June 1995, Judgment,
I.C.J. Reports 1995, p. 90 [p. 102]
6. Case Concerning Gabçíkovo-Nagymaros Project, [1997] I.C.J. Rep. 7. [pp. 117-
118 S.O. Weeramantry]

MODULE – IV
Law of Treaties
4.1-Formalities
4.2-Rule of Full Powers

cases:
1. Legal Status of Eastern Greenland Case (Denmark v. Norway), (1933) P.C.I.J.
Rep. (Ser. A/B) No. 53
2. Maritime Delimitation and Territorial Questions between Qatar and Bahrain,
Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1994, p. 112.
3. Land and Maritime Boundary between Cameroon and Nigeria, Preliminary
Objections, Judgment, I.C.J. Reports 1998, p. 275.

4.3-Means of expressing consent:

Signature, exchange of instruments, ratification and accession

References
1. P. Chandrasekhara Rao, The Indian Constitution and international law, Delhi,
Taxmann, (1995).
2. Indian and international law / edited by Bimal N. Patel
Leiden, Martinus Nijhoff, (2005).
3. M.K. Nawaz, The changing law of nations : an Indian focus, Calcutta, Eastern
Law House, (2000).
4. V.S. Mani, “Effectuation of International Law in the Municipal Legal Order : The
Law and Practice in India”, Asian Yearbook of International Law, Vol 5, 1997, pp.
145-74

MODULE - V
5. Law of Reservations
5.1-Law of Reservations
Reservations to the Convention on Genocide Case Advisory Opinion, [1951] I.C.J.
Reports 1951, p. 15.

5.2-Rules of Interpretation:
Textual, Teleological and historical approaches

cases:
1. Conditions of Admission of a State to Membership in the United Nations (Article 4
of Charter) Advisory Opinion of 28 May 1948, ICJ Reports 1948, p. 57.
2. Competence of the General Assembly for the admission of a state to the United
Nations, Advisory Opinion of 3 March 1950, ICJ Reports 1950, p. 4.
3. Reparation for injuries suffered in the service of the United Nations, Advisory
Opinion, [1949] I.C.J. Reports 1949, p. 174.
4. Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter),
Advisory Opinion, I.C.J. Reports 1962, p. 157.

5.3-Grounds for Invalidity

a. Provisions of internal law regarding competence to conclude treaties
b. Specific restrictions on authority to express the consent of a State
c. Error
d. Fraud
e. Corruption of a representative of a State
f. Coercion of a representative of a State
g. Coercion of a State by the threat or use of force
h. Emergence of a new peremptory norm (a jus cogens) of international law.

5.4-Grounds for termination of treaties:

Material breach, Supervening impossibility of performance and Fundamental change
of circumstances

cases:
1. Case Concerning Gabçíkovo-Nagymaros Project, (Hungary / Slovakia) Judgment
of 25 September 1997 I.C.J. Reports 1997, p. 7.
2. Namibia Case Advisory Opinion, 1970 I.C.J. Reports 1971, p. 16
3. Diversion of Water from the Meuse Case (1937), P.C.I.J. (Ser A/B) No. 70.

References
1. Anthony Aust, Modern Treaty Law and Practice, 2nd Edition, Cambridge
University Press,, (2007).
2. I.M. Sinclar “The Vienna Convention on the Law of Treaties” (USA Manchester
University Press, 1973)

MODULE VI
6. States
6.1 Territorial Sovereignty
6.2. Acquisition of Territory by states

References
James R. Crawford, The Creation of States in International Law, Second Edition,
Oxford University Press, 2006
Martti Koskenniemi, The future of statehood, Harvard International Law Journal,
1991,p. 397
Sharon Korman, The Right of Conquest: The Acquisition of Territory by Force in
International Law and Practice, Clarendon Press, (1996), pp.344.
Thomas D. Grant, Defining statehood: the Montevideo Convention and its
discontents, Columbia journal of transnational law, 1999,p. 403
CASES

Legal Status of Eastern Greenland Case (Denmark v. Norway), (1933) P.C.I.J. Rep.
(Ser. A/B) No. 53
Island of Palmas (Miangas) Case, Netherlands v. United States, Permanent Court of
Arbitration (1928), 2 U.N. Rep. Int'l Arbitral Awards 829.

6.3. Recognition of States and Governments

References
M.J. Peterson, Recognition of governments should not be abolished, American
journal of international law, 1983.
John Dugard, Recognition in International Law ( Cambridge: Grotius Publications
Ltd., 1987),
Thomas D. Grant, East Timor, the U.N. system, and enforcing non-recognition in
international law, Vanderbilt journal of transnational law, 2000.
David Turns, The Stimson Doctrine of non-recognition: its historical genesis and
influence on contemporary international law, Chinese journal of international law,
2003.

Cases
Tinoco Arbitration (G.B. v. Costa Rica) (1923) 1 R.I.A.A. 375

MODULE – VII
7. State Responsibility
7.1-The nature of state responsibility
7.2-Imputability
7.3-Circumstances precluding wrongfulness
7.4-Legal consequences of an internationally wrongful act

James Crawford, The International Law Commission's Articles on State

Responsibility, Cambridge University Press, (2002).

Corfu Channel Case (Merits) (U.K. v. Albania), [1949] I.C.J. Rep. 4.

U.S. Diplomatic and Consular Staff in Tehran Case, [1980] I.C.J. Rep. 3

Military Activities In and Against Nicaragua, [1986] I.C.J. Rep. 14.

UNITED NATIONS SECRETARY-GENERAL: RULING ON THE RAINBOW
WARRIOR AFFAIR BETWEEN FRANCE AND NEW ZEALAND 26 I.L.M. 1346
(1987)

Rainbow Warrior (New Zealand/France), UNRIAA, vol. XX, p. 217 (1990).

Case Concerning Gabçíkovo-Nagymaros Project, [1997] I.C.J. Rep. 7. [pp. 38-42,
54],
Notes

Principal subjects of the international law are nations, and not individuals. International Law
– Private (Conflict of laws) and Public International Law deals with relations between states
– war, trade, satellites, human rights etc.

- No law making body, UNGA – but resolutions not binding

- No court, ICJ – not both parties should agree to submit the dispute and no binding
decision.
- No executive, UNSC but constrained by veto powers

Austin considered IL as positive morality

Role of Force.

No unified system – only sanctions by individual states, UNSC can’t because of difference in
opinion b/w great powers – exception of Korea. Right to self-defence – but not part of the
system as individual states use it.

The International System

Horizontal in nature – states create the law themselves to obey or disobey

“However, such violations (like armed attacks and racial oppression) are well publicised and

strike at the heart of the system, the creation and preservation of international peace and
justice. But just as incidents of murder, robbery and rape do occur within national legal
orders without destroying the system as such, so analogously assaults upon international legal
rules point up the weaknesses of the system without denigrating their validity or their
necessity. Thus, despite the occasional gross violation, the vast majority of the provisions of

international law are followed.”

Why states follow IL

- A common vocabulary, common frame of reference, opposite views or

interpretations, however some common frame of reference – brings certainty
- Reciprocity – diplomatic immunity
 - Helps in lobbying, neutral or friendly states might support a nation on the basis of an
international law principle
- Formulation of international business in characteristically legal terms - Points of view
and disputes, in particular, are framed legally with references to precedent,
international agreements and even the opinions of juristic authors. Claims are pursued
with regard to the rules of international law and not in terms of, for example, morality
or ethics.

Why is International Law Binding?

Contract theory - The nineteenth century, with its business-oriented philosophy, stressed the
importance of the contract, as the legal basis of an agreement freely entered into by both (or
all) sides, and this influenced the theory of consent in international law.32 States were
independent, and free agents, and accordingly they could only be bound with their own
consent. There was no authority in existence able theoretically or practically to impose rules
upon the various nation- states. This approach found its extreme expression in the theory of
auto-limitation, or self- limitation, which declared that states could only be obliged to comply
with international legal rules if they had first agreed to be so obliged.

Criticism of contract theory - One current approach to this problem is to refer to the
doctrine of consensus. This reflects the influence of the majority in creating new norms of
international law and the acceptance by other states of such new rules. It attempts to put into
focus the change of emphasis that is beginning to take place from exclusive concentration
upon the nation-state to a consideration of the developing forms of international co-operation
where such concepts as consent and sanction are inadequate to explain what is happening

One current approach to this problem is to refer to the doctrine of consensus. This reflects the
influence of the majority in creating new norms of international law and the acceptance by
other states of such new rules. It attempts to put into focus the change of emphasis that is
beginning to take place from exclusive concentration upon the nation-state to a consideration
of the developing forms of international co-operation where such concepts as consent and
sanction are inadequate to explain what is happening.
Development of International Law

Positivist – Only states are subjects of international law – changed with time, Tokyo trials
punished individuals of war crimes, Yugoslav and Rwanda War Crimes Tribunal and
International Criminal Court. Development of UNDHR.

UN has a separate identity under IL – ICJ Advisory Opinion to bring action against Israel for
killing of UN official. Same for ILO and FAO – therefore, non-state entities are also subject
to IL.

Regional organisations like NATO, BRICS have also come into the picture.

Modern Theories and IL

- Complex relationship between idealism and realism, things ought to be and way
things are – whether legal theory should incorporate ethical standards or confine itself
to an analysis of the law it stands is a vital one.
- Positivism – law is devoid of ethical standards.

A. Kelsen – politics, sociology and history should not be incorporated in law – pure
theory of law. Grundnorm, normative science – science of norms.

“One of the prime rules of this category is pacta sunt servanda declaring that agreements
must be carried out in good faith and upon that rule is founded the second stage within the
international legal order. This second stage consists of the network of norms created by
international treaties and conventions and leads on to the third stage which includes those
rules established by organs which have been set up by international treaties, for instance,
decisions of the International Court of Justice.”

Criticims-

1. It merely repeats that states which obey rules ought to obey those rules
2. Monist stance taken by kelsen while its not – there is also interaction of municipal law
with IL
 B. Hart

Hart comprehends law as a system of rules, based upon the interaction of primary and
secondary rules. The former, basically, specify standards of behaviour while the latter
provide the means for identifying and developing them and thus specify the constitutional
procedures for change. Primitive societies would possess only the primary rules and so would
be characterised by uncertainty, inefficiency and stagnation, but with increasing
sophistication the secondary rules would develop and identify authority and enable the rules
to be adapted to changing circumstances in a regular and accepted manner.28 The
international legal order is a prime example of a simple form of social structure which
consists only of the primary rules, because of its lack of a centralised legislature, network of
recognised courts with compulsory jurisdiction and organised means of enforcement.

Natural Law

Introduction

 Decline of positivism in the last century due to social unrest and disintegration of old
certainties.
 Law began to reflect societal pressures, leading to new theories about law’s role in
society.

1. Rise of Sociological Jurisprudence

 Key Characteristics:
o Examined sociological phenomena's impact on legal systems.
o Focus on judicial behavior and practical application of rules.
o Emphasis on empirical studies (especially in the U.S.).
 Roscoe Pound's View:
o Defined law as social engineering, balancing societal interests efficiently.
o Rejection of conceptual approaches in favor of functional analysis.
o Focused on actual courtroom practices, claims, and resolutions.
 Shift in Legal Study:
o Law seen as a method of social control.
o Allied with sociology, psychology, and anthropology.
 o Historical and ethical factors took a minor role.

2. The Rise of Legal Realism

 Key Principles:
o Law treated as a functional institution within a community.
o Critique of Kelsen’s closed logical system for being detached from practical
law.
o Required understanding of court behavior and legal officials' conduct.
o Field studies and technical dissections became central.

3. Revival of Natural Law

 Emerging Context:
o Grew in response to the search for meaning and an ethical foundation in law.
o Inspired by disillusionment with unjust laws, especially post-Nazi era.
 Key Approaches:
o Traditional Natural Law (Aquinas): Emphasized dignity of man, supremacy
of reason, and eternal law of God.
o Stammler’s “Natural Law with Changing Content”:
 Contrasted abstract, formal concept of law with purpose-driven idea of
law.
 Adjusted for varying social and cultural contexts.
o Sociological Natural Law (Gény and Duguit):
 Rejected formalism; focused on universal physical, psychological,
social, and historical factors.
 Radbruch’s Theory:
o Advocated opposing unjust laws through higher Natural Law principles.

4. Influence on International Law

 Revival of Natural Law coincided with growing interest in international justice.

 Ethical standards in international law:
o Principles of non-aggression.
o Foundation of human rights norms.
 o Influence on the creation of international institutions.

Conclusion

 The decline of positivism led to practical and interdisciplinary approaches like

sociological jurisprudence and realism.
 Revival of Natural Law provided an ethical dimension to law, especially relevant in
shaping international law principles.