Unit I — Nature, Sources & Subjects of International Law

“The French steamer S.S. Lotus collided with a Turkish ship on the high seas. Eight Turkish sailors drowned. Turkey arrested the French officer. France screamed: You have no jurisdiction!” — S.S. Lotus Case, PCIJ (1927) — the case that forced the world to ask: does International Law actually bind sovereign States?

What is International Law? — Definitions

✅ KSLU preferred: Starke’s definition — it includes States, International Organisations, and individuals, reflecting modern IL.

Old vs New Definition — Side by Side

graph TD
    A[International Law Defined] --> B[OLD View: Oppenheim 1905]
    A --> C[NEW View: Starke and Fenwick]
    B --> B1[Only Sovereign States]
    B --> B2[Only Customs and Treaties]
    B --> B3[Only between Civilized States]
    C --> C1[States + IOs + Individuals]
    C --> C2[Customs + Treaties + General Principles + Judicial Decisions]
    C --> C3[All 193 UN member States equally]
    C --> C4[Jus Cogens and Erga Omnes obligations]

Nature of International Law — Key Characteristics

1. No world legislature — there is no parliament making IL for all States
2. No compulsory court — ICJ jurisdiction is consent-based (except Security Council referrals)
3. No police force — enforcement depends on collective pressure, sanctions, or military action
4. Decentralised — each State is simultaneously subject and enforcer
5. Binding despite weaknesses — States overwhelmingly comply because of reciprocity and self-interest

Is International Law Real Law? — The Austin Debate

flowchart LR
    Q[Is IL Real Law?] --> AUSTIN[Austin: NO]
    Q --> MODERN[Modern Jurists: YES]
    AUSTIN --> A1[Law = command of a sovereign]
    AUSTIN --> A2[No world sovereign above States]
    AUSTIN --> A3[No effective sanction = no law]
    AUSTIN --> A4[IL is merely positive morality]
    MODERN --> M1[UN Charter Art 25 - UNSC decisions are binding]
    MODERN --> M2[ICJ, ICC, ITLOS are functioning courts]
    MODERN --> M3[Art 38 ICJ Statute codifies sources like a legal system]
    MODERN --> M4[States comply 99% of the time - Henkin]
    MODERN --> M5[Sanctions exist - economic, diplomatic, military]
    MODERN --> HART[H.L.A. Hart - IL is primitive law, not no law]

Counter to Austin — Point by Point

Verdict: IL is a primitive but real legal system — it lacks centralised enforcement but is not mere morality. (H.L.A. Hart)

Sources of International Law — Article 38, ICJ Statute

flowchart TD
    ART38[Article 38 - ICJ Statute] --> PRIMARY[Primary Sources]
    ART38 --> SUBSIDIARY[Subsidiary Sources]
    PRIMARY --> T[Treaties and Conventions]
    PRIMARY --> C[International Custom]
    PRIMARY --> GP[General Principles of Law]
    SUBSIDIARY --> JD[Judicial Decisions - subsidiary]
    SUBSIDIARY --> JW[Writings of Jurists - subsidiary]
    T --> T1[UN Charter, UNCLOS, Geneva Conventions, VCLT]
    C --> C1[State Practice + Opinio Juris]
    GP --> GP1[Good faith, Res Judicata, Equity]
    JD --> JD1[ICJ, PCIJ - not binding as precedent but persuasive]
    JW --> JW1[Oppenheim, Starke, Grotius]

1. Treaties

• The most important source in modern IL — like statutes in domestic law
• Only binding on parties who have signed and ratified (pacta tertiis nec nocent nec prosunt)
• Governed by Vienna Convention on Law of Treaties, 1969
• Examples: UN Charter (1945), UNCLOS (1982), Geneva Conventions (1949)

2. Custom — Two Essential Elements

North Sea Continental Shelf Cases (ICJ, 1969): Custom requires (1) State practice — widespread, consistent, and general; and (2) Opinio Juris — belief that the practice is legally obligatory, not merely courteous.

3. General Principles of Law

Principles common to most domestic legal systems — applied in IL when treaties and custom are silent:

• Good faith (bona fides)
• Res judicata — final judgment is binding
• Ne bis in idem — no double jeopardy
• Equity and unjust enrichment
• Due process

4. Judicial Decisions (Subsidiary)

• ICJ judgments are binding only on parties to that case (Art 59, ICJ Statute)
• But carry great persuasive authority — cited in subsequent cases
• Key cases: S.S. Lotus, Corfu Channel, North Sea Continental Shelf, Nicaragua

5. Writings of Jurists (Subsidiary)

• Grotius (Father of IL), Vattel, Oppenheim, Starke, Brierly
• Used to fill gaps — not binding but respected by courts

Jus Cogens — Peremptory Norms (VCLT Art 53)

Jus Cogens = norms so fundamental that no derogation is permitted even by treaty.

Any treaty that conflicts with a jus cogens norm is void ab initio — Art 53 VCLT.

Erga Omnes Obligations

Barcelona Traction Case (ICJ, 1970): Some obligations are owed to the international community as a whole — not just to the other party to a treaty. These are erga omnes obligations.

Examples: prohibition of genocide, slave trade, racial discrimination — all States have legal interest in enforcing these.

Municipal Law vs International Law

Monism vs Dualism

India’s Approach — Dualist

flowchart LR
    TREATY[India signs a Treaty] --> PARLIAMENT[Parliament must enact legislation]
    PARLIAMENT --> DOMESTIC[Treaty becomes enforceable in Indian courts]
    TREATY -- Without enactment --> NOT[NOT enforceable in Indian courts]
    ART51[Art 51 - DPSP - Foster IL] --> DIRECTIVE[Directive, not justiciable]
    ART253[Art 253 - Parliament can legislate for any treaty] --> DOMESTIC

Vishaka v. State of Rajasthan (1997): Supreme Court used CEDAW (an unratified convention) as guidance — not as binding law. Confirms India’s dualist approach but allows persuasive use.

Subjects of International Law

flowchart TD
    S[Subjects of International Law] --> FULL[Full Subjects - Complete Legal Personality]
    S --> PARTIAL[Partial Subjects - Limited Personality]
    FULL --> S1[States - primary and original subjects]
    FULL --> S2[United Nations and major IOs - Reparations Case 1949]
    PARTIAL --> P1[Individuals - human rights law, war crimes, ICC]
    PARTIAL --> P2[NGOs and MNCs - limited recognition in investment treaties]
    PARTIAL --> P3[Insurgents and Belligerents - if recognised]
    PARTIAL --> P4[Holy See - Vatican - sui generis]
    PARTIAL --> P5[Mandated and Trust Territories]

States as Subjects — Characteristics

• Sovereignty — supreme power internally, equality externally
• Legal equality — Art 2(1) UN Charter: sovereign equality of all States
• Rights: treaty-making, legation, sue in ICJ, self-defence
• Duties: non-interference, settle disputes peacefully, respect human rights

International Organisations as Subjects

Reparations for Injuries Case (ICJ, 1949): UN has international legal personality — it can bring claims against States for injuries to its agents. “The subjects of law in any legal system are not necessarily identical in their nature or in the extent of their rights.”

Individuals as Subjects

• Nuremberg Trials (1945): Individuals are directly responsible under IL for war crimes, crimes against humanity, genocide
• ICC (Rome Statute, 1998): Prosecutes individuals — not States
• Human rights treaties: Create direct rights for individuals against their own States

Hard Law vs Soft Law

✏️ Sample Solved Problem (IRAC Method)

Problem: State X has enforced a 50-mile fishing zone for 80 years. Neighbouring States have silently allowed it. State Y (a new neighbour) fishes inside the zone and is arrested. Y argues UNCLOS gives a 200-mile EEZ standard. Decide. (Frequently asked in KSLU)

I — Issue

Whether X’s 80-year practice of a 50-mile fishing zone has crystallised into a binding customary rule of International Law applicable to State Y, a new State that never accepted this local custom.

R — Rule

• Article 38(1)(b), ICJ Statute — Custom = general practice accepted as law
• Two elements: State practice + Opinio Juris — North Sea Continental Shelf Cases (1969)
• Persistent Objector Doctrine — a State that openly objects to a forming custom is not bound
• Right of Passage Case (Portugal v. India, ICJ 1960) — bilateral local custom is possible and binding only between parties to it
• New States — not bound by local customs they never accepted

A — Analysis

State X has 80 years of consistent practice (state practice ✓) and silent acquiescence of neighbours creates opinio juris (✓). This is a valid local custom between X and its original neighbours. However, State Y is a new State that never participated in this regional practice and never expressly or tacitly accepted the 50-mile zone. Under the Right of Passage principle, a local custom binds only those who accepted it. Y was never part of the regional arrangement. The Persistent Objector Doctrine further protects Y if it has raised objections promptly.

C — Conclusion

State X’s 50-mile zone is a valid local custom binding on original neighbouring States that acquiesced. But it cannot be automatically imposed on State Y, which never accepted it. Y may invoke both the Persistent Objector Doctrine and the general UNCLOS regime (200 nm EEZ) which it is entitled to enjoy as a new State. State Y likely wins the jurisdictional challenge.

📄 The full PDF bundle has 7 more IRAC problems for Unit I — including the Lotus Defence, UNSC resolution in domestic courts, treaty vs custom hierarchy, jus cogens conflict, and more. Get the Notes + Question Bank bundle — ₹199