EXAM CAPSULE

Prepared by Law Exam Destination (LED)

(DU LLB semester exam material)
Subject – Public International Law

Ahmad Khan
History Honours, JMI
M.A. History, HCU (NET Qualified)
LLB, DU

Shweta Suman
Zoology Honours, MU
LLB, DU
 Topic - 1
(Principal Reading)

Case - Reparation for Injuries Suffered in the Service of

the United Nations Case. ICJ Rep.1949
Fact -
Observation & Judgement:
➢ The International Court of Justice in 1949 delivered an Advisory Opinion14 in which it
stated that the United Nations was a subject of international law and could enforce its
rights by bringing international claims, in this case against Israel following the
assassination of Count Bernadotte, a United Nations official.
➢ Such a ruling can be applied to embrace other international institutions, like the
International Labour Organization and the Food and Agriculture Organization, which
each have a judicial character of their own.
➢ Thus, while states remain the primary subjects of international law, they are now joined
by other non-state entities, whose importance is likely to grow even further in the future.
➢ The Court held that the UN had international legal personality because this was
indispensable in order to achieve the purposes and principles specified in the Charter. In
other words, it was a necessary inference from the functions and rights the organisation
was exercising and enjoying.
➢ The court recognized the legal personality of international institutions in certain cases.
➢ Since the nineteenth century a growing number of such organisations have appeared and
thus raised the issue of international legal personality. In principle it is now well
established that international organisations may indeed possess objective international
legal personality.
 Topic - 2
(Principal Reading)

Case - Lotus Case (France v. Turkey), PCIJ, 1927

Fact - The French ship S.S. Lotus had collided on the high sea with the Turkish vessel Boz
Kourt, killing thereby eight Turkish nationals. When the Lotus arrived in Turkish waters,
criminal proceedings were instituted in the Turkish courts against the captain of Lotus along with
the captain of Boz Kourt for manslaughter and sentenced. The French Government protested
against the Turkish action, and by an agreement between the parties, the dispute was submitted
to the Permanent Court of International Justice.
France raised two main contentions: (i) international law does not allow a State to take
proceedings with regard to offences committed by foreigners abroad simply by reason of the
nationality of the victim, and (ii) international law recognizes the exclusive jurisdiction of the
flag State over events occurring on board a ship on the high seas.
Issue – Does international law allow a State to take proceedings with regard to offences
committed by foreigners abroad simply by reason of the nationality of the victim?
Observation & Judgement:
➢ The Court, while rejecting the French contention that on the question of criminal
jurisdiction in cases of collision on the high seas, only the flag State is competent to
exercise jurisdiction, referred to several municipal decisions and found no uniformity on
the matter.
➢ The international tribunals also quite often resort to municipal laws to ascertain whether a
customary rule of international law has evolved by concurrent and cumulative State
practice.
➢ There is no restriction on the exercise of jurisdiction by any State unless that restriction
can be shown by the most conclusive evidence to exist as a principle of international law.
➢ Jurisdiction is certainly territorial, it cannot be exercised by a State outside its territory
except by virtue of a permissive rule derived from international custom or from a
convention.
 ➢ It held that “the offence produced its effects on the Turkish vessel and consequently in a
place assimilated to Turkish territory in which the application of Turkish criminal law
cannot be challenged, even in regard to offences committed there by foreigners”.
➢ The French government, although able to show that jurisdiction normally followed the
flag, was unable to establish that international law recognises the exclusive jurisdiction of
the flag State over incidents occurring on the high seas.
➢ Court observed that if “a guilty act committed on the high seas produces its effects on a
vessel flying another flag or in foreign territory, the same principles must be applied as if
the territories of two different States were concerned, and the conclusion must therefore
be drawn that there is no rule of international law prohibiting the State to which the ship
on which the effects of the offence have taken place belongs, from regarding the offence
as having been committed in its territory and prosecuting, accordingly, the delinquent”

Case - North Sea Continental Shelf Cases, ICJ Rep. 1969

Fact - The dispute was related to the delimitation of the continental shelf between the Federal
Republic of Germany and Denmark on the one hand and between the Federal Republic of
Germany and Netherlands on the other.
Both Denmark and Netherlands argued that delimitation of continental shelf should be done
based on “equidistance-special circumstances principle” as laid down in Article 6(2) of the
Geneva Convention of Continental Shelf of 1958. Both were parties to Geneva Convention
whereas Germany signed the Convention but never ratified it. Germany argued that delimitation
should be done in such a way that every State gets a “just and equitable share” of the available
continental shelf in proportion to the length of its sea frontage.
Alternatively, the Germany claimed that if equidistance method were held applicable, the
configuration of the German North Sea coast constituted special circumstances such as to justify
a departure from that method of delimitation in this particular case.
Denmark and Netherlands argued that even if there was at the date of the Geneva Convention no
rule of customary international law in favour of the equidistance principle, and no such rule was
crystallised in Article 6 of the Convention, nevertheless such a rule has come into being since the
Convention, partially because of its own impact, partially on the basis of subsequent State
practice, and that this rule, being now a rule of customary international law binding on all States,
including Germany, should be declared applicable to the delimitation of the boundaries between
the parties’ respective continental shelf areas in the North Sea.
Observation & Judgement:
➢ The States concerned agreed to draw or did draw the boundaries concerned according to
the principle of equidistance. There is no evidence that they so acted because they felt
legally compelled to draw them in this way by reason of a rule of customary law obliging
 them to do so — especially considering that they might have been motivated by other
obvious factors.
➢ The Court accordingly concluded that if the Geneva Convention was not in its origins or
inception declaratory of a mandatory rule of customary international law enjoining the
use of the equidistance principle for the delimitation of continental shelf areas between
adjacent States, neither has its subsequent effect been constitutive of such rule; and that
State practice up-to-date has equally been insufficient for the purpose.
➢ In the present case, the number of ratifications and accessions so far was hardly
sufficient.
➢ As regards the time element, all the passage of only a short period of time was not
necessarily a bar to the formation of a new rule of customary international law on the
basis of what was originally a purely conventional rule, it was indispensable that State
practice during that period including that of States whose interests were specially
affected, should have been both extensive and virtually uniform in the sense of the
provision invoked and should have occurred in such a way as to show a general
recognition that a rule of law was involved.
➢ The Court consequently concluded that the Geneva Convention was not in its origins or
inception declaratory of a mandatory rule of customary international law enjoining the
use of equidistance principle, its subsequent effect had not been constitutive of such a
rule, and State practice up to date had equally been insufficient for the purpose.

Case - Right of Passage over Indian Territory (Merits)

(Portugal v. India), ICJ Rep. 1960
Fact - Portugal claimed the right of passage with respect to two of its enclaves Dadra and Nagar-
Aveli which were surrounded by territory of India and the coastal district of Daman. It was stated
by Portugal that Government of India prevents it from exercising that right of passage due to
which it became impossible for it to exercise its rights of sovereignty over the enclaves.
Portugal relied on the treaty of Poona of 1779 and on Sanads (decrees) issued by the Maratha
ruler in 1783 and 1785, as having conferred on Portugal sovereignty over the enclaves with the
right of passage to them.
Observation & Judgement:
➢ Further, it was found by Court that only a revenue tenure called a jagir or saranjan was
granted to Portugal and not the sovereignty. There was, therefore, no question of any
right of passage for the purpose of exercising sovereignty over enclaves.
 ➢ However, the Court found that British recognized Portuguese sovereignty over the
villages and subsequently it was tacitly recognized by India.
➢ The Court observed that a local custom might be established between two States on the
basis of long practice.
➢ The Court found it a common ground between the Parties that during the British and
post-British periods, the passage of private persons and civil officials have not been
subject to any restrictions beyond routine control. Merchandise other than arms and
ammunition had also passed freely subject only at certain times, to customs regulations
and such regulation and control as were necessitated by consideration of securities or
revenue.
➢ The Court was, therefore, of the view that no right of passage in favour of Portugal
involving a correlative obligation on India had been established in respect of armed
forces, armed police and arms and ammunition.

Case - Advisory Opinion of ICJ on the Effect of Awards

of Compensation made by the United Nations
Administrative Tribunal , 1954
Fact - Certain members of United Nations Secretariat were discharged by Secretary General
from the services of United Nations without their assent.
The UN Administrative Tribunal gave several awards in favour of these employees. The General
Assembly submitted this matter to ICJ for advisory opinion to know whether “Having regard to
the Statute of the United Nations Administrative Tribunal and to any other relevant instruments
and to the relevant records, has the General Assembly the right on any grounds to refuse to give
effect to an award of compensation made by that Tribunal in favour of a staff member of the
United Nations whose contract of service has been terminated without his assent?”
Observation & Judgement:
➢ The Court examined certain provisions of the Statute of UN Administrative Tribunal to
know its character. Article 2(1) of the Statute provided that it “shall be competent to hear
and pass judgment upon applications alleging nonobservance of contract of employment
of staff members of the Secretariat of the United Nations or of the terms of appointment
of such staff member.”
➢ Article 2(3) prescribes that “in the event of a dispute as to whether the Tribunal has
competence, the matter shall be settled by the decision of the Tribunal”. It is further
prescribed that “the judgment shall be final and without appeal”, “the judgment shall state
the reasons on which they are based.”
 ➢ The Court stated that the examination of the relevant provisions of the statute shows that
the Tribunal is established, not as an advisory organ or a mere subordinate committee of
the General Assembly, but as an independent and judicial body pronouncing final
judgments without appeal within the limited field of its functions.
➢ According to a well-established and generally recognised principle of law, a judgment
rendered by such a judicial body is res judicata and has binding force between the parties
to the dispute.
➢ The parties to the dispute before the tribunal were the staff members and United Nations
Organisation. The judgment, according to Article 10 of the Tribunal Statute was final and
without appeal. The Statute provided no kind of review.
➢ The Court held that the obligatory character of these awards had been established by the
authority of res judicata and the binding effect of the judgments of this Tribunal upon the
United Nations Organisation.

Case - Temple of Preah Vihear Case (Merits) (Cambodia

v. Thailand), 1962
Fact - The subject of dispute was sovereignty over the region of the Temple of Preah Vihear.
The boundary between Cambodia (then a protectorate of France) and Thailand (then Siam) in the
area of Preah Vihear was to be determined by a Treaty between France and Siam of 13 February
1904. The treaty stated that it was to follow the watershed line and provided for the details to be
worked out by a Mixed Franco-Siamese Commission. Survey was conducted by the
Commission. These maps were completed by a team of French officers, some of whom had been
members of the Mixed Commission.
The maps were never approved by the Commission which did not meet again after the map had
been prepared. In the map, the area of Preah Vihear was shown on Cambodian side. Cambodia
principally relied on this map in support of her claim to sovereignty over the temple. Thailand,
on the other hand contended that the map, not being the work of the mixed Commission, had no
binding character.
Observation & Judgement:
➢ The Court concluded that at its inception, it had no binding character. It was clear from
the record, however, that the maps were communicated to the Siamese Government as
proposing to represent the outcome of the work of delimitation, since there was no
reaction on the part of the Siamese authorities, either than or for many years, they must
be held to have acquiesced.
 ➢ The Court held: It is an established rule of law that the plea of error cannot be allowed as
an element vitiating consent if the party advancing it contributed by its own conduct to
the error, or could have avoided it, or if the circumstances were such as to put that party
on notice of a possible error.
➢ The Court considers that the character and qualifications of the persons who saw the
Annex I map on the Siamese side would alone make it difficult for Thailand to plead
error in law. These people include the members of the very Commission of Delimitation
within whose competence this sector of the frontier had lain.
➢ Furthermore, in 1930, Siamese Prince Damrong visited that disputed area and was
officially received thereby the French resident at a ceremony at which the French flag
was flown, and Siamese failed to react. The Court concluded that Thailand had accepted
the map and was precluded by her conduct from asserting that she did not accept it.

Case - Advisory Opinion of ICJ on the Legality of the

Threat or Use of Nuclear Weapons, 1996
Fact -
Observation & Judgement:
➢ The Court observed that General Assembly resolutions, even if they are not binding, may
sometimes have normative value. They can, in certain circumstances, provide evidence
important for establishing the existence of a rule or the emergence of an opinio juris.
➢ To establish whether this is true of a given General Assembly resolution, it is necessary
to look at its content and the conditions of its adoption. It is also necessary to see whether
an opinio juris exists as to its normative character. Or a series of resolutions may show
the gradual evolution of the opinio juris required for the establishment of a new rule.
➢ The Court further observed that: the General Assembly resolution put before the Court
declare that the use of nuclear weapons would be “a direct violation of the Charter of the
United Nations”; and in certain formulations that such use “should be prohibited”.
➢ The focus of these resolutions has sometimes shifted to diverse related matters; however,
several of the resolutions under consideration in the present case have been adopted with
substantial numbers of negative votes and abstentions; thus, although those resolutions
are a clear sign of deep concern regarding the problem of nuclear weapons, they still fall
short of establishing the existence of an opinio juris on the illegality of the use of such
weapons.
➢ Jus cogens, therefore, is a superior law that voids derogatory transactions between States,
whether effected through a written agreement or through practice. Very few norms of
international law could acquire the status of jus cogens. A very strong evidence of State
practice is required for a norm to become jus cogens. The question whether a norm is part
of the jus cogens relates to the legal character of the norm.
 Case - Advisory Opinion of ICJ in Accordance with
International Law of the Unilateral Declaration of
Independence in Respect of Kosovo
Fact -
Observation & Judgement:
➢ When interpreting Security Council resolutions, the Court must establish, on a case-by-
case basis, considering all relevant circumstances, for whom the Security Council
intended to create binding legal obligations. The language used by the resolution may
serve as an important indicator in this regard.
 Topic - 3
(Principal Reading)

Case - In Re Berubari Union No. (I), 1960

Fact – A reference was made by the President of India under Article143 (1) of the Constitution
of India on the implementation of the Indo-Pakistan Agreement relating to Berubari Union and
Exchange of Enclaves.
The Agreement provided for the division of Berubari Union No. 12 in such a way that half of it
would go to Pakistan and the other half adjacent to India would be retained by it. Apart from
that, the Agreement also provided for the exchange of old Cooch-Behar Enclaves in Pakistan and
Pakistan Enclaves in India without claim to compensation for extra area going to Pakistan, as
agreed.
Observation & Judgement:
➢ The Supreme Court was of the view that the agreement amounted to cession or alienation
of a part of Indian territory and was not a mere ascertainment or determination of the
boundary.
➢ To implement the aforesaid agreement, the Court held that the Agreement amounts to a
cession of a part of the territory of India in favour of Pakistan; and so its implementation
would naturally involve the alteration of the content of and the consequent amendment of
Article 1 and of the relevant part of the First Schedule to the Constitution, because such
implementation would necessarily lead to the diminution of the territory of the Union of
India. Such an amendment can be made under Article 368. … acting under Article 368
Parliament may make a law to give effect to, and implement, the agreement in question
covering the cession of a part of Berubari Union 12 as well as some of the Cooch-Behar
Enclaves which by exchange are given to Pakistan.
 ➢ Parliament may, however, if it so chooses, pass a law amending Article 3 of the
Constitution so as to cover cases of cession of the territory of India in favour of a foreign
State. If such a law is passed, then Parliament may be competent to make a law under the
amended Article 3 to implement the agreement in question.
➢ On the other hand, if the necessary law is passed under Article 368 itself that alone would
be sufficient to implement the agreement.
➢ Further, no amendment in the Constitution is required where a part of Indian territory is
transferred on the lease to a foreign country, as it does not amount to abandonment of
sovereignty.

Case - Ram Kishore Sen v. Union of India, 1966

Fact -
Observation & Judgement:
➢ Where on the occasion of partition, a part of Pakistani’s territory was not delivered to it
as per the Radcliff Award due to some mistake, transferring it back to Pakistan by India
did not require any amendment in the Constitution as it was not a cession of Indian
territory in favour of Pakistan.
➢ Where the territory involved was de jure Pakistan’s territory awarded to it under the
Radcliffe Award, but de facto was with India. The Court observed that in this case no
cession of Indian territory is involved but it is only to restore Pakistan what belonged to it
and hence no legislation was needed.

Case - Jolly George Varghese v. Bank of Cochin, 1980

Fact - The question was whether the personal freedom of the judgment-debtors can be held in
ransom until repayment of the debt, and if section 51 read with O XXI rule 37 of the Civil
Procedure Code (CPC) does warrant such a step, whether the provision of law is constitutional,
tested on the touchstone of fair procedure under Article 21 and in conformity with the inherent
dignity of the human person in the light of Article 11 of the International Covenant on Civil and
Political Rights.
Observation & Judgement:
➢ The Supreme Court in this case concurred with the Law Commission of India in its
construction of section 51 of the CPC.
 ➢ However, if he once had the means but now has not, or if he has money now on which
there are other pressing claims, it is violative of the spirit of Article 11 to arrest and
confine him in jail so as to coerce him into payment.
➢ The court stated that it follows that quondam affluence and current indigence without
intervening dishonesty or bad faith in liquidating his liability can be consistent with
Article 11 of the Covenant, because then no detention is permissible under section 51
CPC.
➢ The court further stated that to be poor is no crime and to recover debts by the procedure
of putting one in prison is too flagrantly violative of Article 21 of the Constitution unless
there is proof of the minimal fairness of his wilful failure to pay in spite of his sufficient
means and absence of more terribly pressing claims on his means such as medical bills to
treat cancer or other grave illness.
➢ From the national point of view the municipal law alone counts in its application and
interpretation, it is generally a recognized principle in national legal system that in the
event of doubt the national rule is to be interpreted in accordance with the State’s
international obligations.

Case - Vellore Citizens’ Welfare Forum v. Union of

India, 1996
Fact -
Observation & Judgement:
➢ After referring to various constitutional and statutory provisions, the Supreme Court held
that the Precautionary Principle and the Polluter Pays Principle are part of the
environmental law of the country.
➢ Even otherwise once these principles are accepted as part of the Customary International
Law there would be no difficulty in accepting them as part of the domestic law.
➢ It is almost an accepted proposition of law that the rules of Customary International Law
which are not contrary to the municipal law shall be deemed to have been incorporated in
the domestic law and shall be followed by the courts of law.
➢ International law is also considered as part of the law of the land in certain States. In
India, international customary law is considered as part of the law of the land.
➢ Court came very close to accepting the ‘incorporation doctrine’ in the matter of
environmental law - ‘Precautionary Principle’ and ‘Polluter Pays Principle’ as part of
domestic law by stating that, “once these principles are accepted as part of Customary
International law there would be no difficulty in accepting them as part of the domestic
law”.
 Case - Vishaka v. State of Rajasthan, 1997
Fact - The issue before the Supreme Court was regarding ‘sexual harassment’ of women at the
workplace. The Convention on the Elimination of All Forms of Discrimination Against Women
(CEDAW) and the Resolution of the Fourth World Conference on Women were relied upon by
the court to construe the nature and ambit of constitutional guarantee of gender equality.
Observation & Judgement:
➢ The Supreme Court stated that international conventions and norms having relevance in
this field have assumed significance in application and judicial interpretation.
➢ In the absence of domestic law occupying the field, to formulate effective measures to
check the evil of sexual harassment of working women at all workplaces, the contents of
international conventions and norms are significant for the purpose of interpretation of
the guarantee of gender equality, right to work with human dignity in Articles 14, 15,
19(1) (g) and 21 of the Constitution and the safeguards against sexual harassment implicit
therein.
➢ Any international convention not inconsistent with the fundamental rights and in
harmony with its spirit must be read into these provisions to enlarge the meaning and
content thereof, to promote the object of the constitutional guarantee.
➢ This is implicit from Article 51(c) and the enabling power of Parliament to enact laws for
implementing the international conventions and norms by virtue of Article 253 read with
Entry 14 of the Union List in Seventh Schedule of the Constitution.
➢ Article 73 also is relevant. It provides that the executive power of the Union shall extend
to the matters with respect to which Parliament has power to make laws. The executive
power of the Union is, therefore, available till Parliament enacts legislation to expressly
provide measures needed to curb evil.
➢ The court further stated that gender equality includes protection from sexual harassment
and right to work with dignity, which is a universally recognised basic human right. The
common minimum requirement of this right has received global acceptance.
➢ The international conventions and norms are to be read into them in the absence of
enacted domestic law occupying the field when there is no inconsistency between them.
➢ It is now an accepted rule of judicial construction that regard must be had to international
conventions and norms for construing domestic law when there is no inconsistency
between them and there is a void in the domestic law.

Case - Justice K S Puttaswamy (Retd.) v. Union of India,

2017
Fact -

Topic - 4
(Principal Reading)

Case - Nicaragua Case (Nicaragua v. USA) ICJ Rep.1986

Fact -
Issue - Whether the conduct of the contras was attributable to the United States so as to hold the
latter generally responsible for breaches of international humanitarian law committed by the
contras.
Observation & Judgement:
➢ The ICJ observed that for a new customary rule to be formed, not only must the acts
concerned amount to a settled practice, but they must be accompanied by the opinio juris
sive necessitatis.
➢ Either the States taking such action or other States in a position to react to it, must have
behaved so that their conduct is “evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e.,
the existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitates.
➢ The Court further stated that the principles such as those of the non-use of force, non-
intervention, respect for the independence and territorial integrity of States, and the
freedom of navigation, continue to be binding as part of customary international law,
 despite the operation of provisions of conventional law in which they have been
incorporated.
➢ The Court, while referring to the occasional violations of the principle of non-
intervention, stated: “The court does not consider that for a rule to be established as
customary, the corresponding practice must be in absolutely rigorous conformity with the
rule.
➢ In order to deduce the existence of customary rules ... the conduct of States should, in
general, be consistent with such rules and that instances of State conduct inconsistent
with a given rule should generally have been treated as breaches of that rule and not as
indication of the recognition of a new rule.
➢ There are no grounds for holding that when customary international law is comprised of
rules identical to those of treaty law, the latter ‘supervenes’ the former so that the
customary international law has no further existence of its own.

Case - La Grand Case (Germany v. United States of

America) ICJ Reports, 2001
Fact -
Observation & Judgement:
➢ The ICJ concluded that Article 36(1) of Vienna Convention on Consular Relations of
1963 creates individual rights, which, by virtue of Article 1 of the Optional Protocol, may
be invoked in this Court by the national State of the detained person.
➢ The Court considers in this respect that if the United States, notwithstanding its
commitment [to ensure implementation of the specific measures adopted in performance
of its obligations under Article 36, paragraph 1(b) of Vienna Convention on Consular
Relations, 1963], should fail in its obligation of consular notification to the detriment of
German nationals, an apology would not suffice in cases where the individuals concerned
have been subjected to prolonged detention or convicted and sentenced to severe
penalties.
➢ In the case of such a conviction and sentence, it would be incumbent upon the United
States to allow the review and reconsideration of the conviction and sentence by taking
account of the violation of the rights set forth in the Convention. This obligation can be
carried out in various ways. The choice of means must be left to the United States.
➢ It follows that where the sending State is unaware of the detention of its nationals due to
the failure of the receiving State to provide the requisite consular notification without
delay, it is to be considered that the sending State has been prevented for all practical
purposes from exercising its rights under Article 36, paragraph 1.
 Case - Armed Activities on the Territory of The Congo
(Democratic Republic of the Congo v Uganda), 2022
Fact -

Draft - ILC Draft Code on Responsibility of States for

Internationally Wrongful Acts, 2001
Read this draft from the casemate.

Topic - 5
(Principal Reading)

Case - Anglo-Norwegian Fisheries Case (United

Kingdom v. Norway), ICJ Rep. 1951
Fact - The coastline of Norway was deeply indented by fjords and sunds (sound) and was
fronted by a fringe of islands and rocks (the skjaergaard) which was close to mainland. Norway
measured its territorial sea not from the low-water mark but from the straight baselines linking
the outermost points of land along it.
United Kingdom challenged the legality of Norway’s straight baseline system as Norway
enclosed waters within its territorial sea that would have been high seas.
Observation & Judgement:
➢ The Court concluded that the method of straight lines, established in the Norwegian
system, was imposed by the peculiar geography of the Norwegian coast; that even before
the dispute arose, this method had been consolidated by a constant and sufficiently long
practice, in the face of which the attitude of Governments bears witness to the facts that
they did not consider it to be contrary to international law.
➢ The Court considered that historical data produced lend some weight to the idea of the
survival of traditional rights reserved to the inhabitants of the Kingdom over fishing
grounds included in the 1935 delimitation.
 ➢ Such rights, founded on the vital needs of the population and attested by ancient and
peaceful uses, may legitimately be taken into account in drawing a line which, moreover,
appears to the Court to have been kept within the bounds of what is moderate and
reasonable.
➢ The Court finally held that the method employed by Norway to delimit its territorial
waters was not contrary to international law. The principle of straight baseline was
subsequently adopted in Geneva Convention on Territorial Waters and Contiguous Zone
of 1958 and U.N. Convention on Law of the Sea, 1982.
➢ Although the Court upheld the validity of straight baselines in international law, it made
clear that the coastal State does not have an unfettered discretion as to how it draws
straight baselines, and it laid down a number of conditions governing the drawing of such
baselines.
1. First, such lines must be drawn so that they do “not depart to any appreciable extent from
the general direction of the coast”.
2. Secondly, they must be drawn so that the “sea areas lying within these lines are
sufficiently closely linked to the land domain to be subject to the regime of internal
waters”.
3. Thirdly, the Court stated that it is legitimate to take into account “certain economic
interests peculiar to a region, the reality and importance of which are clearly evidenced
by a long usage”.
➢ The rules enunciated by the Court were eventually incorporated in Geneva Convention on
Territorial Waters and Contiguous Zone, 1958 as well as in the UN Convention on Law
of the Sea, 1982.

Case - Corfu Channel Case, ICJ Rep. 1949

Fact - Britain claimed against Albania for the substantial damage suffered by two of its warships
while passing through the Corfu Channel which, at the time, was heavily mined.
Observation & Judgement:
➢ The Court took into account the circumstantial evidence to arrive at a conclusion. It
stated that “this indirect evidence is admitted in all systems of law, and its use is
recognized by international decisions”.
➢ It held Albania liable towards the United Kingdom, for the loss suffered by its warships
by Albania’s violation of its international obligations to inform all shipping of the
presence of mines in the Corfu Channel “on certain general and well recognized
principles.
 ➢ ICJ held the omission on the part of Albania, that it knew, or must have known, of the
presence of the mines in its territorial waters and did nothing to warn third States of their
presence, was a sufficient basis for Albanian responsibility.
➢ Albania was held liable for its failure to warn the United Kingdom of the presence of
mines in Albanian waters which had been laid by a third State.
➢ The International Court of Justice, while holding Albania responsible on the basis of
evidence that Albania had the knowledge of mine-laying and its failure to give warning in
this regard in breach of its international obligations.
➢ The principle of sic utere tuo has been judicially pronounced in the Corfu Channel case
where the Court stated that every State is obliged "not to allow knowingly its territory to
be used for acts contrary to the rights of other States".

Case - North Sea Continental Shelf Cases, ICJ Rep. 1969

Fact - the dispute was related to the delimitation of the continental shelf between the Germany
and Denmark on the one hand and between the Germany and Netherlands on the other. Both
Denmark and Netherlands argued that delimitation of continental shelf should be done on the
basis of “equidistance-special circumstances principle” as laid down in Article 6(2) of the
Geneva Convention of Continental Shelf of 1958.
Both of them were parties to Geneva Convention whereas Germany signed the Convention but
never ratified it. Germany argued that delimitation should be done in such a way that every State
gets a “just and equitable share” of the available continental shelf in proportion to the length of
its sea frontage.
Denmark and Netherlands argued that even if there was at the date of the Geneva Convention no
rule of customary international law in favour of the equidistance principle, and no such rule was
crystallised in Article 6 of the Convention, nevertheless such a rule has come into being since the
Convention, partially because of its own impact, partially on the basis of subsequent State
practice, and that this rule, being now a rule of customary international law binding on all States,
including Germany, should be declared applicable to the delimitation of the boundaries between
the parties’ respective continental shelf areas in the North Sea.
Observation & Judgement:
➢ The Court observed that not only must the acts concerned amount to a settled practice,
but they must also be such, or be carried out in such a way as to be evidence of a belief
that this practice is rendered obligatory by the existence of a rule of law requiring it.
➢ The need for such a belief, i.e. the existence of a subjective element, is implicit in the
very notion of the opinio juris sive necessitatis. The States concerned must therefore feel
that they are conforming to what amounts to a legal obligation.
 ➢ The States concerned agreed to draw or did draw the boundaries concerned according to
the principle of equidistance. There is no evidence that they so acted because they felt
legally compelled to draw them in this way by reason of a rule of customary law obliging
them to do so — especially considering that they might have been motivated by other
obvious factors.
➢ The Court accordingly concluded that if the Geneva Convention was not in its origins or
inception declaratory of a mandatory rule of customary international law enjoining the
use of the equidistance principle for the delimitation of continental shelf areas between
adjacent States, neither has its subsequent effect been constitutive of such rule; and that
State practice up-to-date has equally been insufficient for the purpose.
➢ In the present case, the number of ratifications and accessions so far was hardly
sufficient. As regards the time element, all the passage of only a short period of time was
not necessarily a bar to the formation of a new rule of customary international law on the
basis of what was originally a purely conventional rule, it was indispensable that State
practice during that period including that of States whose interests were specially
affected, should have been both extensive and virtually uniform in the sense of the
provision invoked and should have occurred in such a way as to show a general
recognition that a rule of law was involved.
➢ Some 15 cases had been cited in which the States concerned had agreed to draw or had
drawn the boundaries concerned according to the principle of equidistance, but there was
no evidence that they had so acted because they had felt legally compelled to draw them
in that way by reason of a rule of customary law. The cases cited were in inconclusive
and insufficient evidence of a settled practice.
➢ The Court consequently concluded that the Geneva Convention was not in its origins or
inception declaratory of a mandatory rule of customary international law enjoining the
use of equidistance principle, its subsequent effect had not been constitutive of such a
rule, and State practice up to date had equally been insufficient for the purpose.

Case - Libya v. Tunisia Continental Shelf Case, 1982

Fact - Both the parties were of the opinion that delimitation of continental shelf should be done
in accordance with equitable principles and by taking account of all relevant circumstances.
Observation & Judgement:
➢ The Court stated that the equitableness of a principle must be assessed in the light of its
usefulness for the purpose of arriving at an equitable result. It is not every such principle
which is in itself equitable; it may acquire this quality by reference to equitableness of the
solution.
➢ The principles to be indicated by the Court have to be selected according to their
appropriateness for reaching an equitable result. … the term “equitable principles” cannot
 be interpreted in the abstract; it refers back to the principles and rules which may be
appropriate in order to achieve an equitable result.
➢ The Court observed that since the two countries abutted on a common continental shelf,
physical criterion was of no assistance for the purpose of delimitation. The application of
the equidistance method could not, in the particular circumstances of the case, lead to an
equitable result, and in such a case, the delimitation can be effected on the basis of
"equitable principles", taking into account all the relevant circumstances.
➢ Court, deciding on the basis of custom as neither state was a party to the 1958
Convention, emphasised that ‘the satisfaction of equitable principles is, in the
delimitation process, of cardinal importance.
➢ The Court did consider the comparability of coastal lengths in the case as part of the
process of reaching an equitable boundary, and used the disparity of coastal lengths of the
parties as a reason for adjusting the median line so as to attribute a larger shelf area to
Libya.

Case - Republic of Italy v. Union of India, 2013

Fact -

Case - Maritime Delimitation in the Indian Ocean

(Somalia v Kenya) ICJ Rep 2021
Fact -
 Topic - 6
(Principal Reading)

Case - Abu Salem v. State of Maharashtra, 2011

Fact - Abu Salem, along with his girl-friend Monica Bedi, was extradited to India in 2005 from
Portugal, after the Indian government gave a solemn assurance before the Portuguese court that
if convicted, they would not be sentenced to death. The assurance was given since European law
prohibits extradition of any accused to such a country where capital punishment is in vogue.
Abu Salem was accused of Mumbai blasts of 1993 and was trailed by the CBI from the United
States to Portugal. As there was no extradition treaty between India and Portugal, political
considerations played a major role in extradition.
Indian government sought his extradition under the United Nations Convention on Suppression
of Terrorism of 2000 under which all member-nations have to help each other in the war against
terrorism. Portugal and India are both signatories to the Convention.
Observation & Judgement:
➢ The term ‘extradition’ denotes the process whereby under a concluded treaty one State
surrenders to any other State at its request, a person accused or convicted of a criminal
offence committed against the laws of the requesting State, such requesting State being
competent to try the alleged offender.
➢ Though extradition is granted in implementation of the international commitment of the
State, the procedure to be followed by the courts in deciding, whether extradition should
be granted and on what terms, is determined by the municipal law of the land.
➢ Extradition is founded on the broad principle that it is in the interest of civilized
communities that criminals should not go unpunished and on that account it is recognized
as a part of the comity of nations that one State should ordinarily afford to another State
assistance towards bringing offenders to justice.
➢ The doctrine of speciality is recognised in section 21 of the Indian Extradition Act of
1962. The speciality doctrine is a universally recognised principle of international law
and partakes of doctrines of both double criminality and reciprocity.
➢ Extradition is different from deportation by which competent State authorities order a
person to leave a country and prevent him from returning to the same territory. Thus,
deportation basically is a non-consensual exercise whereas extradition is based on a
consensual treaty obligation between the requesting State and the requested State.
➢ Indeed, a country does not need a treaty to decide that a fugitive found within its
jurisdiction should be extradited to another country that requests extradition. It can do so
even by exercise of executive discretion.

Case - Arrest and Restoration of Savarkar (France/Great

Britain), 1911
Fact - Savarkar escaped from the British ship bringing him to India, was apprehended by the
French Police at the port of Marcelese and handed over to the captain of the British ship. The
French Government demanded his return, on the ground that he was wrongly handed over
without the rules of extradition being strictly observed.
Observation & Judgement:
➢ The Permanent Court of Arbitration held that though international law does not impose
any obligation to extradite, if extradited, even in an irregular manner, the receiving State
is not bound to return the fugitive.
 Topic - 7
(Principal Reading)

Case - Case Concerning U.S. Diplomatic and Consular

Staff in Tehran, 1980
Fact - A large number of students and demonstrators in Iran took forcible possession of US
Embassy in Tehran on 4 November 1979 in protest of admitting deposed Shah of Iran in United
States for medical treatment. The security forces instead of dispersing them and evacuating the
embassy, simply disappeared from the scene.
50 diplomatic and consular staff members were taken hostages and achieves and documents were
seized by the demonstrators. All other United States consulates in Iran were similarly occupied.
Observation & Judgement:
➢ By a number of provisions of the Vienna Conventions of 1961 and 1963, Iran was placed
under the most categorical obligations, as a receiving State, to take appropriate steps to
ensure the protection of the United States Embassy and consulates, their staffs, their
archives, their means of communication and the freedom of movement of the members of
their staffs.
➢ In the view of the Court, the obligation of the Iranian Government here in question are
not merely contractual obligations established by the Vienna Conventions of 1961 and
1963, but also obligations under general international law.
➢ The Court decided that Iran had violated obligations owed by it to the United States of
America under international conventions in force between the two countries, as well as
under long-established rules of general international law.
➢ The Court further decided that Iran must immediately take all steps to release the
hostages and return the premises, documents, etc. to the United States. In addition, the
Court decided that Iran was under an obligation to make reparation to the United States.
➢ ICJ stated that “the institution of diplomacy, with its concomitant privileges and
immunities, has withstood the test of centuries and proved to be an instrument essential
for effective cooperation in the international community, and for enabling States,
irrespective of their differing constitutional and social systems, to achieve mutual
understanding and to resolve their differences by peaceful means.
➢ Where diplomatic and consular relations are maintained between the States, the receiving
State is not to discriminate between the States as far as the application of the provisions
of the Vienna Convention is concerned.
➢ Discrimination does not result —
(a) where the receiving State applies any of the provisions of the Vienna Convention restrictedly
because of a restrictive application of that provision to its mission in the sending State;
(b) whereby custom or agreement States extend to each other more favourable treatment than is
required by Vienna Convention.

Case - Jadhav Case (India v Pakistan), ICJ Rep. 2019

Fact - While requesting for remedies before ICJ, India referred to Article 14 of the International
Covenant on Civil and Political Rights, 1966 (Covenant) to support its requests. India stated that
in accordance with the rule reflected in Article 31, paragraph 3(c) of the Vienna Convention on
the Law of Treaties, 1969 the Covenant may be taken into account, together with the context, for
the interpretation of the Vienna Convention on Consular Relations, 1963.
Observation & Judgement:
➢ The remedy to be ordered in this case has the purpose of providing reparation only for the
injury caused by the internationally wrongful act of Pakistan that falls within the Court’s
jurisdiction, namely its breach of obligations under Article 36 of the Vienna Convention
on Consular Relations, and not of the Covenant.
➢ The Court in this case found that: the appropriate reparation in this case consists in the
obligation of the Islamic Republic of Pakistan to provide, by the means of its own
choosing, effective review and reconsideration of the conviction and sentence of Mr.
Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the
violation of the rights set forth in Article 36 of the Convention.
➢ The International Court of Justice while rejecting Pakistan’s contention, concluded that,
when interpreted in accordance with the ordinary meaning to be given to the terms of the
Vienna Convention on Consular Relations in their context and in the light of its object
and purpose, Article 36 of the Convention did not exclude from its scope certain
categories of persons, such as those suspected of espionage.
➢ The International Court of Justice noted that India and Pakistan were not parties to the
1969 Vienna Convention on the Law of Treaties. Therefore, the Court had to interpret the
Vienna Convention on Consular Relations according to the customary rules of treaty
interpretation which, according to Court were reflected in Articles 31 and 32 of the
Vienna Convention on the Law of Treaties.