Public International Law I: Definition, Nature and Basis, Sources, Recognition, Nationality, Refugees and IDPs, and Extradition and Asylum

Unit III is "Public International Law and IHL". This chapter takes its first five items: the definition, nature and basis of international law; its sources; the recognition of States and governments; nationality, immigrants, refugees and internally displaced persons; and extradition and asylum. The questions set on this material are usually about Article 38 of the Statute of the International Court of Justice, the leading cases of the ICJ and its predecessor, and India's position on treaties it has not joined. The next chapter takes the United Nations, dispute settlement, the WTO and international humanitarian law.

1. Definition, nature and basis

Oppenheim defined international law as the body of customary and conventional rules considered legally binding by civilised States in their intercourse with each other. The definition is now too narrow: international organisations and, for some purposes, individuals and corporations are also its subjects, as the ICJ recognised for the United Nations in the Reparation for Injuries advisory opinion (1949). Whether it is "law" at all was doubted by Austin, who called it positive morality because it has no sovereign and no sanction. The answer given by Hart is that it lacks secondary rules of a developed system but is still a set of rules accepted as binding; most States obey most of it most of the time.

Nature and basis: the debates
QuestionPositions
Basis of obligationConsent (positivism: States are bound only by what they agree to, expressly in treaties or tacitly in custom) versus natural law (a higher law binds States); modern practice adds jus cogens, which no consent can displace
Relation to municipal lawMonism (one legal order; international law may prevail) versus dualism (two separate orders; international law needs transformation into domestic law)
India's practiceBroadly dualist for treaties: Article 253 lets Parliament legislate to implement them, and Jolly George Varghese v Bank of Cochin (1980) held that an unincorporated treaty does not override domestic law; but Vishaka v State of Rajasthan (1997) read international conventions into fundamental rights where there is no inconsistent domestic law, and Article 51(c) directs respect for international law
⚠️ Jus cogens and erga omnes are not the same
Jus cogens (Article 53, Vienna Convention on the Law of Treaties 1969) is a peremptory norm from which no derogation is permitted; a treaty conflicting with it is void. Obligations erga omnes are owed to the international community as a whole, so every State has an interest in their protection (Barcelona Traction, 1970). The prohibition of genocide is both, but the concepts answer different questions: validity versus standing.

2. Sources: Article 38 of the ICJ Statute

Article 38(1) of the Statute of the International Court of Justice directs the Court to apply (a) international conventions, (b) international custom, as evidence of a general practice accepted as law, (c) the general principles of law recognised by civilised nations, and (d), subject to Article 59, judicial decisions and the teachings of the most highly qualified publicists as subsidiary means for the determination of rules of law. Article 38(2) allows a decision ex aequo et bono if the parties agree. Article 59 provides that a decision binds only the parties and in respect of that case, so there is no formal stare decisis.

Leading cases on custom
CaseRule on custom
S.S. Lotus (France v Turkey), PCIJ 1927Restrictions on States are not presumed; abstention from prosecution is custom only if based on a sense of legal duty
Asylum case (Colombia v Peru), 1950A regional custom must be proved by the party relying on it, as constant and uniform usage
Anglo-Norwegian Fisheries (UK v Norway), 1951A persistent objector is not bound by a custom it has consistently opposed during its formation
North Sea Continental Shelf, 1969Custom needs both State practice (widespread and representative, including specially affected States) and opinio juris; a treaty rule can generate custom
Nicaragua v United States, 1986Customary law exists alongside identical treaty law; the prohibition of the use of force is customary
  • Treaties are governed by the Vienna Convention on the Law of Treaties 1969: pacta sunt servanda (Article 26), interpretation in good faith by ordinary meaning in context and in the light of object and purpose (Article 31), and fundamental change of circumstances, rebus sic stantibus (Article 62).
  • General principles include good faith, estoppel, res judicata and the duty to make reparation (Chorzów Factory, PCIJ 1928).
  • General Assembly resolutions are not a formal source but may evidence opinio juris; so may the work of the International Law Commission.

3. Recognition of States and governments

The Montevideo Convention on the Rights and Duties of States (1933), Article 1, lists the criteria of statehood: a permanent population, a defined territory, a government, and capacity to enter into relations with other States. Whether recognition by others is also required divides two theories. The constitutive theory holds that a State exists as an international person only when recognised; the declaratory theory, now dominant and reflected in Article 3 of the Montevideo Convention, holds that statehood is a fact and recognition merely acknowledges it.

Kinds, effects and doctrines of recognition
ConceptMeaning
De facto and de jure recognitionProvisional acknowledgement of effective control versus full, formal recognition; de facto recognition may later be upgraded
Express and implied recognitionA formal declaration versus conduct such as concluding a bilateral treaty or establishing diplomatic relations
Retroactive effectRecognition relates back to the date the recognised authority came into control, validating its acts (Luther v Sagor, 1921)
Tobar doctrine (1907)Governments coming to power by unconstitutional means should not be recognised until constitutionally legitimised
Estrada doctrine (1930)Mexico's rejection of express recognition of governments as interference; it simply continues or withdraws diplomatic relations
Stimson doctrine (1932)Non-recognition of situations brought about by the unlawful use of force, formulated after Japan's occupation of Manchuria
💡 Birth certificate, not birth
On the declaratory view recognition is like a birth certificate: it records a child already born and is strong evidence of the fact, but its absence does not mean the child does not exist. On the constitutive view the certificate itself confers existence, which leads to the awkward result that an entity can be a State for some countries and not for others.

4. Nationality, immigrants, refugees and internally displaced persons

Nationality is the legal bond between a person and a State. Each State decides who its nationals are, by descent (jus sanguinis), birth on its territory (jus soli), naturalisation or registration, but other States need not recognise a nationality that lacks a genuine connection: in the Nottebohm case (Liechtenstein v Guatemala, 1955) the ICJ refused to let Liechtenstein exercise diplomatic protection for a naturalised national whose real ties were with Guatemala. In India, citizenship is governed by Articles 5 to 11 and the Citizenship Act 1955; the Citizenship (Amendment) Act 2019, whose rules were notified in March 2024, provides an accelerated path for specified non-Muslim communities from Afghanistan, Bangladesh and Pakistan who entered India on or before 31 December 2014.

Refugees and IDPs
InstrumentContentIndia
Convention Relating to the Status of Refugees 1951A refugee is a person outside his country owing to a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion; Article 33 prohibits refoulementNot a party
Protocol Relating to the Status of Refugees 1967Removed the 1951 Convention's temporal limit (events before 1 January 1951) and optional geographical limitNot a party
Guiding Principles on Internal Displacement 1998Soft-law standards for persons displaced within their own country; the African Union's Kampala Convention (2009) is the first binding regional treaty on IDPsDisplacement is dealt with under domestic law and Article 21
ℹ️ How India protects refugees without the Convention
Foreigners are governed by statute, now chiefly the Immigration and Foreigners Act 2025, which replaced the Foreigners Act 1946, the Passport (Entry into India) Act 1920 and related laws. The Supreme Court has held that Article 21 protects every person, citizen or not: in National Human Rights Commission v State of Arunachal Pradesh (1996) it restrained the forcible expulsion of Chakma refugees. Non-refoulement is argued to be customary international law, but Indian courts have not treated it as an enforceable domestic right.

5. Extradition and asylum

Extradition is the surrender of an accused or convicted person by one State to another. There is no general duty to extradite without a treaty or reciprocal arrangement. Its principles are double criminality (the act must be an offence in both States), speciality (the person may be tried only for the offence for which he was surrendered), the political offence exception (usually excluding terrorism and serious violence), and in many States the non-extradition of nationals. India's law is the Extradition Act 1962. Asylum is the protection a State gives on its territory (territorial asylum, an incident of sovereignty; Article 14 of the Universal Declaration gives a right "to seek and to enjoy" asylum, not to be granted it) or in its embassy abroad (diplomatic asylum, which the ICJ in the Asylum case held is not a general right in the absence of a special rule).

  • The Savarkar case (France v Great Britain, Permanent Court of Arbitration, 1911): Britain was not bound to return Savarkar, who had escaped at Marseilles and been handed back by a French policeman, because no rule required restitution in those circumstances.
  • Aut dedere aut judicare, extradite or prosecute: multilateral conventions on terrorism and torture impose it; the ICJ applied the Convention against Torture's version in Belgium v Senegal (2012).
  • The UN Declaration on Territorial Asylum (1967) calls on States not to reject at the frontier, expel or return persons seeking asylum from persecution.
🧠 Extradition versus deportation
Extradition answers another State's request to try or punish a person; deportation removes an unwanted foreigner in the deporting State's own interest. A question about speciality or double criminality is about extradition.

Key takeaways

  • Article 38(1) of the ICJ Statute: treaties, custom, general principles, and judicial decisions and publicists as subsidiary means; Article 59 denies formal precedent.
  • Custom needs State practice and opinio juris (North Sea Continental Shelf, 1969); regional custom must be proved (Asylum case, 1950); a persistent objector is not bound (Anglo-Norwegian Fisheries, 1951).
  • Montevideo (1933): population, territory, government, capacity for relations; the declaratory theory dominates; Tobar, Estrada and Stimson are the doctrines of recognition.
  • Nottebohm (1955) requires a genuine link; India is not a party to the 1951 Refugee Convention or the 1967 Protocol but protects all persons under Article 21.
  • Extradition rests on treaty and on double criminality, speciality and the political offence exception (Extradition Act 1962); asylum is territorial or diplomatic.

Practice questions (10)

Attempt each one before opening the answer. Every explanation names the tempting wrong option as well as the right one, because that is where marks are lost.

  1. Which provision lists the sources of international law that the International Court of Justice applies?

    1. Article 38(1) of the ICJ Statute
    2. Article 53 of the Vienna Convention on the Law of Treaties
    3. Article 2(4) of the UN Charter
    4. Article 36(2) of the ICJ Statute
    Show answer

    Answer: A — Article 38(1) of the ICJ Statute

    Article 38(1) lists conventions, custom, general principles and the subsidiary means. Article 2(4) of the Charter prohibits the use of force, Article 53 of the Vienna Convention defines jus cogens, and Article 36(2) is the optional clause on jurisdiction.

  2. The requirement of a "genuine link" between an individual and the State claiming him as a national was laid down in:

    1. The Asylum case (1950)
    2. The Nottebohm case (1955)
    3. The Lotus case (1927)
    4. The Barcelona Traction case (1970)
    Show answer

    Answer: B — The Nottebohm case (1955)

    In Nottebohm the ICJ held Liechtenstein could not protect a naturalised national whose effective connection was with Guatemala. Lotus concerns jurisdiction and the proof of custom, Asylum regional custom and diplomatic asylum, and Barcelona Traction corporate nationality and obligations erga omnes.

  3. Assertion (A): India is not a party to the Refugee Convention of 1951. Reason (R): Foreigners in India have no protection under Article 21 of the Constitution. Choose the correct option.

    1. Both A and R are true, and R is the correct explanation of A
    2. Both A and R are true, but R is not the correct explanation of A
    3. A is true, but R is false
    4. A is false, but R is true
    Show answer

    Answer: C — A is true, but R is false

    A is true: India has joined neither the 1951 Convention nor the 1967 Protocol. R is false: Article 21 applies to "any person", and the Supreme Court used it in the Chakma case (1996) to restrain forcible expulsion.

  4. Which doctrine rejects the express recognition of governments as an interference in internal affairs?

    1. The Stimson doctrine
    2. The Tobar doctrine
    3. The Estrada doctrine
    4. The Monroe doctrine
    Show answer

    Answer: C — The Estrada doctrine

    Mexico's Estrada doctrine (1930) avoids pronouncing on the legitimacy of governments. Tobar (1907) withholds recognition from unconstitutional governments, Stimson (1932) refuses recognition of gains made by force, and Monroe is a foreign-policy doctrine on European intervention in the Americas.

  5. Which of the following are criteria of statehood under Article 1 of the Montevideo Convention (1933)? Select all that apply.

    1. A defined territory
    2. A permanent population
    3. Capacity to enter into relations with other States
    4. Membership of the United Nations
    Show answer

    Answer: A — A defined territory; B — A permanent population; C — Capacity to enter into relations with other States

    The four criteria are population, territory, government and capacity for relations. UN membership is not a criterion; many States existed before joining, and admission itself presupposes statehood.

  6. The rule that a State which has consistently objected to a customary rule during its formation is not bound by it was affirmed in:

    1. Anglo-Norwegian Fisheries case (1951)
    2. Reparation for Injuries (1949)
    3. Chorzów Factory case (1928)
    4. North Sea Continental Shelf cases (1969)
    Show answer

    Answer: A — Anglo-Norwegian Fisheries case (1951)

    The ICJ noted that Norway had always opposed the ten-mile rule for bays, so it could not be applied against Norway. North Sea is on practice and opinio juris, Reparation on the UN's personality, and Chorzów Factory on reparation.

  7. Which of the following are recognised principles of extradition law? Select all that apply.

    1. Mandatory extradition for purely political offences
    2. A general customary duty to extradite without any treaty
    3. Double criminality
    4. Speciality
    Show answer

    Answer: C — Double criminality; D — Speciality

    Double criminality and speciality are core principles. There is no general duty to extradite absent a treaty or arrangement, and purely political offences are ordinarily excepted from extradition, not subject to it.

  8. Assertion (A): Under Article 59 of the ICJ Statute, a decision of the Court has no binding force except between the parties and in respect of that particular case. Reason (R): Judicial decisions are listed in Article 38(1)(d) only as subsidiary means for the determination of rules of law. Choose the correct option.

    1. Both A and R are true, and R is the correct explanation of A
    2. Both A and R are true, but R is not the correct explanation of A
    3. A is true, but R is false
    4. A is false, but R is true
    Show answer

    Answer: B — Both A and R are true, but R is not the correct explanation of A

    Both statements are true, but R does not explain A. Article 59 is a rule about the binding force of a judgment; Article 38(1)(d) is a rule about the status of decisions as a source. Each exists independently, and 38(1)(d) is itself made "subject to" Article 59.

  9. Which Article of the Vienna Convention on the Law of Treaties (1969) states the rule pacta sunt servanda?

    1. Article 62
    2. Article 53
    3. Article 26
    4. Article 31
    Show answer

    Answer: C — Article 26

    Article 26: every treaty in force is binding upon the parties and must be performed in good faith. Article 31 is the general rule of interpretation, Article 53 jus cogens, and Article 62 fundamental change of circumstances.

  10. The Protocol that removed the temporal limitation of the 1951 Refugee Convention was adopted in which year? Type the year.

    Numerical answer — type the value.

    Show answer

    Answer: 1967

    The 1967 Protocol extended the Convention to refugees from events after 1 January 1951 and removed the optional geographical limitation to Europe. India is party to neither instrument.