(a) "Triumph of Positivism has reduced an individual to be an object of international law rather than a subject of international…

(a) Classical positivism (Vattel in the 18th century; Oppenheim, Anzilotti and Triepel in the 19th and early 20th) grounded international law in State consent, so only States could be its subjects, that is, bearers of rights and duties with capacity to enforce them. Individuals were objects, like territory, and benefited only through their State, for example through diplomatic protection (Mavrommatis (PCIJ, 1924)). Kelsen, by contrast, argued that all law ultimately regulates human conduct, so individuals are its real subjects.

Erosion of the positivist view

• Treaties conferring individual rights: Danzig Railway Officials (PCIJ, 1928) held that a treaty can confer rights directly on individuals if the parties intend it. LaGrand (2001) and Avena (2004) held that Art 36 of the Vienna Convention on Consular Relations creates individual rights.
• Individual duties: the Nuremberg Tribunal declared that "crimes against international law are committed by men, not by abstract entities". Individual criminal responsibility now runs through the ICTY, ICTR and the Rome Statute (Art 25).
• Procedural capacity: individuals can bring claims before the European Court of Human Rights (Art 34 ECHR), bring communications under the ICCPR Optional Protocol, and bring investor–State claims under ICSID.
• Plurality of subjects: Reparation for Injuries (ICJ, 1949) recognised that subjects of international law need not be identical in nature or in the extent of their rights.

Status today: The statement is outdated. The individual is a limited or derivative subject, with rights and duties created by treaties that States make, and with enforcement still largely dependent on State consent to procedures. The individual has no law-making capacity. Positivism's triumph has been qualified by human rights and international criminal law, not reversed.

(b) The contiguous zone is a belt of sea adjoining the territorial sea and extending up to 24 nautical miles from the baselines (UNCLOS 1982, Art 33; earlier 12 nm under the 1958 Convention). The coastal State does not have sovereignty there. It may only exercise control necessary to:

• prevent infringement of its customs, fiscal, immigration or sanitary laws within its territory or territorial sea; and
• punish such infringement committed within its territory or territorial sea.

Beyond these powers, the zone is part of the EEZ or high seas, with freedom of navigation.

Indian practice

• Statute: the Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other Maritime Zones Act, 1976, s.5, fixes India's contiguous zone at 24 nm. Section 5(4) empowers the Union to take measures in the zone for (a) the security of India and (b) customs, fiscal, immigration and sanitary matters, and to extend any law in force to the zone.
• Going beyond UNCLOS: the "security" head goes beyond Art 33. India has maintained this claim since ratifying UNCLOS in 1995, although other States, notably the US, contest it.
• Enforcement: the Coast Guard, Navy and Customs enforce the Customs Act, 1962, anti-smuggling and anti-infiltration laws in the zone. By a 1981 notification, the IPC and CrPC (now BNS and BNSS) were extended to the EEZ.
• Enrica Lexie: the incident occurred about 20.5 nm off Kerala, within the contiguous zone.
• The Supreme Court (Republic of Italy v Union of India (2013)) held that the incident was beyond Kerala's territorial waters, so the Union, not the State, had jurisdiction.
• The UNCLOS Annex VII arbitral tribunal (2020) found that India had concurrent jurisdiction but that the marines enjoyed functional immunity, and awarded India compensation.

(c) Recognition is the acknowledgement by an existing State that an entity is a State, or that a regime is its government, with the legal consequences that follow. Under the constitutive theory, recognition creates international personality. Under the declaratory theory, which is the dominant view and is reflected in Art 3 of the Montevideo Convention of 1933, statehood depends on facts, and recognition only acknowledges it. Either way, recognition decides what powers and privileges the recognising State will actually allow the new State or government.

Consequences of recognition

• Diplomatic relations and treaties: recognition enables the entity to exchange envoys, receive diplomatic privileges and immunities, and conclude bilateral treaties with the recognising State.
• Access to courts: a recognised State or government can sue in the recognising State's courts. An unrecognised one cannot (City of Berne v Bank of England (1804)).
• Sovereign immunity: a recognised State or government enjoys immunity from the recognising State's jurisdiction. The Arantzazu Mendi (1939) extended immunity even to a de facto recognised government.
• Effect given to its laws and acts: recognition of a government is retroactive to the start of its effective control, so its earlier acts are validated (Luther v Sagor (1921): Soviet decrees nationalising timber upheld after UK recognition).
• Property abroad: the recognised government is entitled to the State's property and funds in the recognising State (Haile Selassie v Cable and Wireless (No 2) (1939)).
• De jure and de facto recognition: de jure recognition is full and final. De facto recognition is provisional and limited, for example in some jurisdictions it may not carry full diplomatic status.

Limits: Non-recognition does not free an entity from basic international obligations, such as the prohibition on the use of force. Collective non-recognition of unlawful situations (the Stimson doctrine; UNSC Resolution 541 (1983) on Northern Cyprus) denies these privileges. The Estrada doctrine avoids formal recognition of governments and simply continues or suspends relations. The Taliban government in Afghanistan, controlling territory but largely unrecognised, shows how non-recognition restricts access to UN seats, frozen assets and diplomatic privileges.

(d) Jus cogens, or peremptory norms, are norms from which no derogation is permitted by agreement.

Vienna Convention on the Law of Treaties, 1969 (VCLT)

• Art 53: a treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. Such a norm is "accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character".
• Art 64: if a new peremptory norm emerges, any existing treaty in conflict with it becomes void and terminates (jus cogens superveniens), without retroactive effect.
• Art 44(5): no severance of provisions is allowed in the case of Art 53.
• Art 66(a): disputes on Arts 53 and 64 may be submitted to the ICJ.
• Art 71: sets out the consequences of invalidity, which is to eliminate the effects of acts done in reliance on the conflicting provision.

Content: The ILC's 2022 Draft Conclusions on peremptory norms give a non-exhaustive list:

• prohibition of aggression;
• prohibition of genocide;
• prohibition of crimes against humanity;
• basic rules of international humanitarian law;
• prohibition of racial discrimination and apartheid;
• prohibition of slavery;
• prohibition of torture;
• the right of self-determination.

Judicial recognition: The ICJ first expressly recognised jus cogens in Armed Activities (DRC v Rwanda) (2006), for the prohibition of genocide. It held the prohibition of torture to be jus cogens in Belgium v Senegal (2012). It distinguished jus cogens (a hierarchy of norms) from erga omnes obligations (owed to all) in the line following Barcelona Traction (1970).

Significance: Jus cogens limits the freedom of contract between States and introduces a public order into international law. Its content remains debated. India is not a party to the VCLT but accepts its core rules as customary law.

(e) Jurisdiction of the ICC (Rome Statute, 1998)

• Subject-matter (Art 5): genocide, crimes against humanity, war crimes and aggression. Jurisdiction over aggression was activated from 17 July 2018.
• Temporal (Art 11): crimes committed after 1 July 2002.
• Preconditions (Art 12): the crime was committed on the territory of a State party or by its national, or a non-party State accepts jurisdiction ad hoc (Art 12(3)).
• Triggers (Art 13): referral by a State party; referral by the UN Security Council under Chapter VII, which extends jurisdiction to non-parties, as with Darfur (2005) and Libya (2011); or the Prosecutor acting proprio motu with Pre-Trial Chamber authorisation (Art 15).
• Security Council deferral (Art 16): the UNSC may defer an investigation for 12 months, renewable.
• Complementarity (Art 17): the ICC acts only when national courts are unwilling or unable genuinely to prosecute.
• Official capacity (Art 27): official capacity is irrelevant, so heads of State are not immune before the Court.

The Eurocentric critique

• Almost all situations in the first 15 years were African (Uganda, DRC, CAR, Darfur, Kenya, Libya, Côte d'Ivoire, Mali).
• The arrest warrant against Sudan's President Bashir led to African Union criticism. Burundi withdrew in 2017, and the Philippines in 2019.
• Funding and staff come largely from Europe.
• Powerful States (the US, China, Russia, India) are outside the Statute, and three of them hold UNSC veto power over referrals and deferrals.

Counterpoints

• Several African cases were self-referrals by the States concerned.
• The Court now has investigations in Georgia, Afghanistan, Bangladesh/Myanmar, Palestine, Ukraine, Venezuela and the Philippines.
• It has issued arrest warrants against President Putin (2023) and against Israel's Prime Minister and former Defence Minister (2024). Former Philippine President Duterte was surrendered to the Court in March 2025.
• It has about 125 States parties, across all regions.

Conclusion: The Court's jurisdiction is universal in design but selective in reach, because it depends on consent, UNSC politics and State cooperation. This makes it less "Eurocentric" than power-constrained. India's objections include the UNSC's role, the prosecutor's proprio motu powers, and the exclusion of terrorism and nuclear weapons.