(a) "Law must be stable, and yet it cannot stand still, as it needs to reconcile the conflicting needs of stability and change…

(a) The quotation (echoing Roscoe Pound's "law must be stable and yet it cannot stand still") captures the central tension of international law. It needs predictability to guide States, yet it must respond to decolonisation, technology, globalisation and planetary risks. The contrast between "traditional" (roughly Westphalia, 1648, to 1945) and "new" (post-UN Charter) international law shows how that tension has played out.

Traditional and new international law compared

• Subjects:
• Traditional: States only. Individuals were objects, reached only through diplomatic protection (Mavrommatis (1924)).
• New: States, international organisations (Reparation for Injuries (1949)), and individuals, who have human rights and bear international criminal responsibility. Non-State actors are also regulated.
• Membership and outlook:
• Traditional: a European "family of civilised nations". It accommodated colonialism and unequal treaties.
• New: universal and post-colonial. It recognises self-determination (UNGA Res 1514 (1960)), permanent sovereignty over natural resources (Res 1803 (1962)) and the NIEO demands (1974).
• Use of force:
• Traditional: war was a sovereign prerogative, only partly limited by the Kellogg–Briand Pact (1928).
• New: force is prohibited (Art 2(4) UN Charter), except in self-defence (Art 51) or under Security Council authorisation (Chapter VII). Aggression is a crime.
• Basis of obligation:
• Traditional: strict consent, with residual freedom for States (Lotus (1927): what is not prohibited is permitted).
• New: consent is still central, but peremptory norms (VCLT Art 53) and obligations erga omnes (Barcelona Traction (1970)) bind States irrespective of consent.
• Content:
• Traditional: coexistence law covering diplomacy, war and neutrality, territory, and the high seas.
• New: cooperation law (Friedmann), covering human rights, trade (WTO), environment (Rio 1992, Paris 2015), the "common heritage of mankind" (UNCLOS Part XI, the Moon Agreement), health, cyber, and outer space.
• Sources and law-making:
• Traditional: slow custom built on long practice, and bilateral treaties.
• New: multilateral law-making conventions, UN General Assembly resolutions, ILC codification, soft law, and faster-forming custom.
• Enforcement:
• Traditional: self-help, reprisals and war.
• New: collective security, international courts (ICJ, ITLOS, ICC, WTO panels) and treaty monitoring bodies.

Is stability the casualty?

• Yes:
• Fragmentation into specialised regimes with their own tribunals produces conflicting interpretations, as the ILC's 2006 study on fragmentation noted.
• Soft law and contested doctrines (R2P in 2005, humanitarian intervention, anticipatory self-defence) blur what the law requires.
• The collective security system's credibility has been badly damaged by Iraq (2003) and Ukraine (2022).
• Withdrawals from treaties and institutions (ICC, WTO Appellate Body paralysis since 2019) weaken them.
• Fast-moving areas like climate change and AI outpace treaty-making. The ICJ's advisory opinion on climate change (23 July 2025) shows courts stepping in to fill that gap.
• No:
• The core stays stable: sovereign equality, pacta sunt servanda, diplomatic law (VCDR 1961), and treaty law (VCLT 1969).
• Codification through the ILC and multilateral conventions has in fact made the law more certain than old custom was.
• Change is managed through recognised channels, such as treaty amendment, new custom and Art 64 VCLT.

Conclusion: New international law has not abandoned stability. It has broadened the purposes of the law from coexistence to cooperation and justice. The resulting instability is largely a transitional cost of a more inclusive and wider-ranging system.

(b) Every legal system must decide how international rules take effect domestically. Monist systems treat international law as automatically part of the law of the land. Dualist systems require transformation by legislation. In practice most States combine the two, which is the flexibility the statement refers to. India shows it clearly.

Constitutional framework

• Directive principle: Art 51(c) directs the State to "foster respect for international law and treaty obligations".
• Treaty-making: the executive makes treaties under Art 73, read with List I Entries 10–14. Parliament may legislate to implement any treaty, even on State List subjects (Art 253).
• Pre-Constitution laws: Art 372 continues pre-Constitution laws, including common-law principles.

Treaties: the dualist rule

• Legislation needed only where rights are affected: a treaty does not by itself change domestic law. Legislation is required where it affects private rights or requires a change in law. Maganbhai Ishwarbhai Patel v Union of India (1969) held that the Kutch award, being a boundary settlement rather than a cession of territory, needed no legislation.
• Cession requires amendment: In re Berubari Union (1960) held that ceding territory requires a constitutional amendment.
• Domestic law prevails: where a statute clearly conflicts with a treaty, the statute prevails. In Jolly George Varghese v Bank of Cochin (1980), the Court read the Code of Civil Procedure consistently with Art 11 of the ICCPR (no imprisonment for inability to pay debts), but confirmed that domestic law governs in case of clear conflict.
• Implementing statutes: examples are the Geneva Conventions Act 1960, the Diplomatic Relations (Vienna Convention) Act 1972, the Protection of Human Rights Act 1993 (s.2(1)(f)), the Rights of Persons with Disabilities Act 2016 (UNCRPD), and the Arbitration and Conciliation Act 1996 (New York Convention).

Custom: the incorporation rule

• ***Gramophone Co of India v Birendra Bahadur Pandey* (1984): India follows the doctrine of incorporation**. Rules of customary international law are part of Indian law unless they conflict with an Act of Parliament.
• ***Vellore Citizens' Welfare Forum v Union of India* (1996):** the precautionary principle and the polluter-pays principle are part of customary international law and hence of Indian law. This was followed in A.P. Pollution Control Board v M.V. Nayudu (1999).

Judicial use of unimplemented treaties to fill gaps

• ***Vishaka v State of Rajasthan* (1997):** CEDAW was used to frame guidelines on sexual harassment, read into Arts 14, 15, 19(1)(g) and 21, because no conflicting law existed.
• ***PUCL v Union of India* (1997):** Art 17 of the ICCPR was used to protect privacy against telephone tapping.
• ***NALSA v Union of India* (2014):** the Yogyakarta Principles were used for the rights of transgender persons.
• ***K.S. Puttaswamy v Union of India* (2017):** the UDHR and ICCPR were used to recognise the right to privacy.
• ***Ram Jethmalani v Union of India* (2011):** treaties, here tax treaties, are to be interpreted in the light of VCLT principles, even though India is not a party.

Limits

• In Mohammad Salimullah v Union of India (2021, Rohingya), the Court declined to restrain deportation on the basis of non-refoulement, noting that India is not a party to the 1951 Refugee Convention and that the claim implicated national security.
• Treaties cannot override the Constitution or clear statutes. International law is a source of interpretation, not of new obligations enforceable against the legislature.

India's approach is therefore dualist for treaties, incorporationist for custom, and harmonising in interpretation. This is exactly the procedural flexibility the statement describes.

(c) Both zones confer sovereign rights for resource purposes, not territorial sovereignty (UNCLOS Parts V and VI; in India, the Maritime Zones Act, 1976, ss.6–7). They differ in their origin, space and the rights they confer.

Differences between the continental shelf and the EEZ

• Origin:
• Continental shelf: the Truman Proclamation (1945) and the Geneva Convention (1958). Rights are "inherent", existing ipso facto and ab initio (North Sea Continental Shelf (1969)).
• EEZ: developed in the 1970s, largely from Latin American and African State practice. It must be claimed or declared.
• Space:
• Continental shelf: the seabed and subsoil only (Art 76).
• EEZ: the water column, seabed and subsoil (Arts 55–56).
• Extent:
• Continental shelf: 200 nm from the baselines, or up to the outer edge of the continental margin (natural prolongation). The maximum is 350 nm, or 100 nm beyond the 2,500 m isobath, fixed on the recommendations of the Commission on the Limits of the Continental Shelf (CLCS).
• EEZ: up to 200 nm only (Art 57).
• Resources:
• Continental shelf: mineral and non-living resources, plus sedentary species such as oysters and corals (Art 77(4)).
• EEZ: all living and non-living resources, and economic uses such as wind, wave and current energy (Art 56(1)(a)).
• Exclusivity:
• Continental shelf: exclusive even if not exploited or claimed. No one may exploit it without the coastal State's consent (Art 77(2)–(3)).
• EEZ: the coastal State must determine allowable catch and give other States access to any surplus (Arts 61–62), with rights for land-locked States (Arts 69–70).
• Payments:
• Continental shelf: exploitation beyond 200 nm requires payments to the International Seabed Authority (Art 82).
• EEZ: no payments.
• Other jurisdiction:
• Continental shelf: artificial islands, installations, and drilling (Arts 80–81).
• EEZ: artificial islands, marine scientific research, and protection of the marine environment (Art 56(1)(b)).
• Status of the waters above:
• Continental shelf: rights do not affect the status of the superjacent waters or airspace (Art 78).
• EEZ: a sui generis zone. Other States keep freedoms of navigation, overflight, and laying cables and pipelines (Art 58).

Relationship between the two

• Within 200 nm: the two regimes overlap. In Libya v Malta (1985), the ICJ held that since the EEZ was accepted, distance and not geology is the basis of title within 200 nm.
• Different boundaries: boundaries for the two zones can differ. In the Bangladesh v Myanmar judgment (ITLOS, 2012) and the Bay of Bengal Maritime Boundary Arbitration (Bangladesh v India) (2014), the tribunals created a "grey area" where the seabed belongs to Bangladesh (continental shelf) but the water column belongs to Myanmar or India (EEZ). This is the clearest illustration of the difference between the two.

Examples

• Continental shelf:
• India's offshore oil and gas fields such as Mumbai High are exploited as continental shelf and seabed resources.
• India filed a submission to the CLCS in 2009 for an extended continental shelf beyond 200 nm in the Bay of Bengal and the Arabian Sea.
• EEZ:
• India's EEZ covers about 2.02 million sq km. Fisheries in it are regulated under the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981, and offshore wind blocks off Gujarat and Tamil Nadu are allocated under the EEZ regime.
• India requires consent for foreign military exercises in its EEZ, a position the US contests through freedom-of-navigation operations, as in the USS John Paul Jones transit of April 2021.