Administrative Law Book

Administrative Law Handbook (By Ojijo)
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Administrative
Administrative Law Handbook
Law Handbook (By Ojijo)
Local Government Law, Municipal Law, Public International Law, Human
Rights Law, Constitutional Law, Judicial Review
FIRST EDITION, 2012
ISBN: 978-9966-123-61-9
Copyright © 2010, Ojijo. All rights reserved. This work is copyrighted by the author. No parts of
this publication maybe reproduced, stored in a retrieval system, or transmitted in any form,
without permission of the publisher.
Other Training Manuals
(ISBN 978-9966-123-50-3) Business Transactions & Contracts Law Handbook

(ISBN 978-9966-123-51-0) Family Law Handbook
(ISBN 978-9966-123-52-7) Intellectual Property Law Handbook
(ISBN 978-9966-123-56-5) Alternative Dispute Resolution Law Handbook
(ISBN 978-9966-123-57-2) Real Estate Law Handbook
(ISBN 978-9966-123-58-9) Civil Litigation Law Handbook
(ISBN 978-9966-123-59-6) Energy Law Handbook
(ISBN 978-9966-123-60-2) Labour Relations Law Handbook
(ISBN 978-9966-123-61-9) Administrative Law Handbook
(ISBN 978-9966-123-62-6) Environmental Law Handbook
(ISBN 978-9966-123-63-3) Criminal Litigation Law Handbook
(ISBN 978-9966-123-21-3) Ojijo’s Financial Services Law
(ISBN 978-9966-123-25-1) Rich Lawyers, Poor Lawyers - Law Firm Management Handbook
(ISBN 978-9966-123-22-0) Luo Jurisprudence-Theories, Institutions and Procedures of Law
and Justice (Introduction to Law & Jurisprudence)
(ISBN 978-9966-123-48-0) Legal Rhetoric- A Guide to Legal Writing, Legal Arguments & Legal
Interpretation
(ISBN 978-9966-123-00-8) Policy & Legal Issues In E-Commerce & E-Governance (ICT Law)
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OJIJO ’S 49 BOOKS
FINANCIAL L ITERACY B OOKS

Administrative
1. Sell Something-5 Steps to Entrepreneurship (BibleLaw Handbook (ByEntrepreneurship
for Entrepreneurs, Ojijo) Trainers, and
Business Coaches)
2. Successful Saccos - Managers' Guide to Acquire, Retain and Grow Membership, Savings and Assets
3. Making Money Together: Ojijo’s Investment Club Manual
4. Making My Child Financially Intelligent: Money Lessons by Age Group (from 3-13yrs)
5. Invest: Ojijo’s Guide to Financial Instruments & Alternative Investment Products
6. Retire Happy: 21 Questions to Plan My Retirement
7. 69 Ways to Make Extra Money While Keeping My Day Job
8. What Can I Sell? 101 Business Ideas for Youth in Africa
9. Double Your Money- From 100 shillings to 100 million in 100 days
PERSONAL BRANDING B OOKS

10. Stupid Writers: Ojijo’s Guide to Writing Articles, Reports, Plans, Profiles & Proposals
11. Talanta: Ojijo’s Guide to Identifying, Developing & Selling My Talent
12. This Is How To Treat A Man (Fathers, Husbands, Lovers, Sons, Brothers)
13. Soft Sweet Words: Romantic Whispers to My Woman
14. Cause Action: Ojijo’s Public Speaking Handbook
15. The Gift of E11even Moves to Make Me Wealthy
16. Seventy-7 Moves of a Sexy Woman
17. Self Discipline - What, Why & How
18. 99 Ways to Make People Laugh
L AW BOOKS
19. Business Transactions & Contracts Law Handbook
20. Family Law Handbook
21. Intellectual Property Law Handbook
22. Alternative Dispute Resolution Law Handbook
23. Real Estate Law Handbook
24. Civil Litigation Law Handbook
25. Energy Law Handbook
26. Labour Relations Law Handbook
27. Administrative Law Handbook
28. Environmental Law Handbook
29. Criminal Litigation Law Handbook
30. Ojijo’s Financial Services Law
31. Rich Lawyers, Poor Lawyers : Law Firm Management Handbook
32. Luo Jurisprudence: Theories, Institutions and Procedures of Law and Justice (Introduction to Law)
33. Legal Rhetoric: Ojijo’s Guide to Legal Writing, Legal Arguments & Legal Interpretation
34. Policy & Legal Issues in E-Commerce & E-Governance (ICT Law)
POLITICS AND RELIGION

35. Why Did Hitler Kill The Jews?
36. Politics of Poverty: The Odinga Curse to the Luos
37. Open Religion: My Religion is the Best Religion
38. Garveyism: The Philosophy of Marcus Garvey
39. 100 Upright Men: World’s Greatest Revolutionary Politicians
40. The Mungiki: Terrorists, Victims, Saints: Three Sides of the Same Coin!
41. This Is How To Manipulate Voters: Ojijo's Guide for Politicians and Aspiring Politicians!
OTHER BOOKS
42. Fireplace Stories: Ojijo’s Performance Poems
43. I Speak Luo: Conversational Phrases of Luo Language
44. The Half Story of My Life: Follow Your Heart, Live Your Dream
45. The Luo Nation: History & Culture of Joluo (The Luo People Of Kenya)
46. Luo Traditional Medicine : Curative and Preventive Plant, Animal and Mineral Extracts
47. Tuongee Kiswahili: A Conversational Phrasebook With Audio CDs pg. 4
48. Eat Rich, Keep Fit-Foods & Exercises for Healthy Living
49. This Is How To Improve School Performance-Responsibilities of School Owners, Head Teachers, Teachers, Non
Academic Staff, Student Leaders & Students
Table of Contents
DEFINITIONS & SCOPE OF ADMINISTRATIVE LAW..........................................................................................................7
Scope & Sources of Administrative law................................................................................................................9
Local Government Law........................................................................................................................................10
Public Law (Definition And Creation)................................................................................................................19
Public International Law....................................................................................................................................26
Sources Of International Law.............................................................................................................................40
Regional International Law or Community Law or Union Law........................................................................69
PUBLIC INTERNATIONAL ORGANISATIONS /INTERGOVERNMENTAL ORGANISATIONS.......................................................71
Non State Actors..................................................................................................................................................77
Continental Unions..............................................................................................................................................79
Regional Bodies...................................................................................................................................................82
The United Nations..............................................................................................................................................84
LAW OF GOVERNMENT INSTITUTIONS (CONSTITUTIONAL LAW).................................................................................102
Introducing Constitutional Law........................................................................................................................102
Public Institutions, Bureaucracy.......................................................................................................................105
Citizenship..........................................................................................................................................................110
Local Government/Devolved Government.......................................................................................................117
Principles of Constitutionalism.........................................................................................................................121
HUMAN RIGHTS..................................................................................................................................................... 132
Rights of Foreigners..........................................................................................................................................132
Human Rights....................................................................................................................................................136
POWERS OF THE GOVERNMENT...............................................................................................................................207
Public Order Powers..........................................................................................................................................207
Administrative Power on the Sea......................................................................................................................214
Sovereignty........................................................................................................................................................229
Diplomacy & International Relations...............................................................................................................262
State Formation.................................................................................................................................................275
Rights & Duties of States in International Law................................................................................................284
DISPUTE RESOLUTION IN ENERGY LAW....................................................................................................................298
Disputes & Dispute Resolution..........................................................................................................................298
Types of Disputes...............................................................................................................................................302
Elements of Effective Dispute Resolution Methods..........................................................................................305
Types of Dispute Resolution Methods...............................................................................................................306
International Litigation, Conflict Of Laws........................................................................................................317
International Arbitration..................................................................................................................................319
National Dispute Resolution Institutions.........................................................................................................325
International Dispute Resolution Institutions..................................................................................................329
DISPUTE RESOLUTION MECHANISMS IN ADMINISTRATIVE LAW..................................................................................331
Holding Government Accountable (Judicial Review).......................................................................................331
Suing Public Officers..........................................................................................................................................367
Dispute Resolution in Public International law...............................................................................................389
Dispute Resolution (Union Law).......................................................................................................................396
pg. 5
Dispute Resolution in Local Government Law..................................................................................................421

Suing the State in International Law...............................................................................................................423
INDEX................................................................................................................................................................... 426
pg. 6
List of Authorities
Cases
Ellen Street Estates v. Minister of Health 1 KB 590....................................................................25
Entick v. Carrington..............................................................................................................19, 102
Kay v. Goodwin (1830) 6 Bing. 576, per Tindal C.J.....................................................................24
Legality of the Threat or Use of Nuclear Weapons" - Advisory Opinion of 8 July 1996 - General
List No. 95 (1995-1998), par. 67. http://www.icj-cij.org/docket/files/95/7494.pdf..................33
M v. Home Office............................................................................................................................19
Nicaragua v. United States...........................................................................................................29
North Sea Continental Shelf cases of 1969..................................................................................32
North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, pp. 3, 45, para. 78.........................32
Pushpanathan v. Canada......................................................................................................23, 387
S.S. Lotus case..............................................................................................................................32
Vauxhall Estates, Ltd. v. Liverpool Corporation [3] 1 KB 733....................................................25
Statutes
1921 Anglo-Irish Treaty..............................................................................................................25
California Civil Code.....................................................................................................................22
English Arbitration Act, 1996....................................................................................................323
Federal Arbitration Act..............................................................................................................323
International Court of Justice Statute.........................................................................................28
Interpretation Act 1978.........................................................................................................24, 25
Marine Insurance Act 1906.........................................................................................................22
Orders in Council....................................................................................................................39, 54
Poor Laws.....................................................................................................................................25
Statute of the International Court of Justice.......................................................................passim
UNCITRAL Model Law on International Commercial Arbitration.........................................323
Other Authorities
Ballentine's Law Dictionary..........................................................................................................23
Bill of Rights...........................................................................................................................passim
Code of Ur-Nammu.......................................................................................................................22
Corpus Iuris Civilis.......................................................................................................................22
Great Qing Legal Code..................................................................................................................22
International Bill of Human Rights...............................................................................................20
Lex Duodecim Tabularum...........................................................................................................22
Parliament Acts of 1911 and 1949..............................................................................................19
Petition of Right............................................................................................................................19
Tang Code in AD 624....................................................................................................................22
Torah.............................................................................................................................................22
Universal Declaration of Human Rights..............................................................................passim
Rules
IBA Rules on the Taking of Evidence in International Arbitration........................................323
pg. 7
ICDR Guidelines for Arbitrators Concerning Exchanges of Information...............................323

Treatises
1951 ILO Convention concerning Equal Remuneration for Men and Women Workers for
Work of Equal Value..........................................................................................................13, 43
1985 Vienna Convention for the Protection of the Ozone Layer.......................................15, 45
1987 Montreal Protocol on Substances that Deplete the Ozone Layer.............................15, 45
1989 Convention on the Rights of the Child................................................................13, 43, 154
1992 Rio Declaration. Declarations......................................................................................13, 43
Arab Convention on Commercial Arbitration..........................................................................320
CAFTA..................................................................................................................................321, 322
Charter of the Organization of American States of 1952....................................................12, 42
Charter of the United Nations of 1945.................................................................................12, 42
Convention on Biological Diversity of 1992........................................................................13, 43
Energy Charter Treaty.......................................................................................................303, 321
European Convention (Geneva, 1961).....................................................................................320
Geneva Conventions...............................................................................................................passim
Hague Conventions of 1899 and 1907.................................................................................passim
Hague Service Convention (1965)............................................................................................317
ICSID Convention...............................................................................................................320, 321
Inter-American Convention on International Commercial Arbitration................................320
International Covenant on Civil and Political Rights.............................................................passim
International Covenant on Economic, Social and Cultural Rights.........................................passim
Magna Carta of 1215..............................................................................................................12, 42
Moscow Convention (1972)......................................................................................................320
NAFTA.........................................................................................................................321, 322, 329
New York Convention........................................................................................................319, 320
Optional Protocol to the International Covenant on Civil and Political Rights of 1966...14, 44
Panama Convention...................................................................................................................320
The Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil
and Commercial Matters.......................................................................................................318
United Nations Charter.........................................................................................................passim
United Nations Convention on the Law of the Sea of 1982................................................13, 43
Vienna Convention on Law of Treaties........................................................................................27
Vienna Convention on the Law of Treaties.........................................................................passim
Washington or ICSID Convention.........................................................................................320
pg. 8
Definitions & Scope of Administrative law
SCOPE & SOURCES OF ADMINISTRATIVE LAW
definition of administrative law

Administrative law is the chief method for people to hold state bodies to account. People
can apply for judicial review of actions or decisions by local councils, public services or
government ministries, to ensure that they comply with the law.
scope of administrative law
Administrative law regulates the rights and duties of the government. In so doing, it covers
the relationships between government and the citizens (public law); relation between
government and regional governments (union law); and the relationship between the
government and other governments and international organisations (public
international law).
Administrative law governs the activities of administrative agencies of government.
Government agency action can include rulemaking, adjudication, or the enforcement of
a specific regulatory agenda. Administrative law is considered a branch of public law. As
a body of law, administrative law deals with the decision-making of administrative
units of government (for example, tribunals, boards or commissions) that are part of a
national regulatory scheme in such areas as police law, international trade,
manufacturing, the environment, taxation, broadcasting, immigration and transport.
Administrative law expanded greatly during the twentieth century, as legislative bodies
worldwide created more government agencies to regulate the increasingly complex
social, economic and political spheres of human interaction.
pg. 9
LOCAL GOVERNMENT LAW
Sources of law local government law

Sources of law means the origin from which rules of human conduct come into existence
and derive legal force or binding characters. It also refers to the sovereign or the state
from which the law derives its force or validity. Several factors of law have contributed
to the development of law. These factors are regarded as the sources of law.
Sources of ADR law are found in various areas, but mainyl limited to statutes, constitution,
statutes, and precedents.
These are explanined below:
constitution
A constitution is a set of fundamental principles or established precedents according to
which a state or other organization is governed. 1 The constitution, whether written, or
not written, is the grundnorm: the main source of law in any nation. When these
principles are written down into a single or set of legal documents, those documents are
called a written constitution. Every country’s Constitution is the document that outlays
the principles upon which it is to be run.
Precedents, judge-made law, case law
Precedent is one of the sources of law. The judgements passed by some of the learned
jurists became another significant source of law. When there is no legislature on
particular point which arises in changing conditions, the judges depend on their own
sense of right and wrong and decide the disputes. Such decisions become authority or
guide for subsequent cases of a similar nature and they are called precedents. The
dictionary of English law defines a judicial precedent as a judgement or decision of a
court of law cited as an authority for deciding a similar state of fact in the same manner
or on the same principle or by analogy. Precedent is more flexible than legislation and
custom. It is always ready to be used.
Customs , customary international law
A custom is a rule which in a particular family or in a particular district or in a particular
section, classes or tribes, has from long usage obtained the force of law. The dictionary
of English law defines custom as a law not written, which being established by long use
and consent of our ancestors has been and daily is put into practice. Custom as a source
of law got recognition since the emergence of sovereignty on the horizon of
jurisprudence. It is an exemption to the ordinary law of the land, and every custom is
limited in its application. They are practices that have to be repeated for a period of
time.
1
The New Oxford American Dictionary, Second Edn., Erin McKean (editor), 2051 pages, May 2005, Oxford
University Press, ISBN 0-19-517077-6.
pg. 10
Legislation
Legislation is that source of law which consists in the declaration of legal rules by a
competent authority. Legislature is the direct source of law. Legislature frames new
laws, amends the old laws and cancels existing laws in all countries. In modern times
this is the most important source of law making. The term legislature means any form
of law making. Its scope has now been restricted to a particular form of law making. It
not only creates new rules of law it also sweeps away existing inconvenient rules.
From the definition of politician Mohamed Abdullahi Farmajo, defines legislation as
Legislation (or "statutory law") is law which has been promulgated (or "enacted") by a
legislature or other governing body, or the process of making it. (Another source of law
is judge-made law or case law.) Before an item of legislation becomes law it may be
known as a bill, and may be broadly referred to as "legislation" while it remains under
consideration to distinguish it from other business. Legislation can have many
purposes: to regulate, to authorize, to proscribe, to provide (funds), to sanction, to
grant, to declare or to restrict. It can also be redistricted.
Preparatory works, Legislative history
In some legal cultures, some of the documents produced in the process leading up to
legislation are subsequently used as guidelines on how to interpret and understand an
act of legislation.
Treaties and declarations as sources of law
The international legal promulgations, in the form of charters, agreements, treaties,
protocols, and declarations, can also lead to change in municipal legal regime, through
legal trnaspation doctrine, domestication, codification, and or monoist legal
implementaion by member states.
Agreements
The term "agreement" can have a generic and a specific meaning. It also has acquired a
special meaning in the law of regional economic integration.
(a) Agreement as a generic term: The 1969 Vienna Convention on the Law of Treaties
employs the term "international agreement" in its broadest sense. On the one hand, it
defines treaties as "international agreements" with certain characteristics. On the other
hand, it employs the term "international agreements" for instruments, which do not
meet its definition of "treaty". Its Art.3 refers also to "international agreements not in
written form". Although such oral agreements may be rare, they can have the same
binding force as treaties, depending on the intention of the parties. An example of an
oral agreement might be a promise made by the Minister of Foreign Affairs of one State
to his counterpart of another State. The term "international agreement" in its generic
sense consequently embraces the widest range of international instruments.
(b) Agreement as a particular term: "Agreements" are usually less formal and deal with a
narrower range of subject-matter than "treaties". There is a general tendency to apply
pg. 11
the term "agreement" to bilateral or restricted multilateral treaties. It is employed

especially for instruments of a technical or administrative character, which are signed
by the representatives of government departments, but are not subject to ratification.
Typical agreements deal with matters of economic, cultural, scientific and technical
cooperation. Agreements also frequently deal with financial matters, such as avoidance
of double taxation, investment guarantees or financial assistance. The UN and other
international organizations regularly conclude agreements with the host country to an
international conference or to a session of a representative organ of the Organization.
Especially in international economic law, the term "agreement" is also used as a title for
broad multilateral agreements (e.g. the commodity agreements). The use of the term
"agreement" slowly developed in the first decades of this century. Nowadays by far the
majority of international instruments are designated as agreements.
(c) Agreements in regional integration schemes: Regional integration schemes are based
on general framework treaties with constitutional character. International instruments
which amend this framework at a later stage (e.g. accessions, revisions) are also
designated as "treaties". Instruments that are concluded within the framework of the
constitutional treaty or by the organs of the regional organization are usually referred
to as "agreements", in order to distinguish them from the constitutional treaty. For
example, whereas the Treaty of Rome of 1957 serves as a quasi-constitution of the
European Community, treaties concluded by the EC with other nations are usually
designated as agreements. Also, the Latin American Integration Association (LAIA) was
established by the Treaty of Montevideo of 1980, but the subregional instruments
entered into under its framework are called agreements.
Charters (international law)
The term "charter" is used for particularly formal and solemn instruments, such as the
constituent treaty of an international organization. The term itself has an emotive
content that goes back to the Magna Carta of 1215. Well-known recent examples are the
Charter of the United Nations of 1945 and the Charter of the Organization of American
States of 1952.
Conventions (international law)
The term "convention" again can have both a generic and a specific meaning.
(a) Convention as a generic term: Art. 38 (1) (a) of the Statute of the International Court of
Justice refers to "international conventions, whether general or particular" as a source
of law, apart from international customary rules and general principles of international
law and - as a secondary source - judicial decisions and the teachings of the most highly
qualified publicists. This generic use of the term "convention" embraces all
international agreements, in the same way as does the generic term "treaty". Black
letter law is also regularly referred to as "conventional law", in order to distinguish it
from the other sources of international law, such as customary law or the general
pg. 12
principles of international law. The generic term "convention" thus is synonymous with
the generic term "treaty".
(b) Convention as a specific term: Whereas in the last century the term "convention" was
regularly employed for bilateral agreements, it now is generally used for formal
multilateral treaties with a broad number of parties. Conventions are normally open for
participation by the international community as a whole, or by a large number of states.
Usually the instruments negotiated under the auspices of an international organization
are entitled conventions (e.g. Convention on Biological Diversity of 1992, United
Nations Convention on the Law of the Sea of 1982, Vienna Convention on the Law of
Treaties of 1969). The same holds true for instruments adopted by an organ of an
international organization (e.g. the 1951 ILO Convention concerning Equal
Remuneration for Men and Women Workers for Work of Equal Value, adopted by the
International Labour Conference or the 1989 Convention on the Rights of the Child,
adopted by the General Assembly of the UN).
Declarations
The term "declaration" is used for various international instruments. However,
declarations are not always legally binding. The term is often deliberately chosen to
indicate that the parties do not intend to create binding obligations but merely want to
declare certain aspirations. An example is the 1992 Rio Declaration. Declarations can
however also be treaties in the generic sense intended to be binding at international
law. It is therefore necessary to establish in each individual case whether the parties
intended to create binding obligations. Ascertaining the intention of the parties can
often be a difficult task. Some instruments entitled "declarations" were not originally
intended to have binding force, but their provisions may have reflected customary
international law or may have gained binding character as customary law at a later
stage. Such was the case with the 1948 Universal Declaration of Human Rights.
Declarations that are intended to have binding effects could be classified as follows:
(a) A declaration can be a treaty in the proper sense. A significant example is the Joint
Declaration between the United Kingdom and China on the Question of Hong Kong of
1984.
(b) An interpretative declaration is an instrument that is annexed to a treaty with the
goal of interpreting or explaining the provisions of the latter.
(c) A declaration can also be an informal agreement with respect to a matter of minor
importance.
(d) A series of unilateral declarations can constitute binding agreements. A typical example
are declarations under the Optional Clause of the Statute of the International Court of
Justice that create legal bonds between the declarants, although not directly addressed
to each other. Another example is the unilateral Declaration on the Suez Canal and the
arrangements for its operation issued by Egypt in 1957 which was considered to be an
engagement of an international character.
pg. 13
Exchange of Notes
An "exchange of notes" is a record of a routine agreement, that has many similarities with
the private law contract. The agreement consists of the exchange of two documents,
each of the parties being in the possession of the one signed by the representative of the
other. Under the usual procedure, the accepting State repeats the text of the offering
State to record its assent. The signatories of the letters may be government Ministers,
diplomats or departmental heads. The technique of exchange of notes is frequently
resorted to, either because of its speedy procedure, or, sometimes, to avoid the process
of legislative approval.
Memoranda of Understanding
A memorandum of understanding is an international instrument of a less formal kind. It
often sets out operational arrangements under a framework international agreement. It
is also used for the regulation of technical or detailed matters. It is typically in the form
of a single instrument and does not require ratification. They are entered into either by
States or International Organizations. The United Nations usually concludes
memoranda of understanding with Member States in order to organize its
peacekeeping operations or to arrange UN Conferences. The United Nations also
concludes memoranda of understanding on cooperation with other international
organizations.
Modus Vivendi
A modus vivendi is an instrument recording an international agreement of temporary or
provisional nature intended to be replaced by an arrangement of a more permanent
and detailed character. It is usually made in an informal way, and never requires
ratification.
Protocols
The term "protocol" is used for agreements less formal than those entitled "treaty" or
"convention". The term could be used to cover the following kinds of instruments:
(a) A Protocol of Signature is an instrument subsidiary to a treaty, and drawn up by the
same parties. Such a Protocol deals with ancillary matters such as the interpretation of
particular clauses of the treaty, those formal clauses not inserted in the treaty, or the
regulation of technical matters. Ratification of the treaty will normally ipso facto involve
ratification of such a Protocol.
(b) An Optional Protocol to a Treaty is an instrument that establishes additional rights
and obligations to a treaty. It is usually adopted on the same day, but is of independent
character and subject to independent ratification. Such protocols enable certain parties
of the treaty to establish among themselves a framework of obligations which reach
further than the general treaty and to which not all parties of the general treaty consent,
creating a "two-tier system". The Optional Protocol to the International Covenant on
Civil and Political Rights of 1966 is a well-known example.
pg. 14
(c) A Protocol based on a Framework Treaty is an instrument with specific substantive

obligations that implements the general objectives of a previous framework or umbrella
convention. Such protocols ensure a more simplified and accelerated treaty-making
process and have been used particularly in the field of international environmental law.
An example is the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer
adopted on the basis of Arts.2 and 8 of the 1985 Vienna Convention for the Protection of
the Ozone Layer.
(d) A Protocol to amend is an instrument that contains provisions that amend one or
various former treaties, such as the Protocol of 1946 amending the Agreements,
Conventions and Protocols on Narcotic Drugs.
(e) A Protocol as a supplementary treaty is an instrument which contains
supplementary provisions to a previous treaty, e.g. the 1967 Protocol relating to the
Status of Refugees to the 1951 Convention relating to the Status of Refugees.
(f) A Proces-Verbal is an instrument that contains a record of certain understandings
arrived at by the contracting parties.
Signatories and Parties
The term “Parties", which appears in the header of each treaty, in the publication
Multilateral Treaties Deposited with the Secretary-General, includes both "Contracting
States" and "Parties". For general reference, the term "Contracting States" refers to
States and other entities with treaty-making capacity which have expressed their
consent to be bound by a treaty where the treaty has not yet entered into force or
where it has not entered into force for such States and entities; the term "Parties" refers
to States and other entities with treaty-making capacity which have expressed their
consent to be bound by a treaty and where the treaty is in force for such States and
entities.)
Treaties
The term "treaty" can be used as a common generic term or as a particular term which
indicates an instrument with certain characteristics.
(a) Treaty as a generic term: The term "treaty" has regularly been used as a generic term
embracing all instruments binding at international law concluded between
international entities, regardless of their formal designation. Both the 1969 Vienna
Convention and the 1986 Vienna Convention confirm this generic use of the term
"treaty". The 1969 Vienna Convention defines a treaty as "an international agreement
concluded between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever
its particular designation". The 1986 Vienna Convention extends the definition of
treaties to include international agreements involving international organizations as
parties. In order to speak of a "treaty" in the generic sense, an instrument has to meet
various criteria. First of all, it has to be a binding instrument, which means that the
pg. 15
contracting parties intended to create legal rights and duties. Secondly, the instrument
must be concluded by states or international organizations with treaty-making power.
Thirdly, it has to be governed by international law. Finally the engagement has to be in
writing. Even before the 1969 Vienna Convention on the Law of Treaties, the word
"treaty" in its generic sense had been generally reserved for engagements concluded in
written form.
delegated legislation, secondary legislation or subordinate legislation or subsidiary
legislation
Delegated legislation (also referred to as secondary legislation or subordinate legislation or
subsidiary legislation) is law made by an executive authority under powers given to
them by primary legislation in order to implement and administer the requirements of
that primary legislation. It is law made by a person or body other than the legislature
but with the legislature's authority.
Often, a legislature passes statutes that set out broad outlines and principles, and delegates
authority to an executive branch official to issue delegated legislation that flesh out the
details (substantive regulations) and provide procedures for implementing the
substantive provisions of the statute and substantive regulations (procedural
regulations). Delegated legislation can also be changed faster than primary legislation
so legislatures can delegate issues that may need to be fine-tuned through experience.
by-laws, code, bylaw, by law, byelaw , ordinance
A by-law (sometimes also spelled bylaw, by law or byelaw) is a rule or law established by
an organization or community to regulate itself, as allowed or provided for by some
higher authority. The higher authority, generally a legislature or some other
governmental body, establishes the degree of control that the by-laws may exercise. By-
laws may be established by entities such as a business corporation, a neighborhood
association, or depending on the jurisdiction, a municipality. Usually, the central
government (and usually the state governments) has no direct ability to regulate the
scope of the laws passed by the municipalities. As such terms such as code, ordinance,
or regulation, if not simply law are more common.
ordinance, By-law, Local ordinance, Act of Parliament
An ordinance is an authoritative rule or law; a decree or command. a public injunction or
regulation: a city ordinance against excessive horn blowing. something believed to have
been ordained, as by a deity or destiny.
The ordiance can also be:
¯ By-law, a rule established by an organization to regulate itself
¯ Local ordinance, a law made by a municipality or other local authority
¯ Act of Parliament, in some jurisdictions, such as England when the parliament operated
without regal sanction, and a number of British colonies.
pg. 16
regulation, self-regulation, co-regulation, legal restrictions

A regulation is a legal norm intended to shape conduct that is a byproduct of imperfection. 2
A regulation may be used to prescribe or proscribe conduct ("command-and-control"
regulation), to calibrate incentives ("incentive" regulation), or to change preferences
("preferences shaping" regulation").3 In statist mechanisms it can also be extended to
monitoring and enforcement of rules as established by primary and/or delegated
legislation. In this form, it is generally a written instrument containing rules having the
force of statist law. (as opposed to natural law). Other forms of regulation are self
regulation. In general, regulations are written by executive agencies as a way to enforce
laws passed by the legislature. Because of the actual or potential interference in choices,
the idea of regulation and most issues related to regulation tend to be in controversy. 4
Regulation creates, limits, constrains a right, creates or limits a duty, or allocates a
responsibility. Regulation can take many forms: legal restrictions promulgated by a
government authority, contractual obligations that bind many parties (for example,
"insurance regulations" that arise out of contracts between insurers and their
insureds), self-regulation by an industry such as through a trade association, social
regulation (e.g. norms), co-regulation, third-party regulation, certification, accreditation
or market regulation. In its legal sense regulation can and should be distinguished from
primary legislation (by Parliament of elected legislative body) on the one hand and
judge-made law on the other.5
ministerial directives, ministerial orders, ministerial memoranda
The responsible Minister may issue directions from time to time to clarify the management,
reporting and other responsibilities of institute boards, and to give direction on the
employment of staff, charging fees, or other specific matters. Some Directions are also
given to ministries, departments, and agencies. The purposes of the Directions are to
remake directions relating to employment of staff and to repeal earlier directions that
are no longer required with the making of the strategic planning guidelines and
commercial guidelines.
Executive Memoranda
Copies of detailed information sent to CEOs of ministries, departments, and agencies
accompanying Ministerial Directions.
Presidential directives
Presidential directives are considered a form of executive order issued by the President
with the advice and consent of a ministry, agency or department within the Executive
branch of government.
2
Orbach, Barak, What Is Regulation? 30 Yale Journal on Regulation Online 1 (2012)
3
id.
4
Orbach (2012)
5
Levi-Faur, David, Regulation and Regulatory Governance, Jerusalem Papers in Regulation and Governance, No.1, 2010
pg. 17
presidential executive orders

The Constitution refers to the title of President as the executive. Presidents issue executive
orders to help officers and agencies of the executive branch manage the operations
within the government. Executive orders have the full force of law when they take
authority from a legislative power which grants its power directly to the Executive by
the Constitution, or are made pursuant to certain Acts of Congress/Parliament that
explicitly delegate to the President some degree of discretionary power (delegated
legislation). Like both legislative statutes and regulations promulgated by government
agencies, executive orders are subject to judicial review, and may be struck down if
deemed by the courts to be unsupported by statute or the Constitution. Major policy
initiatives require approval by the legislative branch, but executive orders have
significant influence over the internal affairs of government, deciding how and to what
degree legislation will be enforced, dealing with emergencies, waging 72-hour length
strikes on enemies, and in general fine-tuning policy choices in the implementation of
broad statutes.Most executive orders use these Constitutional reasonings as the
authorization allowing for their issuance to be justified as part of the President's sworn
duties, the intent being to help direct officers of the Executive carry out their delegated
duties as well as the normal operations of the federal government: the consequence of
failing to comply possibly being the removal from office.
decrees
A decree is a rule of law usually issued by a head of state (such as the president of a
republic or a monarch), according to certain procedures (usually established in a
constitution). It has the force of law. The particular term used for this concept may vary
from country to country. The executive orders made by the President of the United
States, for example, are decrees (although a decree is not exactly an order). In non-legal
English usage, however, the term refers to any authoritarian decision. The Holy See
uses decrees from the pope such as papal bull, papal brief or motu proprio as legislative
acts.
edict
An edict is an announcement of a law, often associated with monarchism. The Pope and
various micronational leaders are currently the only persons who still issue edicts.
proclamation
A proclamation (Lat. proclamare, to make public by announcement) is an official
declaration. Royal proclamation granting Lord Mayoralty to Oxford. In English law, a
proclamation is a formal announcement ("royal proclamation"), made under the great
seal, of some matter which the King in Council or Queen in Council desires to make
known to his or her subjects: e.g., the declaration of war, or state of emergency, the
statement of neutrality, the summoning or dissolution of Parliament, or the bringing
into operation of the provisions of some statute the enforcement of which the
legislature has left to the discretion of the king in the announcement.
pg. 18
PUBLIC LAW (DEFINITION AND CREATION)
public law (definition

Public law involves interrelations between the state and the general population. In some
cases these public statutes are known as laws of public order, as private individuals do
not have the right to break them and any attempt to circumvent such laws is void as
against public policy.
public law (scope)
Areas of public law include:
‫و‬ Constitutional law deals with the relationship between the state and individual, and
the relationships between different branches of the state, such as the executive, the
legislative and the judiciary. In most legal systems, these relationships are specified
within a written constitutional document. However, in the United Kingdom of Great
Britain and Northern Ireland (UK), due to historical and political reasons there does not
exist one supreme, entrenched written document. The UK has an unwritten constitution
—the constitution of this state is usually found in statutes, such as the Magna Carta6, the
Petition of Right, the Bill of Rights, the Act of Settlement 1700 and the Parliament Acts of
1911 and 1949. The constitution is also found in case-law, such as the historical
decision in Entick v. Carrington7, a leading case in Common law establishing the civil
liberties of individuals and limiting the scope of executive power. The case has also
been influential in other common law jurisdictions and was an important motivation for
the Fourth Amendment to the United States Constitution, held to be a one of the
landmarks of English liberty, one of the permanent monuments of the British
Constitution,’ and a guide to an understanding of the Fourth Amendment. It is famous
for the dictum of Camden LJ: ‘If it is law, it will be found in our books. If it not to be found
there, it is not law’8’ and the landmark decision of M v. Home Office9, which laid the
principle of separation of powers, stating that rule of law also requires that judges
ensure the legality of government action; this function could not be fulfilled if the judges’
independence was in doubt. It hence set constitutional precedence for judicial control.
Due to the lack of a written constitution, the idea of the legislative supremacy of
Parliament and the rule of law play an important role in the constitution 10. Despite all
this, in reality, much of the constitution is a political phenomenon, rather than a legal
one.
6
see Holt, J.C., Magna Carta, 2nd edition 1992
7
(1765) 19 St Tr 1030
8
See also John Locke, Two Treatises of Government (1689) Ch XI, §§134-5.
9
[9] 1 AC 377; [9] QB 270.
10
see A. V. Dicey, The Law of the Constitution (ed. E. C. S. Wade), 10th edition, 1959
pg. 19
Administrative law refers to the body of law which regulates bureaucratic managerial
procedures and defines the powers of administrative agencies. These laws are enforced
by the executive branch of a government rather than the judicial or legislative branches
(if they are different in that particular jurisdiction). This body of law regulates
international trade, manufacturing, pollution, taxation, and the like. This is sometimes
seen as a subcategory of Civil law and sometimes seen as public law as it deals with
regulation and public institutions.
Civil rights law and human rights law are important fields to guarantee everyone basic
freedoms and entitlements. These are laid down in codes such as the Universal
Declaration of Human Right11.
Statutory law regulates behavior by setting rules, like speed limits, and established rights
and benefits, such as driver’s license and Social Security benefits. A legislative branch of
government writes this type of law.
civil procedure and criminal procedure concern the rules that courts must follow as a
trial and appeals proceed. Both concern a citizen's right to a fair trial or hearing.
Evidence law involves which materials are admissible in courts for a case to be built.
Immigration law and nationality law concern the rights of foreigners to live and work in
a nation-state that is not their own and to acquire or lose citizenship. Both also involve
the right of asylum and the problem of stateless individuals.
Social security law refers to the rights people have to social insurance, such as jobseekers'
allowances or housing benefits.
Criminal law is the law that provides for punishment of criminals and offenders.
Consumer law could include anything from regulations on unfair contractual terms and
clauses to directives on airline baggage insurance.
Environmental law is increasingly important, especially in light of the Kyoto Protocol and
the potential danger of climate change. Environmental protection also serves to
penalise polluters within domestic legal systems.
11
The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General
Assembly (10 December 1948 at Palais de Chaillot, Paris). The Declaration arose directly from the experience
of the Second World War and represents the first global expression of rights to which all human beings are
inherently entitled. It consists of 30 articles which have been elaborated in subsequent international treaties,
regional human rights instruments, national constitutions and laws. The International Bill of Human Rights
consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and
Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. In
1966 the General Assembly adopted the two detailed Covenants, which complete the International Bill of
Human Rights; and in 1976, after the Covenants had been ratified by a sufficient number of individual nations,
the Bill took on the force of international law.
pg. 20
constitutional law
Constitutional law concerns both the relationships between the executive, legislature and
judiciary and the human rights or civil liberties of individuals against the state. Most
jurisdictions have a single codified constitution with a bill of rights. A few, like the UK
have no such single written document, but rather, a collection of documents which
together constitute the constitution.
Constitutional law trumps statutory law which trumps the common law. This means that
our appellate courts have more power than any other court. There can be a rehearing
en banc (meaning that they want the ENTIRE set of judges to rehear the case).
Why should unelected justices have the power to overturn popular and legislative
decisions? This question is known variously as ‘the counter-majoritarian problem’ or
the debate over ‘judicial review.’
judicial review
Government bodies and public officials are charged with the responsibility to implement
the ministerial and executive directives are;
¯ They make decisions
¯ They exercise discretion.
¯ They also resolve disputes
¯ They make laws, rules and regulations.
¯ They determine appeals
In performing the above duties, the bodies are required to conform to certain guidelines as
to avoid conflict that arises due to the decisions wither by action or omission. It then
follows that any contravention of such guidelines shall as of right amount to a ground
for an application for judicial review.
The grounds of judicial review are divided into two, namely; Substantive grounds of
review, which are a) Illegality, b) unreasonableness/irrationality, c) Proportionality/
fairness; and Procedural grounds of review, which arises out of procedural impropriety.
Color (law)
In United States law, the term color of law denotes the "mere semblance of legal right", the
"pretense or appearance of" right; hence, an action done under color of law colors (adjusts) the
law to the circumstance, yet said apparently legal action contravenes the law. Under color of
authority is a legal phrase used in the US indicating that a person is claiming or implying the
acts he or she is committing are related to and legitimized by his or her role as an agent of
governmental power, especially if the acts are unlawful.
Color of law refers to an appearance of legal power to act but which may operate in violation of law.
For example, though a police officer acts with the "color of law" authority to arrest someone, if
such an arrest is made without probable cause the arrest may actually be in violation of law. In
other words, just because something is done with the "color of law", that does not mean that the
pg. 21
action was lawful. When police act outside their lawful authority and violate the civil rights of a
citizen, the FBI is tasked with investigating.
The Supreme Court has interpreted the United States Constitution to construct laws regulating the
actions of the law enforcement community. Under "color of law", it is a crime for one or more
persons using power given to him or her by a governmental agency (local, state or federal), to
willfully deprive or conspire to deprive another person of any right protected by the
Constitution or laws of the United States. Criminal acts under color of law include acts within
and beyond the bounds or limits of lawful authority. Off-duty conduct may also be covered if
official status is asserted in some manner. Color of law may include public officials and non-
governmental employees who are not law enforcement officers such as judges, prosecutors, and
private security guards. Furthermore, in many states it is unlawful to falsely impersonate a
police officer, a federal officer or employee, or any other public official or to use equipment
used by law enforcement officers, such as flashing lights or a fake police badge. Possession of a
firearm also can enhance the penalty for false impersonation of a police officer.
Color of office
Color of office refers to an act usually committed by a public official under the appearance of
authority, but which exceeds such authority. An affirmative act or omission, committed under
color of office, is sometimes required to prove malfeasance in office.
ballot measure , Initiative, Popular referendum, Legislative referral, legislative
referendum
A ballot measure is a piece of proposed legislation to be approved or rejected by eligible
voters. Ballot measures are also known as "propositions" or simply "questions".
Ballot measures differ from most legislation passed by representative democracies;
ordinarily, an elected legislature develops and passes laws. Ballot measures, by
contrast, are an example of direct democracy.
In many states, ballot measures may originate by several different processes:
¯ Initiative, in which any citizen or organization may gather a predetermined number of
signatures to qualify a measure for the ballot;
¯ Popular referendum, in which a predetermined number of signatures (typically lower than
the number required for an initiative) qualifies a ballot measure repealing a specific act of
the legislature;
¯ Legislative referral (aka "legislative referendum"), in which the legislature puts proposed
legislation up for popular vote (either voluntarily or, in the case of a constitutional
amendment as a required procedure)
codification
In law, codification is the process of collecting and restating the law of a jurisdiction in
certain areas, usually by subject, forming a legal code, i.e. a codex (book) of law.
Ancient Sumer's Code of Ur-Nammu was compiled circa 2100-2050 BC, and is the earliest
known surviving civil code. Three centuries later, the Babylonian king Hammurabi
enacted the set of laws named after him.
pg. 22
Besides religious laws such as the Torah, important codifications were developed in the
ancient Roman Empire, with the compilations of the Lex Duodecim Tabularum and
much later the Corpus Iuris Civilis. These codified laws were the exceptions rather than
the rule, however, as during much of ancient times Roman laws were left mostly
uncodified.
The first permanent system of codified laws could be found in China, with the compilation
of the Tang Code in AD 624. This formed the basis of the Chinese criminal code, which
was then replaced by the Great Qing Legal Code, which was in turn abolished in 1912
following the Xinhai Revolution and the establishment of the Republic of China. The
new laws of the Republic of China were inspired by the German codified work, the
Bü rgerliches Gesetzbuch. A very influential example in Europe was the French
Napoleonic code of 1804.
Another early system of laws is Hindu law framed by Manu and called as Manu Smriti,
dating back to the 2nd century BC. The use of civil codes in Islamic Sharia law began
with the Ottoman Empire in the 16th century AD.
Codification of common law
Contrary to popular belief, the common law has been codified in many jurisdictions in
many areas; examples include the Law of General Obligations of New York State, the
English law relating to marine insurance in the Marine Insurance Act 1906, which was
originally judge-made common law, and the California Civil Code.
codification of international law
Following the First World War and the establishment of the League of Nations, the need for
codification of international law arose. In September 1924, the General Assembly of the
League established a committee of experts for the purpose of codification of
international law, which was defined by the Assembly as consisting of two aspects:
¯ Putting existing customs into written international agreements
¯ Developing further rules
Recodification
Recodification refers to a process where existing codified statutes are reformatted and
rewritten into a new codified structure. This is often necessary as, over time, the
legislative process of amending statutes and the legal process of construing statutes by
nature over time results in a code that contains archaic terms, superseded text, and
redundant or conflicting statutes. Due to the size of a typical government code, the
legislative process of recodification of a code can often take a decade or longer.
Promulgation
Promulgation is the act of formally proclaiming or declaring a new statutory or
administrative law after its enactment. In some jurisdictions, this additional step is
necessary before the law can take effect. After a new law is approved, it is announced to
pg. 23
the public through the publication of the text of the law in a government periodical
and/or on official websites. National laws of extraordinary importance to the public
may be announced by the head of state on a national broadcast. Local laws are usually
announced in the local newspapers and published in bulletins or compendia of
municipal regulations.
rule-making
In administrative law, rule-making refers to the process that executive and independent
agencies use to create, or promulgate, regulations. In general, legislatures first set broad
policy mandates by passing statutes, then agencies create more detailed regulations
through rulemaking.
ministerial act
A ministerial act is a government action "performed according to legal authority,
established procedures or instructions from a superior, without exercising any
individual judgment." It can be any act a functionary or bureaucrat performs in a
prescribed manner, without exercising any individual judgment or discretion. 12 Under
law, this would be classified under the rubric of public policy. If a ministerial act is not
performed, then a court may issue a writ of mandamus to compel the public official to
perform said act. Absolute or sovereign immunity does not apply to the performance or
non-performance of ministerial acts.
nondelegation doctrine, delegatus non potest delegate
The doctrine of nondelegation describes the theory that one branch of government must
not authorize another entity to exercise the power or function which it is
constitutionally authorized to exercise itself. It is explicit or implicit in all written
constitutions that impose a strict structural separation of powers. It is usually applied
in questions of constitutionally improper delegations of powers of any of the three
branches of government to either of the other, to the administrative state, or to private
entities. Although it is usually constitutional for executive officials to delegate executive
powers to executive branch subordinates, there can also be improper delegations of
powers within an executive branch.
Polycentricity
Polycentricity is a concept in Canadian administrative law. According to the Supreme Court
of Canada in Pushpanathan v. Canada, the concept is "well known to academic
commentators". The court quotes a definition, a "polycentric issue is one which involves
a large number of interlocking and interacting interests and considerations", which they
ascribe to the book An Introduction to Administrative Law (3rd ed. 1996), by P. Cane.
According to the court, academic commentators have suggested that polycentricity
provides "the best rationale for judicial deference to non-judicial agencies". The court
explained that:
12
Ballentine's Law Dictionary, p. 341.
pg. 24
While judicial procedure is premised on a bipolar opposition of parties, interests, and

factual discovery, some problems require the consideration of numerous interests
simultaneously, and the promulgation of solutions which concurrently balance benefits
and costs for many different parties. Where an administrative structure more closely
resembles this model, courts will exercise restraint.
legislative veto
The legislative veto describes features of at least two different forms of government,
monarchies and those based on the separation of powers, applied to the authority of the
monarch in the first and to the authority of the legislature in the second.
In the case of monarchy, legislative veto describes the right of the ruler to nullify the
actions of a legislative body, for example, the French monarch's claim to the right to
veto actions of the National Assembly at the start of the French Revolution. 13
In a parliamentary system with a bicameral legislature, it refers to the authority of the
upper chamber, like Canada's Senate, to reject legislation or certain prescribed
categories of legislation.
repeal
A repeal is the removal or reversal of a law. There are two basic types of repeal, a repeal
with re-enactment (or replacement) of the repealed law, or a repeal without
replacement. The motion to rescind, repeal, or annul is used in parliamentary
procedure to cancel or countermand an action or order previously adopted by the
assembly. Removal of secondary legislation is normally referred to as revocation rather
than repeal in the United Kingdom and Ireland. Under the common law of England and
Wales, the effect of repealing a statute was "to obliterate it completely from the records
of Parliament as though it had never been passed." 14 This, however, is now subject to
savings provisions within the Interpretation Act 1978.
partial repeal or full repeals
A partial repeal occurs when a specified part or provision of a previous Act is repealed but
other provisions remain in force. For example, the Acts of Union 1800, providing for the
union between the formerly separate kingdoms of Great Britain and Ireland as the
United Kingdom, was partially repealed in 1922, when (as a consequence of the 1921
Anglo-Irish Treaty), twenty-six of the thirty-two counties of Ireland were constituted as
the Irish Free State, and ceased to form part of the United Kingdom.
A full repeal occurs where the entire Act in question is repealed.
Repeal with re-enactment, Repeal without re-enactment
A typical situation where an Act is repealed and re-enacted is where the law in the area is
being updated but the law being repealed needs to be replaced with one suitable for the
13
Baker, Keith Michael (1990). Inventing the French Revolution: Essays on French Political Culture in the Eighteenth Century.
Cambridge University Press. pp. 280–1.
14
Kay v. Goodwin (1830) 6 Bing. 576, per Tindal C.J.
pg. 25
modern era. Re-enactment can be with or without amendment, although repeal and re-
enactment without amendment normally occurs only in the context of a Consolidation
Bill (a bill to consolidate the law in a particular area).
For example the repeal of the Poor Laws in England in 1948 reflected their replacement by
modern social welfare legislation.
A repeal without replacement is generally done when a law is no longer effective, or it is
shown that a law is having far more negative consequences than were originally
envisioned.
If a campaign for the repeal of a particular law gains particular momentum, an advocate of
the repeal might become known as a "repealer". This happened in 19th century Britain
to a group in favour of the re-separation of Ireland from the United Kingdom.
Express repeal, implied repeal
The repeal of a statute may be either express or implied. 15
Express repeal occurs where express words are used in a statute to repeal an earlier
statute. They are now usually included in a table in a schedule to the statute, for reasons
of convenience.
Implied repeal occurs where two statutes are mutually inconsistent. The effect is that the
later statute repeals the earlier statute pro tanto (in so far as it is inconsistent). 16 There
is a presumption against implied repeal.17
Repeals with savings, Repeals without savings
Repeals can be with or without savings. A repeal without savings eliminates the repealed
statute completely. A repeal with savings preserves the effect of the repealed statute for
limited purposes, such as acts already done or in hand, or regulations made under the
repealed Act are continued in force. In England and Wales, sections 15 to 17, and
section 19(2), of the Interpretation Act 1978 set out general savings and similar
provisions exist in the law of Ireland and other common law countries.
15
Vauxhall Estates, Ltd. v. Liverpool Corporation [3] 1 KB 733
16
Vauxhall Estates, Ltd. v. Liverpool Corporation [3] 1 KB 733
17
Ellen Street Estates v. Minister of Health 1 KB 590
pg. 26
PUBLIC INTERNATIONAL LAW
international law
International law is the set of rules generally regarded and accepted as binding in relations
between states and nations.18 It serves as the indispensable framework for the practice
of stable and organized international relations. 19 International law differs from national
legal systems in that it primarily concerns nations rather than private citizens.
International law is consent-based governance. This means that a state member of the
international community is not obliged to abide by international law unless it has
expressly consented to a particular course of conduct. 20 International law is categorized
into three areas of law: public international law, private international law or conflict of
laws and the law of supranational organizations.
The body of rules and customs by which sovereign states are guided in their relations with
each other21. International law differs from national legal systems in that it primarily
concerns nations rather than private citizens. National law may become international
law when treaties delegate national jurisdiction to supranational tribunals such as the
European Court of Human Rights or the International Criminal Court. Treaties such as
the Geneva Conventions may require national law to conform.
All relationships between states, between states and international organisations and
between international private persons.
expressly consented to a particular course of conduct. This is an issue of state
sovereignty.
The term "international law" can refer to three distinct legal disciplines:
public international law
Public international law, which governs the relationship between states and international
entities. It includes these legal fields: treaty law, law of sea, international criminal law,
the laws of war or international humanitarian law and international human rights law.
Public international law concerns relationships between sovereign nations, both
during peacetime and wartime. The sources for public international law development
are custom or practice and treaties between sovereign nations, such as the Geneva
Conventions. Customs (customary international law) refers to “a general and consistent
practice of states followed by them from a sense of legal obligation.” 22 Such a belief by
states that certain practices are legally binding upon them is known as opinio juris, or
18
See generally I Brownlie, Principles of Public International Law (OUP 2008).
19
Slomanson, William (2011). Fundamental Perspectives on Internationa Law. Boston, USA: Wadsworth. pp. 4-5.
20
Id p. 4.
21
Slomanson, William (2011). Fundamental Perspectives on Internationa Law. Boston, USA: Wadsworth. pp. 4-5.; see also I
Brownlie, Principles of Public International Law (OUP 2008)
22
Restatement (Third) § 102(2).
pg. 27
opinio juris et necessitatis.23 Treaties, also known as an (international) agreement,

protocol, covenant, convention or exchange of letters, among other terms, are express
agreements under international law entered into by actors in international law, namely
sovereign states.24Treaties are governed by the Vienna Convention on Law of Treaties,
and are of various types. Public international law can be formed by international
organisations, such as the United Nations, the International Labour Organisation or the
World Trade Organisation. Public international law has a special status as law because
there is no international police force, and courts (e.g. the International Court of Justice
as the primary UN judicial organ) lack the capacity to penalise disobedience. The
prevailing manner of enforcing international law is still essentially ‘self help’; that is the
reaction by states to alleged breaches of international obligations by other states. 25
However, a few bodies, such as the WTO, have effective systems of binding arbitration
and dispute resolution backed up by trade sanctions. 26 The public international law that
governs warfare is called humanitarian law, and are codified in the Hague Convention,
and Geneva Conventions on the Laws of War.
The law that governs relationship between and or amongst (1) states; (2) relationship
between states and individuals; and (3) relationship between states and international
organisations. 27. International law differs from national legal systems in that it
primarily concerns nations rather than private citizens. National law may become
international law when treaties delegate national jurisdiction to supranational tribunals
such as the European Court of Human Rights or the International Criminal Court.
Treaties such as the Geneva Conventions may require national law to conform.
International legal theory
International legal theory comprises a variety of theoretical and methodological
approaches used to explain and analyse the content, formation and effectiveness of
public international law and institutions and to suggest improvements. Some
approaches center on the question of compliance: why states follow international
norms in the absence of a coercive power that ensures compliance. Other approaches
focus on the problem of the formation of international rules: why states voluntarily
adopt international legal norms, that limit their freedom of action, in the absence of a
world legislature. Other perspectives are policy oriented; they elaborate theoretical
frameworks and instruments to criticize the existing rules and make suggestions on
how to improve them. Some of these approaches are based on domestic legal theory,
others are interdisciplinary, while others have been developed expressly to analyse
international law.
23
Lee A. Casey and David B. Rivkin, Jr., “International Law and the Nation-State at the U.N.: A Guide for U.S. Policymakers,”
Heritage Foundation Backgrounder at 7 (Aug. 18, 2006).
24
Shaw, Malcolm. (2003). International Law, pp. 88–92.
25
Robertson, Crimes against Humanity, 90; Schermers-Blokker, International Institutional Law, 900–901.
26
Petersmann, The GATT/WTO Dispute Settlement System International Criminal Court, 32
27
Slomanson, William (2011). Fundamental Perspectives on Internationa Law. Boston, USA: Wadsworth. pp. 4-5.; see also I
Brownlie, Principles of Public International Law (OUP 2008)
pg. 28
scope of public international law

All relationships between states, between states and international organisations and
between international private persons.
expressly consented to a particular course of conduct. This is an issue of state
sovereignty.
The term "international law" can refer to three distinct legal disciplines:
1. Public international law, which governs the relationship between states and
international entities. It includes these legal fields: treaty law, law of sea, international
criminal law, the laws of war or international humanitarian law and international
human rights law.
2. Private international law, or conflict of laws, which addresses the questions of (1) which
jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to
the issues in the case.
3. Supranational law or the law of supranational organizations, which concerns regional
agreements where the laws of nation states may be held inapplicable when conflicting
with a supranational legal system when that nation has a treaty obligation to a
supranational collective.
The two traditional branches of the field are:
1. jus gentium — law of nations
2. jus inter gentes — agreements between nations
sources of international law
The sources of international law, that is, where a decision maker or researcher looks to
verify the substantive legal rule or principle are listed under Article 38.1 of the Statute
of the International Court. There are two classifications of the sources of international
law. The three primary sources are Treaties, international customs, and general
principles. The secondary sources, also refered to as subsidiary sources of international
law, are judicial decisions and scholarly writings.
customary international law, consuetudinary law, unofficial law
Customary international law are those aspects of international law that derive from
custom. Along with general principles of law and treaties, custom is considered by the
International Court of Justice, jurists, the United Nations, and its member states to be
among the primary sources of international law. The International Court of Justice
Statute defines customary international law in Article 38(1)(b) as "evidence of a general
pg. 29
practice accepted as law."28 This is generally determined through two factors: the
general practice of states and what states have accepted as law. 29
There are several different kinds of customary international laws recognized by states.
Some customary international laws rise to the level of jus cogens through acceptance by
the international community as non-derogable rights, while other customary
international law may simply be followed by a small group of states. States are typically
bound by customary international law regardless of whether the states have codified
these laws domestically or through treaties.
Some international customary laws have been codified through treaties and domestic laws,
while others are recognized only as customary law.
The laws of war, also known as jus in bello, were long a matter of customary law before
they were codified in the Hague Conventions of 1899 and 1907, Geneva Conventions, and
other treaties. However, these conventions do not purport to legal matters that may
arise during war. Instead, Article 1(2) of Additional Protocol I dictates that customary
international law governs legal matters concerning armed conflict not covered by other
agreements.30
Customary international law "... consists of rules of law derived from the consistent conduct of
States acting out of the belief that the law required them to act that way." 31 It follows that
customary international law can be discerned by a "widespread repetition by States of
similar international acts over time (State practice); Acts must occur out of sense of
obligation (opinio juris); Acts must be taken by a significant number of States and not
be rejected by a significant number of States." 32 A marker of customary international
law is consensus among states exhibited both by widespread conduct and a discernible
sense of obligation. The International Court of Justice held in Nicaragua v. United
States33 that the elements of an international customary law would be Opinio Juris (Past
Judge Decisions or works of the most highly qualified publicists) which is then proven
by existing state practices.34
Customary law, unlike treaties, is not a written source. As such, there are two basic
requirements for a custom to be elevated to the status of law. First, there must be
widespread and consistent State practice – ie States must, in general, have a practice of
according immunity to a visiting Head of State. Secondly, there has to be what is called
28
Statute of the International Court of Justice"
29
Yoram Dinstein. 2004. The Conduct of Hostilities under the Law of International Armed Conflict, pp. 5. Cambridge: Cambridge
University Press.
30
Yoram Dinstein. 2004. The Conduct of Hostilities under the Law of International Armed Conflict, pp. 6-7. Cambridge:
Cambridge University Press; see also "Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the
Protection of Victims of International Armed Conflicts (Protocol I)". 8 June 1977. http://www.icrc.org/ihl.nsf/full/470?
opendocument. Retrieved 30 May 2012.
31
Rosenne, Practice and Methods of International Law, p. 55.
32
http://internationallaw.uslegal.com/sources-of-international-law/customary-international-law/
33
Official name: Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Jurisdiction and Admissibility, 1984 ICJ REP. 392 June 27, 1986.
34
Malcom Shaw. 2008. International Law (Sixth Edition). New York: Cambridge University Press, pp. 72-93
pg. 30
“opinio juris”, usually translated as “a belief in legal obligation; ie States must accord
immunity because they believe they have a legal duty to do so. As the ICJ has put it:-
‘Not only must the acts concerned be 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 requiring it. … The States concerned must feel that
they are conforming to what amounts to a legal obligation.’ 35
A new rule of customary international law cannot be created unless both of these elements
are present. Practice alone is not enough 36. Nor can a rule be created by opinio juris
without actual practice.37
Customary law (also, consuetudinary or unofficial law) exists where:
¯ a certain legal practice is observed and
¯ the relevant actors consider it to be law (opinio juris).
jus cogens
A peremptory norm (also called jus cogens, Latin for "compelling law") is a fundamental
principle of international law which is accepted by the international community of
states as a norm from which no derogation is ever permitted. These norms rooted from
Natural Law principles,38 and any laws conflicting with it should be considered null and
void. Examples include various international crimes; a state which carries out or
permits slavery, torture, genocide, war of aggression, or crimes against humanity is
always violating customary international law. 39 Jus cogens and customary international
law are not interchangeable. All jus cogens are customary international law through
their adoption by states, but not all customary international laws rise to the level of
peremptory norms. States can deviate from customary international law by enacting
treaties and conflicting laws, but jus cogens are non-derogable.
foreign relations law
Foreign relations law encompasses both International Law, which embodies the rules that
determine the rights and obligations of states and international organizations, and that
part of the domestic law that involves matters of significant concern to the foreign
relations.
opinio juris sive necessitatis
Opinio juris sive necessitatis ("an opinion of law or necessity") or simply opinio juris ("an
opinion of law") is the belief that an action was carried out because it was a legal
obligation. This is in contrast to an action being the result of different cognitive
35
North Sea Continental Shelf cases, ICJ Reps, 1969, p. 3 at 44
36
– see, e.g., the Case of the SS Lotus (1927)
37
– see, e.g., the Advisory Opinion on Nuclear Weapons (1996).
38
Władysław Czapliński. Jus Cogens and the Law of Treaties. In C.Tomuschat and J.M. Thouvenin (eds). 2006. The
Fundamental Rules of the International Legal Order, pp. 83-98. Netherlands: Koninklijke Brill NV
39
M. Cherif Bassiouni.1998. International Crimes: jus cogens and Obligatio Erga Omnes, Law & Contemporary Problems, 59:
63-74
pg. 31
reaction, or behaviors that were habitual to the individual. This term is frequently used
in legal proceedings such as a defense for a case.
Opinio juris is the subjective element of custom as a source of law, both domestic and
international, as it refers to beliefs. The other element is state practice, which is more
objective as it is readily discernible. To qualify as state practice, the acts must be
consistent and general international practice.
A situation where opinio juris would be feasible is a case concerning self-defense. A
condition must be met where the usage of force is limited to the situation at hand. The
act of striking an attacker may be done with legal justification; however, legal territory
limits the acceptability of such a claim. Even in this case, the usage of force must be
acceptable to the conditions of the environment, the attacker, and the physical
conditions of the people involved, as well as any weapons or tools used.
opinio juris (international law)
In international law, opinio juris is the subjective element which is used to judge whether
the practice of a state is due to a belief that it is legally obliged to do a particular act. 40
When opinio juris exists and is consistent with nearly all state practice, customary
international law emerges. Opinio juris essentially means that states must act in
compliance with the norm not merely out of convenience, habit, coincidence, or political
expediency, but rather out of a sense of legal obligation. 41 Article 38(1)(b) of the Statute
of the International Court of Justice accepts “international custom” as a source of law,
but only where this custom is 1) “evidence of a general practice,” (the objective
component) (2) “accepted as law.” (the opinio juris or subjective component) 42 Thus,
for example, while it may be observed that heads of state virtually always shake hands
when they first meet, it is highly unlikely that they do so because they believe that a rule
of international law requires it. On the other hand, a state would almost certainly expect
some form of legal repercussions if it were to prosecute a foreign ambassador without
the consent of his or her home state, and in this sense opinio juris does exist for the
international law rule of diplomatic immunity.
Because opinio juris refers to the psychological state of the state actor—asking why the
state behaved as it did—it can be difficult to identify and to prove. In practice, a variety
of sources tend to be used to demonstrate the existence of opinio juris, including
evidence such as diplomatic correspondence, press releases and other government
statements of policy, opinions of legal advisers, official manuals on legal questions,
legislation, national and international judicial decisions, legal briefs endorsed by the
state, a pattern of treaties ratified by the state that all include the same obligation(s),
resolutions and declarations by the United Nations, and other sources. In the Paquete
Habana case (decided by the United States Supreme Court in 1900 on the question of
40
Bederman, David J., International Law Frameworks (New York, New York: Foundation Press, 2001) at 15-16
41
The full phrase—opinio juris sive necessitatis—is Latin for “opinion (or belief) about whether law or necessity.” In other words,
the requirement of opinio juris means that the court should decide whether the state practice has arisen due to a belief that the
practice was legally required, or whether it has merely acted out of necessity or convenience.
42
David Harris, Cases and Materials on International Law, Seventh Edition, Sweet and Maxwell Publishers, 2010.
pg. 32
whether small coastal fishing boats are immune from capture during war time under
customary international law), evidence of opinio juris included medieval English royal
ordinances, agreements between European nations, orders issued to the U.S. Navy in
earlier conflicts, and the opinions of legal treatise writers.
Finally, the context, circumstances, and manner in which the state practice is carried out
can also be used to infer the existence of opinio juris. As the ICJ stated in the North Sea
Continental Shelf cases of 1969, “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.” 43Nonetheless, it should be noted that a state's motives can change over
time, and that it is not necessary that opinio juris be a significant impetus for each
instance of action. As Judge Lachs noted in a dissenting opinion in the North Sea
Continental Shelf cases, “At successive stages in the development of the [customary]
rule the motives which have prompted States to accept it have varied from case to case.
It could not be otherwise. At all events, to postulate that all States, even those which
initiate a given practice, believe themselves to be acting under a legal obligation is to
resort to a fiction, and in fact to deny the possibility of developing such rules.” 44
As difficult as it can be to prove why an actor did act in a certain way, it is exponentially
more difficult to prove why it did not act. For this reason, the necessity of
demonstrating that a behavior was prompted by a sense of legal obligation makes it
particularly difficult for customary international law to develop around the prohibition
of a practice. One important case in the development of modern customary
international law theory is the S.S. Lotus case, in which France attempted to protest
Turkey's assertion of criminal jurisdiction over a French citizen for acts committed on
the high seas (outside of Turkey's territory). France presented a number of historical
examples to demonstrate that the state of nationality or the state whose flag the ship
had flown had exclusive jurisdiction in cases such as this. However, the Permanent
Court of International Justice (a precursor to the ICJ) declared that the evidence showed
merely that “States had often, in practice, abstained from instituting criminal
proceedings, and not that they recognized themselves as being obliged to do so; for only
if such abstention were based on their being conscious of having a duty to abstain
would it be possible to speak of an international custom.” 45 This reasoning was cited
approvingly in the North Sea Shelf Continental Cases, which similarly declined to find
the existence of customary law regarding the proper method to delimit territorial
claims to the continental shelf extending from the coastline of states bordering the
North Sea.46 The ICJ also declined to find evidence of customary international law in an
opinion on the legality of the use or threat of nuclear weapons, despite what some
argued to be uniform state practice. As in the North Sea Continental Shelf cases, it found
that the mere fact that no state had used nuclear weapons against another state since
43
North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, pp. 3, 45, para. 77. http://www.icj-cij.org/docket/files/51/5535.pdf
44
North Sea Continental Shelf, 1969 I.C.J. 4, 232-33 (Feb. 20) (dissenting opinion of Judge Lachs).
45
S.S. Lotus Case, 1927 P.C.I.J. (Ser. A) No. 10 (Fr. v. Tur.).
46
North Sea Continental Shelf, Judgment, I.C.J. Reports 1969, pp. 3, 45, para. 78.
pg. 33
World War II did not reflect opinio juris. Some jurisdictions had pointed out that a
series of U.N. resolutions had been issued “that deal with nuclear weapons and that
affirm, with consistent regularity, the illegality of nuclear weapons,” and argued that
this signified “the existence of a rule of international customary law which prohibits
recourse to those weapons.”47 Nonetheless, the ICJ noted that states possessing nuclear
weapons had almost always objected to these resolutions, which strongly suggests that
those states did not believe that a customary law prohibiting their use existed.
Moreover, it noted that the non-use of nuclear weapons could actually provide evidence
of their “use” as a deterrent force.48
This logical framework makes sense for existing norms of customary international law, but
it becomes problematic in the context of new or emerging customary rules. If a practice
is not currently governed by customary international law, then it is illogical to inquire
into a state's beliefs about the legality of engaging in or abstaining from that practice,
i.e., to ask whether it believed that its practice was in compliance with a law that does
not yet exist. This paradox may be resolved to some extent by the idea of
“crystallization” of customary international law, in which practice and legal obligation
evolve jointly and eventually ripen into law. Under one model, this process occurs in
three stages: first, some jurisdictions engage in a given practice for reasons other than a
sense of legal obligation (e.g. political expediency, economic gain, courtesy, etc.); next,
States reinforce the practice by engaging in it or making claims based upon it, creating
loops of reciprocity and reliance based on expectations that the practice will continue;
finally, as these relationships expand in number and complexity, they eventually harden
into a general rule. In this final stage, as more States become aware of the conduct and
actively participate or at least passively acquiesce to the practice, the States' actions
begin to be undergirded by a belief that they are complying with an emerging
customary rule.
jus cogens
void.50 Examples include various international crimes; a state which carries out or
47
"Legality of the Threat or Use of Nuclear Weapons" - Advisory Opinion of 8 July 1996 - General List No. 95 (1995-1998), par.
68. http://www.icj-cij.org/docket/files/95/7494.pdf
48
"Legality of the Threat or Use of Nuclear Weapons" - Advisory Opinion of 8 July 1996 - General List No. 95 (1995-1998), par.
67. http://www.icj-cij.org/docket/files/95/7494.pdf
49
50
Article 53 of the Vienna Conventions on the Law of Treaties (1969)
51
63-74
pg. 34
treaties and conflicting laws, but jus cogens are non-derogable. However, treaties
cannot purport to be contrary to jus cogens.
treaty
A treaty is an express agreement under international law entered into by actors in
international law, namely sovereign states and international organizations. A treaty
may also be known as an (international) agreement, protocol, covenant, contract,
convention, pact, or exchange of letters, among other terms. Regardless of terminology,
all of these forms of agreements are, under international law, equally considered
treaties and the rules are the same. 52Treaties can be loosely compared to contracts:
both are means of willing parties assuming obligations among themselves, and a party
to either that fails to live up to their obligations can be held liable under international
law. Hence, whereas treaties create a contractual obligation, customary international
laws lead to legal obligations outside, and beyond contractual obligations between or
amongst the member states, to principles generally applicable. Treaties are not
necessarily permanently binding upon the signatory parties. As obligations in
international law are traditionally viewed as arising only from the consent of states,
many treaties expressly allow a state to withdraw as long as it follows certain
procedures of notification. Many treaties expressly forbid withdrawal. Other treaties
are silent on the issue, and so if a state attempts withdrawal through its own unilateral
denunciation of the treaty, a determination must be made regarding whether
permitting withdrawal is contrary to the original intent of the parties or to the nature of
the treaty. Human rights treaties, for example, are generally interpreted to exclude the
possibility of withdrawal, because of the importance and permanence of the obligations.
However, the principles of customary international law are permanently binding on the
state members.
pacta sunt servanda
The doctrine of pacta sunt servanda under Article 26 of the Vienna Convention, which
establishes that ‘every international agreement in force is binding upon the parties to it
and must be performed by them in good faith’ also reinforces states’ obligations not to
interpose their own domestic laws as justifications for non-compliance with
international agreements. However, several provisions of the law of treaties may
require certain modifications before application to international organisations given
the peculiarities. It is because of this recognition that the Vienna Convention of the Law
of Treaties provides at Article 5 that treaties constituting international organisations
and treaties adopted within an international organisation without prejudice to any
relevant rules of the organisation.
52
Shaw, Malcolm. (2003). International Law, pp. 88–92.
pg. 35
amending treaty
An existing treaty can be amended, and which is not possible for customary international
law since the principles of customary international law are permanently binding, and
non derogable.
treaty execution or treaty implementation
In monoist legal regimes, treaties are 'self-executing', in that merely becoming a party puts
the treaty and all of its obligations in action. However, in dualist legal systems, the
treaty has to be domesticated through a municipal legislation, or statute, to make it
implementable. Further, certain treaties may be so worded as to be self-executing.
However, the principles of customary international law are applicable without need for
country adoption, purely based on the fact that they are customs 53.
treaty interpretation or principle of maximum effectiveness
The language of treaties, like that of any law or contract, must be interpreted when the
wording does not seem clear or it is not immediately apparent how it should be applied
in a perhaps unforeseen circumstance. The Vienna Convention states that treaties are to
be interpreted “in good faith” according to the “ordinary meaning given to the terms of
the treaty in their context and in the light of its object and purpose.” International legal
experts also often invoke the 'principle of maximum effectiveness,' which interprets
treaty language as having the fullest force and effect possible to establish obligations
between the parties. No one party to a treaty can impose its particular interpretation of
the treaty upon the other parties. Consent may be implied, however, if the other parties
fail to explicitly disavow that initially unilateral interpretation, particularly if that state
has acted upon its view of the treaty without complaint. Consent by all parties to the
treaty to a particular interpretation has the legal effect of adding an additional clause to
the treaty – this is commonly called an 'authentic interpretation'. International
tribunals and arbiters are often called upon to resolve substantial disputes over treaty
interpretations. To establish the meaning in context, these judicial bodies may review
the preparatory work from the negotiation and drafting of the treaty as well as the final,
signed treaty itself. On the other hand, principles of customary international law are not
interpreted, but rather, used in the interpretation of treaty terms.
ultra vires treaty or null treaty
A party's consent to a treaty is invalid if it had been given by an agent or body without
power to do so under that state's domestic law. States are reluctant to inquire into the
internal affairs and processes of other states, and so a “manifest” violation is required
such that it would be “objectively evident to any State dealing with the matter". A strong
presumption exists internationally that a head of state has acted within his proper
authority. Consent is also invalid if it is given by a representative who ignored
restrictions he is subject to by his sovereign during the negotiations, if the other parties
to the treaty were notified of those restrictions prior to his signing. According to the
53
Vienna Convention on the Law of Treaties, Article II, Reservations.
pg. 36
preamble in The Law of Treaties, treaties are a source of international law. 54 A treaty is
null and void if it is in violation of a peremptory norm. These norms, unlike other
principles of customary law, are recognized as permitting no violations and so cannot
be altered through treaty obligations. These are limited to such universally accepted
prohibitions as those against genocide, slavery, torture, and piracy, meaning that no
state can legally assume an obligation to commit or permit such acts. This is a provision
that does not apply to customary international law which has reached the level of jus
cogens55.
treaty registration
The United Nations Charter states that treaties must be registered with the UN to be
invoked before it or enforced in its judiciary organ, the International Court of Justice.
This was done to prevent the proliferation of secret treaties that occurred in the 19th
and 20th century. Section 103 of the Charter also states that its members' obligations
under it outweigh any competing obligations under other treaties. However, in matters
concerning customary international law, there is neither a need, nor a register, of
customary international law.
codification of customary international law
while others are recognized only as customary law. The laws of war, also known as jus
in bello, were long a matter of customary law before they were codified in the Hague
Conventions of 1899 and 1907, Geneva Conventions, and other treaties. However, these
conventions do not purport to legal matters that may arise during war. Instead, Article
1(2) of Additional Protocol I dictates that customary international law governs legal
matters concerning armed conflict not covered by other agreements. 56 To this extent,
treaties represent partial codification of customary international law.
monism
Monists assume that the internal and international legal systems form a unity. Both
national legal rules and international rules that a state has accepted, for example by
way of a treaty, determine whether actions are legal or illegal. 57 In most monist states, a
distinction between international law in the form of treaties, and other international
law, e.g. jus cogens is made. International law does not need to be translated into
national law. The act of ratifying the international law immediately incorporates the
law into national law. International law can be directly applied by a national judge, and
can be directly invoked by citizens, just as if it were national law. A judge can declare a
national rule invalid if it contradicts international rules because, in some jurisdictions,
the latter have priority. In other states, like in Germany, treaties have the same effect as
54
Nicolson, Harold. (1934). Diplomacy, p. 135.
55
Article 3, Draft Articles on Responsibility of States for Internationally Wrongful Acts Adopted by ILC 53 session 2001.
56
"Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International
Armed Conflicts (Protocol I)". 8 June 1977. Retrieved 30 May 2012.; see also Yoram Dinstein. 2004. The Conduct of Hostilities
under the Law of International Armed Conflict, pp. 6-7. Cambridge: Cambridge University Press.
57
Pieter Kooijmans, Internationaal publiekrecht in vogelvlucht, Wolters-Noordhoff, Groningen, 1994, p. 82.
pg. 37
legislation, and by the principle of lex posterior, only take precedence over national
legislation enacted prior to their ratification. In its most pure form, monism dictates
that national law that contradicts international law is null and void, even if it predates
international law, and even if it is the constitution. From a human rights point of view,
for example, this has some advantages. Suppose a country has accepted a human rights
treaty - the International Covenant on Civil and Political Rights for instance - but some
of its national laws limit the freedom of the press. A citizen of that country, who is being
prosecuted by his state for violating this national law, can invoke the human rights
treaty in a national courtroom and can ask the judge to apply this treaty and to decide
that the national law is invalid. He or she does not have to wait for national law that
translates international law. His or her government can, after all, be negligent or even
unwilling to translate. The treaty was perhaps only accepted for political reasons, in
order to please donor-countries for example.
‘So when someone in Holland feels his human rights are being violated he can go to a Dutch
judge and the judge must apply the law of the Convention. He must apply international
law even if it is not in conformity with Dutch law’.58
dualism
Dualists emphasize the difference between national and international law, and require the
translation of the latter into the former. Without this translation, international law does
not exist as law. International law has to be national law as well, or it is no law at all. If a
state accepts a treaty but does not adapt its national law in order to conform to the
treaty or does not create a national law explicitly incorporating the treaty, then it
violates international law. But one cannot claim that the treaty has become part of
national law. Citizens cannot rely on it and judges cannot apply it. National laws that
contradict it remain in force. According to dualists, national judges never apply
international law, only international law that has been translated into national law.
‘International law as such can confer no rights cognisable in the municipal courts. It is only
insofar as the rules of international law are recognized as included in the rules of
municipal law that they are allowed in municipal courts to give rise to rights and
obligations’.59
The supremacy of international law is a rule in dualist systems as it is in monist systems.
Judge Sir Hersch Lauterpacht pointed out the Court's determination to discourage the
evasion of international obligations, and its repeated affirmation of:
‘…the self-evident principle of international law that a State cannot invoke its municipal law
as the reason for the non-fulfillment of its international obligations’.60
58
G.J. Wiarda, in Antonio Cassese, International Law in a Divided World, Clarendon Press, Oxford, 1992, p. 17.
59
James Atkin, Baron Atkin, in M. Akehurst, Modern Introduction to International Law, Harper Collins, London,
p. 45.
60
See The Development of International Law by the International Court, Hersch Lauterpacht (ed), Cambridge
University Press, 1982, ISBN 0521463327, page 262
pg. 38
If international law is not directly applicable, as is the case in dualist systems, then it must
be translated into national law, and existing national law that contradicts international
law must be ‘translated away’. It must be modified or eliminated in order to conform to
international law.
Again, from a human rights point of view, if a human rights treaty is accepted for purely
political reasons, and states do not intend to fully translate it into national law or to
take a monist view on international law, then the implementation of the treaty is very
uncertain.61
In some countries, such as the UK for instance, the dualist view is predominant.
International law is only part of British national law once it is accepted in national law.
A treaty
‘has no effect in municipal law until an Act of Parliament is passed to give effect to it. In other
countries this distinction tends to be blurred. In the vast majority of democratic countries
outside the Commonwealth, the legislature, or part of the legislature, participates in the
process of ratification, so that ratification becomes a legislative act, and the treaty
becomes effective in international law and in municipal law simultaneously. For instance,
the Constitution of the United States provides that the President 'shall have power, by and
with the advice and consent of the Senate, to make treaties, provided two-thirds of the
Senators present concur'. Treaties ratified in accordance with the Constitution
automatically become part of the municipal law of certain jurisdictions (the US)A’.62
International law does not determine which point of view is to be preferred, monism or
dualism. Every state decides for itself, according to its legal traditions. International law
only requires that its rules are respected, and states are free to decide on the manner in
which they want to respect these rules and make them binding on its citizens and
agencies.
‘The transformation of international norms into domestic law is not necessary from the point
of view of international law…the necessity of transformation is a question of national, not
of international law’.63
Both a monist state and a dualist state can comply with international law. However, monist
state is less at risk of violating international rules, because its judges can apply
international law directly.64 Negligence or unwillingness to translate international law,
or delays of translation, or misinterpretation of international law in national law can
only pose a problem in dualist states. States are free to choose the way in which they
want to respect international law, but they are always accountable if they fail to adapt
their national legal system in a way that they can respect international law. Either they
adopt a constitution that implements a monist system so that international law can be
61
A. Cassese, op. cit., p. 15.
62
M. Akehurst, op. cit., p. 45.
63
Antonio Cassese, International Law in a Divided World, Clarendon Press, Oxford, 1992, p. 17.
64
pg. 39
applied directly and without transformation, or they do not. But then they have to
translate all international law in national law. In a monist state we rely only on the
judges and not on the legislators, but judges can also be negligent and they can also
make mistakes. If a judge in a monist states makes mistakes when applying
international law, then the country violates international law just as much as a dualist
country that, for one reason or another, does not allow its judges to apply international
law directly and fails to translate or fails to translate correctly and effectively. 65 One
reason for preferring dualism is precisely the fear that national judges are not familiar
with international law - a highly complex field of law - and hence are liable to make
mistakes.
reception clause
As part of the colonial legacy, in ex-colonies like Uganda, foreign laws, which were either
enacted by the legislatures of former colonial powers or otherwise developed and
introduced in the colony during the colonial period, continue to form part of the laws
applicable in the independent states. The term “Reception clause” therefore refers to
the legal provisions providing for the application or introduction of laws which were in
force in the colonizing country into the colonies. This was by virtue of the Uganda
Orders in Council.
lex posterior (international law)
In dualist systems, international law must be translated into national law, and existing
national law that contradicts international law must be ‘translated away’. It must be
modified or eliminated in order to conform to international law. However, the need for
translation in dualist system causes a problem with regard to national laws voted after
the act of translation. In a monist system, a national law that is voted after an
international law has been accepted and that contradicts the international law becomes
automatically null and void at the moment it is voted. The international rule continues
to prevail. In a dualist system, however, the original international law has been
translated into national law - if all went well - but this national law can then be
overridden by another national law on the principle of ‘lex posterior derogat legi priori’,
the later law replaces the earlier one. This means that the country - willingly or
unwillingly - violates international law. 66 A dualist system requires continuous
screening of all subsequent national law for possible incompatibility with earlier
international law.
65
p. 45.
66
pg. 40
SOURCES OF INTERNATIONAL LAW
Sources of law definition

Sources of law means the origin from which rules of human conduct come into existence
and derive legal force or binding characters. It also refers to the sovereign or the state
from which the law derives its force or validity. Several factors of law have contributed
to the development of law. These factors are regarded as the sources of law.
Sources of ADR law are found in various areas, but mainyl limited to statutes, constitution,
statutes, and precedents.
These are explanined below:
constitution
which a state or other organization is governed. 67 The constitution, whether written, or
not written, is the grundnorm: the main source of law in any nation. When these
principles are written down into a single or set of legal documents, those documents are
called a written constitution. Every country’s Constitution is the document that outlays
the principles upon which it is to be run.
Precedents, judge-made law, case law
Precedent is one of the sources of law. The judgements passed by some of the learned
jurists became another significant source of law. When there is no legislature on
particular point which arises in changing conditions, the judges depend on their own
sense of right and wrong and decide the disputes. Such decisions become authority or
guide for subsequent cases of a similar nature and they are called precedents. The
dictionary of English law defines a judicial precedent as a judgement or decision of a
court of law cited as an authority for deciding a similar state of fact in the same manner
or on the same principle or by analogy. Precedent is more flexible than legislation and
custom. It is always ready to be used.
Customs , customary international law
A custom is a rule which in a particular family or in a particular district or in a particular
section, classes or tribes, has from long usage obtained the force of law. The dictionary
of English law defines custom as a law not written, which being established by long use
and consent of our ancestors has been and daily is put into practice. Custom as a source
of law got recognition since the emergence of sovereignty on the horizon of
jurisprudence. It is an exemption to the ordinary law of the land, and every custom is
limited in its application. They are practices that have to be repeated for a period of
time.
67
pg. 41
Legislation
Legislation is that source of law which consists in the declaration of legal rules by a
competent authority. Legislature is the direct source of law. Legislature frames new
laws, amends the old laws and cancels existing laws in all countries. In modern times
this is the most important source of law making. The term legislature means any form
of law making. Its scope has now been restricted to a particular form of law making. It
not only creates new rules of law it also sweeps away existing inconvenient rules.
From the definition of politician Mohamed Abdullahi Farmajo, defines legislation as
Legislation (or "statutory law") is law which has been promulgated (or "enacted") by a
legislature or other governing body, or the process of making it. (Another source of law
is judge-made law or case law.) Before an item of legislation becomes law it may be
known as a bill, and may be broadly referred to as "legislation" while it remains under
consideration to distinguish it from other business. Legislation can have many
purposes: to regulate, to authorize, to proscribe, to provide (funds), to sanction, to
grant, to declare or to restrict. It can also be redistricted.
Preparatory works, Legislative history
In some legal cultures, some of the documents produced in the process leading up to
legislation are subsequently used as guidelines on how to interpret and understand an
act of legislation.
Treaties and declarations as sources of law
The international legal promulgations, in the form of charters, agreements, treaties,
protocols, and declarations, can also lead to change in municipal legal regime, through
legal trnaspation doctrine, domestication, codification, and or monoist legal
implementaion by member states.
Agreements
The term "agreement" can have a generic and a specific meaning. It also has acquired a
special meaning in the law of regional economic integration.
(a) Agreement as a generic term: The 1969 Vienna Convention on the Law of Treaties
employs the term "international agreement" in its broadest sense. On the one hand, it
defines treaties as "international agreements" with certain characteristics. On the other
hand, it employs the term "international agreements" for instruments, which do not
meet its definition of "treaty". Its Art.3 refers also to "international agreements not in
written form". Although such oral agreements may be rare, they can have the same
binding force as treaties, depending on the intention of the parties. An example of an
oral agreement might be a promise made by the Minister of Foreign Affairs of one State
to his counterpart of another State. The term "international agreement" in its generic
sense consequently embraces the widest range of international instruments.
pg. 42
(b) Agreement as a particular term: "Agreements" are usually less formal and deal with a
narrower range of subject-matter than "treaties". There is a general tendency to apply
the term "agreement" to bilateral or restricted multilateral treaties. It is employed
especially for instruments of a technical or administrative character, which are signed
by the representatives of government departments, but are not subject to ratification.
Typical agreements deal with matters of economic, cultural, scientific and technical
cooperation. Agreements also frequently deal with financial matters, such as avoidance
of double taxation, investment guarantees or financial assistance. The UN and other
international organizations regularly conclude agreements with the host country to an
international conference or to a session of a representative organ of the Organization.
Especially in international economic law, the term "agreement" is also used as a title for
broad multilateral agreements (e.g. the commodity agreements). The use of the term
"agreement" slowly developed in the first decades of this century. Nowadays by far the
majority of international instruments are designated as agreements.
(c) Agreements in regional integration schemes: Regional integration schemes are based
on general framework treaties with constitutional character. International instruments
which amend this framework at a later stage (e.g. accessions, revisions) are also
designated as "treaties". Instruments that are concluded within the framework of the
constitutional treaty or by the organs of the regional organization are usually referred
to as "agreements", in order to distinguish them from the constitutional treaty. For
example, whereas the Treaty of Rome of 1957 serves as a quasi-constitution of the
European Community, treaties concluded by the EC with other nations are usually
designated as agreements. Also, the Latin American Integration Association (LAIA) was
established by the Treaty of Montevideo of 1980, but the subregional instruments
entered into under its framework are called agreements.
Charters (international law)
The term "charter" is used for particularly formal and solemn instruments, such as the
constituent treaty of an international organization. The term itself has an emotive
content that goes back to the Magna Carta of 1215. Well-known recent examples are the
Charter of the United Nations of 1945 and the Charter of the Organization of American
States of 1952.
Conventions (international law)
The term "convention" again can have both a generic and a specific meaning.
(a) Convention as a generic term: Art.38 (1) (a) of the Statute of the International Court of
Justice refers to "international conventions, whether general or particular" as a source
of law, apart from international customary rules and general principles of international
law and - as a secondary source - judicial decisions and the teachings of the most highly
qualified publicists. This generic use of the term "convention" embraces all
international agreements, in the same way as does the generic term "treaty". Black
letter law is also regularly referred to as "conventional law", in order to distinguish it
pg. 43
from the other sources of international law, such as customary law or the general
principles of international law. The generic term "convention" thus is synonymous with
the generic term "treaty".
(b) Convention as a specific term: Whereas in the last century the term "convention" was
regularly employed for bilateral agreements, it now is generally used for formal
multilateral treaties with a broad number of parties. Conventions are normally open for
participation by the international community as a whole, or by a large number of states.
Usually the instruments negotiated under the auspices of an international organization
are entitled conventions (e.g. Convention on Biological Diversity of 1992, United
Nations Convention on the Law of the Sea of 1982, Vienna Convention on the Law of
Treaties of 1969). The same holds true for instruments adopted by an organ of an
international organization (e.g. the 1951 ILO Convention concerning Equal
Remuneration for Men and Women Workers for Work of Equal Value, adopted by the
International Labour Conference or the 1989 Convention on the Rights of the Child,
adopted by the General Assembly of the UN).
Declarations
The term "declaration" is used for various international instruments. However,
declarations are not always legally binding. The term is often deliberately chosen to
indicate that the parties do not intend to create binding obligations but merely want to
declare certain aspirations. An example is the 1992 Rio Declaration. Declarations can
however also be treaties in the generic sense intended to be binding at international
law. It is therefore necessary to establish in each individual case whether the parties
intended to create binding obligations. Ascertaining the intention of the parties can
often be a difficult task. Some instruments entitled "declarations" were not originally
intended to have binding force, but their provisions may have reflected customary
international law or may have gained binding character as customary law at a later
stage. Such was the case with the 1948 Universal Declaration of Human Rights.
Declarations that are intended to have binding effects could be classified as follows:
(a) A declaration can be a treaty in the proper sense. A significant example is the Joint
Declaration between the United Kingdom and China on the Question of Hong Kong of
1984.
(b) An interpretative declaration is an instrument that is annexed to a treaty with the
goal of interpreting or explaining the provisions of the latter.
(c) A declaration can also be an informal agreement with respect to a matter of minor
importance.
(d) A series of unilateral declarations can constitute binding agreements. A typical example
are declarations under the Optional Clause of the Statute of the International Court of
Justice that create legal bonds between the declarants, although not directly addressed
to each other. Another example is the unilateral Declaration on the Suez Canal and the
pg. 44
arrangements for its operation issued by Egypt in 1957 which was considered to be an
engagement of an international character.
Exchange of Notes
An "exchange of notes" is a record of a routine agreement, that has many similarities with
the private law contract. The agreement consists of the exchange of two documents,
each of the parties being in the possession of the one signed by the representative of the
other. Under the usual procedure, the accepting State repeats the text of the offering
State to record its assent. The signatories of the letters may be government Ministers,
diplomats or departmental heads. The technique of exchange of notes is frequently
resorted to, either because of its speedy procedure, or, sometimes, to avoid the process
of legislative approval.
Memoranda of Understanding
A memorandum of understanding is an international instrument of a less formal kind. It
often sets out operational arrangements under a framework international agreement. It
is also used for the regulation of technical or detailed matters. It is typically in the form
of a single instrument and does not require ratification. They are entered into either by
States or International Organizations. The United Nations usually concludes
memoranda of understanding with Member States in order to organize its
peacekeeping operations or to arrange UN Conferences. The United Nations also
concludes memoranda of understanding on cooperation with other international
organizations.
Modus Vivendi
A modus vivendi is an instrument recording an international agreement of temporary or
provisional nature intended to be replaced by an arrangement of a more permanent
and detailed character. It is usually made in an informal way, and never requires
ratification.
Protocols
The term "protocol" is used for agreements less formal than those entitled "treaty" or
"convention". The term could be used to cover the following kinds of instruments:
(a) A Protocol of Signature is an instrument subsidiary to a treaty, and drawn up by the
same parties. Such a Protocol deals with ancillary matters such as the interpretation of
particular clauses of the treaty, those formal clauses not inserted in the treaty, or the
regulation of technical matters. Ratification of the treaty will normally ipso facto involve
ratification of such a Protocol.
(b) An Optional Protocol to a Treaty is an instrument that establishes additional rights
and obligations to a treaty. It is usually adopted on the same day, but is of independent
character and subject to independent ratification. Such protocols enable certain parties
of the treaty to establish among themselves a framework of obligations which reach
further than the general treaty and to which not all parties of the general treaty consent,
pg. 45
creating a "two-tier system". The Optional Protocol to the International Covenant on

Civil and Political Rights of 1966 is a well-known example.
(c) A Protocol based on a Framework Treaty is an instrument with specific substantive
obligations that implements the general objectives of a previous framework or umbrella
convention. Such protocols ensure a more simplified and accelerated treaty-making
process and have been used particularly in the field of international environmental law.
An example is the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer
adopted on the basis of Arts.2 and 8 of the 1985 Vienna Convention for the Protection of
the Ozone Layer.
(d) A Protocol to amend is an instrument that contains provisions that amend one or
various former treaties, such as the Protocol of 1946 amending the Agreements,
Conventions and Protocols on Narcotic Drugs.
(e) A Protocol as a supplementary treaty is an instrument which contains
supplementary provisions to a previous treaty, e.g. the 1967 Protocol relating to the
Status of Refugees to the 1951 Convention relating to the Status of Refugees.
(f) A Proces-Verbal is an instrument that contains a record of certain understandings
arrived at by the contracting parties.
Signatories and Parties
The term “Parties", which appears in the header of each treaty, in the publication
Multilateral Treaties Deposited with the Secretary-General, includes both "Contracting
States" and "Parties". For general reference, the term "Contracting States" refers to
States and other entities with treaty-making capacity which have expressed their
consent to be bound by a treaty where the treaty has not yet entered into force or
where it has not entered into force for such States and entities; the term "Parties" refers
to States and other entities with treaty-making capacity which have expressed their
consent to be bound by a treaty and where the treaty is in force for such States and
entities.)
Treaties
The term "treaty" can be used as a common generic term or as a particular term which
indicates an instrument with certain characteristics.
(a) Treaty as a generic term: The term "treaty" has regularly been used as a generic term
embracing all instruments binding at international law concluded between
international entities, regardless of their formal designation. Both the 1969 Vienna
Convention and the 1986 Vienna Convention confirm this generic use of the term
"treaty". The 1969 Vienna Convention defines a treaty as "an international agreement
concluded between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and whatever
its particular designation". The 1986 Vienna Convention extends the definition of
treaties to include international agreements involving international organizations as
pg. 46
parties. In order to speak of a "treaty" in the generic sense, an instrument has to meet
various criteria. First of all, it has to be a binding instrument, which means that the
contracting parties intended to create legal rights and duties. Secondly, the instrument
must be concluded by states or international organizations with treaty-making power.
Thirdly, it has to be governed by international law. Finally the engagement has to be in
writing. Even before the 1969 Vienna Convention on the Law of Treaties, the word
"treaty" in its generic sense had been generally reserved for engagements concluded in
written form.
delegated legislation, secondary legislation or subordinate legislation or subsidiary
legislation
Delegated legislation (also referred to as secondary legislation or subordinate legislation or
subsidiary legislation) is law made by an executive authority under powers given to
them by primary legislation in order to implement and administer the requirements of
that primary legislation. It is law made by a person or body other than the legislature
but with the legislature's authority.
Often, a legislature passes statutes that set out broad outlines and principles, and delegates
authority to an executive branch official to issue delegated legislation that flesh out the
details (substantive regulations) and provide procedures for implementing the
substantive provisions of the statute and substantive regulations (procedural
regulations). Delegated legislation can also be changed faster than primary legislation
so legislatures can delegate issues that may need to be fine-tuned through experience.
by-laws, code, bylaw, by law, byelaw , ordinance
A by-law (sometimes also spelled bylaw, by law or byelaw) is a rule or law established by
an organization or community to regulate itself, as allowed or provided for by some
higher authority. The higher authority, generally a legislature or some other
governmental body, establishes the degree of control that the by-laws may exercise. By-
laws may be established by entities such as a business corporation, a neighborhood
association, or depending on the jurisdiction, a municipality. Usually, the central
government (and usually the state governments) has no direct ability to regulate the
scope of the laws passed by the municipalities. As such terms such as code, ordinance,
or regulation, if not simply law are more common.
ordinance, By-law, Local ordinance, Act of Parliament
An ordinance is an authoritative rule or law; a decree or command. a public injunction or
regulation: a city ordinance against excessive horn blowing. something believed to have
been ordained, as by a deity or destiny.
The ordiance can also be:
¯ By-law, a rule established by an organization to regulate itself
¯ Local ordinance, a law made by a municipality or other local authority
pg. 47
¯ Act of Parliament, in some jurisdictions, such as England when the parliament operated
without regal sanction, and a number of British colonies.
regulation, self-regulation, co-regulation, legal restrictions
A regulation is a legal norm intended to shape conduct that is a byproduct of
imperfection.68 A regulation may be used to prescribe or proscribe conduct ("command-
and-control" regulation), to calibrate incentives ("incentive" regulation), or to change
preferences ("preferences shaping" regulation"). 69 In statist mechanisms it can also be
extended to monitoring and enforcement of rules as established by primary and/or
delegated legislation. In this form, it is generally a written instrument containing rules
having the force of statist law. (as opposed to natural law). Other forms of regulation
are self regulation. In general, regulations are written by executive agencies as a way to
enforce laws passed by the legislature. Because of the actual or potential interference in
choices, the idea of regulation and most issues related to regulation tend to be in
controversy.70
Regulation creates, limits, constrains a right, creates or limits a duty, or allocates a
responsibility. Regulation can take many forms: legal restrictions promulgated by a
government authority, contractual obligations that bind many parties (for example,
"insurance regulations" that arise out of contracts between insurers and their
insureds), self-regulation by an industry such as through a trade association, social
regulation (e.g. norms), co-regulation, third-party regulation, certification, accreditation
or market regulation. In its legal sense regulation can and should be distinguished from
primary legislation (by Parliament of elected legislative body) on the one hand and
judge-made law on the other.71
ministerial directives, ministerial orders, ministerial memoranda
The responsible Minister may issue directions from time to time to clarify the management,
reporting and other responsibilities of institute boards, and to give direction on the
employment of staff, charging fees, or other specific matters. Some Directions are also
given to ministries, departments, and agencies. The purposes of the Directions are to
remake directions relating to employment of staff and to repeal earlier directions that
are no longer required with the making of the strategic planning guidelines and
commercial guidelines.
Executive Memoranda
Copies of detailed information sent to CEOs of ministries, departments, and agencies
accompanying Ministerial Directions.
68
Orbach, Barak, What Is Regulation? 30 Yale Journal on Regulation Online 1 (2012)
69
id.
70
Orbach (2012)
71
Levi-Faur, David, Regulation and Regulatory Governance, Jerusalem Papers in Regulation and Governance, No.1, 2010
pg. 48
Presidential directives
Presidential directives are considered a form of executive order issued by the President
with the advice and consent of a ministry, agency or department within the Executive
branch of government.
presidential executive orders
The Constitution refers to the title of President as the executive. Presidents issue executive
orders to help officers and agencies of the executive branch manage the operations
within the government. Executive orders have the full force of law when they take
authority from a legislative power which grants its power directly to the Executive by
the Constitution, or are made pursuant to certain Acts of Congress/Parliament that
explicitly delegate to the President some degree of discretionary power (delegated
legislation). Like both legislative statutes and regulations promulgated by government
agencies, executive orders are subject to judicial review, and may be struck down if
deemed by the courts to be unsupported by statute or the Constitution. Major policy
initiatives require approval by the legislative branch, but executive orders have
significant influence over the internal affairs of government, deciding how and to what
degree legislation will be enforced, dealing with emergencies, waging 72-hour length
strikes on enemies, and in general fine-tuning policy choices in the implementation of
broad statutes.Most executive orders use these Constitutional reasonings as the
authorization allowing for their issuance to be justified as part of the President's sworn
duties, the intent being to help direct officers of the Executive carry out their delegated
duties as well as the normal operations of the federal government: the consequence of
failing to comply possibly being the removal from office.
decrees
A decree is a rule of law usually issued by a head of state (such as the president of a
republic or a monarch), according to certain procedures (usually established in a
constitution). It has the force of law. The particular term used for this concept may vary
from country to country. The executive orders made by the President of the United
States, for example, are decrees (although a decree is not exactly an order). In non-legal
English usage, however, the term refers to any authoritarian decision. The Holy See
uses decrees from the pope such as papal bull, papal brief or motu proprio as legislative
acts.
edict
An edict is an announcement of a law, often associated with monarchism. The Pope and
various micronational leaders are currently the only persons who still issue edicts.
proclamation
declaration. In English law, a proclamation is a formal announcement ("royal
proclamation"), made under the great seal, of some matter which the King in Council or
pg. 49
Queen in Council desires to make known to his or her subjects: e.g., the declaration of
war, or state of emergency, the statement of neutrality, the summoning or dissolution of
Parliament, or the bringing into operation of the provisions of some statute the
enforcement of which the legislature has left to the discretion of the king in the
announcement.
jus cogens
void.73 Examples include various international crimes; a state which carries out or
treaties and conflicting laws, but jus cogens are non-derogable. However, treaties
cannot purport to be contrary to jus cogens.
pacta sunt servanda
The doctrine of pacta sunt servanda under Article 26 of the Vienna Convention, which
establishes that ‘every international agreement in force is binding upon the parties to it
and must be performed by them in good faith’ also reinforces states’ obligations not to
interpose their own domestic laws as justifications for non-compliance with
international agreements. However, several provisions of the law of treaties may
require certain modifications before application to international organisations given
the peculiarities. It is because of this recognition that the Vienna Convention of the Law
of Treaties provides at Article 5 that treaties constituting international organisations
and treaties adopted within an international organisation without prejudice to any
relevant rules of the organisation.
amending treaty
An existing treaty can be amended, and which is not possible for customary international
law since the principles of customary international law are permanently binding, and
non derogable.
treaty execution or treaty implementation
In monoist legal regimes, treaties are 'self-executing', in that merely becoming a party puts
the treaty and all of its obligations in action. However, in dualist legal systems, the
72
73
Article 53 of the Vienna Conventions on the Law of Treaties (1969)
74
63-74
pg. 50
treaty has to be domesticated through a municipal legislation, or statute, to make it

implementable. Further, certain treaties may be so worded as to be self-executing.
However, the principles of customary international law are applicable without need for
country adoption, purely based on the fact that they are customs 75.
treaty interpretation or principle of maximum effectiveness
be interpreted “in good faith” according to the “ordinary meaning given to the terms of
the treaty in their context and in the light of its object and purpose.” International legal
between the parties. No one party to a treaty can impose its particular interpretation of
the treaty upon the other parties. Consent may be implied, however, if the other parties
fail to explicitly disavow that initially unilateral interpretation, particularly if that state
has acted upon its view of the treaty without complaint. Consent by all parties to the
treaty to a particular interpretation has the legal effect of adding an additional clause to
the treaty – this is commonly called an 'authentic interpretation'. International
tribunals and arbiters are often called upon to resolve substantial disputes over treaty
interpretations. To establish the meaning in context, these judicial bodies may review
the preparatory work from the negotiation and drafting of the treaty as well as the final,
signed treaty itself. On the other hand, principles of customary international law are not
interpreted, but rather, used in the interpretation of treaty terms.
Jus tractatuum
Jus tractatuum (or sometimes jus tractandi) is a Legal Latin term commonly used in public
international law and constitutional law that refers to the right to conclude treaties. It is
usually referred to in English as treaty-making power. As defined in article 6 of the
Vienna Convention on the Law of Treaties, every state possesses the capacity to
conclude treaties. International organizations as well as subnational entities of federal
states may have treaty-making power as well. Jus tractatuum is linked to the concept of
international legal personality.
ultra vires treaty or null treaty
internal affairs and processes of other states, and so a “manifest” violation is required
such that it would be “objectively evident to any State dealing with the matter". A strong
authority. Consent is also invalid if it is given by a representative who ignored
restrictions he is subject to by his sovereign during the negotiations, if the other parties
75
pg. 51
to the treaty were notified of those restrictions prior to his signing. According to the
preamble in The Law of Treaties, treaties are a source of international law. 76 A treaty is
null and void if it is in violation of a peremptory norm. These norms, unlike other
prohibitions as those against genocide, slavery, torture, and piracy, meaning that no
state can legally assume an obligation to commit or permit such acts. This is a provision
that does not apply to customary international law which has reached the level of jus
cogens77.
treaty registration
The United Nations Charter states that treaties must be registered with the UN to be
invoked before it or enforced in its judiciary organ, the International Court of Justice.
This was done to prevent the proliferation of secret treaties that occurred in the 19th
and 20th century. Section 103 of the Charter also states that its members' obligations
under it outweigh any competing obligations under other treaties. However, in matters
concerning customary international law, there is neither a need, nor a register, of
customary international law.
codification of customary international law
while others are recognized only as customary law. The laws of war, also known as jus
in bello, were long a matter of customary law before they were codified in the Hague
Conventions of 1899 and 1907, Geneva Conventions, and other treaties. However, these
conventions do not purport to legal matters that may arise during war. Instead, Article
1(2) of Additional Protocol I dictates that customary international law governs legal
matters concerning armed conflict not covered by other agreements. 78 To this extent,
treaties represent partial codification of customary international law.
monism
Monists assume that the internal and international legal systems form a unity. Both
national legal rules and international rules that a state has accepted, for example by
way of a treaty, determine whether actions are legal or illegal. 79 In most monist states, a
distinction between international law in the form of treaties, and other international
law, e.g. jus cogens is made. International law does not need to be translated into
national law. The act of ratifying the international law immediately incorporates the
law into national law. International law can be directly applied by a national judge, and
can be directly invoked by citizens, just as if it were national law. A judge can declare a
national rule invalid if it contradicts international rules because, in some jurisdictions,
76
Nicolson, Harold. (1934). Diplomacy, p. 135.
77
78
"Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International
Armed Conflicts (Protocol I)". 8 June 1977. Retrieved 30 May 2012.; see also Yoram Dinstein. 2004. The Conduct of Hostilities
under the Law of International Armed Conflict, pp. 6-7. Cambridge: Cambridge University Press.
79
pg. 52
the latter have priority. In other states, like in Germany, treaties have the same effect as
legislation, and by the principle of lex posterior, only take precedence over national
legislation enacted prior to their ratification. In its most pure form, monism dictates
that national law that contradicts international law is null and void, even if it predates
international law, and even if it is the constitution. From a human rights point of view,
for example, this has some advantages. Suppose a country has accepted a human rights
treaty - the International Covenant on Civil and Political Rights for instance - but some
of its national laws limit the freedom of the press. A citizen of that country, who is being
prosecuted by his state for violating this national law, can invoke the human rights
treaty in a national courtroom and can ask the judge to apply this treaty and to decide
that the national law is invalid. He or she does not have to wait for national law that
translates international law. His or her government can, after all, be negligent or even
unwilling to translate. The treaty was perhaps only accepted for political reasons, in
order to please donor-countries for example.
‘So when someone in Holland feels his human rights are being violated he can go to a Dutch
judge and the judge must apply the law of the Convention. He must apply international
law even if it is not in conformity with Dutch law’.80
dualism
Dualists emphasize the difference between national and international law, and require the
translation of the latter into the former. Without this translation, international law does
not exist as law. International law has to be national law as well, or it is no law at all. If a
state accepts a treaty but does not adapt its national law in order to conform to the
treaty or does not create a national law explicitly incorporating the treaty, then it
violates international law. But one cannot claim that the treaty has become part of
national law. Citizens cannot rely on it and judges cannot apply it. National laws that
contradict it remain in force. According to dualists, national judges never apply
international law, only international law that has been translated into national law.
‘International law as such can confer no rights cognisable in the municipal courts. It is only
insofar as the rules of international law are recognized as included in the rules of
municipal law that they are allowed in municipal courts to give rise to rights and
obligations’.81
The supremacy of international law is a rule in dualist systems as it is in monist systems.
Judge Sir Hersch Lauterpacht pointed out the Court's determination to discourage the
evasion of international obligations, and its repeated affirmation of:
‘…the self-evident principle of international law that a State cannot invoke its municipal law
as the reason for the non-fulfillment of its international obligations’.82
80
81
p. 45.
pg. 53
If international law is not directly applicable, as is the case in dualist systems, then it must
be translated into national law, and existing national law that contradicts international
law must be ‘translated away’. It must be modified or eliminated in order to conform to
international law.
Again, from a human rights point of view, if a human rights treaty is accepted for purely
political reasons, and states do not intend to fully translate it into national law or to
take a monist view on international law, then the implementation of the treaty is very
uncertain.83
In some countries, such as the UK for instance, the dualist view is predominant.
International law is only part of British national law once it is accepted in national law.
A treaty
‘has no effect in municipal law until an Act of Parliament is passed to give effect to it. In other
countries this distinction tends to be blurred. In the vast majority of democratic countries
outside the Commonwealth, the legislature, or part of the legislature, participates in the
process of ratification, so that ratification becomes a legislative act, and the treaty
becomes effective in international law and in municipal law simultaneously. For instance,
the Constitution of the United States provides that the President 'shall have power, by and
with the advice and consent of the Senate, to make treaties, provided two-thirds of the
Senators present concur'. Treaties ratified in accordance with the Constitution
automatically become part of the municipal law of certain jurisdictions (the US)A’.84
International law does not determine which point of view is to be preferred, monism or
dualism. Every state decides for itself, according to its legal traditions. International law
only requires that its rules are respected, and states are free to decide on the manner in
which they want to respect these rules and make them binding on its citizens and
agencies.
‘The transformation of international norms into domestic law is not necessary from the point
of view of international law…the necessity of transformation is a question of national, not
of international law’.85
Both a monist state and a dualist state can comply with international law. However, monist
state is less at risk of violating international rules, because its judges can apply
international law directly.86 Negligence or unwillingness to translate international law,
or delays of translation, or misinterpretation of international law in national law can
only pose a problem in dualist states. States are free to choose the way in which they
want to respect international law, but they are always accountable if they fail to adapt
82
See The Development of International Law by the International Court, Hersch Lauterpacht (ed), Cambridge
University Press, 1982, ISBN 0521463327, page 262
83
A. Cassese, op. cit., p. 15.
84
M. Akehurst, op. cit., p. 45.
85
Antonio Cassese, International Law in a Divided World, Clarendon Press, Oxford, 1992, p. 17.
86
pg. 54
their national legal system in a way that they can respect international law. Either they
adopt a constitution that implements a monist system so that international law can be
applied directly and without transformation, or they do not. But then they have to
translate all international law in national law. In a monist state we rely only on the
judges and not on the legislators, but judges can also be negligent and they can also
make mistakes. If a judge in a monist states makes mistakes when applying
international law, then the country violates international law just as much as a dualist
country that, for one reason or another, does not allow its judges to apply international
law directly and fails to translate or fails to translate correctly and effectively. 87 One
reason for preferring dualism is precisely the fear that national judges are not familiar
with international law - a highly complex field of law - and hence are liable to make
mistakes.
reception clause
As part of the colonial legacy, in ex-colonies, foreign laws, which were either enacted by the
legislatures of former colonial powers or otherwise developed and introduced in the
colony during the colonial period, continue to form part of the laws applicable in the
independent states. The term “Reception clause” therefore refers to the legal provisions
providing for the application or introduction of laws which were in force in the
colonizing country into the colonies. This was by virtue of the Orders in Council.
Ratification
Ratification is a principal's approval of an act of its agent where the agent lacked authority
to legally bind the principal. The term applies to private contract law, international
treaties, and constitutions in federations such as the United States and Canada.
union law (sources)
The three sources of Union law are primary law, secondary law and supplementary law. The
main sources of primary law are the Treaties establishing the European Union.
Secondary sources include regulations and directives which are based on the Treaties.
The legislature of the Union may establish secondary law to pursue the objective set out
in the Treaties. Union law is applied by the courts of member states and where the laws
of member states provide for lesser rights.
customary international law
Customary international law is a law that rises to the level of jus cogens applies to all
members of international community, without exception, as non-derogable rights. 88
Customary international law, unlike treaties, is not a written source. Further, treaties are
based on the principle of contract, or pacta sunt servanda, and only apply to the nations
87
p. 45.
88
Yoram Dinstein. 2004. The Conduct of Hostilities under the Law of International Armed Conflict, pp. 5. Cambridge: Cambridge
University Press.
pg. 55
that have ratified the same, whereas customary international alw applies to all nations.
As such, there are two basic requirements for a custom to be elevated to the status of
law. First, there must be widespread and consistent State practice – that is, States must,
in general, have a practice of according immunity to a visiting Head of State. Secondly,
there has to be what is called “opinio juris”, usually translated as “a belief in legal
obligation; that is, States must accord immunity because they believe they have a legal
duty to do so. As the ICJ has put it:-
‘Not only must the acts concerned be 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 requiring it. … The States concerned must feel that
they are conforming to what amounts to a legal obligation.’ 89
A new rule of customary international law cannot be created unless both of these elements
are present. Practice alone is not enough 90. Nor can a rule be created by opinio juris
without actual practice.91
If an act or lack thereof is condemned under international law, the act will not assume
international legality even if approved by internal law. 92 This means that in case of a
conflict with domestic law, international law will always prevail. 93 On the contrary,
there is no requirement for consent of customary international law for their effect.
Further, the factors that make a treaty ultra vires can lead to nullity, or invalidity, which
is not possible for customary international law.
hard law
Hard law refers to actual binding legal instruments. In contrast with soft law, hard law
gives States and international actors actual binding responsibilities as well as rights.
Hard law means binding laws. In international law, hard law includes self-executing
treaties or international agreements, as well as customary laws. These instruments
result in legally enforceable commitments for countries (states) and other international
subjects. Sources of hard law include:
‫و‬ Treaties (also known as conventions or international agreements)
‫و‬ UN Security Council Resolutions
‫و‬ Customary International Rules
soft law
The term ‘soft law’ refers to quasi-legal instruments which do not have any legally binding
force, or whose binding force is somewhat ‘weaker’ than the binding force of traditional
law, often contrasted with soft law by being referred to as ‘hard law’. Traditionally, the
term ‘soft law’ is associated with international law, although more recently it has been
89
North Sea Continental Shelf cases, ICJ Reps, 1969, p. 3 at 44
90
– see, e.g., the Case of the SS Lotus (1927)
91
– see, e.g., the Advisory Opinion on Nuclear Weapons (1996).
92
® Article 3, Draft Articles on Responsibility of States for Internationally Wrongful Acts Adopted by ILC 53 session 2001.
93
Article 27, Vienna Convention on the Law of treaties, Vienna 23 May 1969 jfr. P 2, World T.R. 2007, 6(1), 45–87
pg. 56
transferred to other branches of domestic law as well. 94 Soft law is attractive because it
often contains aspirational goals that aim for the best of possible scenarios. 95
In the context of international law, the term ‘soft law’ covers such elements as:
‫و‬ Resolutions and Declarations of the UN General Assembly, for example, the Universal
Declaration of Human Rights;
‫و‬ Statements, principles, codes of conduct, codes of practice etc.; often found as part of
framework treaties; and
‫و‬ Action plans (for example, Agenda 21).
In community law, the term ‘soft law’ is also often used to describe various kinds of quasi-
legal instruments of the community: ‘codes of conduct’, ‘guidelines’, ‘communications’
etc. In the area of law of the union, soft law instruments are often used to indicate how
the community intends to use its powers and perform its tasks within its area of
competence96. Soft law instruments are usually considered as non-binding agreements
which nevertheless hold much potential for morphing into ‘hard law’ in the future. This
‘hardening’ of soft law may happen in two different ways.
1. One is when declarations, recommendations, etc. are the first step towards a treaty-
making process, in which reference will be made to the principles already stated in the soft
law instruments.
2. Another possibility is that non-treaty agreements are intended to have a direct influence
on the practice of states, and to the extent that they are successful in doing so, they may
lead to the creation of customary law.
Another useful aspect of the nature of soft law is that it often can be used to evidence opinio
juris on applying or interpreting a treaty.97 Soft law has been very important in the field
of international environmental law where states have been reluctant to commit to
many environmental initiatives when trying to balance the environment against
economic and social goals.
actus contrarius
The Latin term actus contrarius (act contrary / opposite action) states that for the legal
treatment of a certain act is usually the same applies as for his (explicitly controlled)
opposite. This applies only if the specific regulations for the act in question does not
exist. The Actus contrarius theory plays particularly in public law for the competence of
94
Christians, Allison (Summer 2007). "Hard Law & Soft Law". Wisconsin International Law Journal 25 (2).
SSRN 988782.
95
Roberto Andorno, "The Invaluable Role of Soft Law in the Development of Universal Norms in Bioethics",
paper at a Workshop jointly organized by the German Ministry of Foreign Affairs and the German UNESCO
Commission, Berlin, 15 February 2007. Available at: http://www.unesco.de/1507.html
96
also Andrew T. Guzman & Timothy L. Meyer, "International Soft Law," 2 J. Legal Analysis 171 (2010),
available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1353444.
97
Alan Boyle, "Some Reflections on the Relationship of Treaties and Soft Law", International and Comparative
Law Quarterly, 1999, vol. 48, n° 4, p. 901-913
pg. 57
authorities and courts play a role. For example, there is the jurisdiction of a court for
the defendant is a administrative , competence is also given if the administrative act is
revoked by the authority (and the applicant applies here against). The withdrawal is
also regarded as an administrative act. When an authority responsible for issuing an
administrative act, this also applies for the cancellation of the same.The act will be used
for comparison as actus primus (Latin, roughly: Ausgangsakt) called.
accession
Accession is the act whereby a State that has not signed a treaty expresses its consent to
become a party to that treaty by depositing an "instrument of accession". Accession has
the same legal effect as ratification, acceptance or approval. The conditions under which
accession may occur and the procedure involved depend on the provisions of the
relevant treaty. Accession is generally employed by States wishing to express their
consent to be bound by a treaty where the deadline for signature has passed. However,
many modern multilateral treaties provide for accession even during the period that
the treaty is open for signature.
adoption (treaty)
Adoption is the formal act by which negotiating parties establish the form and content of a
treaty. The treaty is adopted through a specific act expressing the will of the States and
the international organizations participating in the negotiation of that treaty, e.g., by
voting on the text, initialing, signing, etc. Adoption may also be the mechanism used to
establish the form and content of amendments to a treaty, or regulations under a treaty.
Treaties that are negotiated within an international organization are usually adopted by
resolution of the representative organ of that organization. For example, treaties
negotiated under the auspices of the United Nations, or any of its bodies, are adopted by
a resolution of the General Assembly of the United Nations. Where an international
conference is specifically convened for the purpose of adopting a treaty, the treaty can
be adopted by a vote of two thirds of the States present and voting, unless they have
decided by the same majority to apply a different rule.
convention
Whereas in the last century the term "convention" was regularly employed for bilateral
agreements, it is now generally used for formal multilateral treaties with a broad
number of parties. Conventions are normally open for participation by the international
community as a whole, or by a large number of States. Usually instruments negotiated
under the auspices of an international organization are entitled conventions. The same
holds true for instruments adopted by an organ of an international organization.
preamble (treaty)
A treaty typically begins with a preamble describing the contracting parties and their joint
objectives in executing the treaty, as well as summarizing any underlying events (such
as a war). Modern preambles are sometimes structured as a single very long sentence
pg. 58
formatted into multiple paragraphs for readability, in which each of the paragraphs
begins with a verb (desiring, recognizing, having, and so on).
The contracting parties' full names or sovereign titles are often included in the preamble,
along with the full names and titles of their representatives, and a boilerplate clause
about how their representatives have communicated (or exchanged) their full powers
(i.e., the official documents appointing them to act on behalf of their respective states)
and found them in good or proper form.
The end of the preamble and the start of the actual agreement is often signaled by the
words "have agreed as follows."
Articles (treaty)
After the preamble comes numbered articles, which contain the substance of the parties'
actual agreement. Each article heading usually encompasses a paragraph. A long treaty
may further group articles under chapter headings.
Modern treaties, regardless of subject matter, usually contain articles governing where the
final authentic copies of the treaty will be deposited and how any subsequent disputes
as to their interpretation will be peacefully resolved.
end of a treaty, eschatocol, closing protocol
The end of a treaty, the eschatocol (or closing protocol), is often signaled by a clause like "in
witness whereof" or "in faith whereof," the parties have affixed their signatures,
followed by the words "DONE at," then the site(s) of the treaty's execution and the
date(s) of its execution. The date is typically written in its most formal, longest possible
form. For example, the Charter of the United Nations was "DONE at the city of San
Francisco the twenty-sixth day of June, one thousand nine hundred and forty-five." If
the treaty is executed in multiple copies in different languages, that fact is always noted,
and is followed by a stipulation that the versions in different languages are equally
authentic.
The signatures of the parties' representatives follow at the very end. When the text of a
treaty is later reprinted, such as in a collection of treaties currently in effect, an editor
will often append the dates on which the respective parties ratified the treaty and on
which it came into effect for each party.
Bilateral treaty, multilateral treaty
Bilateral treaties are concluded between two states or entities. It is possible, however, for a
bilateral treaty to have more than two parties; consider for instance the bilateral
treaties between Switzerland and the European Union (EU) following the Swiss
rejection of the European Economic Area agreement. Each of these treaties has
seventeen parties. These however are still bilateral, not multilateral, treaties. The
parties are divided into two groups, the Swiss ("on the one part") and the EU and its
member states ("on the other part"). The treaty establishes rights and obligations
pg. 59
between the Swiss and the EU and the member states severally—it does not establish
any rights and obligations amongst the EU and its member states.
A multilateral treaty is concluded among several countries. The agreement establishes
rights and obligations between each party and every other party. Multilateral treaties
are often regional. Treaties of "mutual guarantee" are international compacts, e.g., the
Treaty of Locarno which guarantees each signatory against attack from another.
declaration
In law, a declaration ordinarily refers to a judgment of the court or an award of an
arbitration tribunal is a binding adjudication of the rights or other legal relations of the
parties which does not provide for or order enforcement. Where the declaration is
made by a court, it is usually referred to as a declaratory judgment. Less commonly,
where declaratory relief is awarded by an arbitrator, it is normally called a declaratory
award. Declaratory relief is most commonly seen in circumstances where applications
for declarations of legitimacy, in family and probate legal proceedings.
However applications for declaratory relief in other areas have become more widespread,
particularly in Europe. A key feature in relation to this development have been the
Brussels and Lugano Conventions on civil jurisdiction and judgments relating to
members of the EEA. In certain circumstances, jurisdiction is awarded under the
conventions to the courts first seised of the matter. This has led to a rise in defendants
taking pre-emptive action by seeking declarations of non-liability" in a race to the
courthouse to ensure that the they choose the court first seised rather than waiting for
the claimant to do so.
Declaration is used (as a verb or a noun) in other ways in certain legal systems.
declaration (civil procedure)
In some legal systems, a declaration is an alternative term for a sworn affidavit.
declaraiton (companies law)
In relation to companies, declaration is the first step in relation to distribution and
payment of dividends.
declaration (trust law)
In trust law, a settlor who declares that he holds certain property on trust is said to make a
declaration of trust.
declaration dying or dying declaration (evidence)
Dying declarations are an exception to the rule against hearsay in many legal systems.
declaration against interest (evidence)
Declarations against interest are also an exception to the rule against hearsay in many legal
systems.
pg. 60
declaration (creditor-debor relationship)

A formal declaration of default is required to enforce creditors' security rights in some legal
systems.
interpretative declaration
An interpretative declaration is a declaration by a State as to its understanding of some
matter covered by a treaty or its interpretation of a particular provision. Unlike
reservations, declarations merely clarify a State's position and do not purport to
exclude or modify the legal effect of a treaty.
The Secretary-General, as depositary, pays specific attention to declarations to ensure that
they do not amount to reservations. Usually, declarations are made at the time of
signature or at the time of deposit of an instrument of ratification, acceptance, approval
or accession. Political declarations usually do not fall into this category as they contain
only political sentiments and do not seek to express a view on legal rights and
obligations under a treaty.
mandatory declaration
A mandatory declaration is a declaration specifically required by the treaty itself. Unlike an
interpretative declaration, a mandatory declaration is binding on the State making it.
optional declaration
An optional declaration is a declaration that a treaty specifically provides for, but does not
require. Unlike an interpretative declaration, an optional declaration is binding on the
State making it.
entry into force
Entry into force of a treaty is the moment in time when a treaty becomes legally binding on
the parties to the treaty. The provisions of the treaty determine the moment of its entry
into force.
definitive entry into force
This may be a date specified in the treaty or a date on which a specified number of
ratifications, approvals, acceptances or accessions have been deposited with the
depositary. The date when a treaty deposited with the Secretary-General enters into
force is determined in accordance with the treaty provisions.
entry into force for a state
A treaty that has already entered into force may enter into force in a manner specified in it
for a State or international organization that expresses its consent to be bound by it
after its entry into force. See article 24 of the Vienna Convention 1969.
pg. 61
provisional entry into force

Provisional entry into force may be allowed by the terms of a treaty, for example, in
commodity agreements. Provisional entry into force of a treaty may also occur when a
number of parties to a treaty that has not yet entered into force decide to apply the
treaty as if it had entered into force. Once a treaty has entered into force provisionally,
it creates obligations for the parties that agreed to bring it into force in that manner. 98
protocol
A protocol, in the context of treaty law and practice, has the same legal characteristics as a
treaty. The term protocol is often used to describe agreements of a less formal nature
than those entitled treaty or convention. Generally, a protocol amends, supplements or
clarifies a multilateral treaty. A protocol is normally open to participation by the parties
to the parent agreement. However, in recent times States have negotiated a number of
protocols that do not follow this principle. The advantage of a protocol is that, while it is
linked to the parent agreement, it can focus on a specific aspect of that agreement in
greater detail.
ratification, acceptance, approval
Ratification, acceptance and approval all refer to the act undertaken on the international
plane, whereby a State establishes its consent to be bound by a treaty. Ratification,
acceptance and approval all require two steps:
a. The execution of an instrument of ratification, acceptance or approval by the Head of
State, Head of Government or Minister for Foreign Affairs, expressing the intent of the
State to be bound by the relevant treaty; and
b. For multilateral treaties, the deposit of the instrument with the depositary; and for
bilateral treaties, the exchange of the instruments between parties.
Ratification, acceptance or approval at the international level indicates to the international
community a State's commitment to undertake the obligations under a treaty. This
should not be confused with the act of ratification at the national level, which a State
may be required to undertake in accordance with its own constitutional provisions,
before it consents to be bound internationally. Ratification at the national level is
inadequate to establish the State's consent to be bound at the international level.
reservation
A reservation is a statement made by a State by which it purports to exclude or alter the
legal effect of certain provisions of a treaty in their application to that State. A
reservation may enable a State to participate in a multilateral treaty that it would
otherwise be unable or unwilling to participate in. States can make reservations to a
treaty when they sign, ratify, accept, approve or accede to it. When a State makes a
reservation upon signing, it must confirm the reservation upon ratification, acceptance
98
See article 25(1) of the Vienna Convention 1969.
pg. 62
or approval. Since a reservation purports to modify the legal obligations of a State, it

must be signed by the Head of State, Head of Government or Minister for Foreign
Affairs. Reservations cannot be contrary to the object and purpose of the treaty. Some
treaties prohibit reservations or only permit specified reservations.
signature
definitive signature (signature not subject to ratification)

Definitive signature occurs where a State expresses its consent to be bound by a treaty by
signing the treaty without the need for ratification, acceptance or approval. A State may
definitively sign a treaty only when the treaty so permits. A number of treaties
deposited with the Secretary-General permit definitive signature. See article 12 of the
Vienna Convention 1969.
simple signature (signature subject to ratification)
Simple signature applies to most multilateral treaties. This means that when a State signs
the treaty, the signature is subject to ratification, acceptance or approval. The State has
not expressed its consent to be bound by the treaty until it ratifies, accepts or approves
it. In that case, a State that signs a treaty is obliged to refrain, in good faith, from acts
that would defeat the object and purpose of the treaty. Signature alone does not impose
on the State obligations under the treaty.
treaty
Treaty is a generic term embracing all instruments binding under international law,
regardless of their formal designation, concluded between two or more international
juridical persons. Thus, treaties may be concluded between:
a. States;
b. International organizations with treaty-making capacity and States; or
c. International organizations with treaty-making capacity.
The application of the term treaty, in the generic sense, signifies that the parties intend to
create rights and obligations enforceable under international law.
The Vienna Convention 1969 defines a treaty as "an international agreement concluded
between States in written form and governed by international law, whether embodied
in a single instrument or in two or more related instruments and whatever its
particular designation" (article 2(1)(a)). Accordingly, conventions, agreements,
protocols, and exchange of letters or notes may all constitute treaties. A treaty must be
governed by international law and is normally in written form. Although the Vienna
Convention 1969 does not apply to non-written agreements, its definition of a treaty
states that the absence of writing does not affect the legal force of international
agreements.
pg. 63
No international rules exist as to when an international instrument should be entitled a

treaty. However, usually the term treaty is employed for instruments of some gravity
and solemnity.
bilateral treaty
A bilateral treaty is a treaty between two parties.
multilateral treaty
A multilateral treaty is a treaty between more than two parties.
Reservations (treaty)
Reservations are essentially caveats to a state's acceptance of a treaty. Reservations are
unilateral statements purporting to exclude or to modify the legal obligation and its
effects on the reserving state. 99 These must be included at the time of signing or
ratification, i.e. "a party cannot add a reservation after it has already joined a treaty".
Originally, international law was unaccepting of treaty reservations, rejecting them unless
all parties to the treaty accepted the same reservations. However, in the interest of
encouraging the largest number of states to join treaties, a more permissive rule
regarding reservations has emerged. While some treaties still expressly forbid any
reservations, they are now generally permitted to the extent that they are not
inconsistent with the goals and purposes of the treaty.
When a state limits its treaty obligations through reservations, other states party to that
treaty have the option to accept those reservations, object to them, or object and
oppose them. If the state accepts them (or fails to act at all), both the reserving state and
the accepting state are relieved of the reserved legal obligation as concerns their legal
obligations to each other (accepting the reservation does not change the accepting
state's legal obligations as concerns other parties to the treaty). If the state opposes, the
parts of the treaty affected by the reservation drop out completely and no longer create
any legal obligations on the reserving and accepting state, again only as concerns each
other. Finally, if the state objects and opposes, there are no legal obligations under that
treaty between those two state parties whatsoever. The objecting and opposing state
essentially refuses to acknowledge the reserving state is a party to the treaty at all. 100
Amendments (treaty)
There are three ways an existing treaty can be amended. First, formal amendment requires
State parties to the treaty to go through the ratification process all over again. The re-
negotiation of treaty provisions can be long and protracted, and often some parties to
the original treaty will not become parties to the amended treaty. When determining
the legal obligations of states, one party to the original treaty and one a party to the
amended treaty, the states will only be bound by the terms they both agreed upon.
Treaties can also be amended informally by the treaty executive council when the
99
Vienna Convention on the Law of Treaties, Article 2 Sec. 1(d) Text of the Convention
100
pg. 64
changes are only procedural, technical change in customary international law can also
amend a treaty, where state behavior evinces a new interpretation of the legal
obligations under the treaty. Minor corrections to a treaty may be adopted by a procès-
verbal; but a procès-verbal is generally reserved for changes to rectify obvious errors in
the text adopted, i.e. where the text adopted does not correctly reflect the intention of
the parties adopting it.
Protocols
In international law and international relations, a protocol is generally a treaty or
international agreement that supplements a previous treaty or international
agreement. A protocol can amend the previous treaty, or add additional provisions.
Parties to the earlier agreement are not required to adopt the protocol. Sometimes this
is made clearer by calling it an "optional protocol", especially where many parties to the
first agreement do not support the protocol.
Some examples: the United Nations Framework Convention on Climate Change (UNFCCC)
established a framework for the development of binding greenhouse gas emission
limits, while the Kyoto Protocol contained the specific provisions and regulations later
agreed upon.
Execution and implementation (treaties), Self-Executing Treaties
Treaties may be seen as 'Self-Executing Treaties ', in that merely becoming a party puts the
treaty and all of its obligations in action. Other treaties may be non-self-executing and
require 'implementing legislation'—a change in the domestic law of a state party that
will direct or enable it to fulfill treaty obligations. An example of a treaty requiring such
legislation would be one mandating local prosecution by a party for particular crimes.
The division between the two is often not clear and is often politicized in disagreements
within a government over a treaty, since a non-self-executing treaty cannot be acted on
without the proper change in domestic law. If a treaty requires implementing
legislation, a state may be in default of its obligations by the failure of its legislature to
pass the necessary domestic laws.
Interpretation
be interpreted "in good faith" according to the "ordinary meaning given to the terms of
the treaty in their context and in the light of its object and purpose." International legal
between the parties.
No one party to a treaty can impose its particular interpretation of the treaty upon the
other parties. Consent may be implied, however, if the other parties fail to explicitly
pg. 65
disavow that initially unilateral interpretation, particularly if that state has acted upon
its view of the treaty without complaint. Consent by all parties to the treaty to a
particular interpretation has the legal effect of adding an additional clause to the treaty
– this is commonly called an 'authentic interpretation'.
International tribunals and arbiters are often called upon to resolve substantial disputes
over treaty interpretations. To establish the meaning in context, these judicial bodies
may review the preparatory work from the negotiation and drafting of the treaty as
well as the final, signed treaty itself.
Consequences of terminology
One significant part of treaty making is that signing a treaty implies recognition that the
other side is a sovereign state and that the agreement being considered is enforceable
under international law. Hence, nations can be very careful about terming an agreement
to be a treaty. For example, within the United States, agreements between states are
compacts and agreements between states and the federal government or between
agencies of the government are memoranda of understanding.
Another situation can occur when one party wishes to create an obligation under
international law, but the other party does not. This factor has been at work with
respect to discussions between North Korea and the United States over security
guarantees and nuclear proliferation.
The terminology can also be confusing because a treaty may and usually is named
something other than a treaty, such as a convention, protocol, or simply agreement.
Conversely some legal documents such as the Treaty of Waitangi are internationally
considered to be documents under domestic law.
Withdrawal (Ending treaty obligations)
Treaties are not necessarily permanently binding upon the signatory parties. As obligations
in international law are traditionally viewed as arising only from the consent of states,
many treaties expressly allow a state to withdraw as long as it follows certain
procedures of notification. For example the Single Convention on Narcotic Drugs
provides that the treaty will terminate if, as a result of denunciations, the number of
parties falls below 40. Many treaties expressly forbid withdrawal. Article 56 of the
Vienna Convention on the Law of Treaties provides that where a treaty is silent over
whether or not it can be denounced there is a rebuttable presumption that it cannot be
unilaterally denounced unless:
¯ it can be shown that the parties intended to admit the possibility, or
¯ the right of withdrawal can be implied into the terms of the treaty.
The possibility of withdrawal depends on the terms of the treaty and its travaux
preparatoire. It has, for example, been held that it is not possible to withdraw from the
International Covenant on Civil and Political Rights. When North Korea declared its
intention to do this the Secretary-General of the United Nations, acting as registrar, said
pg. 66
that that original signatories of the ICCPR had not overlooked the possibility of
explicitly providing for withdrawal, but rather had deliberately intended not to provide
for it. Consequently withdrawal was not possible.101
If a state party's withdrawal is successful, its obligations under that treaty are considered
terminated, and withdrawal by one party from a bilateral treaty of course terminates
the treaty. When a state withdraws from a multi-lateral treaty, that treaty will still
otherwise remain in force among the other parties, unless, of course, otherwise should
or could be interpreted as agreed upon between the remaining states parties to the
treaty.
Suspension and termination (Ending treaty obligations)
If a party has materially violated or breached its treaty obligations, the other parties may
invoke this breach as grounds for temporarily suspending their obligations to that party
under the treaty. A material breach may also be invoked as grounds for permanently
terminating the treaty itself.102
A treaty breach does not automatically suspend or terminate treaty relations, however. It
depends on how the other parties regard the breach and how they resolve to respond to
it. Sometimes treaties will provide for the seriousness of a breach to be determined by a
tribunal or other independent arbiter.103 An advantage of such an arbiter is that it
prevents a party from prematurely and perhaps wrongfully suspending or terminating
its own obligations due to another's alleged material breach.
Treaties sometimes include provisions for self-termination, meaning that the treaty is
automatically terminated if certain defined conditions are met. Some treaties are
intended by the parties to be only temporarily binding and are set to expire on a given
date. Other treaties may self-terminate if the treaty is meant to exist only under certain
conditions.
A party may claim that a treaty should be terminated, even absent an express provision, if
there has been a fundamental change in circumstances. Such a change is sufficient if
unforeseen, if it undermined the “essential basis” of consent by a party, if it radically
transforms the extent of obligations between the parties, and if the obligations are still
to be performed. A party cannot base this claim on change brought about by its own
breach of the treaty. This claim also cannot be used to invalidate treaties that
established or redrew political boundaries.
Invalid treaties(Ending treaty obligations)
There are several reasons an otherwise valid and agreed upon treaty may be rejected as a
binding international agreement, most of which involve problems created at the
formation of the treaty. For example, the serial Japan-Korea treaties of 1905, 1907 and
101
Final Clauses in Multilateral Treaties: Handbook. United Nations. 2003. p. 112. ISBN 92-1-133572-8.
102
Article 60 of the Vienna Convention on the Law of Treaties.
103
Gomaa, Mohammed M. (1997). Suspension or termination of treaties on grounds of breach. The Hague: M. Nijhoff. p. 142.
ISBN 9789041102263.
pg. 67
1910 were protested;104 and they were confirmed as "already null and void" in the 1965
Treaty on Basic Relations between Japan and the Republic of Korea. 105
Ultra vires treaties(Ending treaty obligations)
internal affairs and processes of other states, and so a "manifest violation" is required
such that it would be "objectively evident to any State dealing with the matter". A strong
authority. It seems that no treaty has ever actually been invalidated on this provision.
Consent is also invalid if it is given by a representative who ignored restrictions he is
subject to by his sovereign during the negotiations, if the other parties to the treaty
were notified of those restrictions prior to his signing.
According to the preamble in The Law of treaties, treaties are a source of international law.
If an act or lack thereof is condemned under international law, the act will not assume
international legality even if approved by internal law. 106 This means that in case of a
conflict with domestic law, international law will always prevail. 107
misunderstanding(Ending treaty obligations), fraud(Ending treaty obligations),
corruption(Ending treaty obligations), coercion(Ending treaty obligations)
Articles 46–53 of the Vienna Convention on the Law of Treaties set out the only ways that
treaties can be invalidated—considered unenforceable and void under international
law. A treaty will be invalidated due to either the circumstances by which a state party
joined the treaty, or due to the content of the treaty itself. Invalidation is separate from
withdrawal, suspension, or termination (addressed above), which all involve an
alteration in the consent of the parties of a previously valid treaty rather than the
invalidation of that consent in the first place.
A state's consent may be invalidated if there was an erroneous understanding of a fact or
situation at the time of conclusion, which formed the "essential basis" of the state's
consent. Consent will not be invalidated if the misunderstanding was due to the state's
own conduct, or if the truth should have been evident.
Consent will also be invalidated if it was induced by the fraudulent conduct of another
party, or by the direct or indirect "corruption" of its representative by another party to
the treaty. Coercion of either a representative, or the state itself through the threat or
use of force, if used to obtain the consent of that state to a treaty, will invalidate that
consent.
104
Korean Mission to the Conference on the Limitation of Armament, Washington, D.C., 1921–1922. (1922). Korea's Appeal to
the Conference on Limitation of Armament, pp. 1–44.
105
"Treaty on Basic Relations between Japan and the Republic of Korea"; excerpt, "It is confirmed that all treaties or agreements
concluded between the Empire of Japan and the Empire of Korea on or before August 22, 1910 are already null and void."
106
107
Article 27, Vienna Convention on the Law of treaties, Vienna 23 May 1969 jfr. P 2, World T.R. 2007, 6(1), 45–87
pg. 68
Contrary to peremptory norms(Ending treaty obligations)

A treaty is null and void if it is in violation of a peremptory norm. These norms, unlike other
prohibitions as those against the aggressive use of force, genocide and other crimes
against humanity, piracy, hostilities directed at civilian population, racial discrimination
and apartheid, slavery and torture, 108 meaning that no state can legally assume an
obligation to commit or permit such acts.109
108
Wood, Michael; Pronto, Arnold (2010). The International Law Commission 1999-2009. Oxford: Oxford University Press. p.
764. ISBN 9780199578979.
109
Articles 53 and 64 of the Vienna Convention on the Law of Treaties.
pg. 69
REGIONAL INTERNATIONAL LAW OR COMMUNITY LAW OR UNION LAW
definition of union law

Union or regional community or community law is a body of treaties and legislation, such
as Regulations and Directives, which have direct effect or indirect effect on the laws of
Regional Community/Union member states.
sources of union law
The three sources of Union law are primary law, secondary law and supplementary law. The
main sources of primary law are the Treaties establishing the European Union.
Secondary sources include regulations and directives which are based on the Treaties.
The legislature of the Union may establish secondary law to pursue the objective set out
in the Treaties. Union law is applied by the courts of member states and where the laws
of member states provide for lesser rights.
enforcement of union law
Union law can be enforced by the courts of member states. Supplementary sources are laws
which are not provided for by the treaty, including case law by the Regional Court of
Justice, international law and general principles of Community law.
supra national law, union law
Supranational law is a form of international law, based on the limitation of the rights of
sovereign nations between one another. It is distinguished from public international
law, because in supranational law, nations explicitly submit their right to make judicial
decisions by treaty to a set of common tribunal. The United Nations Security Council
and subordinate organizations such as the International Court of Justice are the only
globally accepted supranational tribunals.
Union or regional community or community law is a body of treaties and legislation, such
as Regulations and Directives, which have direct effect or indirect effect on the laws of
Regional Community/Union member states.
Supranational law or the law of supranational organizations, which concerns regional
agreements where the laws of nation states may be held inapplicable when conflicting
with a supranational legal system when that nation has a treaty obligation to a
supranational collective.
The two traditional branches of the field are:
1. jus gentium — law of nations
2. jus inter gentes — agreements between nations
Community law /Regional law /Union law is supranational legal framework. Given the
trend of increasing global economic integration, many regional agreements are on track
to follow the same model. In the community law, sovereign nations have gathered their
authority in a system of courts and political institutions. These institutions are allowed
pg. 70
the ability to enforce legal norms both against and for member states and citizens in a
manner which is not possible through public international law. 110
110
Schermers–Blokker, International Institutional Law, 943
pg. 71
Public International Organisations /Intergovernmental Organisations
intergovernmental organization (or international governmental organization; IGO)

An intergovernmental organization (or international governmental organization; IGO) is an
organization composed primarily of sovereign states (referred to as member states), or
of other intergovernmental organizations. Intergovernmental organizations are often
called international organizations, although that term may also include international
nongovernmental organization such as international nonprofit organizations or
multinational corporations.
Intergovernmental organizations are an important aspect of public international law. IGOs
are established by treaty that acts as a charter creating the group. Treaties are formed
when lawful representatives (governments) of several states go through a ratification
process, providing the IGO with an international legal personality.
Intergovernmental organizations in a legal sense should be distinguished from simple
groupings or coalitions of states, such as the G8 or the Quartet. Such groups or
associations have not been founded by a constituent document and exist only as task
groups.
Intergovernmental organizations must also be distinguished from treaties. Many treaties
(such as the North American Free Trade Agreement, or the General Agreement on
Tariffs and Trade before the establishment of the World Trade Organization) do not
establish an organization and instead rely purely on the parties for their administration
becoming legally recognized as an ad hoc commission. Other treaties have established
an administrative apparatus which was not deemed to have been granted international
legal personality.
Types and purposes
Intergovernmental organizations differ in function, membership and membership criteria.
They have various goals and scopes, often outlined in the treaty or charter. Some IGOs
developed to fulfill a need for a neutral forum for debate or negotiation to resolve
disputes. Others developed to carry out mutual interests with unified aims to preserve
peace through conflict resolution and better international relations, promote
international cooperation on matters such as environmental protection, to promote
human rights, to promote social development (education, health care), to render
humanitarian aid, and to economic development. Some are more general in scope (the
United Nations) while others may have subject-specific missions (such as Interpol or
the International Organization for Standardization and other standards organizations).
Common types include:
Worldwide or global organizations - generally open to nations worldwide as long as certain
criteria are met. This category includes the United Nations (UN) and its specialized
agencies, the Universal Postal Union, Interpol, the World Trade Organization (WTO), the
pg. 72
World Customs Organization (WCO), World Nature Organization (WNO), and the
International Monetary Fund (IMF).
Regional organizations - open to members from a particular region or continent of the
world. This category includes the Council of Europe (CoE), European Union (EU),
Energy Community, NATO, Organization for Security and Co-operation in Europe,
African Union (AU), Organization of American States (OAS), Association of Southeast
Asian Nations (ASEAN), Union of South American Nations, Asia Cooperation Dialogue
(ACD), and Pacific Islands Forum.
Cultural, linguistic, ethnic, religious, or historical organizations - open to members based on
some cultural, linguistic, ethnic, religious, or historical link. Examples include the
Commonwealth of Nations, Arab League, Organisation internationale de la
Francophonie, Community of Portuguese Language Countries, Latin Union, Turkic
Council, International Organization of Turkic Culture, Organisation of Islamic
Cooperation, and Commonwealth of Independent States (CIS).
Economic organizations - based on economic organization. Some are dedicated to free
trade, the reduction of trade barriers (the World Trade Organization) and International
Monetary Fund. Others are focused on international development. International cartels,
such as OPEC, also exist. The Organisation for Economic Co-operation and Development
was founded as an economics-focused organization. An example of a recently formed
economic IGO is the Bank of the South.
Educational organizations - centered around tertiary level study. Academy of European
Law offers training in European law to lawyers, judges, barristers, solicitors, in-house
counsel and academics. EUCLID (university) chartered as a university and umbrella
organization dedicated to sustainable development in signatory countries and United
Nations University efforts to resolve the pressing global problems that are the concern
of the United Nations, its Peoples and Member States.
Health and Population Organizations- based on the common perceived health and
population goals and to address those challenges collectively. An example is the
intergovernmental partnership for population and development"Partners in Population
and Development
Some organizations, such as NATO, have collective security or mutual defense provisions.
The Union of International Associations publishes an annual directory of organizations and
provides ancillary information on most international organizations, both
intergovernmental and non-governmental.
Privileges and immunities
Intergovernmental organizations are provided with privileges and immunities that are
intended to ensure their independent and effective functioning. They are specified in
the treaties that give rise to the organization (such as the Convention on the Privileges
and Immunities of the United Nations and the Agreement on the Privileges and
pg. 73
Immunities of the International Criminal Court), which are normally supplemented by

further multinational agreements and national regulations (for example the
International Organizations Immunities Act in the United States). The organizations are
thereby immune from the jurisdiction of national courts.
Rather than by national jurisdiction, legal accountability is intended to be ensured by legal
mechanisms that are internal to the intergovernental organization itself and access to
administrative tribunals. In the course of many court cases where private parties tried
to pursue claims against international organizations, there has been a gradual
realization that alternate means of dispute settlement are required, as states have
fundamental human rights obligations to provide plaintiffs with access to court in view
of their right to a fair trial. Otherwise, the organizations' immunities may be put in
question in national and international courts. Some organizations hold proceedings
before tribunals relating to their organization to be confidential, and in some instances
have threatened disciplinary action should an employee disclose any of the relevant
information. Such confidentiality has been criticized as a lack of transparency.
The immunities also extend to employment law. In this regard, immunity from national
jurisdiction necessitates that reasonable alternative means are available to effectively
protect employees' rights; in this context, a first instance Dutch court considered an
estimated duration of proceedings before the Administrative Tribunal of the
International Labour Organisation of 15 years to be too long.
Reasons for participation:
Economic rewards: In the case of the North American Free Trade Agreement (NAFTA),
many different countries receive economic benefits from membership in the free trade
agreement. For example, Mexican companies are given better access to U.S. markets due
to their membership.
Political influence: Smaller countries, such as Portugal and the Netherlands, who do not
carry much political clout on the international stage, are given a substantial increase in
influence through membership in IGOs, such as the European Union. Also for countries
with more influence such as France and Germany they are beneficial as the nation
increases influence in the smaller countries' internal affairs and expanding other
nations dependence on themselves, so to preserve allegiance
Security: Membership in an IGO such as NATO gives security benefits to member countries.
This provides an arena where political differences can be resolved.
Improve democracy and the likelihood of democratic survival: It has been noted that
member countries experience a greater degree of democracy and those democracies
survive longer.
strengths and weaknesses of IGOs
These are some of the strengths and weaknesses of IGOs:
Strengths:
pg. 74
They hold state authority.

Their institutions are permanent.
They provide a forum for discussion.
They are issue specific.
They provide information.
They allow multilateral cooperation.
Weaknesses:
Membership is limited. Prohibits the membership of private citizens. This makes IGOs
undemocratic. In addition, not all IGOs allow universal membership.
IGOs often overlap resulting in a complex network.
States have to give up part of their sovereignty, which weakens the state's ability to assert
its authority.
Inequality among state members creates biases and can lead powerful states to misuse
these organizations.
They can be deemed unfair as countries with a higher percentage voting power have the
right to veto any decision that is not in their favor, leaving the smaller countries
powerless.
supranational union
A supranational union is a type of multi-national organization where negotiated power is
delegated to an authority by governments of member states. The concept of
supranational union is sometimes used to describe the European Union (EU), as a new
type of political entity. The EU is the only entity which provides for international
popular elections, going beyond the level of political integration normally afforded by
international treaty. The term "supranational" is sometimes used in a loose, undefined
sense in other contexts, sometimes as a substitute for international, transnational or
global. Another method of decision-making in international organisations is
intergovernmentalism, in which state governments play a more prominent role.
non-aggression pact
A non-aggression pact is a national treaty between two or more states/countries agreeing
to avoid war or armed conflict between them and resolve their disputes through
peaceful negotiations. Sometimes[when?] such a pact may include a pledge of avoiding
armed conflict even if participants find themselves fighting third countries, including
allies of one of the participants.
It was a popular form of international agreement in the 1920s and 1930s, but has largely
fallen out of use after the Second World War. Since the implementation of a non-
aggression pact depends on the good faith of the parties, the international community
pg. 75
following the Second World War adopted the norm of multilateral collective security
agreements, such as the treaties establishing NATO, ANZUS, SEATO and Warsaw Pact.
The most famous non-aggression pact is the 1939 Molotov–Ribbentrop Pact between the
Soviet Union and Nazi Germany, which lasted until the 1941 German invasion of the
Soviet Union in Operation Barbarossa. Its fame partly derives from the fact of being
labelled as a military alliance by anti-communists.
multilateralism
In international relations, multilateralism is multiple countries working in concert on a
given issue. Multilateralism was defined by Miles Kahler as “international governance of
the ‘many,’” and its central principle was “opposition [of] bilateral discriminatory
arrangements that were believed to enhance the leverage of the powerful over the weak
and to increase international conflict.” In 1990, Robert Keohane defined multilateralism
as “the practice of coordinating national policies in groups of three or more states.
Multilateralism, whether in the form of membership in an alliance or in international
institutions, are necessary to bind the great power, discourage unilateralism, and give
the small powers a voice and voting opportunities that they would not otherwise have.
Especially, if control is sought by a small power over a great power, then the Lilliputian
strategy of small countries achieving control by collectively binding the great power is
likely to be most effective. Similarly, if control is sought by a great power over another
great power, then multilateral controls may be most useful. The great power could seek
control through bilateral ties, but this would be costly; it also would require bargaining
and compromise with the other great power. Embedding the target state in a
multilateral alliance reduces the costs borne by the power seeking control, but it also
offers the same binding benefits of the Lilliputian strategy. Furthermore, if a small
power seeks control over another small power, multilateralism may be the only choice,
because small powers rarely have the resources to exert control on their own.
International organizations, such as the United Nations (UN) and the World Trade
Organization are multilateral in nature. The main proponents of multilateralism have
traditionally been the middle powers such as Canada, Australia, Switzerland, the
Benelux countries and the Nordic countries. Larger states often act unilaterally, while
smaller ones may have little direct power in international affairs aside from
participation in the United Nations (by consolidating their UN vote in a voting bloc with
other nations, for example). Multilateralism may involve several nations acting together
as in the UN or may involve regional or military alliances, pacts, or groupings such as
NATO. As these multilateral institutions were not imposed on states but were created
and accepted by them in order to increase their ability to seek their own interests
through the coordination of their policies, much of these international institutions lack
tools of enforcement while instead work as frameworks that constrain opportunistic
behaviour and points for coordination by facilitating exchange of information about the
actual behaviour of states with reference to the standards to which they have
consented.
pg. 76
The term "regional multilateralism" has been proposed suggesting that "contemporary
problems can be better solved at the regional rather than the bilateral or global levels"
and that bringing together the concept of regional integration with that of
multilateralism is necessary in today’s world.
The converse of multilateralism is unilateralism in terms of political philosophy.
pg. 77
NON STATE ACTORS
Non-state actors (NSA)

Non-state actors (NSA) are entities that participate or act in international relations. They
are organizations with sufficient power to influence and cause a change even though
they do not belong to any established institution of a state.
The admission of non-state actors into international relations theory rebukes the
assumptions of realism and other black box theories of international relations, which
argue that interactions between states are the main relationships of interest in studying
international events.
Non-governmental organizations (NGOs)
typically considered a part of civil society.
Multinational corporations (MNCs)
for-profit organizations that operate in multiple sovereign states.
International Media
These play role of international non state actors, as civil society.
Violent non-state actors
Armed groups, including groups such as Al-Qaeda or criminal organizations, for example
drug cartels. Williams identifies various types of VNSAs:
¯ Warlords
¯ Militias
¯ Insurgencies
¯ Terrorist organizations
¯ Criminal organizations and gangs
¯ Criminal organizations and gangs are essentially illegal business organizations. ("Crime
for them is simply a continuation of business by other means".)
Religious Groups
Quakers and other religious sects are quite active in their international advocacy efforts.
They have in part founded other non-state actors such as Amnesty International,
Greenpeace, and OXFAM.
Transnational diaspora communities
Ethnic or national communities that try to influence their original and current territories.
cell based actors
Cell-based, independent intelligence agents.
Cotonou Agreement
pg. 78
The term Non State Actors is widely used in development cooperation, particularly under
the Cotonou Agreement between the European Union (EU) and African, Caribbean and
Pacific ACP countries. The agreement uses the term to refer to a wide range of
nongovernmental development actors whose participation in ACP-EU development
cooperation is now formally recognized. According to Article 6, non-state actors
include:
1. Civil society in all its diversity, according to national characteristics;

2. Economic and social partners, including trade union organisations and;
3. The private sector.
In practice, it means that participation is open to all kind of actors, such as community-
based organisations, women's groups, human rights associations, non-governmental
organisations (NGOs), religious organizations, farmers' cooperatives, trade unions,
universities and research institutes, the media and the private sector. Also included in
this definition are informal groups such as grassroots organizations, informal private
sector associations, etc. The private sector, however, is considered only insofar as it is
involved in non-profit activities (e.g. private sector associations, chambers of
commerce, etc.)
pg. 79
CONTINENTAL UNIONS
continental union
A continental union is an inter-governmental, supra-national, or a federation of member
states located in the same continent, or close to it. Continental unions are a relatively
new type of political entity in the history of human government. Throughout most of
human history, political organization has been at the local level (i.e. tribal, city state)
and in more recent centuries, the sub-regional ("regional")/sub-continental level (i.e.
river system/basin empires, the modern "nation-state"); however, starting with the
advent of better transportation, weapons and communication there was for the first
time the ability for a union of member states to organize at the continental level. After
the devastation of the first and second world wars in the middle of the 1900s Europe
slowly evolved from its founding as the "Coal and Steel Community" to become a
political union covering much of the European Continent (28 member states as of
2013).
Continentalism
Continentalism refers to the agreements or policies that favor the regionalization and/or
cooperation between nations within a continent. The term is used more often in the
European and North American contexts, but the concept has been applied to other
continents including Australia, Africa and South America.
Intergovernmentalism
Intergovernmentalism is a term in political science with two meanings. The first refers to a
theory of regional integration originally proposed by Stanley Hoffmann; the second
treats states and the national government as the primary factors for integration.
Intergovernmentalism treats states, and national governments in particular, as the primary
actors in the integration process. Intergovernmentalist approaches claim to be able to
explain both periods of radical change in the European Union (because of converging
governmental preferences) and periods of inertia (due to diverging national interests).
Intergovernmentalism is distinguishable from realism and neorealism because of its
recognition of both the significance of institutionalisation in international politics and
the impact of domestic politics upon governmental preferences.
Existing continental unions
There are 3 current continental unions, each at different stages of integration. The EU is the
only supranational politico-economic union and not just an international organization.
African Union
The African Union (AU) at a size of 29,757,900 square kilometres (11,489,589 sq mi) and a
population of 1 Billion is by far the largest of the existing continental unions in terms of
both land mass and population. It includes all African countries except Morocco, which
withdrew after the AU recognized the Sahrawi Arab Democratic Republic.
pg. 80
The African Union was formed as a successor to the Organization of African Unity (OAU).
The most important decisions of the AU are made by the Assembly of the African Union,
a semi-annual meeting of the heads of state and government of its member states. The
AU's secretariat, the African Union Commission, is based in Addis Ababa, Ethiopia.
During the February 2009 Union meeting headed by former Libyan leader Gaddafi, it
was resolved that the African Union Commission would become the African Union
Authority.
The African Union is made up of both political and administrative bodies. The highest
decision-making organ of the African Union is the Assembly, made up of all the heads of
state or government of member states of the AU. As of 2013 the Assembly is chaired by
Hailemariam Desalegn. The AU also has a representative body, the Pan-African
Parliament, which consists of 265 members elected by the national parliaments of the
AU member states. The current president of the Pan African Parliament is Bethel
Nnaemeka Amadi. Other political institutions of the AU include the Executive Council,
made up of foreign ministers, which prepares decisions for the Assembly; the
Permanent Representatives Committee, made up of the ambassadors to Addis Ababa of
AU member states; and the Economic, Social, and Cultural Council (ECOSOCC), a civil
society consultative body.
European Union
The European Union has the largest economy (GDP) of the existing continental unions, and
serves as the model which the African Union and the Union of South American Nations
seek to follow.
The European Union (EU) is an economic and political union of 28 member states in
Europe. Committed to regional integration, the EU was established by the Treaty of
Maastricht on 1 November 1993 upon the foundations of the pre-existing European
Economic Community. A European Parliament has been created, directly elected by
citizens of the EU. With almost 500 million citizens, the EU combined generates an
estimated 30% share (US$18.4 trillion in 2008) of the nominal gross world product.
The EU has developed a single market through a standardised system of laws which apply
in all member states, ensuring the free movement of people, goods, services, and capital.
It maintains common policies on trade, agriculture, fisheries and regional development.
Nineteen member states have adopted a common currency, the euro, constituting the
Eurozone. The EU has developed a limited role in foreign policy, having representation
at the WTO, G8, G20 and at the UN. It enacts legislation in justice and home affairs,
including the abolition of passport controls by an agreement between the member
states which form the Schengen Area.
Union of South American Nations
The Union of South American Nations (USAN) is an intergovernmental union integrating
two existing customs unions: Mercosur and the Andean Community of Nations, as part
of a continuing process of South American integration. It is modeled on the European
pg. 81
Union, and includes all of continental South America, except for French Guiana (which is
an overseas department of France, and therefore part of the European Union). Panama
and Mexico hold observer status.
Unasur Constitutive Treaty was signed on May 23, 2008, at the Third Summit of Heads of
State, held in Brasília, Brazil. According to it, the Secretariat headquarters will be
located in Quito, Ecuador. The South American Parliament will be located in
Cochabamba, Bolivia, while the headquarters of the Bank of the South (Portuguese:
Banco do Sul, Spanish: Banco del Sur, Dutch: Bank van het Zuiden) are to be located in
Caracas, Venezuela. The South American Defence Council was formed on July 20, 2008,
and had its first meeting on March 10, 2009. On May 4, 2010, the Heads of State of the
Member States unanimously elected former Argentine President Néstor Kirchner as the
first Secretary General of UNASUR.
pg. 82
REGIONAL BODIES
Regional organizations (ROs)
Regional organizations (ROs) are, in a sense, international organizations (IOs), as they
incorporate international membership and encompass geopolitical entities that
operationally transcend a single nation state. However, their membership is
characterized by boundaries and demarcations characteristic to a defined and unique
geography, such as continents, or geopolitics, such aseconomic blocs. They have been
established to foster cooperation and political and economic integration or dialogue
amongst states or entities within a restrictive geographical or geopolitical boundary.
They both reflect common patterns of development and history that have been fostered
since the end of World War II as well as the fragmentation inherent in globalization.
Most ROs tend to work alongside well-established multilateral organizations such as
the United Nations. While in many instances a regional organization is simply referred
to as an international organization, in many others it makes sense to use the term
regional organization to stress the more limited scope of a particular membership.
Examples of ROs include the African Union (AU), European Union (EU), the Organization of
American States (OAS), the Caribbean Community (CARICOM), the Arab League,
Association of Southeast Asian Nations (ASEAN) and South Asian Association for
Regional Cooperation (SAARC)
Regional integration
Regional integration is a process in which neighboring states enter into an agreement in
order to upgrade cooperation through common institutions and rules. The objectives of
the agreement could range from economic to political to environmental, although it has
typically taken the form of a political economy initiative where commercial interests
are the focus for achieving broader socio-political and security objectives, as defined by
national governments. Regional integration has been organized either via supranational
institutional structures or through intergovernmental decision-making, or a
combination of both.
Past efforts at regional integration have often focused on removing barriers to free trade in
the region, increasing the free movement of people, labour, goods, and capital across
national borders, reducing the possibility of regional armed conflict (for example,
through Confidence and Security-Building Measures), and adopting cohesive regional
stances on policy issues, such as the environment, climate change and migration.
Intra-regional trade refers to trade which focuses on economic exchange primarily
between countries of the same region or economic zone. In recent years countries
within economic-trade regimes such as ASEAN in Southeast Asia for example have
increased the level of trade and commodity exchange between themselves which
reduces the inflation and tariff barriers associated with foreign markets resulting in
growing prosperity.
pg. 83
Regional integration initiatives should fulfil at least eight important functions:

¯ the strengthening of trade integration in the region
¯ the creation of an appropriate enabling environment for private sector development
¯ the development of infrastructure programmes in support of economic growth and
regional integration
¯ the development of strong public sector institutions and good governance;
¯ the reduction of social exclusion and the development of an inclusive civil society
¯ contribution to peace and security in the region
¯ the building of environment programmes at the regional level
¯ the strengthening of the region’s interaction with other regions of the world.
Regional Economic Communities (RECs)

The Regional Economic Communities (RECs) in Africa group together individual countries
in subregions for the purposes of achieving greater economic integration. They are
described as the 'building blocks' of the African Union (AU) and are also central to the
strategy for implementing the New Partnership for Africa's Development (NEPAD).
Currently, there are eight RECs recognised by the AU, each established under a separate
regional treaty. They are:
¯ Arab Maghreb Union (UMA)

¯ Common Market for Eastern and Southern Africa (COMESA)
¯ Community of Sahel-Saharan States (CEN-SAD)
¯ East African Community (EAC)
¯ Economic Community of Central African States (ECCAS)
¯ Economic Community of West African States (ECOWAS)
¯ Intergovernmental Authority on Development (IGAD)
¯ Southern African Development Community (SADC)
pg. 84
THE UNITED NATIONS
United Nations (UN)
The United Nations (UN) is an intergovernmental organization established 24 October
1945, to promote international co-operation. A replacement for the ineffective League
of Nations, the organization was created following the Second World War to prevent
another such conflict. At its founding, the UN had 51 member states; there are now 193.
United Nations General Assembly observers
In addition to its 193 member states, the United Nations welcomes many international
organizations, entities, and non-member states (currently only two) as observers.
Observer status is granted by a United Nations General Assembly resolution. The status
of a Permanent Observer is based purely on practice, and there are no provisions for it
in the United Nations Charter.
Observers have the right to speak at United Nations General Assembly meetings, vote on
procedural matters, serve as signatories on working papers, and sign resolutions, but
not to sponsor resolutions or vote on resolutions of substantive matters. Various other
rights (e.g., to speak in debates, to submit proposals and amendments, the right of reply,
to raise points of order and to circulate documents, etc.) are given selectively to some
observers only. So far, the EU is the only international organisation to hold these
enhanced powers.
There is a distinction between state and non-state observers. Non-Member States of the
United Nations, which are members of one or more specialized agencies, can apply for
the status of Permanent Observer state. The non-state observers are the international
organizations and other entities.
UN Offices
The headquarters of the United Nations is situated inManhattan, New York City, and enjoys
extraterritoriality. Further main offices are situated in Geneva, Nairobi and Vienna.
UN financing
The organization is financed by assessed and voluntary contributions from its member
states. Its objectives include maintaining international peace and security, promoting
human rights, fostering social and economic development, protecting the environment,
and providing humanitarian aid in cases of famine, natural disaster, and armed conflict.
Extraterritoriality (UN)
Extraterritoriality is the state of being exempted from the jurisdiction of local law, usually
as the result of diplomatic negotiations. Extraterritoriality can also be applied to
physical places, such as foreign embassies, military bases of foreign countries, or offices
of the United Nations. The three most common cases recognized today internationally
pg. 85
relate to the persons and belongings of foreign heads of state, the persons and
belongings of ambassadors and other diplomats, and ships in foreign waters.
Extraterritoriality is often extended to friendly or allied militaries, particularly for the
purposes of allowing that military to simply pass through one's territory.
It is distinguished from personal jurisdiction in the sense that extraterritoriality operates
to the prejudice of local jurisdiction.
Some extraterritorialities include:
¯ Antarctica
¯ Embassy
¯ Extraterrestrial real estate
¯ International waters
¯ International seabed
¯ Moon
¯ Outer Space
¯ International zone
¯ United Nations
international zone (UN)
An international zone is a type of extraterritoriality governed by international law, or
similar treaty between two or more nations. They can be found within international
airports and can contain duty-free shopping. In areas of conflict there may be
international zones called green zones that form protective enclaves to keep diplomats
safe. Countries in conflict may also have international zones separating each other.
international waters or trans-boundary waters
The terms international waters or trans-boundary waters apply where any of the following
types of bodies of water (or their drainage basins) transcend international boundaries:
oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and
estuaries, rivers, lakes, groundwater systems (aquifers), and wetlands.
Oceans, seas, and waters outside of national jurisdiction are also referred to as the high
seas or, in Latin, mare liberum (meaning free seas).
Ships sailing the high seas are generally under the jurisdiction of the flag state (if there is
one);111 however, when a ship is involved in certain criminal acts, such as piracy, 112 any
nation can exercise jurisdiction under the doctrine of universal jurisdiction.
International waters can be contrasted with internal waters, territorial waters and
exclusive economic zones.
International Seabed Authority (ISA)
111
UNCLOS article 92(1)
112
UNCLOS article 105
pg. 86
The International Seabed Authority (ISA) is an intergovernmental body based in Kingston,

Jamaica, that was established to organize and control all mineral-related activities in
the international seabed area beyond the limits of national jurisdiction, an area
underlying most of the world’s oceans. It is an organization established by the Law of
the Sea Convention.
Extraterrestrial real estate
Extraterrestrial real estate is land on other planets or natural satellites or parts of space
that is sold either through organizations or by individuals. Ownership of
extraterrestrial real estate is not recognized by any authority. Nevertheless, some
private individuals and organizations have claimed ownership of celestial bodies, such
as the Moon, and are actively involved in "selling" parts of them through certificates of
ownership termed "Lunar deeds", "Martian deeds" or similar. These "deeds" have no
legal standing.
UN organs
The UN has six principal organs: the General Assembly (the main deliberative assembly);
the Security Council (for deciding certain resolutions for peace and security); the
Economic and Social Council(ECOSOC) (for promoting international economic and
social co-operation and development); the Secretariat (for providing studies,
information, and facilities needed by the UN); the International Court of Justice (the
primary judicial organ); and the United Nations Trusteeship Council (inactive since
1994). UN System agencies include the World Bank Group, the World Health
Organization, the World Food Programme, UNESCO, and UNICEF. The UN's most
prominent officer is the Secretary-General, an office held by South Korean Ban Ki-moon
since 2007. Non-governmental organizations may be granted consultative status with
ECOSOC and other agencies to participate in the UN's work.
UN Creation
In the century prior to the UN's creation, several international treaty organizations and
conferences had been formed to regulate conflicts between nations, such as the
International Committee of the Red Crossand the Hague Conventions of 1899 and
1907.113 Following the catastrophic loss of life in the First World War, the Paris Peace
Conference established the League of Nations to maintain harmony between
countries.114 This organization resolved some territorial disputes and created
international structures for areas such as postal mail, aviation, and opium control, some
of which would later be absorbed into the UN. 115 However, the League lacked
representation for colonial peoples (then half the world's population) and significant
participation from several major powers, including the US, USSR, Germany, and Japan; it
failed to act against the Japanese invasion of Manchuria in 1931, the Second Italo-
113
Kennedy, p. 5
114
Kennedy, p. 8
115
Kennedy, p. 10
pg. 87
Ethiopian War in 1935, the Japanese invasion of China in 1937, and German expansions
under Adolf Hitler that culminated in the Second World War. 116
UN offices
The General Assembly selected New York City as the site for the headquarters of the United
Nations, and the facility was completed in 1952. Its site—like UN headquarters
buildings in Geneva, Vienna, and Nairobi—is designated as international territory. 117
international territory
An international zone is a type of extraterritoriality governed by international law, or
similar treaty between two or more nations. They can be found within international
airports and can contain duty-free shopping. In areas of conflict there may be
international zones called green zones that form protective enclaves to keep diplomats
safe. Countries in conflict may also have international zones separating each other.
United Nations System
The United Nations' system is based on five principal organs: the General Assembly, the
Security Council, the Economic and Social Council (ECOSOC), the Secretariat, and the
International Court of Justice. A sixth principal organ, the Trusteeship Council,
suspended operations in 1994, upon the independence of Palau, the last remaining UN
trustee territory.118
Four of the five principal organs are located at the main UN Headquarters in New York
City. The International Court of Justice is located in The Hague, while other major
agencies are based in the UN offices at Geneva, Vienna, and Nairobi.Other UN
institutions are located throughout the world.
UN official languages
The six official languages of the United Nations, used in intergovernmental meetings and
documents, are Arabic, Chinese, English, French, Russian, and Spanish. On the basis of
the Convention on the Privileges and Immunities of the United Nations, the UN and its
agencies are immune from the laws of the countries where they operate, safeguarding
the UN's impartiality with regard to the host and member countries.
General Assembly , United Nations General Assembly
The General Assembly is the main deliberative assembly of the United Nations. Composed
of all United Nations member states, the assembly meets in regular yearly sessions, but
emergency sessions can also be called. 119 The assembly is led by a president, elected
from among the member states on a rotating regional basis, and 21 vice-presidents. The
116
Kennedy, pp. 13–24
117
Osmańczyk, Edmund Jan (February 2004). Encyclopedia of the United Nations and International Agreements: T to Z. Taylor &
Francis. p. 2445. ISBN 978-0415939249.
118
Fasulo, p. 8
119
Fomerand, pp. 131–33
pg. 88
first session convened 10 January 1946 in the Methodist Central Hall Westminster in
London and included representatives of 51 nations.
When the General Assembly votes on important questions, a two-thirds majority of those
present and voting is required. Examples of important questions include
recommendations on peace and security; election of members to organs; admission,
suspension, and expulsion of members; and budgetary matters. All other questions are
decided by a majority vote. Each member country has one vote. Apart from approval of
budgetary matters, resolutions are not binding on the members. The Assembly may
make recommendations on any matters within the scope of the UN, except matters of
peace and security that are under consideration by the Security Council.
Draft resolutions can be forwarded to the General Assembly by eight committees:
 General Committee – a supervisory committee consisting of the assembly's president,
vice-president, and committee heads
 Credentials Committee – responsible for determining the credentials of each member
nation's UN representatives
 First Committee (Disarmament and International Security)
 Second Committee (Economic and Financial)
 Third Committee (Social, Humanitarian, and Cultural)
 Fourth Committee (Special Political and Decolonization)
 Fifth Committee (Administrative and Budgetary)
 Sixth Committee (Legal)
Security Council, United Nations Security Council
The Security Council is charged with maintaining peace and security among countries.
While other organs of the United Nations can only make "recommendations" to member
states, the Security Council has the power to make binding decisions that member
states have agreed to carry out, under the terms of Charter Article 25. The decisions of
the Council are known as United Nations Security Council resolutions. 120
The Security Council is made up of fifteen member states, consisting of five permanent
members—China, France, Russia, the United Kingdom, and the United States—and ten
non-permanent members—Angola (term ends 2016), Chad (2015), Chile (2015), Jordan
(2015), Lithuania (2015), Malaysia (2016), New Zealand (2016), Nigeria (2015), Spain
(2016), and Venezuela (2016). The five permanent members holdveto power over UN
resolutions, allowing a permanent member to block adoption of a resolution, though
not debate. The ten temporary seats are held for two-year terms, with member states
120
Fasulo, pp. 39–43
pg. 89
voted in by the General Assembly on a regional basis. 121 The presidency of the Security
Council rotates alphabetically each month.
UN Secretariat, United Nations Secretariat and Secretary-General of the United
Nations
The UN Secretariat is headed by the Secretary-General, assisted by a staff of international
civil servants worldwide.122 It provides studies, information, and facilities needed by
United Nations bodies for their meetings. It also carries out tasks as directed by the
Security Council, the General Assembly, the Economic and Social Council, and other UN
bodies.123
The Secretary-General acts as the de facto spokesperson and leader of the UN. The position
is defined in the UN Charter as the organization's "chief administrative officer". Article
99 of the charter states that the Secretary-General can bring to the Security Council's
attention "any matter which in his opinion may threaten the maintenance of
international peace and security", a phrase that Secretaries-General since Trygve
Liehave interpreted as giving the position broad scope for action on the world stage. 124
The office has evolved into a dual role of an administrator of the UN organization and a
diplomat and mediator addressing disputes between member states and finding
consensus to global issues.125
The Secretary-General is appointed by the General Assembly, after being recommended by
the Security Council, where the permanent members have veto power. There are no
specific criteria for the post, but over the years it has become accepted that the post
shall be held for one or two terms of five years, that the post shall be appointed on the
basis of geographical rotation, and that the Secretary-General shall not originate from
one of the five permanent Security Council member states. The current Secretary-
General is Ban Ki-moon, who replaced Kofi Annan in 2007 and was elected for a second
term to conclude at the end of 2016.
International Court of Justice
The International Court of Justice (ICJ), located in The Hague, in the Netherlands, is the
primary judicial organ of the UN. Established in 1945 by the UN Charter, the Court
began work in 1946 as the successor to the Permanent Court of International Justice.
The ICJ is composed of 15 judges who serve 9-year terms and are appointed by the
General Assembly; every sitting judge must be from a different nation. 126127
It is based in the Peace Palace in The Hague, sharing the building with the Hague Academy
of International Law, a private centre for the study of international law. The ICJ's
primary purpose is to adjudicate disputes among states. The court has heard cases
121
Fasulo, pp. 40–41
122
Fasulo, p. 21
123
Fomerand, p. 285
124
Meisler, pp. 31–32
125
Kennedy, pp. 59–62
126
Fomerand, p. 183
127
Fasulo, pp. 100–01
pg. 90
related to war crimes, illegal state interference, ethnic cleansing, and other issues. The
ICJ can also be called upon by other UN organs to provide advisory opinions.
Economic and Social Council, United Nations Economic and Social Council
The Economic and Social Council (ECOSOC) assists the General Assembly in promoting
international economic and social co-operation and development. ECOSOC has 54
members, which are elected by the General Assembly for a three-year term. The
president is elected for a one-year term and chosen amongst the small or middle
powers represented on ECOSOC. The council has one annual meeting in July, held in
either New York or Geneva. Viewed as separate from the specialized bodies it co-
ordinates, ECOSOC's functions include information gathering, advising member nations,
and making recommendations.Owing to its broad mandate of co-ordinating many
agencies, ECOSOC has at times been criticized as unfocused or irrelevant. 128
ECOSOC's subsidiary bodies include the United Nations Permanent Forum on Indigenous
Issues, which advises UN agencies on issues relating to indigenous peoples; the United
Nations Forum on Forests, which co-ordinates and promotes sustainable forest
management; the United Nations Statistical Commission, which co-ordinates
information-gathering efforts between agencies; and the Commission on Sustainable
Development, which co-ordinates efforts between UN agencies and NGOs working
toward sustainable development. ECOSOC may also grant consultative status to non-
governmental organizations; by 2004, more than 2,200 organizations had received this
status.129
Specialized agencies, specialized agencies of the United Nations

The UN Charter stipulates that each primary organ of the UN can establish various
specialized agencies to fulfill its duties. Some of the best-known agencies are the
International Atomic Energy Agency, the Food and Agriculture Organization,UNESCO
(United Nations Educational, Scientific and Cultural Organization), the World Bank, and
the World Health Organization (WHO). The UN performs most of its humanitarian work
through these agencies. Examples include mass vaccination programmes (through
WHO), the avoidance of famine and malnutrition (through the work of the WFP), and
the protection of vulnerable and displaced people (for example, by UNHCR).
¯ Food and Agriculture Organization
¯ International Atomic Energy Agency
¯ International Civil Aviation Organization
¯ International Fund for Agricultural Development
¯ International Labour Organization
128
Fasulo, pp. 153–55
129
Fasulo, p. 156
pg. 91
¯ International Maritime Organization

¯ International Monetary Fund
¯ International Telecommunication Union
¯ United Nations Educational, Scientific and Cultural Organization
¯ United Nations Industrial Development Organization
¯ World Tourism Organization
¯ Universal Postal Union
¯ World Bank Group
¯ World Food Programme
¯ World Health Organization
¯ World Intellectual Property Organization
¯ World Meteorological Organization
Food and Agriculture Organization

The Food and Agriculture Organization of the United Nations (FAO; French: Organisation
des Nations unies pour l'alimentation et l'agriculture, Italian: Organizzazione delle
Nazioni Unite per l'Alimentazione e l'Agricoltura) is an agency of the United Nations
that leads international efforts to defeat hunger. Serving both developed and
developing countries, FAO acts as a neutral forum where all nations meet as equals to
negotiate agreements and debate policy. FAO is also a source of knowledge and
information, and helps developing countries and countries in transition modernize and
improve agriculture, forestry and fisheries practices, ensuring good nutrition and food
security for all. Its Latin motto, fiat panis, translates as "let there be bread". As of 8
August 2013, FAO has 194 member states, along with the European Union (a "member
organization").
International Atomic Energy Agency
The International Atomic Energy Agency (IAEA) is an international organization that seeks
to promote the peaceful use of nuclear energy, and to inhibit its use for any military
purpose, including nuclear weapons. The IAEA was established as an autonomous
organization on 29 July 1957. Though established independently of the United Nations
through its own international treaty, the IAEA Statute, the IAEA reports to both the
United Nations General Assembly and Security Council.
The IAEA has its headquarters in Vienna, Austria. The IAEA has two "Regional Safeguards
Offices" which are located in Toronto, Canada, and in Tokyo, Japan. The IAEA also has
two liaison offices which are located in New York City, United States, and in Geneva,
pg. 92
Switzerland. In addition, the IAEA has three laboratories located in Vienna and
Seibersdorf, Austria, and in Monaco.
The IAEA serves as an intergovernmental forum for scientific and technical cooperation in
the peaceful use of nuclear technology and nuclear power worldwide. The programs of
the IAEA encourage the development of the peaceful applications of nuclear technology,
provide international safeguards against misuse of nuclear technology and nuclear
materials, and promote nuclear safety (including radiation protection) and nuclear
security standards and their implementation.
International Civil Aviation Organization
The International Civil Aviation Organization (ICAO, pronounced /aɪˈkeɪoʊ/; French:
Organisation de l'aviation civile internationale, OACI), is a specialized agency of the
United Nations. It codifies the principles and techniques of international air navigation
and fosters the planning and development of international air transport to ensure safe
and orderly growth. Its headquarters are located in the Quartier International of
Montreal, Quebec, Canada.
The ICAO Council adopts standards and recommended practices concerning air navigation,
its infrastructure, flight inspection, prevention of unlawful interference, and facilitation
of border-crossing procedures for international civil aviation. ICAO defines the
protocols for air accident investigation followed by transport safety authorities in
countries signatory to the Convention on International Civil Aviation (Chicago
Convention).
The Air Navigation Commission (ANC) is the technical body within ICAO. The Commission
is composed of 19 Commissioners, nominated by the ICAO's contracting states, and
appointed by the ICAO Council. Commissioners serve as independent experts, who
although nominated by their states, do not serve as state or political representatives.
The development of Aviation Standards and Recommended Practices is done under the
direction of the ANC through the formal process of ICAO Panels. Once approved by the
Commission, standards are sent to the Council, the political body of ICAO, for
consultation and coordination with the Member States before final adoption.
ICAO is distinct from the International Air Transport Association (IATA), a trade
association representing 240 of the world’s airlines, also headquartered in Montreal, or
with the Civil Air Navigation Services Organisation (CANSO), an organization for Air
Navigation Service Providers (ANSPs) with its headquarters at Amsterdam Airport
Schiphol in the Netherlands. These are trade associations representing specific aviation
interests, whereas ICAO is a body of the United Nations.
International Fund for Agricultural Development (IFAD)
The International Fund for Agricultural Development (IFAD) (French: Fonds international
de développement agricole; FIDA) (Italian: Fondo Internazionale per lo Sviluppo
Agricolo) is a specialized agency of the United Nations dedicated to eradicating rural
pg. 93
poverty in developing countries. It was established as an international financial

institution in 1977 as one of the major outcomes of the 1974 World Food Conference.
Seventy-five percent of the world's poor live in rural areas in developing countries, yet
only 4% of official development assistance goes to agriculture.
The strategic policy of IFAD is detailed in Strategic Framework for IFAD 2011–2015:
Enabling the Rural Poor to Overcome Poverty. Its headquarters is in Rome, Italy, and is
a member of the United Nations Development Group.
International Labour Organization
The International Labour Organization (ILO) is a United Nations agency dealing with
labour issues, particularly international labour standards and decent work for all. 185
of the 193 UN member states are members of the ILO.
In 1969, the organization received the Nobel Peace Prize for improving peace among
classes, pursuing justice for workers, and providing technical assistance to other
developing nations.
The ILO registers complaints against entities that are violating international rules;
however, it does not impose sanctions on governments.
International Maritime Organization
The International Maritime Organization (IMO), known as the Inter-Governmental
Maritime Consultative Organization (IMCO) until 1982, was established in Geneva in
1948 and came into force ten years later, meeting for the first time in 1959.
Headquartered in London, United Kingdom, the IMO is a specialised agency of the United
Nations with 171 Member States and three Associate Members. The IMO's primary
purpose is to develop and maintain a comprehensive regulatory framework for
shipping and its remit today includes safety, environmental concerns, legal matters,
technical co-operation, maritime security and the efficiency of shipping. IMO is
governed by an Assembly of members and is financially administered by a Council of
members elected from the Assembly. The work of IMO is conducted through five
committees and these are supported by technical subcommittees. Member
organisations of the UN organizational family may observe the proceedings of the IMO.
Observer status is granted to qualified non-governmental organisations.
IMO is supported by a permanent secretariat of employees who are representative of its
members. The secretariat is composed of a Secretary-General who is periodically
elected by the Assembly, and various divisions such as those for marine safety,
environmental protection, and a conference section.
International Monetary Fund
The International Monetary Fund (IMF) is an international organization headquartered in
Washington, D.C., in the United States, of 188 countries working to foster global
monetary cooperation, secure financial stability, facilitate international trade, promote
pg. 94
high employment and sustainable economic growth, and reduce poverty around the
world. Formed in 1944 at the Bretton Woods Conference, it came into formal existence
in 1945 with 29 member countries and the goal of reconstructing the international
payment system. Countries contribute funds to a pool through a quota system from
which countries with payment imbalances can borrow. As of 2010, the fund had
SDR476.8 billion, about US$755.7 billion at then-current exchange rates.
Through this fund, and other activities such as statistics keeping and analysis, surveillance
of its members' economies and the demand for self-correcting policies, the IMF works
to improve the economies of its member countries. The organization's objectives stated
in the Articles of Agreement are: to promote international economic cooperation,
international trade, employment, and exchange-rate stability, including by making
financial resources available to member countries to meet balance-of-payments needs.
International Telecommunication Union
The International Telecommunication Union (ITU), originally the International Telegraph
Union (French: Union Internationale des Télécommunications), is a specialized agency
of the United Nations (UN) that is responsible for issues that concern information and
communication technologies.
The ITU coordinates the shared global use of the radio spectrum, promotes international
cooperation in assigning satellite orbits, works to improve telecommunication
infrastructure in the developing world, and assists in the development and coordination
of worldwide technical standards. The ITU is active in areas including broadband
Internet, latest-generation wireless technologies, aeronautical and maritime navigation,
radio astronomy, satellite-based meteorology, convergence in fixed-mobile phone,
Internet access, data, voice, TV broadcasting, and next-generation networks.
ITU also organizes worldwide and regional exhibitions and forums, such as ITU TELECOM
WORLD, bringing together representatives of government and the telecommunications
and ICT industry to exchange ideas, knowledge and technology.
ITU, based in Geneva, Switzerland, is a member of the United Nations Development Group.
ITU has been an intergovernmental public-private partnership organization since its
inception. Its membership includes 193 Member States and around 700 public and
private sector companies as well as international and regional telecommunication
entities, known as Sector Members and Associates, which undertake most of the work
of each Sector.
United Nations Educational, Scientific and Cultural Organization
The United Nations Educational, Scientific and Cultural Organization (French: Organisation
des Nations unies pour l'éducation, la science et la culture; UNESCO; /juːˈnɛskoʊ/) is a
specialized agency of the United Nations (UN). Its purpose is to contribute to peace and
security by promoting international collaboration through education, science, and
culture in order to further universal respect for justice, the rule of law, and human
pg. 95
rights along with fundamental freedom proclaimed in the United Nations Charter. It is
the heir of the League of Nations' International Committee on Intellectual Cooperation.
UNESCO has 195 member states and nine associate members. Most of its field offices are
"cluster" offices covering three or more countries; there are also national and regional
offices.
UNESCO pursues its objectives through five major programs: education, natural sciences,
social/human sciences, culture, and communication/information. Projects sponsored
by UNESCO include literacy, technical, and teacher-training programmes; international
science programmes; the promotion of independent media and freedom of the press;
regional and cultural history projects; the promotion of cultural diversity; translations
of world literature; international cooperation agreements to secure the world cultural
and natural heritage (World Heritage Sites) and to preserve human rights, and attempts
to bridge the worldwide digital divide. It is also a member of the United Nations
Development Group.
UNESCO's aim is "to contribute to the building of peace, the eradication of poverty,
sustainable development and intercultural dialogue through education, the sciences,
culture, communication and information". Other priorities of the organization include
attaining quality Education For All and lifelong learning, addressing emerging social
and ethical challenges, fostering cultural diversity, a culture of peace and building
inclusive knowledge societies through information and communication.
The broad goals and concrete objectives of the international community — as set out in the
internationally agreed development goals, including the Millennium Development Goals
(MDG) — underpin all UNESCO's strategies and activities.
United Nations Industrial Development Organization
The United Nations Industrial Development Organization (UNIDO),
French/Spanish/Portuguese acronym ONUDI, is a specialized agency in the United
Nations system, headquartered in Vienna, Austria. The Organization's primary objective
is the promotion and acceleration of industrial development in developing countries
and countries with economies in transition and the promotion of international
industrial cooperation. It is also a member of the United Nations Development Group.
World Tourism Organization
The United Nations World Tourism Organization (UNWTO) is the United Nations agency
responsible for the promotion of responsible, sustainable and universally accessible
tourism. It is the leading international organization in the field of tourism, which
promotes tourism as a driver of economic growth, inclusive development and
environmental sustainability and offers leadership and support to the sector in
advancing knowledge and tourism policies worldwide. It encourages the
implementation of the Global Code of Ethics for Tourism to maximize the contribution
of tourism to socio-economic development, while minimizing its possible negative
pg. 96
impacts, and is committed to promoting tourism as an instrument in achieving the

United Nations Millennium Development Goals (MDGs), geared towards reducing
poverty and fostering sustainable development.
UNWTO generates market knowledge, promotes competitive and sustainable tourism
policies and instruments, fosters tourism education and training, and works to make
tourism an effective tool for development through technical assistance projects in over
100 countries around the world.
UNWTO’s membership includes 156 countries, 6 territories and over 400 affiliate members
representing the private sector, educational institutions, tourism associations and local
tourism authorities. Its headquarters are located in Madrid, Spain.
Universal Postal Union
The Universal Postal Union (UPU, French: Union postale universelle) is a specialized agency
of the United Nations that coordinates postal policies among member nations, in
addition to the worldwide postal system. The UPU contains four bodies consisting of the
Congress, the Council of Administration (CA), the Postal Operations Council (POC) and
the International Bureau (IB). It also oversees the Telematics and EMS cooperatives.
Each member agrees to the same terms for conducting international postal duties. The
UPU’s headquarters are located in Bern, Switzerland.
French is the official language of the UPU. English was added as a working language in
1994. The majority of the UPU's documents and publications – including its flagship
magazine, Union Postale - are available in the United Nations' official languages.[
World Bank Group
The World Bank Group (WBG) is a family of five international organizations that make
leveraged loans to poor countries. It is the largest and most famous development bank
in the world and is an observer at the United Nations Development Group. The bank is
based in Washington, D.C. and provided around $30 billion in loans and assistance to
"developing" and transition countries in 2012. The bank's stated mission is to reduce
poverty.
The World Bank's (the IBRD and IDA's) activities are focused on developing countries, in
fields such as human development (e.g. education, health), agriculture and rural
development (e.g. irrigation and rural services), environmental protection (e.g.
pollution reduction, establishing and enforcing regulations), infrastructure (e.g. roads,
urban regeneration, and electricity), large industrial construction projects, and
governance (e.g. anti-corruption, legal institutions development). The IBRD and IDA
provide loans at preferential rates to member countries, as well as grants to the poorest
countries. Loans or grants for specific projects are often linked to wider policy changes
in the sector or the country's economy as a whole. For example, a loan to improve
coastal environmental management may be linked to development of new
environmental institutions at national and local levels and the implementation of new
pg. 97
regulations to limit pollution, or not, such as in the World Bank financed constructions
of paper mills along the Rio Uruguay in 2006.
The World Bank Group consists of
¯ International Bank for Reconstruction and Development (IBRD),
¯ International Finance Corporation (IFC),
¯ International Development Association (IDA),
¯ International Centre for Settlement of Investment Disputes (ICSID),
¯ Multilateral Investment Guarantee Agency (MIGA),
International Bank for Reconstruction and Development (IBRD),
The International Bank for Reconstruction and Development (IBRD), established in 1945,
which provides debt financing on the basis of sovereign guarantees;
International Finance Corporation (IFC),
The International Finance Corporation (IFC), established in 1956, which provides various
forms of financing without sovereign guarantees, primarily to the private sector;
International Development Association (IDA),
The International Development Association (IDA), established in 1960, which provides
concessional financing (interest-free loans or grants), usually with sovereign
guarantees;
International Centre for Settlement of Investment Disputes (ICSID),
The International Centre for Settlement of Investment Disputes (ICSID), established in
1965, which works with governments to reduce investment risk;
Multilateral Investment Guarantee Agency (MIGA),
The Multilateral Investment Guarantee Agency (MIGA), established in 1988, which
provides insurance against certain types of risk, including political risk, primarily to the
private sector.
World Bank , World Bank Group or WBG
The term "World Bank" generally refers to just the IBRD and IDA, whereas the term World
Bank Group or WBG is used to refer to all five institutions collectively.
World Bank Institute
The World Bank Institute is the capacity development branch of the World Bank, providing
learning and other capacity-building programs to member countries.
World Food Programme
The World Food Programme (WFP; French: Programme Alimentaire Mondial; Italian:
Programma Alimentare Mondiale; Spanish: Programa Mundial de Alimentos) is the food
assistance branch of the United Nations and the world's largest humanitarian
pg. 98
organization addressing hunger and promoting food security. On average, the WFP
provides food to 90 million people per year, of whom 58 million are children. From its
headquarters in Rome and more than 80 country offices around the world, the WFP
works to help people who are unable to produce or obtain enough food for themselves
and their families. It is a member of the United Nations Development Group and part of
its Executive Committee.
World Health Organization
The World Health Organization (WHO) is a specialized agency of the United Nations (UN)
that is concerned with international public health. It was established on 7 April 1948,
headquartered in Geneva, Switzerland. WHO is a member of the United Nations
Development Group. Its predecessor, the Health Organization, was an agency of the
League of Nations. The constitution of the World Health Organization had been signed
by 61 countries on 22 July 1946, with the first meeting of the World Health Assembly
finishing on 24 July 1948. It incorporated the Office International d'Hygiène Publique
and the League of Nations Health Organization. Since its creation, it has played a leading
role in the eradication of smallpox. Its current priorities include communicable
diseases, in particular, HIV/AIDS, Ebola, malaria and tuberculosis; the mitigation of the
effects of non-communicable diseases; sexual and reproductive health, development,
and aging; nutrition, food security and healthy eating; occupational health; substance
abuse; and drive the development of reporting, publications, and networking. WHO is
responsible for the World Health Report, a leading international publication on health,
the worldwide World Health Survey, and World Health Day (7 April of every year).
World Intellectual Property Organization
The World Intellectual Property Organization (WIPO) is one of the 17 specialized agencies
of the United Nations. WIPO was created in 1967 "to encourage creative activity, to
promote the protection of intellectual property throughout the world."
WIPO currently has 188 member states, administers 26 international treaties, and is
headquartered in Geneva, Switzerland. The current Director-General of WIPO is Francis
Gurry, who took office on October 1, 2008. 186 of the UN Members as well as the Holy
See and Niue are Members of WIPO. Non-members are the states of Marshall Islands,
Federated States of Micronesia, Nauru, Palau, Solomon Islands, South Sudan and Timor-
Leste. Palestine has observer status.
World Meteorological Organization
The World Meteorological Organization (WMO) is an intergovernmental organization with
a membership of 191 Member States and Territories. It originated from the
International Meteorological Organization (IMO), which was founded in 1873.
Established in 1950, WMO became the specialised agency of the United Nations for
meteorology (weather and climate), operational hydrology and related geophysical
sciences. It has its headquarters in Geneva, Switzerland, and is a member of the United
pg. 99
Nations Development Group. The current Secretary-General is Michel Jarraud. The

current president is David Grimes.
Member states of the United Nations
The UN has 193 member states, including all undisputed independent states apart from
Vatican City.[e] The UN Charter outlines the rules for membership:
1. Membership in the United Nations is open to all other peace-loving states that accept
the obligations contained in the present Charter and, in the judgment of the
Organization, are able and willing to carry out these obligations.
2. The admission of any such state to membership in the United Nations will be effected
by a decision of the General Assembly upon the recommendation of the Security
Council. Chapter II, Article 4
In addition, there are two non-member observer states of the United Nations General
Assembly: the Holy See (which holds sovereignty over Vatican City) and the State of
Palestine. The Cook Islands and Niue, both states in free association with New Zealand,
are full members of several UN specialized agencies and have had their "full treaty-
making capacity" recognised by the Secretariat.
Group of 77
The Group of 77 at the UN is a loose coalition of developing nations, designed to promote
its members' collective economic interests and create an enhanced joint negotiating
capacity in the United Nations. Seventy-seven nations founded the organization, but by
November 2013 the organization had since expanded to 133 member countries. The
group was founded 15 June 1964 by the "Joint Declaration of the Seventy-Seven
Countries" issued at the United Nations Conference on Trade and Development
(UNCTAD). The group held its first major meeting in Algiers in 1967, where it adopted
the Charter of Algiers and established the basis for permanent institutional structures.
Funding (UN)
The UN is financed from assessed and voluntary contributions from member states. The
General Assembly approves the regular budget and determines the assessment for each
member. This is broadly based on the relative capacity of each country to pay, as
measured by its gross national income (GNI), with adjustments for external debt and
low per capita income.
The Assembly has established the principle that the UN should not be unduly dependent on
any one member to finance its operations. Thus, there is a "ceiling" rate, setting the
maximum amount that any member can be assessed for the regular budget.
A large share of the UN's expenditure addresses its core mission of peace and security, and
this budget is assessed separately from the main organizational budget. Special UN
programmes not included in the regular budget, such as UNICEF and the World Food
pg. 100
Programme, are financed by voluntary contributions from member governments,

corporations, and private individuals.
international court of justice World Court or ICJ, Ad Hoc Judges , Permanent Court of
International Justice
The International Court of Justice; commonly referred to as the World Court or ICJ) is the
primary judicial branch of the United Nations. It is based in the Peace Palace in The
Hague, Netherlands. Its main functions are to settle legal disputes submitted to it by
states and to provide advisory opinions on legal questions submitted to it by duly
authorized international branches, agencies, and the UN General Assembly. The system
of Ad Hoc Judges allows any party to a contentious case who otherwise does not have
one of that party's nationals sitting on the Court to select one additional person to sit as
a judge on that case only. It is possible that as many as seventeen judges may sit on one
case. The key principle is that the ICJ has jurisdiction only on the basis of consent.
Article 36 outlines four bases on which the Court's jurisdiction may be founded. The
International Court does not enjoy a full separation of powers, with permanent
members of the Security Council being able to veto enforcement of cases, even to which
they consented to be bound.
Advisory opinion (ICJ)
Audience of the "Accordance with International Law of the Unilateral Declaration of
Independence by the Provisional Institutions of Self-Government of Kosovo"
An advisory opinion is a function of the Court open only to specified United Nations bodies
and agencies. On receiving a request, the Court decides which States and organizations
might provide useful information and gives them an opportunity to present written or
oral statements. Advisory Opinions were intended as a means by which UN agencies
could seek the Court's help in deciding complex legal issues that might fall under their
respective mandates.
In principle, the Court's advisory opinions are only consultative in character but are
influential and widely respected. Whilst certain instruments or regulations can provide
in advance that the advisory opinion shall be specifically binding on particular agencies
or states, they are inherently non-binding under the Statute of the Court. This non-
binding character does not mean that advisory opinions are without legal effect,
because the legal reasoning embodied in them reflects the Court's authoritative views
on important issues of international law and, in arriving at them, the Court follows
essentially the same rules and procedures that govern its binding judgments delivered
in contentious cases submitted to it by sovereign states.
An advisory opinion derives its status and authority from the fact that it is the official
pronouncement of the principal judicial organ of the United Nations.
pg. 101
international criminal court

The International Criminal Court (ICC or ICCt) is an intergovernmental organization and
international tribunal that sits in The Hague in the Netherlands. The ICC has the
jurisdiction to prosecute individuals for the international crimes of genocide, crimes
against humanity, and war crimes. The ICC is intended to complement existing national
judicial systems and it may therefore only exercise its jurisdiction when certain
conditions are met, such as when national courts are unwilling or unable to prosecute
criminals or when the United Nations Security Council or individual states refer
investigations to the Court. The ICC began functioning on 1 July 2002, the date that the
Rome Statute entered into force. The Rome Statute is a multilateral treaty which serves
as the ICC's foundational and governing document. States which become party to the
Rome Statute, for example by ratifying it, become member states of the ICC. Currently,
there are 123 states which are party to the Rome Statute and therefore members of the
ICC.
The ICC has four principal organs: the Presidency, the Judicial Divisions, the Office of the
Prosecutor, and the Registry. The President is the most senior judge chosen by his or
her peers in the Judicial Division, which hears cases before the Court. The Office of the
Prosecutor is headed by the Prosecutor who investigates crimes and initiates
proceedings before the Judicial Division. The Registry is headed by the Registrar and is
charged with managing all the administrative functions of the ICC, including the
headquarters, detention union, and public defense office.
permanent international court of justice
The Permanent Court of International Justice, often called the World Court, was an
international court attached to the League of Nations. Created in 1922 (although the
idea of an international court was several centuries old), the Court was initially met
with a good reaction from states and academics alike, with many cases submitted to it
for its first decade of operation. With the heightened international tension of the 1930s
the Court was used with decreasing regularity; by a resolution by the League of Nations
on 18 April 1946, the Court ceased to exist, being replaced by the International Court of
Justice.
The Court's mandatory jurisdiction came from three sources; the Optional Clause of the
League of Nations, general international conventions and special bipartite international
treaties. Cases could also be submitted directly by states, but they were not bound to
submit material unless it fell into those three categories. The Court could issue either
judgments or advisory opinions; judgments were directly binding, while advisory
opinions were not. In practice member states of the League of Nations followed
advisory opinions anyway, fearing that to not do so could undermine the moral and
legal authority of the Court and League.
pg. 102
UN Resolution
United Nations resolutions are formal expressions of the opinion or will of United Nations
organs. They usually state a policy that the United Nations will undertake, but they also
may be in the form of treaties, conventions and declarations in some bodies. They range
from very general to very specific in content. Depending on the body involved, they may
call for or suggest a course of action, condemn an action, or require action or sanctions
in the part of the member states. The General Assembly and Economic and Social
Council may only call for or suggest actions. It should be noted that no one other than
the Security Council may require action or sanctions from member states.
pg. 103
Law of Government Institutions (Constitutional Law)

INTRODUCING CONSTITUTIONAL LAW
constitution
which a state or other organization is governed. 130 When these principles are written
down into a single or set of legal documents, those documents are called a written
constitution. Every country’s Constitution is the document that outlays the principles
upon which it is to be run. For instance, Article 2(1) of 1995 Uganda Constitution states
that, ‘This Constitution is the supreme law of Uganda and shall have binding force on all
authorities and persons throughout Uganda.’
A ‘constitution’ is simply those laws which constitute the body politic, from statute, case
law and convention. A case named Entick v Carrington131 illustrates a constitutional
principle deriving from the common law. Mr. Entick's house was searched and
ransacked by Sheriff Carrington. When Mr. Entick complained in court, Sheriff
Carrington argued that a warrant from a Government minister, the Earl of Halifax, was
valid authority. However, there was no written statutory provision or court authority.
The leading judge, Lord Camden, stated that,
‘The great end, for which men entered into society, was to secure their property. That right is
preserved sacred and incommunicable in all instances, where it has not been taken away
or abridged by some public law for the good of the whole ... If no excuse can be found or
produced, the silence of the books is an authority against the defendant, and the plaintiff
must have judgment.’132
The fundamental constitutional principle, inspired by John Locke, holds that the individual
can do anything but that which is forbidden by law, and the state may do nothing but
that which is authorized by law.133
constitutionality
Constitutionality is the condition of acting in accordance with an applicable constitution. 134
Acts that are not in accordance with the rules laid down in the constitution are deemed
to be ultra vires. Again using example of Uganda, Article 2(2) of Uganda Constitution
states that, ‘If any other law or any custom is inconsistent with any of the provisions of this
130
131
[6] EWHC KB J98
132
Entick v. Carrington’. 19 Howell’s State Trials 1029 (1765). United States: Constitution Society. Retrieved
2008-11-13.
133
Chapter 9, Line 124, John Locke, Second Treatise on Government (1690)
134
Collins English Dictionary – Complete and Unabridged © HarperCollins Publishers 1991, 1994, 1998, 2000,
2003
pg. 104
Constitution, the Constitution shall prevail, and that other law or custom shall, to the
extent of the inconsistency, be void.’
constitutionalism
Constitutionalism, on the other hand, is the system of governance where the governing
organs operate to advance the interests of the people. 135 According to Okoth-Ogendo,
the paradox between constitutions and constitutionalism in Africa consists in the fact
that Afrikan ruling elites are attracted relentlessly to the idea of constitutions since, in
the first instance, that is what ensures and guarantees the sovereignty of the state and
secondly what contains the laws for the governance of the particular society in
question. However, what has been concretely missing in the agenda of Afrikan ruling
elites is the classical and noble idea of constitutionalism, which is the fidelity of
governing regimes to the principle that the exercise of state power must seek to
advance the ends of society. To do this, government ought be based on popular consent
of the governed136 arising out of the citizens ‘social contract’ to live together 137 out of
which we form a government and give it power to protect our lives and property and
advance our interests under a grundnorm138.
The exercise of state power must be beyond mere acts in accordance to the constitution,
that is, constitutionality, but betray fidelity to advance the ends of society. This is the
essence of constitutionalism139 which branches republicanism from fascism; departs
‘might from right’140 and pillars modern constitutional republicanism 141. Hence,
constitutionalism is not just about applying the written constitution (which is
constitutionality), but making sure that the contents of the written constitution
advances the interests of the people, and then applying the contents to actually advance
those interests.142 Constitutionalism is a culture, and it must be both present in the
document, and lived in the application of governance. Uganda faces successes and
challenges for her constitutional undertakings. Dialogue amongst all citizens must
continue to ensure that the three organs of the state are strengthened and that
mechanisms for enabling independent and effective functioning of each one of them are
not eroded.
135
Okoth-Ogendo, H. W. O. “Constitutions without Constitutionalism: Reflections on an Afrikan Political Paradox” in State and
Constitutionalism An Afrikan Debate on Democracy, edited by Issa Shivji, Harare: SAPES Trust, 1991, pp. 3-25, at p. 5.
136
Id; see also Machiavelli, Niccolò (1996) Discourses on the First Ten Books of Titus Livy (Discorsi) Northern Illinois University
Press. Translated and edited by James B. Atkinson and David Sices.
137
Hobbes, Thomas. 1651a. Leviathan. C.B Macpherson (Editor). London: Penguin Books (1985); See also Locke, John. Two
Treatises of Government and A Letter Concerning Toleration. Yale University Press (2003); Rousseau, Jean-Jacques. The
Basic Political Writings. (Trans. Donald A. Cress) Hackett Publishing Company (1987) and Kant, Immanuel, 1785, Groundwork
for the Metaphysics of Morals, translated by T. Abbott, revised and edited by L. Denis, Peterborough: Broadview Press, 2005.
138
Id; see also Hart, H.L.A. The Concept of Law. 1961: Clarendon Press
139
Id
140
Hobbes, Thomas. 1651a. Leviathan. C.B Macpherson (Editor). London: Penguin Books (1985)
141
Mill, John Stuart ‘On Liberty’ Penguin Classics, 2006 ISBN 978-0-14-144147-4 pages 90–91
142
Kanyeihamba G.W. (2002) Constitutional and Political History of Uganda, Kampala: Centenary Publishers
House Ltd.
pg. 105
Constitutionalism, in its most general meaning, is "a complex of ideas, attitudes, and
patterns of behavior elaborating the principle that the authority of government derives
from and is limited by a body of fundamental law". 143 A political organization is
constitutional to the extent that it "contain[s] institutionalized mechanisms of power
control for the protection of the interests and liberties of the citizenry, including those
that may be in the minority".144
why constitutionalism?
The ideal form of government ought be based on popular consent of the governed as
argued by Machiavelli145 arising out of the citizens ‘contract’ to live together as
espoused by Rousseau146 in social contract theory out of which we form a government
and give it power to protect our lives and property and advance our interests under a
grundnorm, so named by Kelsen147. The exercise of state power must be beyond mere
acts in accordance to the constitution, that is, constitutionality, but betray fidelity to
advance the ends of society. This is the essence of constitutionalism as written by
Okoth-Ogendo148which branches republicanism from fascism; departs ‘might from right’
as per Hobbes149 and pillars modern constitutional republicanism as per Mill 150.
middle-ground: representation-reinforcing review
Too much judicial power undermines democracy; the risk of majoritarian democracy is
that it may consistently beat up on minorities. Therefore, the Court should intervene
when minority groups are systematically closed out of the political process.
143
Don E. Fehrenbacher, Constitutions and Constitutionalism in the Slaveholding South (University of Georgia Press, 1989) at p.
1. ISBN 978-0-8203-1119-7.
144
Gordon, Scott (1999). Controlling the State: Constitutionalism from Ancient Athens to Today. Harvard University Press. p. 4.
ISBN 0-674-16987-5.
145
Machiavelli, Niccolò (1961), The Prince, London: Penguin, ISBN 978-0-14-044915-0. Translated by George Bull.
146
Rousseau, Jean-Jacques. The Basic Political Writings. (Trans. Donald A. Cress) Hackett Publishing Company (1987)
147
Hans, Kelsen. Pure Theory of Law, M. Knight, trans., Berkeley: University of California Press.
148
Okoth-Ogendo, H. W. O. 1991, Constitutions without Constitutionalism (1991)
149
Hobbes, Thomas. 1651a. Leviathan. C.B Macpherson (Editor). London: Penguin Books (1985)
150
Mill, John Stuart ‘On Liberty’ Penguin Classics, 2006 ISBN 978-0-14-144147-4 pages 90–91
pg. 106
PUBLIC INSTITUTIONS, BUREAUCRACY
bureaucracy
A bureaucracy is "a body of non-elective government officials" and/or "an administrative
policy-making group". Historically, bureaucracy referred to government administration
managed by departments staffed with nonelected officials. In modern parlance,
bureaucracy refers to the administrative system governing any large institution. In his
Philosophy of Right, Hegel had supported the role of specialized officials in the role of
public administration, although he never used the term "bureaucracy" himself. Marx by
contrast was opposed to the bureaucracy. He saw the development of bureaucracy in
government as a natural counterpart to the development of the corporation in private
society. Marx posited that while the corporation and government bureaucracy existed
in seeming opposition, in actuality they mutually relied on one another to exist. He
wrote that "The Corporation is civil society's attempt to become state; but the
bureaucracy is the state which has really made itself into civil society." 151
In the early 1860s, political scientist John Stuart Mill theorized that successful monarchies
were essentially bureaucracies, and found evidence of their existence in Imperial China,
the Russian Empire, and the regimes of Europe. Mill referred to bureaucracy as a
distinct form of government, separate from representative democracy. He believed
bureaucracies had certain advantages, most importantly the accumulation of
experience in those who actually conduct the affairs. 152 As the most efficient and
rational way of organizing, bureaucratization for Weber was the key part of the
rational-legal authority, and furthermore, he saw it as the key process in the ongoing
rationalization of the Western society.153154 Although he is not necessarily an admirer of
bureaucracy, Weber does agree that bureaucracy constitutes the most efficient and
(formally) rational way in which human activity can be organized, and that thus is
indispensable to the modern world.155
state
State commonly refers to either the condition of a system or entity, or to a governed entity
(such as a country) or subentity (such as an autonomous territory of a country).
151
On Karl Marx: Hal Draper, Karl Marx's Theory of Revolution, Volume 1: State and Bureaucracy. New York: Monthly Review
Press, 1979.; see also Marx comments on the state bureaucracy in his Critique of Hegel's Philosophy of Right and Engels
discusses the origins of the state in Origins of the Family.
152
John Stuart Mill (1861). "VI—Of the Infirmities and Dangers to which Representative Government is Liable". Considerations on
Representative Government. Retrieved 12 October 2012.
153
Richard Swedberg; Ola Agevall (2005). The Max Weber dictionary: key words and central concepts. Stanford University
Press. pp. 18–21. ISBN 978-0-8047-5095-0. Retrieved 23 March 2011.
154
George Ritzer (29 September 2009). Contemporary Sociological Theory and Its Classical Roots: The Basics. McGraw-Hill. pp.
38–42. ISBN 978-0-07-340438-7. Retrieved 22 March 2011.
155
Weber, Max. The Theory of Social and Economic Organization. Translated by A.M. Henderson and Talcott Parsons. London:
Collier Macmillan Publishers, 1947.
pg. 107
government, administration
A government is the system by which a state or community is governed. 156 In the
Commonwealth of Nations, the word government is also used more narrowly to refer to
the collective group of people that exercises executive authority in a state. This usage is
analogous to what is called an "administration" in American English. Furthermore,
government is occasionally used in English as a synonym for governance.157
civil society
Civil society is the "aggregate of non-governmental organizations and institutions that
manifest interests and will of citizens." Civil society includes the family and the private
sphere, referred to as the "third sector" of society, distinct from government and
business.
commission
A type of government agency that operates under the authority of a board of
commissioners. Statutory commission, a government authority created by statutes of
the legislature such as:
¯ Statutory authority
¯ Independent agencies of the United States government
¯ Regulatory agency
¯ Public benefit corporation
election commission
An election commission is a body charged with overseeing the implementation of election
procedures. The exact name used varies from country to country, including such terms
as "electoral commission", "central election commission", "electoral branch" or
"electoral court". Election commissions can be independent, mixed, judicial or
governmental. They may also be responsible for electoral boundary delimitation. In
federations there may be a separate body for each subnational government.
sovereign state, country, nation, state
In international law, a sovereign state is a nonphysical juridical entity that is represented
by one centralised government that has sovereignty over a geographic area.
International law defines sovereign states as having a permanent population, defined
territory, one government, and the capacity to enter into relations with other sovereign
156
American Heritage Dictionary of the English Language (4th ed.). 222 Berkeley Street, Boston, MA 02116: Houghton Mifflin
Company. ISBN 0-395-82517-2
157
Krader, Lawrence (1968). Formation of the State, in Foundations of Modern Anthropology Series. Englewood Cliffs, N.J.:
Prentice-Hall. x, 118 p.
pg. 108
states.158 It is also normally understood that a state is neither dependent on nor subject
to any other power or state.159
The existence or disappearance of a state is a question of fact. While according to the
declarative theory of state recognition a sovereign state can exist without being
recognised by other sovereign states, unrecognised states will often find it hard to
exercise full treaty-making powers and engage in diplomatic relations with other
sovereign states.
In casual usage, the terms "country", "nation", and "state" are often used as if they were
synonymous; but in stricter usage they can be distinguished:
"country" denotes a region of land defined by geographical features or political boundaries.
Nation denotes a people who are believed to or deemed to share common customs,
religion, language, origins, ancestry or history. However, the adjectives national and
international are frequently used to refer to matters pertaining to what are strictly
sovereign states, as in national capital, international law.
State refers to the set of governing and supportive institutions that have sovereignty over a
definite territory and population. Sovereign states are legal persons.
international bodies, international organisations, International nongovernmental
organizations (INGOs), Intergovernmental organizations
An international organization is an organization with an international membership, scope,
or presence. There are two main types:160
International nongovernmental organizations (INGOs): non-governmental organizations
(NGOs) that operate internationally. These include international non-profit
organizations and worldwide companies such as the World Organization of the Scout
Movement, International Committee of the Red Cross, Médecins Sans Frontières and
World Safeguard and Media Limited.
Intergovernmental organizations, also known as international governmental organizations
(IGOs): the type of organization most closely associated with the term 'international
organization', these are organizations that are made up primarily of sovereign states
158
Shaw, Malcolm Nathan (2003). International law. Cambridge University Press. p. 178. Article 1 of the Montevideo Convention
on Rights and Duties of States, 1 lays down the most widely accepted formulation of the criteria of statehood in international
law. It note that the state as an international person should possess the following qualifications: '(a) a permanent population;
(b) a defined territory; (c) government; and (d) capacity to enter into relations with other states'; see also Jasentuliyana,
Nandasiri, ed. (1995). Perspectives on international law. Kluwer Law International. p. 20. So far as States are concerned, the
traditional definitions provided for in the Montevideo Convention remain generally accepted.
159
Wheaton, Henry (1836). Elements of international law: with a sketch of the history of the science. Carey, Lea & Blanchard. p.
51. A sovereign state is generally defined to be any nation or people, whatever may be the form of its internal constitution,
which governs itself independently of foreign powers; see "sovereign", The American Heritage Dictionary of the English
Language (4th ed.) (Houghton Mifflin Company), 2004, retrieved 21 February 2010, adj. 1. Self-governing; independent: a
sovereign state; see also "sovereign", The New Oxford American Dictionary (2nd ed.) (Oxford: Oxford University Press), 2005,
ISBN 0-19-517077-6, adjective ... [ attrib. ] (of a nation or state) fully independent and determining its own affairs.
160
The Penguin Dictionary of International Relations divides modern international organizations into two "basic types, the 'public'
variety known as intergovernmental organizations (IGOs) and the 'private' variety, the international non-governmental
organization (INGOs)." (Evans, Graham, and Richard Newnham. Penguin Dictionary of International Relations. Penguin, 1998,
p. 270.)
pg. 109
(referred to as member states). Notable examples include the United Nations (UN),
Organisation for Economic Co-operation and Development (OECD) Organization for
Security and Co-operation in Europe (OSCE), Council of Europe (CoE), European Union
(EU; which is a prime example of a supranational organization), and World Trade
Organization (WTO). The UN has used the term "intergovernmental organization"
instead of "international organization" for clarity.
member state
A member state is a state that is a member of an international organisation or of a
federation or confederation. The World Trade Organization (WTO) and the
International Monetary Fund (IMF) include some members that are not sovereign
states; thus, neither organization ever speaks of "members states"; the WTO has simply
"members"WTO members, whereas the IMF calls its members "member countries"
federated state
A federated state (which may be referred to as a state, a province, a canton, a Land, etc.) is a
territorial and constitutional community forming part of a federal union. 161 Such states
differ from fully sovereign states, in that they have transferred a portion of their
sovereign powers to a federal government. Importantly, when states choose to federate,
they lose their standing as persons of international law. Instead, the federal union as a
single entity becomes the sovereign state for purposes of international law. 162 A
federated state holds administrative jurisdiction over a defined geographic territory
and is a form of regional government.
nation state
A nation state is a geographical area that can be identified as deriving its political
legitimacy from serving as a sovereign nation. 163 A state is a political and geopolitical
entity, while a nation is a cultural and ethnic one. The term "nation state" implies that
the two coincide, but "nation state" formation can take place at different times in
different parts of the world, and has become the dominant form of world organization.
The concept of a nation state can be compared and contrasted with that of the
multinational state, city state,164 empire, confederation, and other state formations with
161
The Australian National Dictionary: Fourth Edition, pg 1395. (2004) Canberra. ISBN 978-0-19-551771-2.
162
Crawford, J. (2006). The Creation of States in International Law. Oxford, Clarendon Press.
163
Such a definition is a working one: "All attempts to develop terminological consensus around "nation" resulted in failure",
concludes Tishkov, Valery (2000). "Forget the 'nation': post-nationalist understanding of nationalism". Ethnic and Racial
Studies 23 (4): 625–650 [p. 6]. doi:10.1080/01419870050033658.. Walker Connor, in [Connor, Walker (1978). "A Nation is a
Nation, is a State, is an Ethnic Group, is a...". Ethnic and Racial Studies 1 (4): 377–400. doi:10.1080/01419870.1978.9993240.]
discusses the impressions surrounding the characters of "nation", "(sovereign) state", "nation state", and "nationalism". Connor,
who gave the term "ethnonationalism" wide currency, also discusses the tendency to confuse nation and state and the
treatment of all states as if nation states. In Globalization and Belonging, Sheila L. Crouche discusses "The Definitional
Dilemma" (pp. 85ff).
164
Peter Radan (2002). The break-up of Yugoslavia and international law. Psychology Press. p. 14. ISBN 978-0-
415-25352-9. Retrieved 25 November 2010; Alfred Michael Boll (2007). Multiple nationality and international
law. Martinus Nijhoff Publishers. p. 67.ISBN 978-90-04-14838-3. Retrieved 25 November 2010; see also
Daniel Judah Elazar (1998). Covenant and civil society: the constitutional matrix of modern democracy.
Transaction Publishers. p. 129. ISBN 978-1-56000-311-3. Retrieved25 November 2010.
pg. 110
which it may overlap. The key distinction is the identification of a people with a polity in
the "nation state."
pg. 111
CITIZENSHIP
individuals, citizens
Person who by place of birth, nationality of one or both parents, or by going through the
naturalization process has sworn loyalty to a nation. A citizen is subject to losing
his/her citizenship if he/she commits acts showing loyalty to another country,
including serving in armed forces potentially unfriendly to the country, or voting in a
foreign county. However, if the foreign nation recognizes dual citizenship the country
will overlook this duality of nationalities. Citizens are either native born or naturalized.
Native citizens may fill any office; naturalized citizens may be elected or appointed to
any office under the constitution of the United States, except the office of president and
vice-president.
Citizenship
Citizenship is the status of a person recognized under the custom or law of a state that
bestows on that person (called a citizen) the rights and the duties of citizenship. That
may include the right to vote, work and live in the country, the right to return to the
country, the right to own real estate, legal protections against the country's
government, and protection through the military or diplomacy. A citizen may also be
subject to certain duties, such as a duty to follow the country's law, to pay taxes, or to
serve in the military. A person may have multiple citizenships and a person who does
not have citizenship of any state is said to be stateless. Nationality is often used as a
synonym for citizenship in English – notably in international law – although the term is
sometimes understood as denoting a person's membership of a nation (a large ethnic
group). In some countries, e.g. the United States, the United Kingdom, nationality and
citizenship can have different meanings (for more information, see
Nationality#Nationality versus citizenship).
Nationality law
A person can be a citizen for several reasons. Usually citizenship of the place of birth is
automatic; in other cases an application may be required. Nationality law largely
follows the jus sanguinis (citizenship by right of blood) as opposed to the jus soli
(citizenship by right of birth within the territory).
Parents are citizens (jus sanguinis)., citizenship through parents, citizenship by right
of blood
If one or both of a person's parents are citizens of a given state, then the person may have
the right to be a citizen of that state as well. [a] Formerly this might only have applied
through the paternal line, but sex equality became common since the late twentieth
century. Citizenship is granted based on ancestry or ethnicity, and is related to the
concept of a nation state common in China. Where jus sanguinis holds, a person born
outside a country, one or both of whose parents are citizens of the country, is also a
citizen. States normally limit the right to citizenship by descent to a certain number of
pg. 112
generations born outside the state. This form of citizenship is not common in civil law
countries.
Born within a country (jus soli). citizenship through birth, citizenship by right of
birth within the territory
Some people are automatically citizens of the state in which they are born. This form of
citizenship originated in England where those who were born within the realm were
subjects of the monarch (a concept pre-dating citizenship), and is common in common
law countries.
In many cases both jus solis and jus sanguinis hold; citizenship either by place or parentage
(or of course both).
Multiple citizenship, also called dual citizenship or multiple nationality
Multiple citizenship, also called dual citizenship or multiple nationality, is a person's
citizenship status, in which a person is concurrently regarded as a citizen of more than
one state under the laws of those states. There is no international convention which
determines the nationality or citizen status of a person, which is defined exclusively by
national laws, which vary and can be inconsistent with each other. Multiple citizenship
arises because different countries use different, and not necessarily mutually exclusive,
criteria for citizenship. Colloquial speech refers to people "holding" multiple citizenship
but technically each nation makes a claim that this person be considered its national.
Some countries do not permit dual citizenship. This may be by requiring an applicant for
naturalisation to renounce all existing citizenships, or by withdrawing its citizenship
from someone who voluntarily acquires another citizenship, or by other devices. Some
permit a general dual citizenship while others permit dual citizenship but only of a
limited number of countries.
Most countries which permit dual citizenship still may not recognise the other citizenship
of its nationals within its own territory, for example in relation to entry into the
country, national service, duty to vote, etc. Similarly, it may not permit consular access
by another country for a person who is also its national. Some countries prohibit dual
citizenship holders from serving in their military, on police forces or holding certain
public offices.
citizenship based on religion
Some countries grant citizenship based on religion: Israel gives all Jews the right to
immigrate to Israel, by the Law of Return, and fast-tracked citizenship. Dual citizenship
is permitted, but when entering the country the Israeli passport must be used. The
Algerian nationality law grants citizenship only to Muslims whose father and paternal
grandfather were Muslims. In the Maldives, on 7 August 2008, President Maumoon
Abdul Gayoom enacted a law that allows only Muslims to become citizens of the
Maldives (exceptions are persons born in the Maldives whose parents are already
citizens, but the exercise of religions other than Islam is illegal).
pg. 113
Citizenship by adoption
A minor adopted from another country when at least one adoptive parent is a citizen.
Citizenship by investment
Citizenship by investment. Some countries give citizenship to people who make a
substantial monetary investment in a country. For example, Austria, Cyprus, Dominica
and St. Kitts & Nevis grant citizenship immediately, without a requirement for any
presence in the country.
Citizenship by holding an office (jus oficii).
Citizenship by holding an office (jus oficii). In the case of Vatican City, citizenship is based
on holding an office, with Vatican citizenship held by the Pope, cardinals residing in
Vatican City, active members of the Holy See's diplomatic service, and other directors of
Vatican offices and services. Vatican citizenship is lost when the office term comes to an
end, and children cannot inherit it from their parents. Since Vatican citizenship is time-
limited, dual citizenship is allowed, and persons who would become stateless because
of loss of Vatican citizenship automatically become Italian citizens.
Involuntary multiple citizenship, birth tourism
Involuntary multiple citizenship can happen in three ways:
1. The parents have different citizenships or are multiple citizens themselves.
2. Some countries (e.g. Canada, the United States of America, and most other American
countries) regard all babies born there automatically as citizens even if the parents are
illegal immigrants (jus soli). For example, a baby born in the USA to Norwegian parents
automatically has dual citizenship with the USA and Norway, although Norway usually
restricts/forbid dual citizenship.
This has led to birth tourism, so some countries have abolished jus soli or restricted it (at
least one parent must be a citizen or a legal permanent resident who has lived in the
country for several years).
3. Some countries forbid their citizens to renounce their citizenship or try to discourage
them from doing so.
A group of countries completely forbids their citizens to renounce their citizenship (e.g.
Argentina, Bolivia, Costa Rica).
Other countries allow the renunciation only if the citizenship was acquired involuntarily by
birth there to non-citizen parents (e.g. Dominican Republic, Ecuador, Guatemala,
Honduras, Mexico, Nicaragua, Uruguay).
A third group of countries (e.g. Afghanistan, Algeria, Angola, Cuba, Eritrea, Iran, Iraq,
Lebanon, Morocco, Nigeria, Syria, Thailand, Tunisia) has very
difficult/humiliating/expensive renunciation processes to discourage their citizens
from renouncing their citizenship.
pg. 114
This is why a person wanting to give up his/her old citizenship for a new one, or born with
several citizenships and wanting to renounce one or more of them, sometimes cannot
do that, even if one or several countries of which he/she is or wants to become a citizen
do not allow multiple citizenship.
For example, Germany usually requires non-EU/non-Swiss citizens born and grown up
abroad to renounce their old citizenship before they can become German citizens. But a
Mexican citizen born to Mexican parents cannot renounce his/her Mexican citizenship,
even if he/she wants to, and so an exception is made, and he/she will be naturalized in
Germany also without the renunciation of the Mexican citizenship.
Partial citizenship
Many countries allow foreigners or former citizens to live and work indefinitely there.
However, for voting, being voted and working for the public sector or the national
security in a country, citizenship of the country concerned is almost always required.
Supra-national citizenship
In European Union law, there is the concept of EU citizenship which flows from citizenship
of a member state. A citizen of an EU country is free to live and to work in another EU
country for an unlimited period of time, but member states may reserve the right to
vote in national elections, stand for national election, become a public servant in highly
sensitive ministries (Defence for example), etc. only for their citizens. An EU state may
place restrictions on the free movement rights of citizens of newly admitted states for
several years, such provisions remain in force mostly for nationals of Croatia (no later
than 2020); in the past, and to a lesser extent, such provisions also affected Estonia,
Latvia, Lithuania, Poland, the Czech Republic, Slovakia, Hungary, Slovenia, Bulgaria and
Romania.
The Commonwealth of Nations has a Commonwealth citizenship for the citizens of its
members. Some member states (such as the United Kingdom) allow non-nationals who
are Commonwealth citizens to vote and stand for election while resident there. Others
make little or no distinction between citizens of other Commonwealth nations and
citizens of non-Commonwealth nations.
Renunciation
If an adult makes a declaration of renunciation of citizenship, he loses citizenship. In
addition, any minor child of that person also loses Indian citizenship from the date of
renunciation. When the child reaches the age of eighteen, he or she has the right to have
his or her citizenship restored. The provisions for making a declaration of renunciation
under Indian citizenship law require that the person making the declaration be "of full
age and capacity".
Termination
Any citizen of India who by naturalisation or registration acquires the citizenship of
another country shall cease to be a citizen. Notably, the termination provision differs
pg. 115
from the renunciation provision because it applies to "any citizen " and is not restricted
to adults. Children therefore also automatically lose their claim to citizenship if at any
time after birth they acquire a citizenship of another country by, for example,
naturalisation or registration — even if the acquisition of another citizenship was done
as a result of actions by the child's parents. The acquisition of another country's
passport is also deemed under the Citizenship Rules, to be voluntary acquisition of
another country’s nationality.
Marriage to a citizen (jure matrimonii). citizenship through marriage
Many countries fast-track naturalization based on the marriage of a person to a citizen.
Countries which are destinations for such immigration often have regulations to try to
detect sham marriages, where a citizen marries a non-citizen typically for payment,
without them having the intention of living as man and wife.
Naturalization.
States normally grant citizenship to people who have entered the country legally and been
granted permit to stay, or been granted political asylum, and also lived there for a
specified period. In some countries naturalization is subject to conditions which may
include passing a test demonstrating reasonable knowledge of the language or way of
life of the host country, good conduct (no serious criminal record), swearing allegiance
to their new state or its ruler, and renouncing their prior citizenship. Some states allow
dual citizenship and do not require naturalized citizens to renounce any other
citizenship.
Excluded categories.
In the past there have been exclusions on entitlement to citizenship on grounds such as
skin color, ethnicity, sex, and free status (not being a slave). Most of these exclusions no
longer apply in most places. Modern examples include some Arab countries which
rarely grant citizenship to non-Muslims, e.g. Qatar is known for granting citizenship to
foreign athletes, but they all have to profess the Islamic faith in order to receive
citizenship.
Honorary citizenship
Honorary citizenship is a status bestowed by a country on a foreign individual whom it
considers to be especially admirable or otherwise worthy of the distinction.
Historically, many states limited citizenship to only a proportion of their population,
thereby creating a citizen class with political rights superior to other sections of the
population, but equal with each other.
nationality
Nationality is membership of a nation or sovereign state, usually determined by their
citizenship, but sometimes by ethnicity or place of residence, or based on their sense of
national identity.
pg. 116
Nationality can refer to membership in a nation (collective of people sharing a national

identity, usually based on ethnic and cultural ties and self-determination) even if that
nation has no state, such as the Basques, Kurds, and Tamils. Individuals may also be
considered nationals of groups with autonomous status which have ceded some power
to a larger government, such as the federally recognized tribes of Native Americans in
the United States.
Article 15 of the Universal Declaration of Human Rights states that ‘Everyone has the right
to a nationality,’ and ‘No one shall be arbitrarily deprived of his nationality nor denied
the right to change his nationality.’ By custom, it is the right of each state to determine
who its nationals are. Such determinations are part of nationality law. In some cases,
determinations of nationality are also governed by public international law—for
example, by treaties on statelessness and the European Convention on Nationality.
citizenship
Citizenship is determined by jus soli, jus sanguinis, or naturalization, which affords the state
jurisdiction over the person and affords the person the protection of the state. The
word citizenship is often used in a different sense from nationality. The most common
distinguishing feature of citizenship is that citizens have the right to participate in the
political life of the state, such as by voting or standing for election. The term national
can include both citizens and non-citizens.
There are various ways through which a person can be declared a citizen of a country,
namely: naturalization, descent, birth, and registration.
naturalization, naturalisation
Naturalization (or naturalisation) is the acquisition of citizenship and nationality by
somebody who was not a citizen of that country at the time of birth. In general, basic
requirements for naturalization are that the applicant hold a legal status as a full-time
resident for a minimum period of time and that the applicant promise to obey and
uphold that country's laws, to which an oath or pledge of allegiance is sometimes
added. Some countries also require that a naturalized national must renounce any other
citizenship that they currently hold, forbidding dual citizenship, but whether this
renunciation actually causes loss of the person's original citizenship will again depend
on the laws of the countries involved.
denaturalization
Denaturalization is the reverse of naturalization, when a state deprives one of its citizens of
his or her citizenship. From the point of view of the individual, denaturalization means
‘revocation’ or ‘loss’ of citizenship. Denaturalization can be based on various legal
justifications. The most severe form is the ‘stripping of citizenship’ when
denaturalization takes place as a penalty for actions considered criminal by the state,
often only indirectly related to nationality, for instance for having served in a foreign
military. In countries that enforce single citizenship, voluntary naturalization in another
pg. 117
country will lead to an automatic loss of the original citizenship; the language of the law
often refers to such cases as ‘giving up one's citizenship’ or (implicit) renunciation of
citizenship. Another case, affecting only foreign-born citizens, denaturalization can
refer to the loss of citizenship by an annulment of naturalization, also known as
‘administrative denaturalization’ where the original act of naturalization is found to be
invalid, for instance due to an administrative error or if it had been based on fraud
(including bribery).165
165
Weil, Patrick. "Comparing Twenty-Five Nationality Laws." Citizenship Today: Global Perspectives and
Practices. Washington, D.C.: Brookings Institution Press, 2001. 16-35. Print
pg. 118
LOCAL GOVERNMENT/DEVOLVED GOVERNMENT
local government, devolved government

Local government is a form of public administration which in a majority of contexts, exists
as the lowest tier of administration within a given state. The term is used to contrast
with offices at state level, which are referred to as the central government, national
government, or (where appropriate) federal government and also to supranational
government which deals with governing institutions between states. Local governments
generally act within powers delegated to them by legislation or directives of the higher
level of government. In federal states, local government generally comprises the third
(or sometimes fourth) tier of government, whereas in unitary states, local government
usually occupies the second or third tier of government, often with greater powers than
higher-level administrative divisions.
charter
A charter is the grant of authority or rights, stating that the granter formally recognizes the
prerogative of the recipient to exercise the rights specified. It is implicit that the granter
retains superiority (or sovereignty), and that the recipient admits a limited (or inferior)
status within the relationship, and it is within that sense that charters were historically
granted, and that sense is retained in modern usage of the term.
The word entered the English language from the Old French charte (ultimately from the
Latin word for "paper"), but the concept is universal and transcends language. It has
come to be synonymous with the document that lays out the granting of rights or
privileges.
The term is used for a special case (or as an exception) to an institutional charter. A charter
school, for example, is one that has different rules, regulations, and statutes from a state
school.
Charter is sometimes used as a synonym for 'tool' or 'lease', as in the 'charter' of a bus or
boat by an organization, intended for a similar group destination.
A charter member of an organization is an original member; that is, one who became a
member when the organization received its charter.
Charter colony
The British Empire used three main types of colonies as it sought to expand its territory to
distant parts of the earth. These three types were royal colonies, proprietary colonies,
and corporate colonies. A charter colony by definition is a "colony…chartered to an
individual, trading company, etc., by the British crown." Although charter colonies were
not the most prevalent of the three types of colonies in the British Empire, they were by
no means insignificant.
pg. 119
Congressional charter
A congressional charter is a law passed by the United States Congress that states the
mission, authority and activities of a group. Congress issued federal charters from 1791
until 1992 under Title 36 of the United States Code.
Municipal charter
A municipal corporation is the legal term for a local governing body, including (but not
necessarily limited to) cities, counties, towns, townships, charter townships, villages,
and boroughs. Municipal incorporation occurs when such municipalities become self-
governing entities under the laws of the state or province in which they are located.
Often, this event is marked by the award or declaration of a municipal charter.
Royal charter
In medieval Europe, royal charters were used to create cities (i.e., localities with recognised
legal rights and privileges). The date that such a charter was granted is considered to be
when a city was "founded", regardless of when the locality originally began to be
settled. At one time a royal charter was the only way in which an incorporated body
could be formed, but other means (such as the registration process for limited
companies) are generally now used instead.
paramountcy doctrine
The doctrine of paramountcy is the legal principle that reconciles contradicting or
conflicting laws in a federalist state. Where both the central government and the
provincial or state governments have the power to create laws in relation to the same
matters, the laws of one government will be given priority over the other through the
doctrine.
mootness
Article I's mootness doctrine requires that the three elements of standing (injury in fact,
causation, and redressability) exist throughout the judicial review process. The federal
courts refuse to hear cases in which there is no present dispute or injury due to a lapse
of time or other changed circumstances, even though a controversy originally existed.
Defunis v. Odegaard,166. In Defunis, a law student attacked a law school's admission
policy on the grounds of reverse discrimination. While the case was en route to the
Supreme Court, Defunis was admitted and graduated from law school. The Court
dismissed the appeal: "A determination by this Court of the legal issues tendered by the
parties is no longer necessary to compel [Defunis' admission], and could not serve to
prevent it."
EXAMPLE:
A student at a public high school challenged the school's requirement of ROTC military
instruction on the grounds that it violated his First Amendment rights. While the action
166
416 U.S. 312 (1974)
pg. 120
was pending, he graduated. The action was then dismissed based on the Mootness
Doctrine. Sapp v. Renfroe, 167
equal protection standing
In affirmative action litigation challenging government barriers toward one group, the
Court has relaxed the standing requirement; "the 'injury in fact’ in an equal protection
case of this variety is the denial of equal treatment resulting from the imposition of the
barrier, not the ultimate inability to obtain the benefit." Northeastern Florida Chapter of
the Associated General Contractors v. City of Jacksonville 168
Thus, where a municipality had a 10% set aside program for minority owned businesses,
the plaintiff did not have to show that it would have received a successful bid but for the
set aside; rather, the plaintiff only had to show it regularly bid on such construction jobs
and that it would have bid on the set aside projects but for the restriction.
case and controversy
The Constitution requires that federal cases involve a genuine dispute or controversy
which can only be resolved by a conclusive legal decree; federal courts will not hear
hypothetical, advisory or moot questions. An alleged "fear" of adverse consequences
resulting from governmental activity is insufficient. Thus, even one who has been
injured by government activity in the past must show that a similar injury is likely to
occur to him again in order to establish a "case and controversy" sufficient to seek an
injunction against the activity.169.
The requirement that a real "case" or "controversy" exists derives its origins from then
Secretary of State Thomas Jefferson's attempt to submit twenty-nine abstract questions
of law to the Supreme Court. The Court refused to proffer an advisory opinion because
there was no real dispute involved.
ripeness
A case will be dismissed for lack of ripeness if the suit is premature, that is, if no real harm
has yet been done. A suit challenging a statute as unconstitutional on its face is less
likely to be dismissed on ripeness grounds than one based on unconstitutional
application. However, if it fails this test, then the petition will be dismissed ad limini,
since there will be nothing less than an injustice of a trail.
EXAMPLE:
A Connecticut doctor attacked a statute which proscribed giving birth control advice. Since
Connecticut was admittedly not enforcing the statute, the Court summarily dismissed
the suit as lacking ripeness; there was no real harm or imminent danger of harm. Poe v.
Ullman,170.
167
511 F.2d 172 (5th Cir. 1975).
168
, 113 S.Ct. 2297, 2303 (1993).
169
City of Los Angeles v. Lyons, 461 U.S. 95 (1983)
170
367 U.S. 497 (1961)
pg. 121
To overcome a ripeness challenge, there must be more than a generalized threat of a

chilling effect resulting from the mere existence of the statute.
abstention rule
Abstention is a form of judicial self-restraint. The federal courts may defer to a state court's
ability to decide and interpret in the first instance the constitutionality of a state statute.
Remember, state courts are the final authority in interpreting state statutes, as long as
the statute, as interpreted, does not violate the United States Constitution. The
abstention doctrine is most frequently invoked when issues involving the interpretation
of a state statute reach the federal court while another case involving the same issue is
pending in the state court. Sugar v. Curtis Circulation Co., 171 Where there is no ambiguity
in the state statute, for example, because of the clear statutory language or because of a
prior definitive construction by a state appellate court, then the federal court should not
abstain, but should decide the Federal constitutional issue.
quasi in rem
Quasi in rem (Latin, ‘as if against a thing’) is a legal term referring to a legal action based on
property rights of a person absent from the jurisdiction. In most jurisdictions, the state
can assert power over an individual simply based on the fact that this individual has
property (bank account, debt, share of stock, land) in the state. A quasi in rem action is
commonly used when jurisdiction over the defendant is unobtainable due to his/her
absence from the state. Any judgment will affect only the property seized, as in
personam jurisdiction is unobtainable. 172 Of note, in a quasi in rem case the court may
lack personal jurisdiction over the defendant, but it has jurisdiction over the
defendant's property. The property could be seized to obtain a claim against the
defendant.173 A judgment based on quasi in rem jurisdiction generally affects rights to
the property only between the persons involved and does not ‘bind the entire world’ as
does a judgment based on ‘jurisdiction in rem‘. The claim does not have to be related to
the property seized, but the person must have minimum contacts with the forum state
in order for jurisdiction to be proper.
171
383 F. Supp. 643 (S.D.N.Y. 1974).
172
Yeazell, Stephen (2008). Civil Procedure (7th Ed. ed.). Frederick, MD: Aspen Publishers. p. 85. ISBN
9780735569256.
173
Ibidem
pg. 122
PRINCIPLES OF CONSTITUTIONALISM
principles of constitutionalism
In the last Century, Professor Okoth-Ogendo, H. W. O wrote in his classical masterpiece,
Constitutions Without Constitutionalism174, that ‘ Afrikan ruling elites are attracted
relentlessly to the idea of constitutions… missing the noble idea of constitutionalism.’ He
added that the exercise of state power must seek to advance the ends of society, and
that the country that satisfies that rule is a country that has a culture of
constitutionalism; thus he defined constitutionalism.
Various scholars, including Ray175, Onyango176, Walubiri177 and Johari178, have labored to
state the essentials of constitutionalism. These can be crystallized into five core
principles which lead to an a system of political rules that bind political rulers and
citizens179; a culture of meeting peoples choices 180; a political order governed by rules
and regulations181; and a political order that determines validity of executive and
legislative promulgations 182. The five principles are principles of sovereignty;
devolution; rule of law; separation of powers; and checks and balances which ought to
be practiced to render republicanism credential.
parliamentary sovereignty (constitutional law)
According to AV Dicey in An Introduction to the Study of the Law of the Constitution 1885,
Parliamentary Sovereignty consists of 4 elements:
‫و‬ Parliament may introduce any law it wishes
‫و‬ Parliament can not bind future Parliaments
‫و‬ Laws made by Parliament override all other forms of law
‫و‬ The courts must apply the laws made by Parliament.
Parliament is only limited in its actions by political, media and public pressure. This
contrasts with other jurisdictions where there exists a Bill of Rights granting the courts
powers to advance the rights of the citizens above that of Parliament. However when
174
Id
175
Ray S.N. (2004) Modern Comparative Politics: Approaches, Methods and Issues. New Delhi. India: Prentice
Hall of India Private Ltd.
176
Oloka-Onyango J, (2001). Constitutionalism in Africa: Creating Opportunities, Facing Challenges. Kampala.
Fountain Publishers.
177
Walubiri, Peter Mkiibi ‘Liberating Afrikan Civil Soceity: Towards a New Conext fo Afrikan Citizen
Particiaption and Progressive Constitutionalism,’ in Oloka-Onyango J, (2001). Constitutionalism in Africa:
Creating Opportunities, Facing Challenges. Kampala. Fountain Publishers.
178
Johari, J.C. (2000) Comparative Politics. New Delhi: Sterling Publishers Private Limited.
179
Id
180
Id
181
Id
182
Id
pg. 123
we joined the regional unions, Parliament hands over sovereignty to the Union, to the
extent that community/union law now takes precedence over Acts of Parliament.
The principle of sovereignty reposes the final authority in government on the people as the
only authority on which government has a right to exist in any country. 183 It is the
bedrock of republicanism and the cornerstone of participatory politics, ‘government of
the people, by the people and for the people’. The people take part in governance
through (in) direct exercise of sovereignty, by electing public officials in a
representative government. It is enshrined in constitutions, which states, ‘All power
belongs to the people who shall exercise their sovereignty in accordance with this
Constitution.’184
Further, constitutions and constitutional documents also provides for realization of
sovereignty through ‘regular, free and fair elections of their representatives or through
referenda.’
Sovereignty is the quality of having independent authority over a geographic area, such as a
territory185. The modern concept of sovereignty 186 is the supreme, perpetual, and
indivisible power, marked by the ability to make law without the consent of any other.
An important factor of sovereignty is its degree of absoluteness. A sovereign power has
absolute sovereignty when it is not restricted by a constitution, by the laws of its
predecessors, or by custom, and no areas of law or policy are reserved as being outside
its control.
divine right of kings, or divine-right theory of kingship
The divine right of kings, or divine-right theory of kingship, is a political and religious
doctrine of royal and political legitimacy. It asserts that a monarch is subject to no
earthly authority, deriving the right to rule directly from the will of God. The king is
thus not subject to the will of his people, the aristocracy, or any other estate of the
realm, including (in the view of some, especially in Protestant countries) the Church.
According to this doctrine, only God can judge an unjust king. The doctrine implies that
any attempt to depose the king or to restrict his powers runs contrary to the will of God
and may constitute a sacrilegious act. It is often expressed in the phrase "by the Grace of
God," attached to the titles of a reigning monarch.
absolute sovereignty
International law; policies and actions of neighboring states; cooperation and respect of the
populace; means of enforcement; and resources to enact policy are factors that might
limit sovereignty. For example, parents are not guaranteed the right to decide some
183
Ross, David (1925). Aristotle The Nicomachean Ethics: Translated with an Introduction. Oxford: Oxford
University Press. ISBN 0-19-283407-X.. Re-issued 1980, revised by J. L. Ackrill and J. O. Urmson.
184
See for instance, Article 1(2) of 1995 Uganda Constitution (As Amended)
185
Bateman, C.G. (15 February 2011). Nicaea and Sovereignty: Constantine's Council of Nicaea as an Important Crossroad in
the Development of European State Sovereignty. University of British Columbia. pp. 54–91.
186
Bodin, Jean. On Sovereignty: Four Chapters from The Six Books of the Commonwealth. Edited and translated
by Julian H. Franklin. Cambridge, U.K., and New York, 1992.
pg. 124
matters in the upbringing of their children independent of societal regulation, and

municipalities do not have unlimited jurisdiction in local matters, thus neither parents
nor municipalities have absolute sovereignty. Theorists have diverged over the
desirability of increased absoluteness. A key element of sovereignty in a legalistic sense
is that of exclusivity of jurisdiction. Specifically, the degree to which decisions made by
a sovereign entity might be contradicted by another authority 187. Along these lines, the
German sociologist Max Weber proposed that sovereignty is a community's monopoly
on the legitimate use of force; and thus any group claiming the same right must either
be brought under the yoke of the sovereign, proven illegitimate, or otherwise contested
and defeated for sovereignty to be genuine 188. International law, competing branches of
government, and authorities reserved for subordinate entities (such as federated states
or republics) represent legal infringements on exclusivity. Social institutions such as
religious bodies, corporations, and competing political parties might represent de facto
infringements on exclusivity.
de jure sovereignty, or legal sovereignty
De jure, or legal, sovereignty concerns the expressed and institutionally recognised right to
exercise control over a territory.
de facto sovereignty, or actual sovereignty
De facto, or actual, sovereignty is concerned with whether control in fact exists.
Cooperation and respect of the populace; control of resources in, or moved into, an
area; means of enforcement and security; and ability to carry out various functions of
state all represent measures of de facto sovereignty. When control is practiced
predominately by military or police force it is considered coercive sovereignty 189.
rule of law
The Rule of law is considered to be fundamental to all democratic legal systems and dates
back to Aristotle, although popularized by AV Dicey 190. It encompasses basic freedoms
including no punishment without infringement of the law, freedom from arbitrary
power and arbitrary laws. The laws must be certain, legible and accessible to comply
with the rule of law. It also militates against retrospective laws. The Rule of Law
requires equality before the law i.e. all citizens are subject to the same law no matter
what their rank or station in life.
The rule of law principle recognizes that the government has extensive powers and hence
the need for agencies and officials to operate within the dictates of law. 191
187
Mälksoo, Lauri (2003). Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the
USSR. M. Nijhoff Publishers. p. 193.
188
ewton, Kenneth. Foundations of comparative politics: democracies of the modern world. Cambridge: Cambridge University
Press, 2005.
189
Talmon, Stefan (1998). Recognition of Governments in International Law. Oxford Monographs in International Law Series.
Oxford University Press. p. 50.
190
Read Albert Venn Dicey (1915) Introduction to the Study of the Law of the Constitution (8th Edition with new
Introduction). P. 138
pg. 125
These principles are threesome, namely,

‫و‬ rule by regular law which prohibits discretionary actions in the administration of justice
(this is enshrined in article 2(1) which states that the constitution is the supreme law
and other laws must be derived from it);
‫و‬ equality before the law, which brings both governed and governors under the law,
usually enshrined thus: ‘All persons are equal before and under the law in all spheres of
political, economic, social and cultural life and in every other respect and shall enjoy equal
protection of the law’); and
‫و‬ Guarantee and protection of individual rights both as entitlements and freedoms (this is
covered in chapter IV of the constitution which provides for, ‘Protection and promotion
of fundamental and other human rights and freedoms’). This third pillar also requires the
empowerment of the citizen to enforce his rights in the courts of law or like-
institutions. The courts are ably established by the judiciary. However, despite the
pronunciation of the rule of law in the constitution, the situation is dire on the ground.
devolution
The principle of devolution recognizes citizens as the founders of the nation and their right
to manage own local affairs through participation in public affairs. 192 Devolution hence
renders devolved units independent in control over finances, administration (of justice)
and legislation while guaranteeing equitable sharing of national resources. Devolution
should seek to promote the interests and rights of minorities and marginalized groups;
and promotes social and economic development through proximate provision of
services. While decentralization involves the shifting of implementation rather than
power away from the centre, devolution goes further and involves the downwards
transfer of full responsibility for the provision and delivery of public services to the
lowest level of governance capable of these tasks.
Decentralization
Decentralization (or decentralisation) is the process of redistributing or dispersing
functions, powers, people or things away from a central location or authority. While
centralization, especially in the governmental sphere, is widely studied and practiced,
there is no common definition or understanding of decentralization.
Political decentralization
Political decentralization aims to give citizens or their elected representatives more power.
It may be associated with pluralistic politics and representative government, but it also
means giving citizens, or their representatives, more influence in the formulation and
implementation of laws and policies. Depending on the country, this may require
constitutional or statutory reforms, the development of new political parties, increased
191
See also Cosgrove, Richard A. (1980). The Rule of Law: Albert Venn Dicey, Victorian jurist. London:
Macmillan. pp. xv, 319p.
192
Michael Keating (2001) The Government of Scotland: Public Policy Making after Devolution (Edinburgh
University Press, 2005), The Independence of Scotland (Oxford University Press, 2001)
pg. 126
power for legislatures, the creation of local political units, and encouragement of
advocacy groups.
Administrative decentralization
Four major forms of administrative decentralization have been described.
Deconcentration
Deconcentration, the weakest form of decentralization, shifts responsibility for decision-
making, finance and implementation of certain public functions from officials of central
governments to those in existing districts or, if necessary, new ones under direct
control of the central government.
Delegation
Delegation passes down responsibility for decision-making, finance and implementation of
certain public functions to semi-autonomous organizations not wholly controlled by the
central government, but ultimately accountable to it. It involves the creation of public-
private enterprises or corporations, or of "authorities", special projects or service
districts. All of them will have a great deal of decision-making discretion and they may
be exempt from civil service requirements and may be permitted to charge users for
services.
Devolution
Devolution transfers all responsibility for decision-making, finance and implementation of
certain public functions to the sub-national level, such as a regional, local, or state
government.
Devolution is the statutory granting of powers from the central government of a sovereign
state to government at a subnational level, such as a regional, local, or state level. It is a
form of decentralization. Devolved territories have the power to make legislation
relevant to the area.
Devolution differs from federalism in that the devolved powers of the subnational
authority may be temporary and ultimately reside in central government, thus the state
remains, de jure unitary. Legislation creating devolved parliaments or assemblies can
be repealed or amended by central government in the same way as any statute.
Federal systems, or federations, differ in that state or provincial government is guaranteed
in the constitution. Australia, Canada, India, and the United States have federal systems,
and have constitutions (as do some of their constituent states or provinces). They also
have territories, with less power and authority than a state or province. Non-English-
speaking federations include Mexico, Germany, and Switzerland.
Divestment, privatization
Divestment, also called privatization, may mean merely contracting out services to private
companies. Or it may mean relinquishing totally all responsibility for decision-making,
pg. 127
finance and implementation of certain public functions. Facilities will be sold off,
workers transferred or fired and private companies or non-for-profit organizations
allowed to provide the services. Many of these functions originally were done by private
individuals, companies, or associations and later taken over by the government, either
directly, or by regulating out of business entities which competed with newly created
government programs.
Federalism
Federalism is a political concept in which a group of members is bound together by
covenant (Latin: foedus, covenant) with a governing representative head. The term
"federalism" is also used to describe a system of government in which sovereignty is
constitutionally divided between a central governing authority and constituent political
units (such as states or provinces). Federalism is a system based upon democratic rules
and institutions in which the power to govern is shared between national and
provincial/state governments, creating what is often called a federation. The term
federalist describes several political beliefs around the world. Also, it may refer to the
concept of parties; its members or supporters called themselves Federalists.
Home rule
Home rule is the power of a constituent part (administrative division) of a state to exercise
such of the state's powers of governance within its own administrative area that have
been decentralized to it by the central government.
In the United Kingdom, it traditionally referred to self-government, devolution or
independence of its constituent nations—initially Ireland, and later Scotland, Wales,
and Northern Ireland. In the United States and other countries organised as federations
of states, the term usually refers to the process and mechanisms of self-government as
exercised by municipalities, counties, or other units of local government at the level
below that of a federal state (e.g., US state, in which context see special legislation). It
can also refer to the similar system under which Greenland and the Faroe Islands are
associated with Denmark.
Home rule is not, however, comparable with federalism. Whereas states in a federal system
of government (e.g., Canada, Federal Republic of Germany, Switzerland, Brazil, Ethiopia
and the United States of America) have a guaranteed constitutional existence, a
devolved home rule system of government is created by ordinary legislation and can be
reformed, or even abolished, by repeal or amendment of that ordinary legislation.
A state legislature may, for example, create home rule for a county or parish (or its
townships), so that a county commission or board of supervisors may have jurisdiction
over its unincorporated areas, including important issues like zoning. (Without this, a
US county is simply an extension of state government.) The legislature can also
establish or eliminate municipal corporations, which have home rule within town or
city limits through the city council. The state government could also abolish
pg. 128
counties/townships, or their governments, according to the state constitution and state

laws.
Subsidiarity
Subsidiarity holds that social problems should be dealt with at the most immediate (or
local) level consistent with their solution. The Oxford English Dictionary defines
subsidiarity as the idea that a central authority should have a subsidiary (that is, a
supporting, rather than a subordinate) function, performing only those tasks which
cannot be performed effectively at a more immediate or local level. The concept is
applicable in the fields of government, political science, neuropsychology, cybernetics,
management and in military command (Mission Command). In political theory, the
principle of subsidiarity is sometimes viewed as an aspect of the concept of federalism,
although the two have no necessary connection. The principle of subsidiarity plays an
important role in the political rhetoric of the European Union concerning the
relationship between the EU governing bodies and the member states.
presumption of constitutionality
Presumption of constitutionality shifts the burden of proof from the government to the
citizen, requiring them to prove that a statute is unconstitutional.
In Federalist 78, Alexander Hamilton wrote that courts should only be able strike down a
statute as unconstitutional if there is an ‘irreconcilable variance’ between the statute
and the Constitution. 193 Likewise, at the 1787 Philadelphia Convention, Virginia
delegate George Mason said, judges ‘could declare an unconstitutional law void. But with
regard to every law, however unjust, oppressive or pernicious, which did not come plainly
under this description, they would be under the necessity as Judges to give it a free course.’
194
Professor Randy Barnett argues that such a presumption is itself unconstitutional, and
suggests that government should be forced to prove that laws violating liberty are
necessary and proper, in what he calls the ‘presumption of liberty’. 195
separation of powers
See Westminster doctrine
westminster doctrine
French Constitutional theorist, Montesquieu introduced the concept of the separation of
powers in Spirit of the Laws196. According to Montesquieu, an ideal state should be
193
Hamilton, Alexander. Federalist #78 (1788-06-14). Otherwise, a statute should be upheld.
194
‘Founders’ Constitution, Article 1, Section 7, Clauses 2 and 3’, Records of the Federal Convention (1787-06-
04).
195
‘Barnett, Randy. Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press 2004)
196
de Secondat, Charles, Baron de Montesquieu. Montesquieu: Spirit of the Laws. Eds. Anne M. Cohler, Basia
Carolyn Miller, and Harold Samuel Stone. Cambridge Texts in the History of Political Thought.
Cambridge:Cambridge UP, 1989. ISBN 0521369746 (10). ISBN 978-0521369749 (13). (Paperback ed.; 808
pg. 129
divided in to three separate arms; the legislature (parliament), the executive

(Government and Local Authorities) and the judiciary. Each of the arms should have
their own separate function: Legislature - make law, executive - administer the law,
Judiciary - apply the law. Each arm is to remain separate and not impinge on the others
function. They should be balanced and able to check and limit the power of the other
arms. Accordingly, if one arm of the state became all too powerful this would be
indicative of an oppressive state and to the detriment of citizens. The government
carries out three major tasks, being legislation; design and implementation of polices;
and resolution of disputes.197 The principle of separation of powers provides for the
division of the national government into three branches to avoid abuse of powers 198: the
legislative, the executive, and the judicial to make the law; implement the law and solve
disputes arising respectively.
Of import is the role of this principle in preventing the executive from exercising para-
constitutional, extra-judicial, and quasi-legislative roles; in the name of efficient
administration and execution of functions.
The doctrine of the separation of powers divides the institutions of government into three
branches: legislative, executive and judicial: the legislature makes the laws; the
executive put the laws into operation; and the judiciary interprets the laws. The powers
and functions of each are separate and carried out by separate personnel. No single
agency is able to exercise complete authority, each being interdependent on the other.
Power thus divided should prevent absolutism (as in monarchies or dictatorships
where all branches are concentrated in a single authority) or corruption arising from
the opportunities that unchecked power offers. The doctrine can be extended to enable
the three branches to act as checks and balances on each other. Each branch’s
independence helps keep the others from exceeding their power, thus ensuring the rule
of law and protecting individual rights.
Obviously under the Westminster System – the parliamentary system of government
Australia adopted and adapted from England – this separation does not fully exist.
Certainly in Australia the three branches exist: legislature in the form of parliaments;
executive in the form of the ministers and the government departments and agencies
they are responsible for; and the judiciary or the judges and courts. However, since the
ministry (executive) is drawn from and responsible to the parliament (legislature)
there is a great deal of interconnection in both personnel and actions. The separation of
the judiciary is more distinct.
In his Second Treatise of Civil Government, English philosopher John Locke 199noted the
temptations to corruption that exist where ‘... the same persons who have the powers of
pp.)
197
Okoth-Ogendo, H. W. O. 1991, Constitutions without Constitutionalism (1991)
198
Baron De Montesquieu (1731) The Spirit of Laws. (Baton Rouge: Louisiana State University Press, 1941;
reprint, New York: Octagon Books, 1961).
199
Infra.
pg. 130
making laws to have also in their hands the power to execute them ...‘.200 Locke’s views
were part of a growing English radical tradition, but it was French philosopher, Baron
de Montesquieu, who articulated the fundamentals of the separation doctrine as a result
of visiting England in 1729-31. In his The Spirit of Laws201, Montesquieu considered that
English liberty was preserved by its institutional arrangements. He saw not only
separations of power between the three main branches of English government, but
within them, such as the decision-sharing power of judges with juries; or the separation
of the monarch and parliament within the legislative process.
state of emergency
A state of emergency is a governmental declaration which usually suspends a few normal
functions of the executive, legislative and judicial powers, alert citizens to change their
normal behaviors, or order government agencies to implement emergency
preparedness plans. It can also be used as a rationale for suspending rights and
freedoms, even if guaranteed under the constitution. Such declarations usually come
during a time of natural or man made disaster, during periods of civil unrest, or
following a declaration of war or situation of international or internal armed conflict. In
some countries, the state of emergency and its effects on human rights and freedoms
and governmental procedure are regulated by the constitution and/or a law that limits
the powers that may be invoked. Rights and freedoms may be suspended during an
emergency, for instance, freedom of movement, but not non-derogable rights. In many
countries it is illegal to modify the emergency law or the constitution during the
emergency. Though fairly uncommon in democracies, dictatorial regimes often declare
a state of emergency that is prolonged indefinitely for the life of the regime, or for
extended periods of time so that derogations can be used to override human rights of
their citizens usually protected by the International Covenant on Civil and political
rights.202 In some situations, martial law is also declared, allowing the military greater
authority to act. In other situations, emergency is not declared and de facto measures
taken or decree-law adopted by the government. Article 4 to the International Covenant
on Civil and Political Rights (ICCPR), permits states to derogate from certain rights
guaranteed by the ICCPR in "time of public emergency".
separation of state and church doctrine
The doctrine of separation of Church and State provides that as between the State and
religion each had its own sphere, the former of law making for the public good, and the
latter moral welfare of individuals and their God or creator. 203 The phrase ‘separation
of church and state’ is derived from a letter written by President Thomas Jefferson in
200
Locke, John. Two Treatises of Government. Ed. Peter Laslett. Cambridge: Cambridge University Press (1988),
137
201
Infra.
202
See (Judson, 2012, "Where is R2P grounded in international law".) http://otago.ourarchive.ac.nz/handle/10523/2279.
203
Lambert, Frank (2003). The founding fathers and the place of religion in America. Princeton University Press.
p. 288. ISBN 978-0-691-08829-7.
pg. 131
1802 to Baptists from Danbury, Connecticut, and published in a Massachusetts

newspaper soon thereafter. In that letter, referencing the First Amendment to the
United States Constitution, Jefferson wrote:
Believing with you that religion is a matter which lies solely between Man & his God, that he
owes account to none other for his faith or his worship, that the legitimate powers of
government reach actions only, & not opinions, I contemplate with sovereign reverence
that act of the whole American people which declared that their legislature should ‘make
no law respecting an establishment of religion, or prohibiting the free exercise thereof’,
thus building a wall of separation between Church and State. 204
a secular state
The concept of the separation of church and state refers to the distance in the relationship
between organized religion and the nation state. The concept of separation has been
adopted in a number of countries, to varying degrees depending on the applicable legal
structures and prevalent views toward the proper role of religion in society. The degree
of separation varies from total separation mandated by a constitution, to an official
religion with total prohibition of the practice of any other religion.
checks and balances
The principle of checks and balances seeks to give each arm of the government and the
citizens the power to hold the various arms of government accountable. 205 The courts
ensure that all actions by executive and parliament are constitutional. The parliament
holds the Prime Minister and Head of state accountable through, inter alia, threat of
vote of no confidence or impeachment, accountability committees and ratification of
treatises and appointments by the executive. The national assembly is also checked by
the senate to nib dictatorship by the majority. 206 The executive also checks parliament
through veto powers. Parliament also has powers to vet Presidential appointments and
even has powers to impeach a President.
supremacy of the constitution
The doctrine of constitutionalism is crystallized in five core principles of sovereignty;
devolution; rule of law; separation of powers; and checks and balances which ought to
be practiced to render republicanism credential.
federalism
Federalism is a political concept in which a group of members are bound together by
covenant (Latin: foedus, covenant) with a governing representative head. The term
‘federalism’ is also used to describe a system of the government in which sovereignty is
204
Jefferson, Thomas (1802-01-01). ‘Jefferson's Letter to the Danbury Baptists’. U.S. Library of Congress.
Retrieved 2006-11-31.
205
Baron De Montesquieu (1731) The Spirit of Laws. (Baton Rouge: Louisiana State University Press, 1941;
reprint, New York: Octagon Books, 1961).
206
Thoreau, H. D. Civil Disobedience (Resistance to Civil Government)
pg. 132
constitutionally divided between a central governing authority and constituent political

units (like states or provinces). Federalism is a system based upon democratic rules and
institutions in which the power to govern is shared between national and
provincial/state governments, creating what is often called a federation. Proponents
are often called federalists.
In almost all federations the central government enjoys the powers of foreign policy and
national defense. Were this not the case a federation would not be a single sovereign
state, per the UN definition. Beyond this the precise division of power varies from one
nation to another. The constitutions of Germany and the United States provide that all
powers not specifically granted to the federal government are retained by the states.
The Constitution of some countries like Canada and India, on the other hand, state that
powers not explicitly granted to the provincial governments are retained by the federal
government.
pg. 133
Human Rights
RIGHTS OF FOREIGNERS
expatriation
An expatriate (in abbreviated form, expat) is a person temporarily or permanently residing
in a country and culture other than that of the person's upbringing. The word comes
from the Latin terms ex (‘out of’) and patria (‘country, fatherland’).
In its broadest sense, an expatriate is any person living in a different country from where
he or she is a citizen. In common usage, the term is often used in the context of
professionals sent abroad by their companies, as opposed to locally hired staff. The
differentiation found in common usage usually comes down to socio-economic factors,
so skilled professionals working in another country are described as expatriates,
whereas a manual labourer who has moved to another country to earn more money
might be labelled an 'immigrant'. There is no set definition and usage does vary
depending on context and individual preferences and prejudices. 'Expatriation' has also
been used in a legal sense to mean 'renunciation of allegiance;' the Expatriation Act of
1868 said in its preamble, 'the right of expatriation is a natural and inherent right of all
people, indispensable to the enjoyment of the rights of life, liberty and the pursuit of
happiness.'207
immigration
Immigration (derived from Latin: migratio) is the act of foreigners passing or coming into a
country for the purpose of permanent residence. Immigration is made for many
reasons, including economic, political, family re-unification, natural disaster, poverty or
the wish to change one's surroundings voluntarily.
One theory of immigration distinguishes between Push and Pull. Push factors refer
primarily the motive for emigration from the country of origin. In the case of economic
migration (usually labor migration), differentials in wage rates are usual. If the value of
wages in the new country surpasses the value of wages in one’s native country, he or
she may choose to migrate as long as the costs are not too high. The cost of emigration,
which includes both the explicit costs, the ticket price, and the implicit cost, lost work
time and loss of community ties, also play a major role in the pull of emigrants away
from their native country.
right to fly national flag on ships
Foreign firms and foreigners are not allowed to own, or to be part owners, of ships
navigating under the Soviet flag, or of joint-stock companies possessing such ships.
207
Siegfried Grundmann, The Einstein Dossiers: Science and Politics—Einstein's Berlin Period Springer Verlag.
Berlin, Heidelberg, New York (2004), p. 294. Translated by Ann M. Hentschel. ISBN 3-540-25661-X.
Retrieved December 4, 2011
pg. 134
Exception is made with regard to mixed companies if such rights have been conceded in
their statutes or by special decrees.
right to own, and operate a business
Foreign firms desiring to carry on trade operations or to open offices, agencies, etc must
make application, with payment of the established stamp duty, to the Commissariat for
Trade and Commerce, giving all particulars of the proposed enterprise, including
management, ownership and proof of legal existence in the country of domicile, of the
applicant firm.
Right to use land
Foreigners have the right to the use of land for agricultural purposes on the same basis as
citizens.
Domiciled foreigners
Domiciled foreigners are defined as those who for a period of not less than 18 months have
lawfully resided in the Union and have been engaged in any lawful industry or business.
right to healthcare
Foreign citizens present within the national territory, although not complying with the
entry and residence provisions in force, shall be guaranteed - within both public and
accredited healthcare facilities - urgent or essential outpatient and hospital care,
although continued, in case of diseases and injuries; furthermore, preventive care
programs safeguarding individual and collective health shall also be provided.
urgent care
Urgent care means the treatments that cannot be delayed without endangering the lives or
causing damage to the health of individuals;
essential care
Essential care means the healthcare, diagnostic and therapeutic services relating to
pathologies that are not dangerous immediately and in the short term, but that over the
time might determine a higher risk for human health or lives (complications, chronic
conditions or worsening).
principle of the continuity of urgent and essential care
The principle of the continuity of urgent and essential care was reaffirmed, in the sense of
providing patients with a complete therapeutic and rehabilitative cycle relating to the
possible elimination of the disease.
right to due process
All foreigners have the right to the legal procedures under the law inc ases where their
rights are to be determined in a civil, criminal, or administrative trial.
Suffrage, right to vote
pg. 135
Suffrage, the right to vote in a particular country, generally derives from citizenship. In
most countries, the right to vote is reserved to those who possess the citizenship of the
country in question. Some countries, however, have extended suffrage rights to non-
citizens. Suffrage rights extended to non-citizens are often restricted or limited in some
ways, with the details of the restrictions or limitations varying from one country to
another.
immigration rights
This is the entitlement of a foreigner to move intoa country, and if they are here long
enough, be allowed to stay on as citizen, and enjoy services like health care, voting, and
social security.
equal access to rights within countries
A fundamental principle of human rights is that all human beings are equal and equally
entitled to human rights. No one may be discriminated against in their enjoyment of
human rights, and so everyone has a duty of non-discrimination. Foreigners are
generally discriminated against within a country by being denied rights such as access
to work and to education and social services and to a say in the government of the
communities of which they are a part.
economic rights
Economic rights include rights such as the right to work, to food, to an adequate standard
of living including health care. Associated with this deprivation is a violation of other
human rights such as the right to life and the right to education. Citizenship is the
primary determining factor in whether one has access to such rights.
Rights of the Child
Children have always been recognised as especially entitled to protection, a principle
embodied in the United Nations Convention on the Rights of the Child. Children
disproportionally suffer denial of human rights, including the right to life.
Discrimination Against Women.
Women are also disproportionately represented amongst the poor and people denied their
human rights. The citizenship of a woman is an important determining factor as to
whether she may live in poverty.
freedom of movement
Individuals are discriminated against in being denied a right to cross international
boundaries on the basis of their citizenship, and particularly on the basis of being a non-
citizen of the country seeking to deny access.
Freedom of Movement
Foreigners are subject to detention and expulsion for attempting to exercise their freedom
of movement contrary to laws prohibiting the crossing of national boundaries. Often
pg. 136
such individuals are asylum seekers or refugees even under limited international
recognition of refugee status.
Right to Life
Thousands of people have lost their lives trying to cross international boundaries and
reach countries where they can realise their human rights. Crossing an international
boundary without a visa (an instrument invented by the Nazi’s is considered illegal.
pg. 137
HUMAN RIGHTS
definition of human rights

Human rights are commonly understood as ‘inalienable fundamental rights to which a
person is inherently entitled simply because she or he is a human being.’ 208 Human rights
are thus conceived as universal (applicable everywhere) and egalitarian (the same for
everyone). These rights may exist as natural rights or as legal rights, in both national
and international law.209
natural rights and legal rights
Natural and legal rights are two types of rights theoretically distinct according to
philosophers and political scientists. Natural rights are rights not contingent upon the
laws, customs, or beliefs of any particular culture or government, and therefore
universal and inalienable. In contrast, legal rights are those bestowed onto a person by
a given legal system. Natural rights, in particular, are considered beyond the authority
of any government or international body to dismiss.
Nature of human Rights, first generational rights, second generational rights, third
generational rights
The Bill of Rights guarantees various rights and freedoms that differ in nature. There are
first generational rights known as civil and political rights, second generational rights
commonly known as social, economic and cultural rights and third generational rights
commonly referred to as group rights. Civil and political rights have been classified by
scholars as immunities since they protect against encroachments of government. There
application is easier in that such negative restraints can be secured by fairly simple
legislation. Economic, social and cultural rights, on the other hand are rights in which
affirmative action by government is necessary. Others have termed them as mere
aspirations.210 They are viewed as claims upon the governments which may or may not
be realized depending on such factors as availability of resources and other conditions.
Due to their diverse nature, these fundamental rights and freedoms have different
enforcement mechanisms.
A succinct plea for interdependence of civil and political rights and economic and social
rights is found in the observation of Andre Amalrik that a man who is hungry is not free,
but a slave with a full belly is still a slave. Daniel Patrick Moynihan has argued that
economic and social rights are likely to prosper more in societies which promote civil
and political rights.
208
Sepúlveda et al. 2004, p. 3
209
Blattberg, C (2010). ‘The Ironic Tragedy of Human Rights’. Patriotic Elaborations: Essays in Practical
Philosophy. McGill-Queen's University Press. pp. 43–59. ISBN 0-7735-3538-1.
210
See Government of the Republic of South Africa & Others v Grootboom & Others (CCT11/00) [2000] ZACC
19; 2001 (1) SA 46; 2000 (11) BCLR 1169 (4 October 2000).
pg. 138
Many scholars have given arguments on the prioritization of these rights. Some argue that
civil and political rights which are termed as immunities deserve preference over
contingent claims or expectations. Communist and developing countries assert the
reverse. They argue that economic or social claims have a priority among the classes of
rights. They state that the achievement of economic and social rights is a pre-condition
for other rights, that is, until the economic and social rights are realized a state is not in
a condition to provide civil and political rights. Many assign an equal and
interdependent status to civil and political rights and economic and social rights even if
they have a different jural status.
Civil and Political Rights, immunities
Also referd to as immunities, because they protect the citixen from government
interference with person or property, these rights are enumerated in various
constitutions, or statutes, and include: The right to life; the right to equality and
freedom from discrimination; right to be accorded human dignity; right not to be held
in slavery, servitude and forced labour; the freedom and security of the person; the
right to privacy; right to the freedom of conscience, religion, belief and opinion, right to
freedom of expression; freedom of the media; freedom of association; right to peaceful
assembly, demonstration, picketing and petition right to access to information; freedom
of movement and residence; protection of right to property; right to fair hearing,
ejusdem generis.
Economic, Social And Cultural Rights , Aspirational rights, progressive rights
Also refered to as aspirational rights, or progressive rights, these are entitlements which
governments aspire to provide to the citizen’s base don their economic abilities. They
include (a) to the highest attainable standard of health, which includes the right to
health care services, including reproductive health care; (b) to accessible and adequate
housing, and to reasonable standards of sanitation; (c) to be free from hunger, and to
have adequate food of acceptable quality; (d) to clean and safe water in adequate
quantities; (e) to social security; and (f) to education.
These rights are the cornerstone of economic empowerment and thus the development of
the country. The availability of health care services, housing, food, water, social security
and education is the bedrock of development in any country. The Constitution goes
ahead to state that a person shall not be denied emergency medical treatment. It shall
also provide appropriate social security to persons who are unable to support
themselves and their dependants.
Group Rights , third generation rights
These are rights commonly referred to as the third generational rights. They are associated
with groups. They include the right to a clean and healthy environment and consumer
rights; consumer protection rights; children rights; rights of people with disabilities;
elderly people’s rights; rights of indigenious communities; and such other rights as
cultural rights; etc.
pg. 139
jurisdiction (human rights enforcement), personal jurisdiction, territorial

jurisdiction, locum, subjectum
In law, jurisdiction is the practical authority granted to a formally constituted legal body or
to a political leader to deal with and make pronouncements on legal matters and, by
implication, to administer justice within a defined area of responsibility. It is thus the
courts power to decide a case or issue a decree.211
There are three main principles of judicial jurisdiction, namely, personal (personam),
territorial (locum), and subject matter (subjectam). Personal jurisdiction is the court’s
power to bring a person into its adjudicative process, jurisdiction over a defendant’s
personal rights, rather than merely over property interests. 212 Territorial jurisdiction is
the one arising in or involving persons residing within a defined territory. 213 It normally
includes the sense of proper venue as it pertains to matters of law and of equity. On the
other hand, subject-matter jurisdiction is the jurisdiction over the nature of the case
and the type of relief sought the extent to which a court can rule on the conduct of
persons or the status of things. 214 The subject matter in the context of this paper is the
enforcement of fundamental rights and freedoms. Courts may also have jurisdiction
that is exclusive, or concurrent. Where a court has exclusive jurisdiction over a territory
or a subject matter, it is the only court that is authorized to address that matter. Where
a court has concurrent or shared jurisdiction, more than one court can adjudicate the
matter. Where a concurrent jurisdiction exists in a civil case, a party may attempt to
engage in forum shopping, by bringing the case to a court or venue which it presumes
would rule in its favor.
Locus Standi (human rights enforcement)
It may be defined as the existence of a right of an individual or group of individuals to have
a court enter upon an adjudication of an issue before that court by proceedings
instigated by the individual or group.215 It is the right to bring an action or to be heard in
a given forum also known as standing.
Where any right or fundamental freedom provided for in the Constitution is denied,
violated or infringed or threatened, a person so affected or likely to be affected, may
make an application to a Subordinate Court or to the High Court. This shows that every
person has the right to institute court proceedings claiming that a right or fundamental
freedom in the Bill of Rights has been denied, violated or infringed, or is threatened.216
In addition to a person acting in their own interest, court proceedings may be instituted by:
a person acting on behalf of another person who cannot act in their own name; a person
acting as a member of, or in the interest of, a group or class of persons; a person acting
211
Supra, note 1, p 867.
212
213
Supra, note 1, p 871
214
215
See Stein Leslie, Locus Standi (1979) Sydney: Law Book Company. 364 Supra, note 1, p 960. 365 Supra, note 360, s 4.
216
Supra, note 360, s 22(1).
pg. 140
in the public interest; or an association acting in the interest of one or more of its
members.217
From the above provisions, the locus standi in instituting proceedings on matters touching
on the enforcement of fundamental rights and freedoms is on an individual or group.
The courts have an obligation to entertain any matters brought by either the individual
or group as the case may be. They also have a role to entertain public interest litigation
if the subject matter of such proceedings includes the enjoyment of the rights and
fundamental freedoms of a significant number of people. 218 Consequently, the courts
will be alive to their sacrosanct role to enforce fundamental rights and freedoms.
Remediation (enforcement of human rights)
Every breach of law and or a right, whether constitutional or not, ought to be remedied.
The failure by the courts to provide an effective system of remedies has been decried all
over the world. John Jeffries writes in, ‘The Right-Remedy Gap in Constitutional Law’: …
ever since John Marshall insisted that for every violation of right, there must be remedy,
American constitutionalists have decried the right remedy gap in constitutional law.
Everyone agrees that victims of constitutional violation should have effective address. 219
This was enunciated by John Marshall who stated that:
The essence of civil liberty consists in the right of every individual to claim the protection of
the laws whenever he receives an injury. One of the first duties of government is to afford
that protection. The government of the United States has been emphatically termed as a
government of laws, and not of men. It will certainly cease to deserve this appellation if
the laws furnish no remedy for the violation of a vested right. 220
John Marshall also quoted Blackstone’s more familiar formulation which says that:
…it is a general and indisputable rule, that where there is a legal right, there is also a legal
remedy, but suit or action of law, whenever that right is invaded. 221
There has to be an adequate system of remediation for every violation of a right, as a right
will be meaningless if it cannot be vindicated by way of adequate remediation.
Therefore, many areas of law are buttressed by systems of remedies for the victim who
suffer violation of their rights under these systems. 222 According to Richard Fallon and
Daniel Meltzer, there is need for a general structure of constitutional remedies
adequate to keep government within the bounds of law. 223
The Constitution of Kenya, 2010 provides that in any proceedings brought in the
enforcement of the Bill of Rights, a court may grant appropriate relief,224 including:
217
Supra, note 129, Article 22 (1) and (2).
218
Supra, note 360, s 28(a).
219
(1999) 109 Yale Law Journal p 87
220
Marbury v Madison, (1803) 5 U.S (1 Cranch) pp 137, 163
221
Richard Fallon and Daniel Meltzer, ‘New Law, Retroactivity and Constitutional Remedies’ (1999) 104 Harvard Law Review, p 36.
222
Ibid.
223
Ibid.
224
Supra, note 129, Article 23 (3).
pg. 141
(a) A declaration of rights’225

(b) An injunction;226
(c) A conservatory order;227
(d) A declaration of invalidity of any law that denies, violates, infringes, or threatens a right
or fundamental freedom in the Bill of Rights and is not justified under Article 24;228
(e) An order for compensation;229 and
(f) An order of judicial review.230
Compensation (human rights remedies)
A person whose rights or fundamental freedoms have been infringed may seek
compensation. This is done through provision of damages by the court. Damages can be
defined as the money claimed by or ordered to be paid to a person as compensation for
loss or injury.231 It goes without saying that the award of damages is discretionary upon
the courts. The courts are obligated to exercise this discretion accordingly. They may be
general damages, special damages among others. However, this award is dependent on
the nature and the case itself. Damages awarded in a matter of this nature should reflect
the seriousness of violation of a citizen’s Constitutional right. Fundamental rights and
freedoms which are expressly laid out in the Constitution must never be given casual
observance or breached with impunity by the government or its servants. If we show
disrespect to the supreme law of the land and fail to punish or penalize those who
violate important provision of the Constitution we will be encouraging such violation. 232
The award of damages should thus always reflect the seriousness of violation of the
constitutional rights and freedoms. Courts have a role to assess this seriousness on
infringement and award damages accordingly. The High Court in its recent decisions
has risen to the occasion by awarding damages upon infringement of fundamental
rights and freedoms. The court in Isaac Gathungu Wanjohi and another v The Attorney
General and six others233 awarded general damages to the petitioners amounting to a
sum of Kshs. 2,000,000 for breach of Article 47 of the Constitution. 234
Injunctions (human rights remedies)
An injunction is an equitable remedy in the form of a court order that requires a party to
do, or to refrain from doing, certain acts. It is thus a court order commanding or
preventing an action. A party that fails to comply with an injunction faces criminal or
civil penalties and may have to pay damages or accept sanctions. In some cases,
225
Ibid.
226
Ibid.
227
Ibid.
228
Ibid.
229
Ibid.
230
Ibid.
231
232
Ibid.
233
See Petition number 154 of 2011, 30 March 2012 (unreported).
234
Ibid; See also Petition number 256 of 2011, 30 March 2012 (unreported) Joseph Sitonik v The Attorney General and another Petition
number 29 of 2011, 3 February 2012 (unreported) and Elly Onyango Gumba v R Petition number 167 of 2011, 3 February 2012
(unreported).
pg. 142
breaches of injunctions are considered serious criminal offences that merit arrest and
possible prison sentence.
Injunctions are issued only when the remedy at law is inadequate. They are issued to stop
the defendant from continuing his allegedly harmful actions. Permanent injunctions are
issued as a final judgment in a case. Interim injunctions are issued during the
proceedings of the case. Failure to comply with an injunction may result in being held in
contempt of court as was held in Roe v Wade.235 An injunction is available only in case of
in-personam, a Latin phrase meaning, ‘directed towards a particular person’, that is, it is
personal jurisdiction.
Any Kenyan can institute proceedings in the courts seeking an injunction as a remedy for a
party to do or to refrain from doing certain acts that are to the effect of infringing on his
fundamental rights and freedoms guaranteed in the Constitution. The courts have a role
to give the injunctions in appropriate cases, thus safeguarding the enforcement of the
fundamental rights and freedoms.
Judicial Review (human rights remediation)
The term judicial review refers to a court’s power to review the actions of other branches
or levels of government, especially the courts’ power to invalidate legislative and
executive actions as being unconstitutional.236 It may also be defined as the means by
which High Court judges scrutinize public law functions intervening as a matter of
discretion to quash, prevent, require, and/or clarify not because they disagree with the
judgement, but so as to right a recognizable public law wrong. 237 The most common
form of judicial review is the review of a lower court’s decision by a higher court. Courts
usually review these decisions in the appeal process, when a losing party in a case
claims an error was made and appeals to the higher court to examine the decision.
Judicial review has got several functions which include: allowing justice to be served by
striking down erroneous decisions by the lower court; appellate courts monitor the
performance of lower courts; incentive to apply the law correctly if the possibility exists
that the decision may be overturned; and important controversies regarding the law
are examined and resolved for the future guidance of courts and individuals. 238 This is
the primary concern of the highest court, which in most cases agrees to hear appeals
only at their discretions. Upon abridgement of fundamental rights and freedoms, a
party can bring a case before court through judicial review for determination. The
courts have the obligation to entertain these actions in the process of trying to remedy
the situation. They ought to be forceful in situations of breach of fundamental rights and
freedoms. In doing this, they will be promoting and protecting the constitutional
guarantees bestowed upon people.
Conservatory Order (human rights remedies)
235
See Roe v Wade, 410, U.S. 113 (1973).
236
237
See PLO Lumumba, Judicial Review in Kenya (2nd ed, 2006) LawAfrica, p 3.
238
Ibid
pg. 143
A conservatory order is granted to human rights’ victims with main purpose of preserving
their status quo.239 It further protects human rights’ victims from future violations of
their rights, hence acting as a conservatory measure towards them. It is upon the
applicant to prove and thus be granted a conservatory order to rebut the threat to
infringe his rights and fundamental freedoms.
Declaration of invalidity of any law (human rights remedies)
The High Court is empowered to declare any law that denies, violate, infringes, or threatens
a right or fundamental freedom in the Bill of Rights invalid.240 This couples with the
supremacy clause which states that any law, including customary law that is
inconsistent with the Constitution is void to the extent of the inconsistency, and any act
or omission in contravention of the Constitution is invalid. 241 Citizens ought to be at
liberty in bringing actions before courts to invalidate laws that are deemed to infringe
or threaten rights or fundamental freedoms. It is an obligation of the court to ensure
they invalidate these laws for the enjoyment of fundamental rights and freedoms.
Declaration of Rights (human rights remedies)
Every Kenyan has the locus standi to engage the courts to make a declaration of his
rights.242 This may be to enable him to seek the enforcement of these rights and
fundamental freedoms by the courts. 243 This is common as the majority are legally
illiterate and most of them do not know their rights. This is exacerbated by the lack of
the will by the government to conduct civic education. This imposes a great role upon
the courts to make declarations of rights. The courts are thus obligated to ensure the
rights and freedoms are protected by declaring them whenever an action seeking
declaration of rights is brought before the courts.
principles of human rights
Human rights are universal and inalienable; indivisible; interdependent and interrelated.
They are universal because everyone is born with and possesses the same rights,
regardless of where they live, their gender or race, or their religious, cultural or ethnic
background. Inalienable because people’s rights can never be taken away. Indivisible
and interdependent because all rights – political, civil, social, cultural and economic –
are equal in importance and none can be fully enjoyed without the others. They apply to
all equally, and all have the right to participate in decisions that affect their lives. They
are upheld by the rule of law and strengthened through legitimate claims for duty-
bearers to be accountable to international standards.
principles of human rights (Universality)
Human rights must be afforded to everyone, without exception. The entire premise of the
framework is that people are entitled to these rights simply by virtue of being human.
239
Supra, note 129, Article 23 (3)
240
Supra, note 129, Article 165.
241
242
243
Ibid.
pg. 144
principles of human rights (Indivisibility)

Human rights are indivisible and interdependent, which means that in order to guarantee
civil and political rights, a government must also ensure economic, social and cultural
rights (and visa versa). The indivisibility principle recognizes that if a government
violates rights such as health, it necessarily affects people’s ability to exercise other
rights such as the right to life.
principles of human rights (Participation)
People have a right to participate in how decisions are made regarding protection of their
rights. This includes but is not limited to having input on government decisions about
rights. To ensure human rights, governments must engage and support the
participation of civil society on these issues.
principles of human rights (Transparency)
Transparency means that governments must be open about all information and decision-
making processes related to rights. People must be able to know and understand how
major decisions affecting rights are made and how public institutions, such as hospitals
and schools, which are needed to protect rights, are managed and run.
principles of human rights (Non-Discrimination)
Human rights must be guaranteed without discrimination of any kind. This includes not
only purposeful discrimination, but also protection from policies and practices which
may have a discriminatory effect. Non-discrimination is a cross-cutting principle in
international human rights law. The principle is present in all the major human rights
treaties and provides the central theme of some of international human rights
conventions such as the International Convention on the Elimination of All Forms of
Racial Discrimination and the Convention on the Elimination of All Forms of
Discrimination against Women. The principle applies to everyone in relation to all
human rights and freedoms and it prohibits discrimination on the basis of a list of non-
exhaustive categories such as sex, race, colour and so on. The principle of non-
discrimination is complemented by the principle of equality, as stated in Article 1 of the
Universal Declaration of Human Rights: “All human beings are born free and equal in
dignity and rights.”
principles of human rights (Rule of Law)
Universal human rights are often expressed and guaranteed by law, in the forms of treaties,
customary international law , general principles and other sources of international law.
International human rights law lays down obligations of Governments to act in certain
ways or to refrain from certain acts, in order to promote and protect human rights and
fundamental freedoms of individuals or groups.
principles of human rights (Both Rights and Obligations)
pg. 145
Human rights entail both rights and obligations. States assume obligations and duties
under international law to respect, to protect and to fulfil human rights. The obligation
to respect means that States must refrain from interfering with or curtailing the
enjoyment of human rights. The obligation to protect requires States to protect
individuals and groups against human rights abuses. The obligation to fulfil means that
States must take positive action to facilitate the enjoyment of basic human rights. At the
individual level, while we are entitled our human rights, we should also respect the
human rights of others.
principles of human rights (Accountability):
States and other duty-bearers are answerable for the observance of human rights. In this
regard, they have to comply with the legal norms and standards enshrined in
international human rights instruments. Where they fail to do so, aggrieved rights-
holders are entitled to institute proceedings for appropriate redress before a competent
court or other adjudicator in accordance with the rules and procedures provided by
law. Individuals, the media, civil society and the international community play
important roles in holding governments accountable for their obligation to uphold
human rights. Governments must create mechanisms of accountability for the
enforcement of rights. It is not enough that rights are recognized in domestic law or in
policy rhetoric, there must actually be effective measures put in place so that the
government can be held accountable if those rights standards are not met.
International protection and promotion of human rights, International human rights

law
In the aftermath of the atrocities of World War II, there was increased concern for the
social and legal protection of human rights as fundamental freedoms. The foundation of
the United Nations and the provisions of the United Nations Charter provided a basis
for a comprehensive system of international law and practise for the protection of
human rights. Since then, international human rights law has been characterized by a
linked system of conventions, treaties, organisations, and political bodies, rather than
any single entity or set of laws.
United Nations Charter
The provisions of the United Nations Charter provided a basis for the development of
international human rights protection. The preamble of the charter provides that the
members "reaffirm faith in fundamental human rights, in the equal rights of men and
women" and Article 1(3) of the United Nations charter states that one of the purposes
of the UN is: "to achieve international cooperation in solving international problems of
an economic, social, cultural, or humanitarian character, and in promoting and
encouraging respect for human rights and for fundamental freedoms for all without
distinction as to race, sex, language, or religion". Article 55 provides that:
pg. 146
The United Nations shall promote: a) higher standards of living, full employment, and
conditions of economic and social progress and development; b) solutions of
international economic, social, health, and related problems; c) international cultural
and educational cooperation; d) universal respect for, and observance of, human rights
and fundamental freedoms for all without distinction as to race, sex, language, or
religion.
Universal Declaration of Human Rights
"It is not a treaty...[In the future, it] may well become the international Magna Carta."
Eleanor Roosevelt with the Spanish text of the Universal Declaration in 1949.
The Universal Declaration of Human Rights (UDHR) was adopted by the United Nations
General Assembly in 1948, partly in response to the atrocities of World War II. It is
generally viewed as the preeminent statement of international rights and has been
identified as being a culmination of centuries of thinking along both secular and
religious lines. Although the UDHR was a non-binding resolution, it is now considered
by some to have acquired the force of international customary law which may be
invoked in appropriate circumstances by national and other judiciaries. The UDHR
urges member nations to promote a number of human, civil, economic and social rights,
asserting these rights as part of the "foundation of freedom, justice and peace in the
world." The declaration was the first international legal effort to limit the behaviour of
states and press upon them duties to their citizens following the model of the rights-
duty duality.
...recognition of the inherent dignity and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice and peace in the world.
—Preamble to the Universal Declaration of Human Rights, 1948
International treaties
In 1966, the International Covenant on Civil and Political Rights (ICCPR) and the
International Covenant on Economic, Social and Cultural Rights (ICESCR) were adopted
by the United Nations, between them making the rights contained in the UDHR binding
on all states that have signed this treaty, creating human-rights law.
Since then numerous other treaties (pieces of legislation) have been offered at the
international level. They are generally known as human rights instruments. Some of the
most significant, referred to (with ICCPR and ICESCR) as "the seven core treaties", are:
Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW)
(adopted 1979, entry into force: 1981)
Convention on the Elimination of All Forms of Racial Discrimination (CERD) (adopted
1966, entry into force: 1969)
pg. 147
Convention on the Rights of Persons with Disabilities (CRPD) (adopted 2006, entry into
force: 2008)
Convention on the Rights of the Child (CRC) (adopted 1989, entry into force: 1989)
United Nations Convention Against Torture (CAT) (adopted 1984, entry into force: 1984)
International Convention on the Protection of the Rights of All Migrant Workers and
Members of their Families (ICRMW or more often MWC) (adopted 1990, entry into
force: 2003)
role of law in human rights
The role of law, in the field of human rights, is to provide for the human rights by codifying
the rights and duties; to promote the human rights by providing for education and
general awareness of rights, and to protect the rights by providing for dispute
resolution mechanisms and institutions.
Customary international law (human rights protection)
In addition to protection by international treaties, customary international law may protect
some human rights, such as the prohibition of torture, genocide and slavery and the
principle of non-discrimination.
International humanitarian law, : Geneva Conventions
The Geneva Conventions came into being between 1864 and 1949 as a result of efforts by
Henry Dunant, the founder of the International Committee of the Red Cross. The
conventions safeguard the human rights of individuals involved in armed conflict, and
build on the Hague Conventions of 1899 and 1907, the international community's first
attempt to formalize the laws of war and war crimes in the nascent body of secular
international law. The conventions were revised as a result of World War II and
readopted by the international community in 1949.
United Nations system (human rights protection)
Under the mandate of the UN charter, the and the multilateral UN human rights treaties,
the United Nations (UN) as an intergovernmental body seeks to apply international
jurisdiction for universal human-rights legislation. Within the UN machinery, human-
rights issues are primarily the concern of the United Nations Security Council and the
United Nations Human Rights Council, and there are numerous committees within the
UN with responsibilities for safeguarding different human-rights treaties. The most
senior body of the UN in the sphere of human rights is the Office of the High
Commissioner for Human Rights. The United Nations has an international mandate to:
achieve international co-operation in solving international problems of an economic, social,
cultural, or humanitarian character, and in promoting and encouraging respect for
human rights and for fundamental freedoms for all without distinction as to race,
gender, language, or religion.
pg. 148
—Article 1–3 of the United Nations Charter

United Nations Security Council(human rights protection)
The United Nations Security Council has the primary responsibility for maintaining
international peace and security and is the only body of the UN that can authorize the
use of force. It has been criticised for failing to take action to prevent human rights
abuses, including the Darfur crisis, the Srebrenica massacre and the Rwandan Genocide.
For example, critics blamed the presence of non-democracies on the Security Council
for its failure regarding.
On April 28, 2006 the Security Council adopted resolution 1674 that reaffirmed the
responsibility to protect populations from genocide, war crimes, ethnic cleansing and
crimes against humanity" and committed the Security Council to action to protect
civilians in armed conflict.
United Nations General Assembly (human rights protection)
The United Nations General Assembly, under Article 13 of the UN Charter, has the power to
initiate studies and make recommendations on human rights issues. Under this
provision, the general assembly passed the Universal Declaration of Human Rights in
1948, and since then a wide variety of other human rights instruments. The assembly
has several subsidiary organs that deal with specific human rights issues, such as the
Special Committee on Decolonisation and the Special Commission against Apartheid (no
longer operational). In addition the general assembly has set up a number of subsidiary
organs that consider human rights issues in a number of high-profile contexts: such as
the UN Council on Namibia, the Special Committee to Investigate Israeli Practises in the
Occupied territories and the Committee on the Exercise of the Inalienable rights of the
Palestine People.
Human Rights Council (human rights protection), United Nations Human Rights
Council
The United Nations Human Rights Council, created at the 2005 World Summit to replace
the United Nations Commission on Human Rights, has a mandate to investigate
violations of human rights. The Human Rights Council is a subsidiary body of the
General Assembly and reports directly to it. It ranks below the Security Council, which
is the final authority for the interpretation of the United Nations Charter. Forty-seven of
the one hundred ninety-one member states sit on the council, elected by simple
majority in a secret ballot of the United Nations General Assembly. Members serve a
maximum of six years and may have their membership suspended for gross human
rights abuses. The Council is based in Geneva, and meets three times a year; with
additional meetings to respond to urgent situations.
Independent experts (rapporteurs) are retained by the Council to investigate alleged
human rights abuses and to provide the Council with reports.
pg. 149
The Human Rights Council may request that the Security Council take action when human
rights violations occur. This action may be direct actions, may involve sanctions, and the
Security Council may also refer cases to the International Criminal Court (ICC) even if
the issue being referred is outside the normal jurisdiction of the ICC.
Treaty bodies(human rights protection)
In addition to the political bodies whose mandate flows from the UN charter, the UN has set
up a number of treaty-based bodies, comprising committees of independent experts
who monitor compliance with human rights standards and norms flowing from the core
international human rights treaties. They are supported by and are created by the
treaty that they monitor, With the exception of the CESCR, which was established under
a resolution of the Economic and Social Council to carry out the monitoring functions
originally assigned to that body under the Covenant, they are technically autonomous
bodies, established by the treaties that they monitor and accountable to the state
parties of those treaties - rather than subsidiary to the United Nations. Though in
practise they are closely intertwined with the United Nations system and are supported
by the UN High Commissioner for Human Rights (UNHCHR) and the UN Center for
Human Rights.
Human Rights Committee
The Human Rights Committee promotes participation with the standards of the ICCPR. The
eighteen members of the committee express opinions on member countries and make
judgments on individual complaints against countries which have ratified an Optional
Protocol to the treaty. The judgments, termed "views", are not legally binding.
Committee on Economic, Social and Cultural Rights
The Committee on Economic, Social and Cultural Rights monitors the ICESCR and makes
general comments on ratifying countries performance. It will have the power to receive
complaints against the countries that opted into the Optional Protocol once it has come
into force. It is important to note that unlike the other treaty bodies, the economic
committee is not an autonomous body responsible to the treaty parties, but directly
responsible to the Economic and Social Council and ultimately to the General Assembly.
This means that the Economic Committee faces particular difficulties at its disposal only
relatively "weak" means of implementation in comparison to other treaty bodies.
Particular difficulties noted by commentators include: perceived vagueness of the
principles of the treaty, relative lack of legal texts and decisions, ambivalence of many
states in addressing economic, social and cultural rights, comparatively few non-
governmental organisations focused on the area and problems with obtaining relevant
and precise information.
Committee on the Elimination of Racial Discrimination
The Committee on the Elimination of Racial Discrimination monitors the CERD and
conducts regular reviews of countries' performance. It can make judgments on
pg. 150
complaints against member states allowing it, but these are not legally binding. It issues
warnings to attempt to prevent serious contraventions of the convention.
Committee on the Elimination of Discrimination against Women monitors the CEDAW
The Committee on the Elimination of Discrimination against Women monitors the CEDAW.
It receives states' reports on their performance and comments on them, and can make
judgments on complaints against countries which have opted into the 1999 Optional
Protocol.
Committee Against Torture
The Committee Against Torture monitors the CAT and receives states' reports on their
performance every four years and comments on them. Its subcommittee may visit and
inspect countries which have opted into the Optional Protocol.
Committee on the Rights of the Child
The Committee on the Rights of the Child monitors the CRC and makes comments on
reports submitted by states every five years. It does not have the power to receive
complaints.
Committee on Migrant Workers
The Committee on Migrant Workers was established in 2004 and monitors the ICRMW and
makes comments on reports submitted by states every five years. It will have the power
to receive complaints of specific violations only once ten member states allow it.
Committee on the Rights of Persons with Disabilities
The Committee on the Rights of Persons with Disabilities was established in 2008 to
monitor the Convention on the Rights of Persons with Disabilities. It has the power to
receive complaints against the countries which have opted into the Optional Protocol to
the Convention on the Rights of Persons with Disabilities.
Each treaty body receives secretariat support from the Human Rights Council and Treaties
Division of Office of the High Commissioner on Human Rights (OHCHR) in Geneva
except CEDAW, which is supported by the Division for the Advancement of Women
(DAW). CEDAW formerly held all its sessions at United Nations headquarters in New
York but now frequently meets at the United Nations Office in Geneva; the other treaty
bodies meet in Geneva. The Human Rights Committee usually holds its March session in
New York City.
Regional human rights regimes
International human rights regimes are in several cases "nested" within more
comprehensive and overlapping regional agreements. These regional regimes can be
seen as relatively independently coherent human rights sub-regimes. Three principal
regional human rights instruments can be identified; the African Charter on Human and
Peoples' Rights, the American Convention on Human Rights (the Americas) and the
pg. 151
European Convention on Human Rights. The European Convention on Human Rights

has since 1950 defined and guaranteed human rights and fundamental freedoms in
Europe. All 47 member states of the Council of Europe have signed the Convention and
are therefore under the jurisdiction of the European Court of Human Rights in
Strasbourg.
Human rights promotion
Human rights continue to be promoted around the world through governmental
organizations and museums including the Canadian Museum for Human Rights in
Winnipeg, Manitoba.
Non-governmental actors, Non-governmental organization
International non-governmental human rights organizations such as Amnesty
International, Human Rights Watch, International Service for Human Rights and FIDH
monitor what they see as human rights issues around the world and promote their
views on the subject. Human rights organizations have been said to ""translate complex
international issues into activities to be undertaken by concerned citizens in their own
community". Human rights organizations frequently engage in lobbying and advocacy
in an effort to convince the United Nations, supranational bodies and national
governments to adopt their policies on human rights. Many human-rights organizations
have observer status at the various UN bodies tasked with protecting human rights. A
new (in 2009) nongovernmental human-rights conference is the Oslo Freedom Forum,
a gathering described by The Economist as "on its way to becoming a human-rights
equivalent of the Davos economic forum." The same article noted that human-rights
advocates are more and more divided amongst themselves over how violations of
human rights are to be defined, notably as regards the Middle East.
There is criticism of human-rights organisations who use their status but allegedly move
away from their stated goals. For example, Gerald M. Steinberg, an Israel-based
academic, maintains that NGOs take advantage of a "halo effect" and are "given the
status of impartial moral watchdogs" by governments and the media. Such critics claim
that this may be seen at various governmental levels, including when human-rights
groups testify before investigation committees.
Human rights defender
A human rights defender is someone who, individually or with others, acts to promote or
protect human rights. Human rights defenders are those men and women who act
peacefully for the promotion and protection of those rights, and most of this activity
happens within a nation as opposed to internationally.
Right to life
Every human being has the inherent right to life. This right shall be protected by law. No
one shall be arbitrarily deprived of his life.
—Article 6.1 of the International Covenant on Civil and Political Rights
pg. 152
The right to life is the essential right that a human being has the right not to be killed by
another human being. The concept of a right to life is central to debates on the issues of
abortion, capital punishment, euthanasia, self defense and war. According to many
human rights activists, the death penalty violates this right. The United Nations has
called on states retaining the death penalty to establish a moratorium on capital
punishment with a view to its abolition. States which do not do so face considerable
moral and political pressure.
Freedom from torture
Throughout history, torture has been used as a method of political re-education,
interrogation, punishment, and coercion. In addition to state-sponsored torture,
individuals or groups may be motivated to inflict torture on others for similar reasons
to those of a state; however, the motive for torture can also be for the sadistic
gratification of the torturer, as in the Moors murders.
Torture is prohibited under international law and the domestic laws of most countries in
the 21st century. It is considered to be a violation of human rights, and is declared to be
unacceptable by Article 5 of the UN Universal Declaration of Human Rights. Signatories
of the Geneva Conventions of 1949 and the Additional Protocols I and II of 8 June 1977
officially agree not to torture captured persons in armed conflicts, whether
international or internal. Torture is also prohibited by the United Nations Convention
Against Torture, which has been ratified by 156 countries.
National and international legal prohibitions on torture derive from a consensus that
torture and similar ill-treatment are immoral, as well as impractical. Despite these
international conventions, organizations that monitor abuses of human rights (e.g.
Amnesty International, the International Rehabilitation Council for Torture Victims)
report widespread use condoned by states in many regions of the world. Amnesty
International estimates that at least 81 world governments currently practice torture,
some of them openly.
Freedom from slavery
Freedom from slavery is internationally recognized as a human right. Article 4 of the
Universal Declaration of Human Rights states:
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited
in all their forms.
Despite this, the number of slaves today is higher than at any point in history, remaining as
high as 12 million to 27 million, Most are debt slaves, largely in South Asia, who are
under debt bondage incurred by lenders, sometimes even for generations. Human
trafficking is primarily for prostituting women and children into sex industries.
Groups such as the American Anti-Slavery Group, Anti-Slavery International, Free the
Slaves, the Anti-Slavery Society, and the Norwegian Anti-Slavery Society continue to
campaign to rid the world of slavery.
pg. 153
Right to a fair trial

Everyone is entitled in full equality to a fair and public hearing by an independent and
impartial tribunal, in the determination of his rights and obligations and of any criminal
charge against him.
The right to a fair trial has been defined in numerous regional and international human
rights instruments. It is one of the most extensive human rights and all international
human rights instruments enshrine it in more than one article. The right to a fair trial is
one of the most litigated human rights and substantial case law has been established on
the interpretation of this human right. Despite variations in wording and placement of
the various fair trial rights, international human rights instrument define the right to a
fair trial in broadly the same terms. The aim of the right is to ensure the proper
administration of justice. As a minimum the right to fair trial includes the following fair
trial rights in civil and criminal proceedings:
the right to be heard by a competent, independent and impartial tribunal
the right to a public hearing
the right to be heard within a reasonable time
the right to counsel
the right to interpretation
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of
expression is sometimes used synonymously, but includes any act of seeking, receiving
and imparting information or ideas, regardless of the medium used. In practice, the
right to freedom of speech is not absolute in any country and the right is commonly
subject to limitations, such as on libel, slander, obscenity, incitement to commit a crime,
etc. The right to freedom of expression is recognized as a human right under Article 19
of the Universal Declaration of Human Rights and recognized in international human
rights law in the International Covenant on Civil and Political Rights (ICCPR). Article 19
of the ICCPR states that "[e]veryone shall have the right to hold opinions without
interference" and "everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, in the form of art, or through
any other media of his choice".
Freedom of thought, Freedom of Conscience and Freedom of religion
Everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or in community
with others and in public or private, to manifest his religion or belief in teaching,
practice, worship and observance.
—Article 18 of the International Covenant on Civil and Political Rights
pg. 154
Freedom of thought, conscience and religion are closely related rights that protect the
freedom of an individual or community, in public or private, to think and freely hold
conscientious beliefs and to manifest religion or belief in teaching, practice, worship,
and observance; the concept is generally recognized also to include the freedom to
change religion or not to follow any religion. The freedom to leave or discontinue
membership in a religion or religious group—in religious terms called "apostasy"—is
also a fundamental part of religious freedom, covered by Article 18 of the Universal
Declaration of Human Rights.
Human rights groups such as Amnesty International organises campaigns to protect those
arrested and or incarcerated as a prisoner of conscience because of their conscientious
beliefs, particularly concerning intellectual, political and artistic freedom of expression
and association. In legislation, a conscience clause is a provision in a statute that
excuses a health professional from complying with the law (for example legalising
surgical or pharmaceutical abortion) if it is incompatible with religious or conscientious
beliefs.
Freedom of movement
Freedom of movement asserts that a citizen of a state in which that citizen is present has
the liberty to travel, reside in, and/or work in any part of the state where one pleases
within the limits of respect for the liberty and rights of others, and to leave that state
and return at any time.
Right to keep and bear arms
The right to keep and bear arms for defense is described in the philosophical and political
writings of Aristotle, Cicero, John Locke, Machiavelli, the English Whigs and others. In
countries with an English common law tradition, a long-standing common law right to
keep and bear arms has long been recognized, as pre-existing in common law, prior
even to the existence of national constitutions.
Sexual orientation and gender identity
Sexual orientation and gender identity rights relate to the expression of sexual orientation
and gender identity based on the right to respect for private life and the right not to be
discriminated against on the ground of "other status" as defined in various human
rights conventions, such as article 17 and 26 in the United Nations International
Covenant on Civil and Political Rights and article 8 and article 14 in the European
Convention on Human Rights.
As of 2011, homosexual behaviour is illegal in 76 countries and punishable by execution in
seven countries. The criminalization of private, consensual, adult sexual relations,
especially in countries where corporal or capital punishment is involved, is one of the
primary concerns of LGBT human rights advocates.
Other issues include: government recognition of same-sex relationships, LGBT adoption,
sexual orientation and military service, immigration equality, anti-discrimination laws,
pg. 155
hate crime laws regarding violence against LGBT people, sodomy laws, anti-lesbianism
laws, and equal age of consent for same-sex activity.
A global charter for sexual orientation and gender identity rights has been proposed in the
form of the 'Yogyakarta Principles', a set of 29 principles whose authors say they apply
International Human Rights Law statutes and precedent to situations relevant to LGBT
people's experience. The principles were presented at a United Nations event in New
York on November 7, 2007, co-sponsored by Argentina, Brazil and Uruguay.
The principles have been acknowledged with influencing the French proposed UN
declaration on sexual orientation and gender identity, which focuses on ending
violence, criminalization and capital punishment and does not include dialogue about
same-sex marriage or right to start a family. The proposal was supported by 67 of the
then 192 member countries of the United Nations, including all EU member states and
the United States. An alternative statement opposing the proposal was initiated by Syria
and signed by 57 member nations, including all 27 nations of the Arab League as well as
Iran and North Korea.[1]
Right to water
The right to water has been recognized in a wide range of international documents,
including treaties, declarations and other standards. For instance, the 1979 Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW) requires
State parties to ensure to women the right to “enjoy adequate living conditions,
particularly in relation to […] water supply”. The 1989 Convention on the Rights of the
Child (CRC) requires States parties to combat disease and malnutrition “through the
provision of adequate nutritious foods and clean drinking-water”.
The most clear definition of the Human right to water has been issued by the UN
Committee on Economic, Social and Cultural Rights. This treaty body interpreting legal
obligations of State parties to the International Covenant on Economic, Social and
Cultural Rights (ICESCR) issued in 2002 a non-binding interpretation affirming that
access to water was a condition for the enjoyment of the right to an adequate standard
of living and inextricably related to the right to the highest attainable standard of health
(see ICESCR Art.11 & 12) and therefore a human right:
The human right to water entitles everyone to sufficient, safe, acceptable, physically
accessible and affordable water for personal and domestic uses.
—United Nations Committee on Economic, Social and Cultural Rights
On July 28, 2010, the United Nations General Assembly declared water and sanitation as
human rights. Today all States have at least ratified one human rights convention which
explicitly or implicitly recognizes the right, and they all have signed at least one political
declaration recognizing this right.
reproductive rights
pg. 156
Reproductive rights are rights relating to reproduction and reproductive health. The World
Health Organisation defines reproductive rights as follows:
Reproductive rights rest on the recognition of the basic right of all couples and individuals
to decide freely and responsibly the number, spacing and timing of their children and to
have the information and means to do so, and the right to attain the highest standard of
sexual and reproductive health. They also include the right of all to make decisions
concerning reproduction free of discrimination, coercion and violence.
—World Health Organisation
Reproductive rights were first established as a subset of human rights at the United
Nations 1968 International Conference on Human Rights. The sixteenth article of the
resulting Proclamation of Teheran states, "Parents have a basic human right to
determine freely and responsibly the number and the spacing of their children."
Reproductive rights may include some or all of the following rights: the right to legal or safe
abortion, the right to control one's reproductive functions, the right to quality
reproductive healthcare, and the right to education and access in order to make
reproductive choices free from coercion, discrimination, and violence.
Reproductive rights may also be understood to include education about contraception and
sexually transmitted infections, and freedom from coerced sterilization and
contraception, protection from gender-based practices such as female genital cutting
(FGC) and male genital mutilation (MGM).
Right to Internet access and Digital rights
In October 2009, Finland's Ministry of Transport and Communications announced that
every person in Finland would have the legal right to Internet access. Since July 2010,
the government has legally obligated telecommunications companies to offer
broadband Internet access to every permanent residence and office. The connection
must be "reasonably priced" and have a downstream rate of at least 1 Mbit/s.
In March 2010, the BBC, having commissioned an opinion poll, reported that "almost four
in five people around the world believe that access to the internet is a fundamental
right." The poll, conducted by the polling company GlobeScan for the BBC World
Service, collated the answers of 27,973 adult citizens across 26 countries to find that
79% of adults either strongly agreed or somewhat agreed with the statement: "access
to the internet should be a fundamental right of all people".
environmental human rights
There are two basic conceptions of environmental human rights in the current human
rights system. The first is that the right to a healthy or adequate environment is itself a
human right (as seen in both Article 24 of the African Charter on Human and Peoples'
Rights, and Article 11 of the San Salvador Protocol to the American Convention on
Human Rights). The second conception is the idea that environmental human rights can
be derived from other human rights, usually – the right to life, the right to health, the
pg. 157
right to private family life and the right to property (among many others). This second
theory enjoys much more widespread use in human rights courts around the world, as
those rights are contained in many human rights documents.
The onset of various environmental issues, especially climate change, has created potential
conflicts between different human rights. Human rights ultimately require a working
ecosystem and healthy environment, but the granting of certain rights to individuals
may damage these. Such as the conflict between right to decide number of offspring and
the common need for a healthy environment, as noted in the tragedy of the commons.
In the area of environmental rights, the responsibilities of multinational corporations,
so far relatively unaddressed by human rights legislation, is of paramount
consideration.[]
Environmental rights revolve largely around the idea of a right to a livable environment
both for the present and the future generations.
National security and Anti-terrorism legislation
With the exception of non-derogable human rights (international conventions class the
right to life, the right to be free from slavery, the right to be free from torture and the
right to be free from retroactive application of penal laws as non-derogable), the UN
recognises that human rights can be limited or even pushed aside during times of
national emergency – although
the emergency must be actual, affect the whole population and the threat must be to the
very existence of the nation. The declaration of emergency must also be a last resort
and a temporary measure.
—United Nations. The Resource
Rights that cannot be derogated for reasons of national security in any circumstances are
known as peremptory norms or jus cogens. Such United Nations Charter obligations are
binding on all states and cannot be modified by treaty.
Examples of national security being used to justify human rights violations include the
Japanese American internment during World War II, Stalin's Great Purge, and the
modern-day abuses of terror suspects rights by some countries, often in the name of the
War on Terror.
Cultural relativism, Moral relativism and Moral universalism
Relativists argue that human rights must avoid pushing the values of a single culture at the
expense of others. "The White Man's Burden" is seen as an example of the West using
the spread of Western culture as a justification for colonization.
Universalists argue that some practices violate the norms of all human cultures. They point
out that although Female genital mutilation is prevalent in Africa, no religion supports
the practice, and the tradition is in violation of women's rights.
pg. 158
The UDHR enshrines universal rights that apply to all humans equally, whichever
geographical location, state, race or culture they belong to. However, in academia there
is a dispute between scholars that advocate moral relativism and scholars that advocate
moral universalism. Relativists do not argue against human rights, but concede that
human rights are social constructed and are shaped by cultural and environmental
contexts. Universalists argue that human rights have always existed, and apply to all
people regardless of culture, race, sex, or religion.
More specifically, proponents of cultural relativism argue for acceptance of different
cultures, which may have practices conflicting with human rights. Relativists caution
that universalism could be used as a form of cultural, economic or political imperialism.
The White Man's Burden is used as an example of imperialism and the destruction of
local cultures justified by the desire to spread Eurocentric values. In particular, the
concept of human rights is often claimed to be fundamentally rooted in a politically
liberal outlook which, although generally accepted in Europe, Japan or North America,
is not necessarily taken as standard elsewhere.[]
Opponents of relativism argue that some practices exist that violate the norms of all human
cultures. A common example is female genital mutilation, which occurs in different
cultures in Africa, Asia and South America[]. It is not mandated by any religion, but has
become a tradition in many cultures. It is considered a violation of women's and girl's
rights by much of the international community, and is outlawed in some countries.
The former Prime Ministers of Singapore, Lee Kuan Yew, and of Malaysia, Mahathir bin
Mohamad both claimed in the 1990s that Asian values were significantly different from
Western values and included a sense of loyalty and foregoing personal freedoms for the
sake of social stability and prosperity, and therefore authoritarian government is more
appropriate in Asia than democracy. Lee Kuan Yew argued that:
What Asians value may not necessarily be what Americans or Europeans value. Westerners
value the freedoms and liberties of the individual. As an Asian of Chinese cultural
background, my values are for a government which is honest, effective, and efficient.
—Lee Kuan Yew, 'Democracy, Human Rights and the Realities', Tokyo, Nov 10, 1992
In response, critics have pointed out that cultural relativism could be used as a justification
for authoritarianism. An example is in 1981, when the Iranian representative to the
United Nations, Said Rajaie-Khorassani, articulated the position of his country regarding
the Universal Declaration of Human Rights by saying that the UDHR was "a secular
understanding of the Judeo-Christian tradition", which could not be implemented by
Muslims without trespassing the Islamic law. The Asian Values argument was criticized
by Mahathir's former deputy:
To say that freedom is Western or unAsian is to offend our traditions as well as our
forefathers, who gave their lives in the struggle against tyranny and injustices.
pg. 159
—A. Ibrahim in his keynote speech to the Asian Press Forum title Media and Society in Asia,
December 2, 1994
and by Singapore's opposition leader Chee Soon Juan, who states that it is racist to assert
that Asians do not want human rights.
Defenders of moral universalism argue that relativistic arguments neglect the fact that
modern human rights are new to all cultures, dating back no further than the UDHR in
1948. They argue that the UDHR was drafted by people from many different cultures
and traditions, including a US Roman Catholic, a Chinese Confucian philosopher, a
French zionist and a representative from the Arab League, amongst others, and drew
upon advice from thinkers such as Mahatma Gandhi. Michael Ignatieff has argued that
cultural relativism is almost exclusively an argument used by those who wield power in
cultures which commit human rights abuses, and that those whose human rights are
compromised are the powerless. This reflects the fact that the difficulty in judging
universalism versus relativism lies in who is claiming to represent a particular culture.
Although the argument between universalism and relativism is far from complete, it is an
academic discussion in that all international human rights instruments adhere to the
principle that human rights are universally applicable. The 2005 World Summit
reaffirmed the international community's adherence to this principle:
The universal nature of human rights and freedoms is beyond question.
—2005 World Summit, paragraph 121
International human rights law
International human rights law is the body of international law designed to promote and
protect human rights at the international, regional, and domestic levels. As a form of
international law, international human rights law is primarily made up of treaties,
agreements between states intended to have binding legal effect between the parties
that have agreed to them; and customary international law, rules of law derived from
the consistent conduct of states acting out of the belief that the law required them to act
that way. Other international human rights instruments while not legally binding
contribute to the implementation, understanding and development of international
human rights law and have been recognised as a source of political obligation.
Enforcement of international human rights law can occur on either a domestic, a regional
or an international level. States that ratify human rights treaties commit themselves to
respecting those rights and ensuring that their domestic law is compatible with
international legislation. When domestic law fails to provide a remedy for human rights
abuses, parties may be able to resort to regional or international mechanisms for
enforcing human rights.
The relationship between international human rights law and humanitarian law is disputed
among international law scholars. This discussion forms part of a larger discussion on
fragmentation of international law. While pluralist scholars conceive international
pg. 160
human rights law as being distinct from international humanitarian law, proponents of
the constitutionalist approach regard the latter as a subset of the former. In a nutshell,
those who favors separate, self-contained regimes emphasize the differences in
applicability; international humanitarian law applies only during armed conflict. On the
other hand, a more systemic perspective explains that international humanitarian law
represents a function of international human rights law; it includes general norms that
apply to everyone at all time as well as specialized norms which apply to certain
situations such as armed conflict and military occupation (i.e. IHL) or to certain groups
of people including refugees (e.g. the 1951 Refugee Convention), children (the
Convention on the Rights of the Child), and prisoners of war (the 1949 Geneva
Convention III).
Regional protection and institutions
Regional systems of international human rights law supplement and complement national
and international human rights law by protecting and promoting human rights in
specific areas of the world. There are three key regional human rights instruments
which have established human rights law on a regional basis:
the African Charter on Human and Peoples' Rights for Africa of 1981, in force since 1986;
the American Convention on Human Rights for the Americas of 1969, in force since 1978;
and
the European Convention on Human Rights for Europe of 1950, in force since 1953.
Universal jurisdiction
Universal jurisdiction is a controversial principle in international law, whereby states claim
criminal jurisdiction over persons whose alleged crimes were committed outside the
boundaries of the prosecuting state, regardless of nationality, country of residence or
any other relationship to the prosecuting country. The state backs its claim on the
grounds that the crime committed is considered a crime against all, which any state is
authorised to punish. The concept of universal jurisdiction is therefore closely linked to
the idea that certain international norms are erga omnes, or owed to the entire world
community, as well as the concept of jus cogens.
In 1993, Belgium passed a "law of universal jurisdiction" to give its courts jurisdiction over
crimes against humanity in other countries. In 1998, Augusto Pinochet was arrested in
London following an indictment by Spanish judge Baltasar Garzó n under the universal-
jurisdiction principle.
The principle is supported by Amnesty International and other human rights organisations,
which believe that certain crimes pose a threat to the international community as a
whole, and that the community has a moral duty to act.
Others, like Henry Kissinger, argue that "widespread agreement that human rights
violations and crimes against humanity must be prosecuted has hindered active
pg. 161
consideration of the proper role of international courts. Universal jurisdiction risks

creating universal tyranny—that of judges".244
Human rights obligations, obligation to respect, obligation to protect, obligation to
fulfil
Human rights entail both rights and obligations. States assume obligations and duties
under international law to respect, to protect and to fulfil human rights. The obligation
to respect means that States must refrain from interfering with or curtailing the
enjoyment of human rights. The obligation to protect requires States to protect
individuals and groups against human rights abuses. The obligation to fulfil means that
States must take positive action to facilitate the enjoyment of basic human rights. At the
individual level, while we are entitled our human rights, we should also respect the
human rights of others.
It is this obligatioriness of rights that give rise to the need for a system, institutional, legal,
policy, and programmatic, that ensures the rights are guaranteed, protected and
promoted. This is the sum total of the human rights protection system.
human rights protection system
The human rights protection system provides an avenue for greater collaboration among
institutions involved in the human rights field – governments, national human rights
institutions, local non-governmental organizations, and the country offices of the
international human rights institutions, namely, the UN specialized agencies and
regional specialised agencies, such as African Union.
national human right institutions
National Human Rights Institutions (NHRIs) are created and funded by the state as (semi-)
autonomous position 245 to provide crucial oversight and contribute to the
accountability of state organs. They should be seen as an indispensable element of the
human rights protection regime as they are involved in strengthening all other
elements of the NHRPS and provide crucial oversight of state organs.
Legal System
The judicial system is the judiciary, including the judges, courts, lawyers, prosecutors and
attorneys-general. They are the centres of enforcing the law. If rights are breached, it is
the judiciary to apportion duties and blame.246.
As well as upholding civil and political rights, they play an increasingly important role in
addressing poverty. Other legal institutions – less well known but that similarly
(although more indirectly) contribute to the overall human rights protection– include
notaries, court clerks, paralegals, law faculties and training centres.
244
Kissinger, Henry (July–August 2001). "The Pitfall of Universal Jurisdiction". Foreign Affairs.
245
ICHRP, 2005
246
v UNDP, 2003
pg. 162
Weak legal institutions, or lack of access to these institutions, simply imply that human
rights guarantees that exist on paper are a dead letter. Independent courts and other
legal actors allow a state’s human rights performance to be monitored and enable
individuals to claim their rights. Legal institutions have a key role to play in ensuring
accountability, addressing impunity and ensuring remedies to the victims of human
rights violations247.
As well as upholding civil and political rights, legal institutions play a role in addressing
poverty and corruption in various ways. Justice mechanisms are crucial for overcoming
deprivation, fighting discrimination and protecting property rights, and they increase
participation and empowerment. Access to legal institutions is therefore especially
relevant for the poor and most marginalised in society. A well-functioning legal
profession also contributes to further case law on ESC rights, such as access to food,
health or education. Finally, legal institutions are able to influence and amend
government policies in these fields 248.
Policing Agencies
The policing agencies include the prisons, police, army, and intelligence services. These are
an arm of government, and key to enforcement of the law, by threat of sanctions,
punishments, or physical harm. Unclear dividing lines or overlap between different
security institutions exist in many countries, and the institutional organisation and
respective mandates of the security actors are determined by historic and political
developments249. A professional and accountable security sector is a crucial element of
human rights protection. All security bodies should operate within a legal framework
that guarantees human rights, accountability and that sets standards for the use of
force. Security sector reform is hence vital, both for increased security and protection of
human rights, but also as a precondition for sustainable development.
All security bodies should operate within a legal framework that guarantees accountability
and human rights and that sets standards with regard to the use of force 250. In many
countries the applicable legislative framework is outdated or stems from repressive
regimes that have limited accountability and oversight of security actors.
Local Government Institutions
States possess the prime responsibility for protecting human rights, and accountability
relates to all levels of government. Local governments play a prime role in this duty 251.
In Uganda, whereas the central government is the legally and morally responsible entity
for the protection and promotion of human rights, local governments have several
duties, as centers of service delivery. However, there are wide gaps in many countries
between laws and policies at the central level, including on human rights, and the actual
247
Amnesty International, 1998
248
Ewa Wojkowska, 2006
249
UNDP, 2004
250
United Nations, 2008
251
ICHRP, 2005
pg. 163
practice and implementation thereof at the lower state level . In its service delivery
tasks, local government is responsible for respecting and protecting basic human rights.
Policies on Human Rights
Uganda also has human rights policies and action plans that have human rights
components, as content enhancement, or as part and parcel of the documents, which
guide various agenda. For instance, the gender policies provide extensive for women’s
right to participation in development, health, and education. The youth policies on the
other hand, provides for support of youth to participate in development through
capacity building, and financing of youth ventures.
courts (human rights)
A court is a tribunal, often a governmental institution, with the authority to adjudicate legal
disputes between parties and carry out the administration of justice in civil, criminal,
and administrative matters in accordance with the rule of law. 252 In both common law
and civil law legal systems, courts are the central means for dispute resolution, and it is
generally understood that all persons have an ability to bring their claims before a
court. Similarly, the rights of those accused of a crime include the right to present a
defense before a court. The system of courts that interprets and applies the law is
collectively known as the judiciary. The place where a court sits is known as a venue.
The room where court proceedings occur is known as a courtroom, and the building as
a courthouse; court facilities range from simple and very small facilities in rural
communities to large buildings in cities.
national commissions
The National Human Rights Commissions are statutory, with the powers and functions for
monitoring and promoting human rights protection. The Commissions have
responsibilities under the Racial Discrimination, the Sex Discrimination, the Disability
Discrimination, and the Age Discrimination. The principle of non-discrimination is a
fundamental one in human rights law - all human rights should be enjoyed by everyone
regardless of factors such as race, sex or disability.
ombudsman
An ombudsman or public advocate is usually appointed by the government or by
parliament, but with a significant degree of independence, who is charged with
representing the interests of the public by investigating and addressing complaints of
maladministration or a violation of rights.
civil society organisations (human rights)
Human rights activists and organizations have proliferated all over the world in the past
few decades. They serve as the voice for the oppressed and the underprivileged,
252
Walker, David (1980). The Oxford companion to law. Oxford: Oxford University Press. p. 301. ISBN 0-19-
866110-X.
pg. 164
organizing them, taking collective action on their behalf, and fighting for their rights.
These organizations empathize with the downtrodden and occupy the roles of advocate
and facilitator in their quest for greater empowerment.
charge (public)
A public charge is a person who has been made a ward of the state who requires public
support due to illness or poverty.
negative human rights vis-a-vis positive human rights
Philosophers and political scientists make a distinction between negative and positive
rights (not to be confused with the distinction between negative and positive liberties).
According to this view, positive rights permit or oblige action, whereas negative rights
permit or oblige inaction. These permissions or obligations may be of either a legal or
moral character. Likewise, the notion of positive and negative rights may be applied to
either liberty rights or claim rights, either permitting one to act or refrain from acting,
or obliging others to act or refrain from acting.
To take an example involving two parties in a court of law: Adrian has a negative right to x
against Clay if and only if Clay is prohibited from acting upon Adrian in some way
regarding x. In contrast, Adrian has a positive right to x against Clay if and only if Clay is
obliged to act upon Adrian in some way regarding x. A case in point, if Adrian has a
negative right to life against Clay, then Clay is required to refrain from killing Adrian;
while if Adrian has a positive right to life against Clay, then Clay is required to act as
necessary to preserve the life of Adrian.
Rights considered negative rights may include civil and political rights such as freedom of
speech, private property, freedom from violent crime, freedom of worship, habeas
corpus, a fair trial, freedom from slavery. Rights considered positive rights, as initially
proposed in 1979 by the Czech jurist Karel Vasak, may include other civil and political
rights such as police protection of person and property and the right to counsel, as well
as economic, social and cultural rights such as food, housing, public education,
employment, national security, military, health care, social security, and a minimum
standard of living. In the ‘three generations’ account of human rights, negative rights
are often associated with the first generation of rights, while positive rights are
associated with the second and third generations.
individual rights vis-a-vis group rights
Group rights are rights held by a group rather than by its members separately, or rights
held only by individuals within the specified group; in contrast, individual rights are
rights held by individual people regardless of their group membership or lack thereof.
Group rights have historically been used both to infringe upon and to facilitate
individual rights, and the concept remains controversial. 253 Group rights are not
253
Group Rights, Peter Jones 2005
pg. 165
straightforwardly human rights because they are group-differentiated rather than

universal to all people just by virtue of being human.
three generations of human rights
This categorization, offered by Karel Vasak, is that there are three generations of human
rights: first-generation civil and political rights (right to life and political participation),
second-generation economic, social and cultural rights (right to subsistence) and third-
generation solidarity rights (right to peace, right to clean environment). Out of these
generations, the third generation is the most debated and lacks both legal and political
recognition. This categorisation is at odds with the indivisibility of rights, as it implicitly
states that some rights can exist without others. Prioritisation of rights for pragmatic
reasons is however a widely accepted necessity. Human rights expert Philip Alston
argues:
If every possible human rights element is deemed to be essential or necessary, then
nothing will be treated as though it is truly important.254
He, and others, urge caution with prioritisation of rights:
The call for prioritizing is not to suggest that any obvious violations of rights can be ignored.
—Philip Alston255
Priorities, where necessary, should adhere to core concepts (such as reasonable attempts at
progressive realization) and principles (such as non-discrimination, equality and
participation.
—Olivia Ball, Paul Gready256
Some human rights are said to be ‘inalienable rights’. The term inalienable rights (or
unalienable rights) refers to ‘a set of human rights that are fundamental, are not awarded
by human power, and cannot be surrendered.’
The so-called first generation rights refer to liberty and participation in political life. They
are fundamentally civil and political in nature and serve to protect the individual from
excess of the state. The first generation (human) rights include among others (the
freedom of speech, fair trial, voting, religion and expression.
The second generation human rights are related to equality and began to be recognized by
governments after ) freedom of speech, the right to a fair trial, freedom of voting and
religion. They are fundamentally social, economic and cultural. They include the right to
employment, the right to housing and health care and social security. This generation of
human rights is also, together with the first gen. rights covered covert by the Universal
declaration of Human Rights.
254
Alston 2005, p. 807
255
Id
256
Ball & Gready 2006, p. 42
pg. 166
The third generation Rights are those which who go beyond the mere civil and social as
expressed in many progressive documents of international law. This generation
contains rights like the right to self-determination, the right to economic and social
development, the right to a healthy environment, the right to natural resources, the
right to intergenerational equity and sustainability and of course the right to solidarity.
The term “third generation” is used to describe a category of human rights that are
historically newer rights. Of course this does not necessarily connote any chronological
difference or hierarchy of human rights.
An explanation for the term “third generation rights” or “collective rights” derives from the
political divisions at the time of the Cold War. The so-called “first generation rights”
(civil and political rights) were championed by the west. The “second generation” rights
(economic, social and cultural rights) were promoted by the East. Finally the “third
generation” rights or ‘solidarity rights’ were proposed by the third world developing
countries.
typology of obligations
States are the traditional actors within the international legal system and have the primary
responsibility for implementing human rights. The international human rights
framework makes it clear that governments have responsibilities in relation to the
realisation of human rights. Further, a state’s responsibility to implement human rights
involves more than avoiding conduct that infringes the rights of persons within its
territory. States’ implementation responsibilities have three aspects: to respect, protect
and fulfill human rights.
International human rights law is often described as imposing three levels or types of
obligations: obligations to respect, protect and fulfill. This tripartite typology was
introduced by Henry Shue in his book Basic Rights: Subsistence, Affluence and U.S.
Foreign Policy257 and then developed by Asbjørn Eide, who acted as the UN’s Special
Rapporteur for Food during the early 1980s.
Eide described the obligations as follows:
1. the obligation to ‘respect’ requires states to abstain from violating a right;
2. the obligation to ‘protect’ requires states to prevent third parties from violating that
right; and
3. the obligation to ‘fulfill’ requires the state to take measures to ensure that the right is
enjoyed by those within the state’s jurisdiction.258
These three levels of obligation place distinct obligations on states with respect to each
human right contained in the International Covenant on Civil and Political Rights
(‘ICCPR’)259 and the International Covenant on Economic Social and Cultural Rights
257
Henry Shue, Basic Rights: Subsistence, Affluence and U.S. Foreign Policy (2nd ed, 1996) 52.
258
Asbjørn Eide, UN Special Rapporteur for the Right to Food, The Right to Adequate Food as a Human Right: Final Report
submitted by Asbjørn Eide, UN Doc E/CN.4/Sub.2/1987/23 (1987) –.
259
Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
pg. 167
(‘ICESCR’),260 and arguably to those in other human rights treaties as well. Article 28 of
the ICESCR and art 50 of the ICCPR expressly provide that the obligations of the
Covenants are binding and must extend across all state without any limitations or
exceptions. This means that all branches of government (legislative, executive and
judicial) and other public or governmental authorities, at whatever level — national,
state or local — must act to respect, protect and fulfill human rights. 261
Today a number of UN human rights bodies have incorporated the tripartite typology into
their language. For example, in relation to the right to adequate food, the Committee on
Economic, Social and Cultural Rights (‘CESCR’), has stated that:
‫و‬ The right to adequate food, like any other human right, imposes three types or levels of
obligations on States parties: the obligations to respect to protect and to fulfill. In turn,
the obligation to fulfill incorporates both an obligation to facilitate and an obligation to
provide. The obligation to respect existing access to adequate food requires States parties
not to take any measures that result in preventing such access. The obligation to protect
requires measures by the State to ensure that enterprises or individuals do not deprive
individuals of their access to adequate food. The obligation to fulfill (facilitate) means the
State must pro-actively engage in activities intended to strengthen people’s access to and
utilization of resources and means to ensure their livelihood, including food security.
Finally, where an individual or group is unable, for reasons beyond their control, to enjoy
the right to adequate food by means at their disposal, States have an obligation to fulfill
(provide) that right directly …262
‫و‬ The Human Rights Committee, while not expressly using the language of the tripartite
typology, has also remarked that states parties have more than a mere obligation to
‘respect’ the right to life guaranteed in the ICCPR:263
‫و‬ The Committee considers that States have the supreme duty to prevent wars, acts of
genocide and other acts of mass violence causing arbitrary loss of life. The expression
‘inherent right to life’ cannot properly be understood in a restrictive manner, and the
protection of this right requires that States adopt positive measures. In this connection,
the Committee considers that it would be desirable for States parties to take all possible
measures to reduce infant mortality and to increase life expectancy, especially in adopting
measures to eliminate malnutrition and epidemics.
The tripartite typology is also commonly referred to by legal scholars and non-
governmental organisations.264
260
Opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976).
261
Human Rights Committee, General Comment 31: Nature of the General Legal Obligation Imposed on States Parties to the
Covenant, UN Doc CCPR/C/21/Rev.1/Add13 (2004), . See also art 27 of the Vienna Convention on the Law of Treaties,
opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) (‘ VCLT’), which provides that a state
party ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty’.
262
CESCR, General Comment 12: The Right to Adequate Food, UN Doc E/C.12/1999/5 (1995) (citations omitted) available at
http://www.ohchr.org/english/bodies/cescr/comments.htm.
263
Human Rights Committee, General Comment 6: The right to life, available at
http://www.ohchr.org/english/bodies/hrc/comments.htm.
264
See generally Ida Elisabeth Koch, ‘Dichotomies, Trichotomies or Waves of Duties?’ (2005) 5 Human Rights Law Review 81.
pg. 168
equality as a fundamental human right

International law has also another, not less important, expression of the principle of
equality and non-discrimination, namely as a fundamental human right which is given a
prominent place in a great number of human rights treaties and documents. 265 Among
the best-known examples – apart from Articles 2 and 7 of the Universal Declaration of
Human Rights266 - are Article 26 of the International Covenant on Civil and Political
Rights267 (hereinafter ‘ICCPR’), which provides that ‘all persons are equal before the law
and are entitled without any discrimination to the equal protection of the law’ 268 and, at
the Africa level, Article 14 of the Afrikan Charter of Human and Peoples Rights (ACHPR)
(Banjul Charter)269which requires that ‘the enjoyment of the rights and freedoms set
forth in this Convention shall be secured without discrimination on any ground’. 270
265
M. Chemillier-Gendreau, ‘Principe d’égalité et libertés fondamentales en droit international’, in E. Yakpo and
T. Boumedra (eds.), Liber Amicorum Mohammed Bedjaoui (Deventer, Kluwer Law International 1999), 661,
considers the principle of equality of all humans to be ‘au coeur du droitinternational’ and speaks of it as a ‘une
valeur fondamentale du pacte social universel en cours de construction’.
266
See, on the origins of these provisions and especially the influence of the communist countries on their
drafting, J. Morsink, The Universal Declaration of Human Rights. Origins, Drafting and Intent, (Philadelphia,
University of Penssylvania Press 1999), 93-96. As to their contents, see inter alia Ph. Vegleris, ‘Le principe
d’égalité dans la Déclaration universelle et la Convention européenne des droits de l’homme’, in Miscellanea
W.J. Ganshof van der Meersch (Brussels, Bruylant 1972), I, 565-588.
267
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United
Nations General Assembly on December 16, 1966, and in force from March 23, 1976. It commits its parties to
respect the civil and political rights of individuals, including the right to life, freedom of religion, freedom of
speech, freedom of assembly, electoral rights and rights to due process and a fair trial. As of March 2012, the
Covenant had 74 signatories and 167 parties. UN Treaty Collection: International Covenant on Civil and
Political Rights’. UN. 2012-03-06. Retrieved 2012-03-06.
268
See on this provision inter alia M. Bossuyt, Guide to the ‘travaux préparatoires’ of the International Covenant
on Civil and Political Rights (Dordrecht, Nijhoff 1987), 479-492; C. Tomuschat, ‘Equality and Non-
Discrimination under the International Covenant on Civil and Political Rights’, in I. Von Münch (ed.),
Festschrift für Hans-Jürgen Schlochauer (Berlin, De Gruyter 1981),691-716; see also, on Article 26 in
relationship with Articles 2(1) and 3 and other provisions of theICCPR, B.G. Ramcharan, ‘Equality and
Nondiscrimination’, in L. Henkin (ed.), The International Billof Rights. The Covenant on Civil and Political
Rights (New York, Columbia University Press 1981),246-269.
269
An international human rights instrument that is intended to promote and protect human rights and basic
freedoms in the Afrikan continent adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58
(1982), entered into force Oct. 21, 1986. Available at http://www1.umn.edu/humanrts/instree/z1afchar.htm
retrieved on March 31, 2012
270
See inter alia M. Bossuyt, ‘Article 14’, in L.-E. Pettiti, E. Decaux and P.-H. Imbert (eds.), La Convention
européenne des droits de l’homme. Commentaire article par article (Paris, Economica1999, 2nd ed.), 475-488;
M. Melchior, ‘Le principe de non-discrimination dans la Conventioneuropéenne des droits de l’homme’, in
Egalité et non-discrimination, 3-31. On 4 November 2000, aProtocol No 12 to the European Convention on
Human Rights was signed (European Treaty Series, No177), which proclaims a general prohibition of
discrimination (Article 1). It may be noted that the thirdrecital of the Protocol’s preamble reaffirms ‘that the
principle of non-discrimination does not preventStates Parties from taking measures in order to promote full and
effective equality, provided that thereis an objective and reasonable justification for those measures’. See, with
reference to otherinternational human rights treaty texts in which this principle already appears, the Explanatory
Reportto the Protocol, para. 16.
pg. 169
freedom of association
Freedom of association, not to be confused with free association, is the individual right to
come together with other individuals and collectively express, promote, pursue and
defend common interests. 271 The right to freedom of association has been included in a
number of national constitutions and human rights instruments, including the United
States Bill of Rights, European Convention on Human Rights and the Afrikan Charter on
Human and Poeples Rights (Banjul Charter). Freedom of association in the sense of
workers' right to organize is also recognized in the Universal Declaration of Human
Rights and International Labor Organization Conventions, and the latter also protects
collective bargaining in the conventions on freedom of association. The right to freedom
of association is sometimes used interchangeably with the freedom of assembly. More
specifically the freedom of assembly is understood in a political context, although
depending on the source (constitution, human rights instrument, etc.) the right to
freedom of association may be understood to include the right to freedom of assembly.
academic freedom
The right, without outside interference or censorship, of freedom of teaching, discussions,
research, the expression of academic opinion, and to participate in professional or
representative academic bodies.
freedom of association
Freedom of association is the individual right to come together with other individuals and
collectively express, promote, pursue and defend common interests. 272 The right to
freedom of association has been included in a number of national constitutions and
human rights instruments, including the United States Bill of Rights, European
Convention on Human Rights and the Canadian Charter of Rights and Freedoms.
Freedom of association in the sense of workers' right to organize is also recognized in
the Universal Declaration of Human Rights and International Labor Organization
Conventions, and the latter also protects collective bargaining in the conventions on
freedom of association. The right to freedom of association is sometimes used
interchangeably with the freedom of assembly. More specifically the freedom of
assembly is understood in a political context, although depending on the source
(constitution, human rights instrument, etc.) the right to freedom of association may be
understood to include the right to freedom of assembly.
intimate association
A fundamental element of personal liberty is the right to choose to enter into and maintain
certain intimate human relationships. These intimate human relationships are
271
Aleksandar Pavkovic and Peter Radan, In Pursuit of Sovereignty and Self-determination: Peoples, States and
Secession in the International Order, Index of papers, Macquerie University Law Journal, 1, 2003.
272
Article 19 of the International Covenant on Civil and Political Rights, Office of the United Nations High
Commissioner for Human Rights, adopted and opened for signature, ratification and accession by UN General
Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976
pg. 170
considered forms of ‘intimate association.’ The paradigmatic example of ‘intimate

association’ is the family. Depending on the jurisdiction it may also extend to abortion,
birth control and private, adult, non-commercial and consensual sexual relationships.
expressive association
Expressive associations are groups that engage in activities protected by the First
Amendment—speech, assembly, press, petitioning government for a redress of
grievances, and the free exercise of religion. In Roberts v. United States Jaycees, the
Supreme Court held that associations may not exclude people for reasons unrelated to
the group's expression. However, in the subsequent decisions of Hurley v. Irish-
American Gay, Lesbian, and Bisexual Group of Boston, the Court ruled that a group may
exclude people from membership if their presence would affect the group's ability to
advocate a particular point of view. The government cannot, through the use of anti-
discrimination laws, force groups to include a message that they do not wish to convey.
real risk’ test
The real risk test requires that a complainant prove that the act or words created a real risk
of prejudicing the administration of justice. 273 The main reason for the adoption of the
more liberal real risk test in these jurisdictions is the need to protect the right to
freedom of speech and expression, as the broader test of inherent tendency is seen to
inhibit the right to an unjustifiable degree.274
inherent tendency’ test
Despite the practice in other jurisdictions, in Singapore an ‘inherent tendency’ test has
been held to strike the right balance between the right to freedom of speech and
expression, and the need to protect the dignity and integrity of the courts. To establish
the offence, it is sufficient if the claimant can prove beyond reasonable doubt that the
act or words complained of have an inherent tendency to interfere with the
administration of justice.275 An act or statement has such an inherent tendency if it
conveys to an average reasonable reader or viewer allegations of bias, lack of
impartiality, impropriety or any wrongdoing concerning a judge (and a fortiori, a court)
in the exercise of his judicial function.276 Thus, it is scandalizing the court to allege that it
can be swayed by external pressures and made servile to others. 277
The inherent tendency test does not call for detailed proof of what in many instances will
be unprovable, namely, that public confidence in the administration of justice was really
273
Tan Liang Joo John, p. 1138, para. 12. See also Ahnee, p. 306: ‘There must be a real risk of undermining
public confidence in the administration of justice.’
274
Hertzberg, p. 1125, para. 32.
275
Wain, p. 101, para. 54; Chee Soon Juan, p. 661, para. 31; Hertzberg, pp. 1125–1126, para. 34.
276
Hertzberg, pp. 1124–1125, para. 31.
277
Gallagher v. Durack (1983) 45 A.L.R. 53 at paras. 55–56, High Court (Australia),Attorney-General v.
Zimmerman [85–198] S.L.R.(R.) 476 at 479, para. 9, H.C.;Attorney-General v. Lingle [9] 1 S.L.R.(R.) 199 at
202–203, paras. 3–8, H.C., cite inHertzberg, p. 1128, para. 43.
pg. 171
impaired by the relevant publication. In addition, the test enables the court to step in
before the damage – the impairment of public confidence in the administration of
justice – actually occurs.278
unacceptable risk test
In deciding what is in the best interests of a child, the Court is frequently called upon to
assess and evaluate the likelihood or possibility of events or occurrences which, if they
come about, will have a detrimental impact on the child’s welfare. In devising these
tests the courts have endeavoured, in their efforts to protect the child’s paramount
interests, to achieve a balance between the risk of detriment to the child from abuse and
the possibility of benefit to the child from parental access. To achieve a proper balance,
the test is best expressed by saying that a court will not grant custody or access to a
parent if that custody or access would expose the child to an unacceptable risk of abuse.
The test principles are279:
a) It is [not] necessary to make a positive finding of child abuse and the Court should avoid
doing so except in the most obvious cases.280
b) If such a finding is made, the standard of proof to be apply is that provided in Briginshaw v
Briginshaw281.
c) In resolving the issue as to what form of order is in the best interests of the child, the court
must determine whether on the evidence there is a risk of abuse occuring if custody or
access be granted and assessing the magnitude of that risk.
d) If the risk is assessed to be unacceptable, then custody or access should not be granted.
freedom of expression or freedom of speech
Freedom of speech is the political right to communicate one's opinions and ideas via
speech. The term freedom of expression is sometimes used synonymously, but includes
any act of seeking, receiving and imparting information or ideas, regardless of the
medium used. In practice, the right to freedom of speech is not absolute in any country
and the right is commonly subject to limitations, as with libel, slander, obscenity and
incitement to commit a crime. The right to freedom of expression is recognized as a
human right under Article 19 of the Universal Declaration of Human Rights and
recognized in international human rights law in the International Covenant on Civil and
Political Rights (ICCPR). Article 19 of the ICCPR states that ‘[e]veryone shall have the
right to hold opinions without interference’ and ‘everyone shall have the right to
freedom of expression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or in
278
Hertzberg, p. 1125, para. 33.
279
The Hon Chief Justice Alastair Nicholson, ‘Child sexual abuse - problems in family law’ (1989) 4 Australian
Family Lawyer, 1-5, at p 3.
280
(1938) 60 CLR 336.
281
(1938) 60 CLR 336
pg. 172
print, in the form of art, or through any other media of his choice’. Article 19 goes on to
say that the exercise of these rights carries ‘special duties and responsibilities’ and may
‘therefore be subject to certain restrictions’ when necessary ‘[f]or respect of the rights
or reputation of others’ or ‘[f]or the protection of national security or of public order
(order public), or of public health or morals’.282
freedom of information
Freedom of information is an extension of freedom of speech where the medium of
expression is the Internet. Freedom of information may also refer to the right to privacy
in the context of the Internet and information technology. As with the right to freedom
of expression, the right to privacy is a recognised human right and freedom of
information acts as an extension to this right. 283 Freedom of information may also
concern censorship in an information technology context, i.e. the ability to access Web
content, without censorship or restrictions.284
right to work
The right to work is the concept that people have a human right to work, or engage in
productive employment, and may not be prevented from doing so. The right to work is
enshrined in the Universal Declaration of Human Rights and recognized in international
human rights law through its inclusion in the International Covenant on Economic,
Social and Cultural Rights, where the right to work emphasizes economic, social and
cultural development.
right to self-determination
The right of nations to self-determination, or in short form, the right to self-determination
is the cardinal principle in modern international law principles of international law (jus
cogens), binding, as such, on the United Nations as authoritative interpretation of the
Charter’s norms. 285 It states that nations based on respect for the principle of equal
rights and fair equality of opportunity have the right to freely choose their sovereignty
and international political status with no external compulsion or interference 286.
"National aspirations must be respected; people may now be dominated and governed only
by their own consent. Self determination is not a mere phrase; it is an imperative principle
of action. . . . "
282
Article 19 of the International Covenant on Civil and Political Rights, Office of the United Nations High
Commissioner for Human Rights, adopted and opened for signature, ratification and accession by UN General
Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March 1976.
283
Protecting Free Expression Online with Freenet – Internet Computing, IEEE
284
Pauli, Darren (January 14, 2008). Industry rejects Australian gov't sanitized Internet measure. The Industry
Standard.
285
See: United Nations General Assembly Resolution 1514 in Wikisource states; see also McWhinney, Edward
(2007). Self-Determination of Peoples and Plural-Ethnic States in Contemporary International Law: Failed
States, Nation-Building and the Alternative, Federal Option. Martinus Nijhoff Publishers. p. 8. ISBN
9004158359.
286
See: Chapter I - Purposes and Principles of Charter of the United Nations
pg. 173
—Woodrow Wilson with his famous self-determination speech on 11 February 1918

after he announced his Fourteen Points on 8 January 1918.
By extension the term self-determination has come to mean the free choice of one's own
acts without external compulsion. 287 Karl Marx supported such nationalism, believing it
might be a "prior condition" to social reform and international alliances. 288 In 1914
Vladimir Lenin wrote:
"It would be wrong to interpret the right to self-determination as meaning anything but the
right to existence as a separate state." 289
Thomas Jefferson further promoted the notion that the will of the people was supreme,
especially through authorship of the United States Declaration of Independence which
inspired Europeans throughout the 19th century. 290 John Locke argued that this right
to national and democratic self-determination was an explicit invocation of natural law,
the natural rights of man, as well as the consent of, and sovereignty by, the people
governed. 291
National self-determination appears to challenge the principle of territorial integrity (or
sovereignty) of states as it is the will of the people that makes a state legitimate. This
implies a people should be free to choose their own state and its territorial boundaries.
Pavkovic and Radan describe three theories of international relations relevant to self-
determination.
The realist theory of international relations insists that territorial sovereignty is more
important than national self-determination. This policy was pursued by the major powers
during the Cold War.
Liberal internationalism has become an alternative since that time. It promotes the
abolition of war among states as well as increased individual liberty within states, and
holds the expansion of global markets and cross-border cooperation diminishes the
significance of territorial integrity, allowing for somewhat greater recognition of greater
self-determination of peoples.
Cosmopolitan liberalism calls for political power to shift to a world government which
would make secession and change of boundaries a relatively easy administrative matter.
However, also would mean the de facto end of self-determination of national groups. 292
287
Jackson J. Spielvogel, Western Civilization: Since 1500 , p. 767, Cengage Learning, 2008, ISBN 0-495-
50287-1, ISBN 978-0-495-50287-6.
288
Erica Benner, ‘’Really existing nationalisms: a post-communist view from Marx and Engels’‘, p. 188, Oxford
University Press, 1995 ISBN 0-19-827959-0, ISBN 978-0-19-827959-4
289
"What Is Meant By The Self-Determination of Nations?". Marxists.org. Retrieved 2012-03-04.
290
Betty Miller Unterberger, Self-Determination, Encyclopedia of American Foreign Policy, 2002.
291
See generally Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (Hersch Lauterpacht
Memorial Lectures), Cambridge University Press, 1999. See also Locke, John. Treatise of Government.
292
Lambert, Frank (2003). The founding fathers and the place of religion in America. Princeton University Press.
p. 288. ISBN 978-0-691-08829-7.
pg. 174
free association
Free association (also called free association of producers or, as Marx often called it, a
community of freely associated individuals) is a relationship among individuals where
there is no state, social class or authority and private property of means of production.
Once private property is abolished, individuals are no longer deprived of access to
means of production enabling them to freely associate (without social constraint) to
produce and reproduce their own conditions of existence and fulfill their individual and
creative needs and desires. The term is used by anarchists and Marxists and is often one
considered a defining feature of a fully developed communist society.
The concept of free association, however, becomes more clear around the concept of the
proletariat. The proletarian is someone who has no property nor any means of
production and, therefore, to survive, sells the only thing that he has, his abilities (the
labour power), to those owning the means of production. The existence of individuals
deprived of property, deprived of livelihood, allows owners (or capitalists) to find in the
market an object of consumption that thinks and acts (human abilities), which they use
in order to accumulate increasingly capital in exchange for the wage that maintains the
survival of the proletarians. The relationship between proletarians and owners of the
means of production is thereby a forced association in which the proletarian is only free
to sell his labor power, in order to survive. By selling his productive capacity in
exchange for the wage which ensures survival, the proletarian puts his practical activity
under the will of the buyer (the owner), becoming alienated from his/her own actions
and products, in a relationship of domination and exploitation. Free association would
be the form of society created if private property was abolished in order to allow
individuals to freely dispose of the means of production, which would bring about an
end to class society, i.e. there would be no more owners neither proletarians, nor state,
but only freely associated individuals.
The abolition of private property by a free association of producers is the original goal of
the communists and anarchists: it is identified with anarchy and Communism itself.
However, the evolution of various trends have led some to virtually abandon the goal or
to put it in the background in face of other tasks, while others trends consider free
association as something that should guide the all practical activity of the contestation
of the status quo.
self determination
Other categories of wars of national liberation based on the principle of self-determination
could also be considered to be covered by this provision. 293 The UN Charter and the
Declaration on Friendly Relations are very clear upon the right to self-determination,
granting it to all people equally and in every respect. This means that wars of national
liberation or in other words struggles for self-determination cannot be limited to the
cases listed in Article 1 (4). However, at the same time, and in order to limit the use of
force, ICRC comments on this provision, arguing that it should be regarded as an
293
Ibid. See CDDH /I/ SR. 22 (14)
pg. 175
exhaustive and complete list of the situations in which a people, in order to exercise its
right of self-determination, must resort to the use of force against another people, or a
racist regime.294
right to development
The freedoms and entitlements of the populace in the process of development are captured
clearly in the 1986 Seoul Declaration on the Right to Development, 295 which stated
unequivocally that the right to development is a human right; and the Second UN World
Conference on Human Rights in Vienna, 1993. It is also important to note that the
concept of human development as a human right is supported by “social contract”
philosophical pronouncements of natural rights theorists, Hobbes 296; Locke297 and
Rousseau298, but were best exemplified by Locke’s claim during the English Revolution
of 1688 that ‘…certain rights like the right to life, liberty, and property belonged to
individuals as human beings because they existed in the state of nature before human
beings entered civil society.’
Professor Dudley Seers 299 argues that development is about outcomes, that is, development
occurs with the reduction and elimination of poverty, inequality, and unemployment
within a growing economy. As per the doctrine of participation, development is both a
process and a result, hence outcome.
right to participation in development
Participation is a human rights principle, and as such, it is not a gift or privilege bestowed
by government.300 In other words, it is a right for all citizens – especially the most
marginalized and vulnerable in society. “there is nothing more basic to the development
process than participation,”301 “Effective participation” is that which helps ensure
efficiency and economic growth on the one hand, and equity and social justice on the
other.302
294
Sandoz, Swinarski & Zimmerman 1987, pp. 54-55
295
The Declaration on the Right to Development was adopted by the United Nations General Assembly,
resolution 4/128 on December 4, 1986 (http://www.unhchr.ch/html/menu3/b/74.htm). The Universal
Declaration of Human Rights was adopted by UN General Assembly Resolution 217 (A) II on December 10,
1948.
296
Hobbes, Thomas. Leviathan: Or the Matter, Forme, and Power of a Common-Wealth Ecclesiasticall and Civill, ed. by Ian
Shapiro (Yale University Press; 2010).
297
John Locke, (1664) Questions Concerning the Law of Nature, edited. Ithaca: Cornell University Press, 1990.
298
Rousseau (1712-1778), 'The Social Contract' and Other Later Political Writings, trans. Victor Gourevitch.
Cambridge: Cambridge University Press, 1997.
299
Dudley Seers, (1971) Development in a Devided World” Oxford Univeristy Press
300
See UDHR, Art 1.
301
J. Brian Atwood, U.S. Agency for Int’l Dev., Statement of Principles on Participatory Development (1993),
http://pdf.usaid.gov/pdf_docs/PNACF577.pdf.
302
id
pg. 176
Article 12 of the UN Convention on the Rights of the Child 303 lays down the principle and
purpose of meaningful participation of children and young people, and Article 7 of
CEDAW on women’s rights.
The Millennium Declaration304 in Article 25 reaffirms the commitment to work collectively
for more inclusive political processes, allowing genuine participation by all citizens
(and in this case, children and young people included) in all countries.
The World Fit for Children in para 32 (i) adopted at the UN General Assembly Special
Session on Children made a strong commitment towards increasing participation of
children.
As noted above, participation is a non-negotiable right. Citizens whose rights are not
realized have claims (as “claim-holders”) against those whose responsibility it is to act
on it (as duty-bearers”) – viz, communities, civil society organizations, governments,
etc.
A human rights approach to participation implies five key roles for citizens:
a) identifying unfulfilled rights and acting on them
b) claiming of rights
c) identifying capacity gaps in rights not realized and duties not performed
d) participating in the implementation of solutions
e) involving in monitoring, evaluating and reporting
Participation is also important for guaranteeing developmental programmes – a principle
that has been adopted as a “common understanding” within the UN system.
Participation is fundamental to human-rights based approach to programming and it is laid
down as one of the five basic elements of the Human Rights Based Approach, HRBA
(others include: express linkage to rights, accountability, equality and non-
discrimination, and empowerment).
In the Common Understanding Document305 it is stated that “development cooperation
contributes to the development of the capacities of 'duty bearers’ to meet their obligations
and/or of ‘right holders’ to claim their rights”.
Capacities for human rights promotion and protection can be only acquired by rights-
holders through the process of their active participation in all parts of development
programming. Participation is central to the developmental approach as the
development is “a process of expanding the real freedoms that people enjoy”. The goal
of development is to be free and be able to choose and live the sort of life one wants to
303
Adopted and opened for signature, ratification and accession by General Assembly resolution 44/25 of 20
November 1989
304
UNGA R 55/2
305
Developed at the Inter-Agency Workshop on a human rights-based approach in the context of UN reform, 3 to
5 May 2003
pg. 177
live. A community can be considered developed to the extent that it ensures that its
entire people are in a position to participate and shape a life of dignity.
Participation is also important for personal development. It is only through participation
that humans develop self-confidence and skills, build competencies, form aspirations,
gain confidence and attain valuable resources. Learning - through experience – to make
informed decisions, to develop stable relationships and to take on the responsibilities of
democratic citizenship, is an important component of participation.
Participation is an essential component of successful and lasting development. Therefore,
the right to development is fulfilled through popular participation as echoed in the
Arusha Declaration:
In our view, popular participation is both a means and an end. As an instrument of
development, popular participation provides the driving force for collective commitment
for the determination of people-based development processes and willingness by the
people to undertake sacrifices and expand their social energies for its execution. As an end
in itself, popular participation is the fundamental right of the people to fully participate
effectively in the determination of the decision which affect their lives at all levels and at
all times.306
The Organization of Afrikan Unity (O.A.U) is determined to promote and protect human
and peoples’ rights especially the right of people to freely participate, by its affirmation
in the Afrikan Charter on Human and Peoples’ Rights that: “Every citizen has the right to
participate freely in the government of his or her country, either directly or through freely
chosen representatives in accordance with the provision of the law (Article 13.1).”
Further, the role of public participation in economic and human development was
enshrined in the 1990 Afrikan Charter for Popular Participation in Development and
Transformation. 307 This is a landmark document in promoting right to participatory
development.
Here every Afrikan country is supposed to enact relevant laws in this respect. Member
states of the O. A. U are bound to affirm the right to development and encourage the
right to participation in their different countries. Popular participation, however,
depends on the nature of the state and the ability of government to respond to popular
demands. This is possible where the government allows the people freedom in decision
making.
development as a human right
The conception of right is of fundamental import in law because of the enforceability of
particular rights. Human rights are classified into three categories as per the trio-
306
http://www.crvp.org/book/Series02/II-8/chapter_ix.htm#_edn
307
Adopted in February 1990 at the "International Conference on Popular Participation in the Recovery and Development
Process in Africa", Arusha, Tanzania, and available at http://apic.igc.org/afrikan-initiatives/chartall.htm accessed on June 11,
2011
pg. 178
classification of rights by Vasak.308 The first generation rights relate to the civil and
political rights, guaranteed by the ICCPR; the second generations of rights relate to the
social, economic and cultural rights, guaranteed by the ICESCR; and the third category
of rights involves the collective rights and includes inter alia the right to development
and the right to a healthy living and environment.
The modern poverty reduction and development programmes often have dignity as a
central theme. Dignity is also a central theme of the Universal Declaration of Human
Rights, the very first article of which states that:
"All human beings are born free and equal in dignity and rights.” 309
The concept of dignity in development has been extensively explored by many, and related
to all of the development sectors. For example, in Development with Dignity310 Amit
Bhaduri argues that full employment with dignity for all is both important and possible
in India, while the UN Millennium Project's task force on Water and Sanitation links the
sector directly to dignity in the report Health, Dignity and Development: What will it
take?311.
The Asian Human Rights Commission released a statement claiming that "Human dignity is
the true measure of human development."312
The UN Charter states in its preamble that:
“...mankind thirsts for peace and development and it is in the interests of mankind that
international law directs the actions of states by imposing on them the duty to
cooperate...”
The Universal Declaration reflected the immediate post-war consensus about human rights
based on what President Roosevelt described as four freedoms—including the freedom
from want—which he wanted to be incorporated in an International Bill of Rights.
There was no ambiguity at that time about political and economic rights being
interrelated and interdependent components of human rights, and no disagreement
that “true individual freedom cannot exist without economic security and
independence.”313
Mrs. Eleanor Roosevelt, who was the head of the U.S. delegation during the drafting of the
Universal Declaration, first identified and advocated for the right to development when
308
Vasak Karel, a 30 years struggle, UNESCO Corner (1977) p. 96
309
Article 1 UDHR
310
Amit Bhaduri, (2005) Development with Dignity HB, Print Price: 200.00. Author: ISBN: 81-237-4597-4.
Publication: 30-11-2005
311
Goal 1 of the United Nation Millennium Development Goals
312
Communiqué issue on on July 27, 2006
313
State of the Union Message to Congress by President Roosevelt, January 11, 1944.
pg. 179
she stated, “[W]e are writing a bill of rights for the world, and . . . one of the most
important rights is the opportunity for development.”314
The 1986 Seoul Declaration on the Right to Development, 315 which stated unequivocally
that the right to development is a human right. This declaration sees development as a
constant economic, political and social process which aims to constantly improve the
wellbeing of the entire population of individuals by their active participation in the
developmental process and in the distribution of the benefits therefrom. The first
article of the text of the Declaration on the Right to Development succinctly puts
forward the concept of the right to development. It states:
“The right to development is an inalienable human right by virtue of which every human
person and all peoples are entitled to participate in and contribute to and enjoy economic,
social, cultural, and political development in which all human rights and fundamental
freedoms can be fully realized.”
The right to development is a hence human right, by virtue of which “every human person
and all peoples are entitled to participate in, contribute to and enjoy” that processes of
development. Further, the legal justification of the right to development is found in
article 2(2) of the UN Charter which affirms that:
“...all human beings have a responsibility for development, individually and collectively taking
into a count...their duty to their community...”
Also, Article 1 of the UNGA Resolution 41/128 of 1986 reaffirms that right in clear and
categorized terms stating that:
“...the right to development is an inalienable right by virtue of which every human being and
all persons are entitled to participate in and enjoy social, economic and political
development...”
The process of development, “in which all human rights and fundamental freedoms can be
fully realized,” would lead to, according to Article 2(3) “the constant improvement of
the well-being of the entire population and of all individuals, on the basis of their active
free and meaningful participation in development and in the fair distribution of benefits
resulting therefrom [emphasis added].” Article 8 elaborates this point further by stating
that the measures for realizing the right to development shall ensure “equality of
opportunity for all” in their access to basic resources, education, health services, food,
housing, employment and in the fair distribution of income.
314
M. Glen Johnson, “The Contributions of Eleanor and Franklin Roosevelt to the Development of International
Protection for Human Rights,” Human Rights Quarterly 9.1 (1987): 19–48.
315
The Declaration on the Right to Development was adopted by the United Nations General Assembly,
resolution 4/128 on December 4, 1986 (http://www.unhchr.ch/html/menu3/b/74.htm). The Universal
Declaration of Human Rights was adopted by UN General Assembly Resolution 217 (A) II on December 10,
1948.
pg. 180
The realization of the right would also require that “appropriate economic and social
reforms should be carried out with a view to eradicating all social injustices.”
The primary responsibility for the creation of national and international conditions
favorable to the realization of the right to development” is of the states, as Article 3
categorically suggests. This responsibility is complementary to the individual’s
responsibility as mentioned above, and is only for the creation of conditions for
realizing the right and not for actually realizing the right itself. Only the individuals
themselves can realize the right.
In regards to the obligation of the states operating at the international level, the
Declaration emphasizes the crucial importance of international cooperation. First, the
states have a duty “to cooperate with each other in ensuring development and
diminishing obstacles to development . . . and fulfill these duties in such a manner as to
promote a new international economic order based on sovereign equality,
interdependence, [and] mutual interest . . .” (Article 3, Clause 3). This has been further
reiterated in Article 6, which states that “all states should cooperate with a view to
promoting, encouraging and strengthening universal respect for and observance of all
human rights and fundamental freedoms.”
The Declaration on the Right to Development 316 consists of the following four main
propositions:
i. The right to development is a human right;
ii. The human right to development is a right to a particular process of development in which
all human rights and fundamental freedoms can be fully realized—which means that it
combines all the rights enshrined in both the covenants and each of the rights has to be
exercised with freedom;
iii. The meaning of exercising these rights consistently with freedom implies free, effective,
and full participation of all the individuals concerned in the decision making and the
implementation of the process. Therefore, the process must be transparent and
accountable, individuals must have equal opportunity of access to the resources for
development and receive fair distribution of the benefits of development (and income);
and
iv. Finally, the right confers unequivocal obligation on duty-holders: individuals in the
community, states at the national level, and states at the international level. National
states have the responsibility to help realize the process of development through
appropriate development policies. Other states and international agencies have the
obligation to cooperate with the national states to facilitate the realization of the process
of development.
The International Covenant on Economic, Social and Cultural Rights (ICESCR)317, in article 1
recognizes the right of all peoples to self-determination, including the right to "freely
316
Id
317
Adopted by the United Nations General Assembly on December 16, 1966, and in force from January 3, 1976.
pg. 181
determine their political status"318, right participate effectively in society (Articles 13

and 14); and right to participation in cultural life (Article 15)
The Universal Declaration of Human Rights, 319UDHR guarantees the right to participate in
cultural life and to enjoy the benefits of social progress in article 27. Article 21 outlines
the right to participate in government and in free elections.
Participation, and particularly and explicitly participation of the poorest and most
vulnerable participants is a human right and an inherent and indivisible component of
pro-poor development strategies and empowerment. Long (1999) argues that
participation in development leads to the involvement of the primary stakeholders in
the development process. Such involvement, the author posits, enhances ownership,
and sustainability of the development programs.
The 'UN System Network on Rural Development and Food Security' 320 describes participation
as one of the ends as well as one of the means of development. Participation is hence
useful in all the stages of development program, right from conceptualization, planning,
implementation, monitoring and evaluation.
Article 1 of the Convention on Access to Information, Public Participation in Decision-Making
and Access to Justice in Environmental Matters 321 states that,
“In order to contribute to the protection of the right of every person of present and future
generations to live in an environment adequate to his or her health and well-being, each
Party shall guarantee the rights of access to information, public participation in decision-
making, and access to justice in environmental matters in accordance with the provisions
of this Convention.”
Further, Article 3 of the same convention provides that,
“Such participation shall lead to mobilization of the community and their transformation into
prefects of their development."
In Africa, the Afrikan countries have made major strides in democratizing governance since
the 1990 Arusha Conference, which produced the Afrikan Charter for Popular
Participation in Development and Transformation 322. The Arusha document was a
milestone as it identified the lack of popular participation in development as central to
the dismal state of Afrikan economies and cause of political instability and social
calamity. Popular participation is both a means and an end. Popular participation is
recognized in the document as a fundamental right of the people to fully and effectively
participate in the determination of the decisions which affect their lives at all levels and
at all times.
318
ICESCR, Article 1.2
319
Adopted in 1948
320
Available at www.rdfs.net/ accessed on June 14th 2011
321
Adopted At Aarhus, Denmark, on 25 June 1998
322
adopted in February 1990 at the "International Conference on Popular Participation in the Recovery and Development Process
in Africa", Arusha, Tanzania
pg. 182
Further, Afrikan [Banjul] Charter on Human and Peoples' Rights 323 ACHPR in article 13(1)
provides that every citizen shall have the right to participate freely in the government
of his country, either directly or through freely chosen representatives in accordance
with the provisions of the law.
A critical analysis of the above international human rights documents exposes 5 (five) core
principles for effective citizens’ participation, namely, mass literacy; democratization;
freedom of association, political accountability of leadership; and decentralization of
decision-making processes and institutions.
human rights approach to development
If development depends upon policy and not just in the spontaneous play of market forces,
then any approach that facilitates, if not ensures, more than another the formulation,
adoption, and implementation of appropriate policies to realize the objectives of
development would be regarded as superior. When development is seen as a human
right, it obligates the authorities, both nationally and internationally, to fulfill their
duties in delivering (or, in human rights language, promoting, securing, and protecting)
that right in a country. The adoption of appropriate policies follows from that
obligation.
The fundamental problem with according the right to participatory development status as
a customary international law, however, is that there are too many unknowns with
respect to what constitutes this purported right. 324 Further, there is no generally agreed
upon definition of the right. 325 Arjun Sengupta goes so far as to state that “the right to
development . . . involves the realization of all the civil, political, economic, social, and
cultural rights.”326 The ICESCR speaks of signatories taking affirmative steps to realize
economic, social, and cultural rights, but does not further break down the content of
these steps.327 The 1986 Declaration similarly contains a discussion of participatory
development which is “internally contradictory, duplicative of other already clearly
codified rights, and devoid of identifiable parties bearing clear obligations.”
As Arjun Sengupta, one of the foremost proponents of the right to development,
acknowledges, “the primary responsibility for implementing the right to development
will belong to states.” 328 There is little evidence to indicate, though, that states accept
participatory development as obligatory as a matter of international law.
born alive rule
The "born alive" rule is a common law legal principle that holds that various criminal laws,
such as homicide and assault, apply only to a child that is "born alive". Some courts have
323
Adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21,
1986
324
Id. at 1.
325
See generally Michael M. Cernea ed., 1985 Putting People First: Sociological Variables In Rural Development.
326
Sengupta, supra note 46, at 857
327
See ICESCR, supra note 48, arts. 2, 3.
328
Sengupta, supra note 46, at 855.
pg. 183
overturned this rule, citing recent advances in science and medicine; and in several
states, feticide statutes have been explicitly framed or amended to include fetuses in
utero. Abortion, that is, “the deliberate termination of a human pregnancy” is still
governed by the born alive rule, as courts continue to hold to its foundational principles
in various judisdictions. In 1996 the Law Lords confirmed the rule applied in English
law but that alternative charges existed in lieu, such as a charge of unlawful or negligent
manslaughter instead of murder.329 The born alive rule was originally a principle at
common law in England that was carried to the United States and other former colonies
of the British Empire. First formulated by William Staunford, it was later set down by
Edward Coke in his Institutes of the Laws of England. Coke says:
"If a woman be quick with childe, and by a potion or otherwise killeth it in her wombe, or if a
man beat her, whereby the child dyeth in her body, and she is delivered of a dead childe,
this is great misprision, and no murder; but if he childe be born alive and dyeth of the
potion, battery, or other cause, this is murder; for in law it is accounted a reasonable
creature, in rerum natura, when it is born alive. 330
equality and self-determination of peoples
The content of this principle, first disclosed in the Declaration of 1970: ‘Creating an
independent state, free association with an independent state or unification with him, or
any other political status freely determined by a people constitute modes of implementing
these people’s right to self-determination.’ Initially, this principle was conceived in close
connection with the broader processes of decolonization in the second half of this
Century. Thus, this principle should be understood as a very subtle relationship
demands self-determination and integrity that is achieved only in a stable society.
However, as the imperative are two requirements for the already established states:
1) State has the duty to refrain from any forcible action which deprives peoples of their right
to self-determination;
2) State has the duty to refrain from any action aimed at the partial or total disruption of
territorial integrity and unity of any state.
full belly thesis
It conforms to the rationale that, ‘"Principles have no real force except when one is well-fed."
Which has been stated by the Chinese that, ‘do not teach a man morals until you fill his
empty stomach, and clothe his bare back.’
universality and inalienability:
Human rights are universal and inalienable. All people everywhere in the world are entitled
to them. The universality of human rights is encompassed in the words of Article 1 of
329
Attorney General's Reference No 3 of 1994 Attorney General's Reference No 3 of 1994 [9] UKHL 31, [9] 1 Cr App Rep 91, [9]
3 All ER 936, [9] 3 WLR 421, [9] Crim LR 829, [9] AC 245 (24 July 1997), House of Lords
330
Cited in “The New “Fetal Protection”: The Wrong Answer to the Crisis of Inadequate Health Care for Women and Children”,
Linda Fentiman, 2006, note 119.
pg. 184
the Universal Declaration of Human Rights: ‘All human beings are born free and equal in
dignity and rights.’
Indivisibility:
Human rights are indivisible. Whether they relate to civil, cultural, economic, political or
social issues, human rights are inherent to the dignity of every human person.
Consequently, all human rights have equal status, and cannot be positioned in a
hierarchical order. Denial of one right invariably impedes enjoyment of other rights.
Thus, the right of everyone to an adequate standard of living cannot be compromised at
the expense of other rights, such as the right to health or the right to education.
Interdependence and Interrelatedness:
Human rights are interdependent and interrelated. Each one contributes to the realization
of a person’s human dignity through the satisfaction of his or her developmental,
physical, psychological and spiritual needs. The fulfilment of one right often depends,
wholly or in part, upon the fulfilment of others. For instance, fulfilment of the right to
health may depend, in certain circumstances, on fulfilment of the right to development,
to education or to information.
Equality and Non-discrimination:
All individuals are equal as human beings and by virtue of the inherent dignity of each
human person. No one, therefore, should suffer discrimination on the basis of race,
colour, ethnicity, gender, age, language, sexual orientation, religion, political or other
opinion, national, social or geographical origin, disability, property, birth or other status
as established by human rights standards.
non-discrimination (human rights)
All human rights instruments prohibit any discrimination—distinction, exclusion,
restriction or preference—in the provision, protection and promotion of rights. In other
words, everyone has the human rights in these treaties, irrespective of their race, sex,
religion, national origin or any other trait. The Race Convention wholly prohibits
discrimination based on race, national origin or ethnicity and outlines steps that
governments must take to end it. The Women’s Convention likewise calls for an end to
discrimination, based on sex, and outlines specific areas of life in which women must be
treated equally in order to eliminate discrimination;
principle of participation and inclusion
All people have the right to participate in and access information relating to the decision-
making processes that affect their lives and well-being. Rights-based approaches
require a high degree of participation by communities, civil society, minorities, women,
young people, indigenous peoples and other identified groups.
pg. 185
principle of accountability and rule of law

States and other duty-bearers are answerable for the observance of human rights. In this
regard, they have to comply with the legal norms and standards enshrined in
international human rights instruments. Where they fail to do so, aggrieved rights-
holders are entitled to institute proceedings for appropriate redress before a competent
court or other adjudicator in accordance with the rules and procedures provided by
law. Individuals, the media, civil society and the international community play
important roles in holding governments accountable for their obligation to uphold
human rights.
state’s duty to protect human rights
It is settled that human rights generate three levels of duty for the state: to respect, protect
and fulfil human rights.331 The relevant duty for our purposes is the duty to protect. This
duty enjoins the state to take positive action to protect citizens and other people within
its jurisdiction from violations that may be perpetrated by private actors or other
states.
A survey of international and regional human rights instruments, declarations and
resolutions assists in defining the nature and scope of this duty. Article 2 of
the International Covenant on Civil and Political Rights 332 enjoins States Parties ‘to
respect and to ensure to all individuals within its territory and subject to its jurisdiction
the rights recognized in the Covenant’. The duty to ‘ensure’ suggests that states have the
obligation to take positive steps to guarantee the enjoyment of human rights. The
provisions of the ICCPR suggest that this duty has two limbs.
1. The first is the duty to take preventive measures against occurrences of violations of
human rights by private actors.
2. The second is the duty to take remedial measures once the violations have occurred. 333
The Human Rights Committee (‘HRC’), which monitors compliance by states with this
instrument, has acknowledged in its General Comment 6 that ‘states have the supreme
duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary
loss of life’.334 It has also stated that the state ‘should take measures not only to prevent
and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by
331
Asbjørn Eide, ‘Economic, Social and Cultural Rights as Human Rights’ in Asbjørn Eide, Catarina Krause and
Allan Rosas (eds), Economic, Social and Cultural Rights: A Textbook (2nd revised ed, 2001) 9, 23; Paul
Hunt, Reclaiming Social Rights (1996) 31–4.
332
Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).
333
See especially ibid art 2(2), which provides that States Parties undertake to adopt laws and other measures
necessary to give effect to the rights recognised by the ICCPR, and art 2(3), which provides that the States
Parties must ensure that persons whose rights have been violated have access to an effective remedy, that access
to the effective remedy is determined by competent authorities, and that such remedies are enforced when
granted.
334
Human Rights Committee, General Comment 6, as contained in Report of the Human Rights Committee, UN
GAOR, 37th sess, Annex V, , UN Doc A/37/40 (1982).
pg. 186
their own security forces’.335 According to the HRC, states should also take ‘specific and
effective measures to prevent the disappearance of individuals’. 336 With regard to the
right to privacy, the HRC has stated that this right ‘is required to be guaranteed against
all such interferences and attacks whether they emanate from State authorities or from
natural or legal persons’.337
The duty to prevent is also applicable to economic, social and cultural rights. The
Committee on Economic, Social and Cultural Rights (‘CESCR’), which monitors the
implementation of the International Covenant on Economic, Social and Cultural
Rights,338 has stated that ICESCR imposes an obligation on States Parties to prevent
violations of these rights by private actors. In relation to the right to water, for example,
CESCR has stated that the state has an obligation to prevent third parties from
‘compromising equal, affordable, and physical access to sufficient, safe and acceptable
water’.339 The Maastricht Guidelines on Violations of Economic, Social and Cultural
Rights contain a similar interpretation of the obligations of states. 340
A further obligation implicit in the duty to protect is the obligation to control and regulate
private actors. The HRC has stated, for example, that states have the duty to provide a
legislative framework prohibiting acts constituting arbitrary and unlawful interference
with privacy, family, home or correspondence by natural and legal persons. 341 With
respect to the right to privacy, this duty could be fulfilled by regulating ‘the gathering
and holding of personal information on computers, data banks and other devices, whether
by public authorities or private individuals or bodies’.342 Similar statements have been
made in respect of the right to freedom of expression. 343 In the event of the violations
occurring, the state has the duty to react to them. The HRC has stated in connection
with the right to life that the state should ‘establish effective facilities and procedures to
investigate thoroughly cases of missing and disappeared persons’. 344
335
Ibid .
336
Ibid .
337
GAOR, 43rd sess, Annex VI, , UN Doc A/43/40 (1988).
338
Opened for signature 16 December 1966, 999 UNTS 3 (entered into force 3 January 1976) (‘ICESCR’).
339
CESCR, Substantive Issues Arising in the Implementation of the International Covenant on Economic, Social
and Cultural Rights: General Comment 15: The Right to Water, UN ESCOR, 29th sess, Agenda Item 3, ,
UN Doc E/C.12/2002/11 (2002).
340
Adopted at Maastricht, 22–26 January 1997, (‘Maastricht Guidelines’). Although not legally binding,
the Maastricht Guidelines have served as persuasive aids in the interpretation of economic, social and cultural
rights.
341
Human Rights Committee, General Comment 16, above n 69, .
342
Ibid .
343
GAOR, 38th sess, Annex VI, –, UN Doc A/38/40 (1983).
344
Human Rights Committee, General Comment 6, above n 66, .
pg. 187
The Afrikan Commission on Human and Peoples’ Rights (‘Afrikan Commission’)

in Commission Nationale des Droits de l’Homme et des Libertés v Chad 345 interpreted the
duty to protect thus:
‘Even where it cannot be proved that violations were committed by government agents, the
government had a responsibility to secure the safety and the liberty of its citizens, and to
conduct investigations into murders.’346
due diligence test
The state’s obligation to protect the human rights of all individuals within its jurisdiction
and under its authority is very broad. This raises the issue of whether a state is
responsible for every violation of human rights that occurs in the private sphere. In the
landmark case Velásquez Rodríguez v Honduras,347 the Inter-American Court of Human
Rights (‘IACHR’) held that a state can be held responsible for violations occurring in the
private sphere only where it can be shown that it failed to exercise ‘due diligence’ to
prevent and respond to the violations. In this case, it was found as a fact that the
Government of Honduras had a policy of carrying out or tolerating disappearances of
certain persons between 1981 and 1984. 348 More than 100 persons had been
disappeared under similar circumstances during this period. 349 Although a procedure
for challenging detentions was available, it was shown that it was ineffective in the case
of the disappearances because the detentions took place clandestinely. 350 The issue
before the Court, therefore, was whether the Honduran Government could be held
responsible for the disappearances. In finding the Government liable, the Court stated
that a human rights violation which is initially not directly imputable to a state can lead
to international responsibility of the state ‘not because of the act itself, but because of the
lack of due diligence to prevent the violation or to respond to it’.351 The Court held
expressly that ‘the existence of a particular violation does not, in itself, prove the failure
to take preventive measures’.352 However, the state must take reasonable steps to
prevent human rights violations and to use the means at its disposal to carry out
a serious investigation of violations committed within its jurisdiction, to identify those
responsible, to impose the appropriate punishment and to ensure the victim adequate
345
Afrikan Commission, Communication No 74/92 (1995). In this case, the Afrikan Commission was faced with
allegations against Chad of harassment of journalists by unidentified individuals; and killings, disappearances
and torture during the civil war between security services and other groups. The Afrikan Commission found
Chad to be in violation of the Afrikan Charter for, among other things, failing to provide security and stability
in the country.
346
Ibid .
347
[8] Inter-Am Court HR (ser C) No 4.
348
Ibid .
349
Ibid.
350
Ibid –.
351
Ibid (emphasis added).
352
Ibid .
pg. 188
compensation.353 According to the Court, the duty to prevent includes all those means of
a legal, political, administrative and cultural nature that promote the protection of
human rights and ensure that any violations are considered and treated as illegal acts,
which, as such, may lead to the punishment of those responsible and the obligation to
indemnify the victims for damages.354
On the basis of this case, due diligence relates to the question of whether the steps taken by
the state are ‘reasonable’ and or ‘serious’. Thus, where the state takes reasonable
measures to prevent and react to violations of human rights in private relations, the
state will not be held responsible even when the outcome of those efforts is
unsatisfactory. In this case, however, the Court held that the procedures in Honduras,
although theoretically adequate, were ineffective to carry out the necessary
investigations, punish the perpetrators of the violations and provide remedies to the
victims and their families.355
Other international and regional human rights monitoring bodies have since adopted the
due diligence benchmark. The Afrikan Commission, for example, applied this test in the
precedent-setting decision, Social and Economic Rights Action Centre and the Centre for
Economic and Social Rights v Nigeria.356 The plaintiffs complained, among other things,
that the state-owned Nigerian National Petroleum Company and Shell Petroleum
Development Corporation had been depositing toxic wastes into the local environment
and waterways in Ogoniland in Nigeria without putting in place necessary facilities to
prevent the wastes from spilling into villages. 357 As a result, water and soil
contamination brought about serious short-term and long-term health problems such
as skin infections, gastrointestinal and reproductive complications. 358 Further
allegations were made in relation to repressive measures such as the destruction of
food sources, homes and villages by the military, aimed at quelling opposition to the oil
companies’ activities.359 The Ogoni communities were neither consulted in the decisions
that affected the development of their land nor did they benefit materially from the oil
exploration.360 The Afrikan Commission found the Nigerian Government to have
violated the local people’s rights to freely dispose of wealth and natural resources,
rights to health, a satisfactory environment, shelter and housing, food, and life, in
respect of its own acts and omissions and those of the oil companies. It found that the
Government had breached its duty to protect the people from damaging acts of the oil
companies by failing to control and regulate the activities of these companies and
allowing them to deny or violate these rights with impunity. According to the Afrikan
353
Ibid (emphasis added).
354
Ibid .
355
Ibid .
356
Afrikan Commission, Communication No 155/96 (2001) (‘SERAC Case’).
357
Ibid –.
358
Ibid .
359
Ibid , .
360
Ibid .
pg. 189
Commission, governments have a duty to protect their citizens, not only through
appropriate legislation and effective enforcement but also by protecting them from
damaging acts that may be perpetrated by private parties.
The European Court of Human Rights (‘ECHR’) has implicitly adopted this test. 361 This is
apparent in the case of Osman v United Kingdom.362 Here, the applicants argued that the
respondent state had breached art 2 of the European Convention by failing to protect the
right to life of Ali and Ahmet Osman, who were subjected to an armed attack by Paget-
Lewis, a private individual. The Court held that art 2(1) of the European
Convention ‘enjoins the State not only to refrain from the intentional and unlawful
taking of life, but also to take appropriate steps to safeguard the lives of those within its
jurisdiction’.363 Thus, the state may be compelled ‘to take preventive operational
measures to protect an individual whose life is at risk from the criminal acts of another
individual’.364 Like the IACHR, the ECHR conceded that not every claimed risk to life
could entail for the authorities an obligation to take operational measures to prevent
that risk from materialising. Due consideration had to be given to ‘the difficulties
involved in policing modern societies, the unpredictability of human conduct … the
operational choices which must be made in terms of priorities and resources’ and
deference to procedural human rights guarantees. 365 However, the Court held that,
where it is alleged that the authorities have violated their positive obligation to protect
the right to life, it must be established to its satisfaction that the authorities knew or
ought to have known at the time of the existence of a real and immediate risk to the life
of an identified individual or individuals from the criminal acts of a third party and that
they failed to take measures within the scope of their powers which, judged reasonably,
might have been expected to avoid that risk.366
As demonstrated by Nicola Jä gers and the International Council on Human Rights Policy,
international instruments and declarations are increasingly recognising the due
diligence standard as a test for determining compliance by states with the obligation to
protect human rights.367 Article 4(c) of the Declaration on the Elimination of Violence
against Women,368 for example, provides that states have the duty to ‘exercise due
diligence to prevent, investigate and, in accordance with national legislation, punish acts
of violence against women, whether those acts are perpetrated by the State or by private
persons’.369 The Committee on the Elimination of Discrimination against Women has
361
See Martin Scheinin, ‘State Responsibility, Good Governance and Indivisible Human Rights’ in Hans-Otto
Sano and Gudmundur Alfredsson (eds), Human Rights and Good Governance (2002) 29, 35.
362
(1998) VIII Eur Court HR 3124; 29 EHRR 245.
363
Ibid 3159; 305.
364
Ibid.
365
Ibid.
366
Ibid 3160; 305.
367
Jägers, above n 7, 146–7; International Council on Human Rights Policy, Beyond Voluntarism, above n 7, 52.
368
GA Res 48/104, UN GAOR, 48th sess, 85th plen mtg, UN Doc A/48/49 (20 December 1993).
pg. 190
reaffirmed this principle.370 That this standard is also applicable in respect of violations

of economic, social and cultural rights by private actors is explicit in the Maastricht
Guidelines. They stipulate that states are responsible for violations of economic, social
and cultural rights ‘that result from their failure to exercise due diligence in controlling
the behaviour of such non-state actors’.371
respect for human rights
With regard to the development of the principle adopted by a large number of international
instruments, among them the UN Charter, the Universal Declaration of Human Rights
1948, the two Covenants on Human Rights in 1966 (on Civil and Political Rights and on
Economic, Social and Cultural Rights); Convention on the Prevention and Punishment
(1948), on the Elimination of All Forms of Racial Discrimination (1966) on Elimination
of All Forms of Discrimination against Women (1979), on the Rights of the Child (1989)
and etc.
Analysis of the international acts can whitewash the main provisions of the principle of
respect for human rights:
1) Recognition of the inherent dignity of all members of the human family, as well as their
equal and inalienable rights is the foundation of freedom, justice and peace;
2) State has the duty to promote through joint and separate action universal respect for
human rights and fundamental freedoms in accordance with the UN Charter;
3) Human rights should be protected by the rule of law that will ensure peace and order,
people will not be compelled to have recourse as a last resort, to rebellion against tyranny
and oppression;
4) The State shall respect and ensure to all individuals within its jurisdiction the rights and
freedoms without distinction of any kind on any grounds;
5) Everyone has duties to other individuals and to society and the state, to which he belongs;
6) State is obliged to adopt legislative and other measures necessary to ensure that
internationally recognized human rights;
7) State is obliged to guarantee to any person whose rights have been violated have an
effective remedy;
8) State is obliged to ensure the right person to know their rights and act in accordance with
them.
369
The Beijing Declaration and Platform for Action adopted by the Beijing Fourth World Conference on Women
reaffirmed this principle: Report of the Fourth World Conference on Women, Beijing, 4–15 September 1995,
UN GAOR, Annex I, UN Doc A/CONF.177/20/Rev.1 (1995).
370
According to CEDAW General Comment 19: Violence against Women, as contained in UN Doc A/47/38
(1992): ‘Under general international law and specific human rights covenants, States may also be responsible
for private acts if they fail to act with due diligence to prevent violations of rights or to investigate and punish
acts of violence, and for providing compensation’.
371
Maastricht Guidelines
pg. 191
elements of socio-economic rights

The right to socio-economic amenities contain four elements, namely, acceptability,
availability, accessibility, and quality.
availability (of entitlement or rights)
Functioning facilities, goods and services, as well as programmes in sufficient quantity.
accessibility(of entitelement or rights)
Facilities, goods and services accessible to everyone, within the jurisdiction of the State
party. Accessibility has four overlapping dimensions:
‫و‬ non-discrimination
‫و‬ physical accessibility
‫و‬ economical accessibility (affordability)
‫و‬ information accessibility
acceptability(of entitelement or rights)
All facilities, goods and services must be respectful of ethics and culturally appropriate as
well as sensitive to gender and life-cycle requirements.
quality(of entitelement or rights)
Facilities, goods and services must be scientifically and medically appropriate and of good
quality.
inclusivity of human rights
Human rights are inclusive, meaning that every particulat human right is associated with
with access to and enjoyment of related facilities and lifestyles. Hence, for instance, for
the right to health to exist, there has to be a wide range of factors that can help us lead a
healthy life. These are called determinants of the right.
rights as freedoms
Human rights contain freedoms. These freedoms include the right to be free from non-
consensual treatment, such as medical experiments and research or forced sterilization,
and to be free from torture and other crule, inhuman or degrading treatment or
punishment.
human rights as entitlement
Human rights contain entitlements. These entitlements include access, quality, qeuality,
assistance, participation, access to information, etc.
convention right
A right clearly stated in a convention.
pg. 192
Natural rights
Natural rights are rights not contingent upon the laws, customs, or beliefs of any
particular culture or government, and therefore universal and inalienable. 372
The existence of natural rights has been asserted by different individuals on different
premises, such as a priori philosophical reasoning or religious principles. For example,
Immanuel Kant claimed to derive natural rights through reason alone. The Declaration
of Independence, meanwhile, is based upon the ‘self-evident’ truth that ‘all men are ...
endowed by their Creator with certain unalienable Rights’. 373
Thomas Hobbes (1588–1679) included a discussion of natural rights in his moral and
political philosophy. Hobbes' conception of natural rights extended from his conception
of man in a ‘state of nature’. Thus he argued that the essential natural (human) right
was ‘to use his own power, as he will himself, for the preservation of his own Nature;
that is to say, of his own Life; and consequently, of doing any thing, which in his own
judgement, and Reason, he shall conceive to be the aptest means thereunto.’ 374
Hobbes sharply distinguished this natural ‘liberty’, from natural ‘laws’, described generally
as ‘a precept, or general rule, found out by reason, by which a man is forbidden to do,
that, which is destructive of his life, or taketh away the means of preserving his life; and
to omit, that, by which he thinketh it may best be preserved.’ 375
In his natural state, according to Hobbes, man's life consisted entirely of liberties and not at
all of laws – ‘It followeth, that in such a condition, every man has the right to every
thing; even to one another's body. And therefore, as long as this natural Right of every
man to every thing endureth, there can be no security to any man... of living out the
time, which Nature ordinarily allow men to live.’ 376
This would lead inevitably to a situation known as the ‘war of all against all’, in which
human beings kill, steal and enslave others in order to stay alive, and due to their
natural lust for ‘Gain’, ‘Safety’ and ‘Reputation’. Hobbes reasoned that this world of
chaos created by unlimited rights was highly undesirable, since it would cause human
life to be ‘solitary, poor, nasty, brutish, and short’. As such, if humans wish to live
peacefully they must give up most of their natural rights and create moral obligations in
order to establish political and civil society. This is one of the earliest formulations of
the theory of government known as the social contract.
John Locke (1632–1704) was another prominent Western philosopher who conceptualized
rights as natural and inalienable. Like Hobbes, Locke was a major social contract
thinker. He said that man's natural rights are life, liberty, and property. It was once
conventional wisdom that Locke greatly influenced the American Revolutionary War
372
McIlwain, Charles H. (1932). The Growth of Political Thought in the West: From the Greeks to the End of the
Middle Ages. New York. pp. 114–15.
373
United States Declaration of Independence
374
Leviathan. 1,XIV
375
ibid.
376
ibid.
pg. 193
with his writings of natural rights, but this claim has been the subject of protracted
dispute in recent decades. For example, the historian Ray Forrest Harvey declared that
Jefferson and Locke were at ‘two opposite poles’ in their political philosophy, as
evidenced by Jefferson’s use in the Declaration of Independence of the phrase ‘pursuit
of happiness’ instead of ‘property.’ 377 More recently, the eminent378 legal historian John
Phillip Reid has deplored contemporary scholars’ ‘misplaced emphasis on John Locke,’
arguing that American revolutionary leaders saw Locke as a commentator on
established constitutional principles. 379 Thomas Pangle has defended Locke's influence
on the Founding, claiming that historians who argue to the contrary either
misrepresent the classical republican alternative to which they say the revolutionary
leaders adhered, do not understand Locke, or point to someone else who was decisively
influenced by Locke. 380 This position has also been sustained by Michael Zuckert. 381
According to Locke there are three natural rights:
1. Life: everyone is entitled to live once they are created.
2. Liberty: everyone is entitled to do anything they want to so long as it doesn't conflict with
the first right.
3. Land (property/estate): everyone is entitled to own all they create or gain through gift or
trade so long as it doesn't conflict with the first two rights.
The social contract is an agreement between members of a country to live within a shared
system of laws. Specific forms of government are the result of the decisions made by
these persons acting in their collective capacity. Government is instituted to make laws
that protect these three natural rights. If a government does not properly protect these
rights, it can be overthrown.
Thomas Paine (1731–1809) further elaborated on natural rights in his influential work
Rights of Man (1791), emphasizing that rights cannot be granted by any charter
because this would legally imply they can also be revoked and under such
circumstances they would be reduced to privileges.
The French Declaration of Rights immediately galvanized political writers in England and
provoked two scathing attacks on its notion of natural rights. Jeremy Bentham's clause-
by-clause critique of the Declaration, entitled Anarchical Fallacies, argued vehemently
that there can be no natural rights, since rights are created by the law of a society:
377
Harvey, Ray Forrest (1937). Jean Jacques Burlamaqui: A Liberal Tradition in American Constitutionalism.
Chapel Hill, N.C.. pp. 120
378
rice, Richard. Additional Observations on the Nature and Value of Civil Liberty. Reprinted in: Peach, Bernard,
(Ed.) Richard Price and the Ethical Foundations of the American Revolution. Duke University Press, 1979, p.
136
379
Reid, John Phillip (1987). Constitutional History of the American Revolution: The Authority To Tax. Madison,
Wis.. pp. 135–36
380
Pangle, Thomas L. (1988). The Spirit of Modern Republicanism: The Moral Vision of the American Founders
and the Philosophy of John Locke. Chicago: University of Chicago Press
381
Block, Walter (Spring 2003). A Libertarian Theory of Inalienability. 17. Journal of Libertarian Studies. pp. 39–
85
pg. 194
“Right, the substantive right, is the child of law: from real laws come real rights; but from laws
of nature, fancied and invented by poets, rhetoriticians, and dealers in moral and
intellectual poisons come imaginary rights, a bastard brood of monsters, `gorgons and
chimeras dire'.”382
Natural rights, according to Bentham, is simple nonsense: natural and imprescriptible
rights, rhetorical nonsense, - nonsense upon stilts.383
Edmund Burke also wrote a stinging attack on the French Declaration's assertion of natural
rights, in which he argued that rights were those benefits won within each society. 384
The rights held by the English and French were different, since they were the product of
different political struggles through history.
Soon after the attacks on the French Declaration, Thomas Paine wrote a defence of the
conception of natural rights and their connection to the rights of a particular society. In
The Rights of Man, published in two parts in 1791 and 1792, Paine made a distinction
between natural rights and civil rights, but he continued to see a necessary connection:
“Natural rights are those which appertain to man in right of his existence. Of this kind are all
the intellectual rights, or rights of the mind, and also all those rights of acting as an
individual for his own comfort and happiness, which are not injurious to the natural rights
of others. Civil rights are those which appertain to man in right of being a member of
society. Every civil right has for its foundation, some natural right pre-existing in the
individual, but to the enjoyment of which his individual power is not, in all cases,
sufficiently competent. Of this kind are all those which relate to security and
protection.”385
Similar analogies can be reducted and read into the American Declaration of Rights, which
stated,
“that all men are born equal”
And yet, at the same time, the blacks were under salvery, indeed, the very founders of the
state, Jefferson, wahsington, etc; together with later leaders such as the ‘acclaimed’
Lincoln, were indeed slave masters, keepers, and hcainers.’ To this end, hence, the
concept of natural rights was mere rhetoric to the masses, but the only rights perse,
(actionable) were legal rights.
Legal rights
Legal rights are those bestowed onto a person by the law of a particular political and legal
system, and therefore relative to specific cultures and governments. 386 Legal rights may
be constitutional, statutory, regulatory, contractual, common-law, or conferred by
382
Jeremy Bentham, "Anarchical Fallacies; being an examination of the Declaration of Rights issues during the French
Revolution", in Jeremy Waldron (ed.),Nonsense Upon Stilts: Bentham, Burke and Marx on the Rights of Man, New York:
Methuen, 1987, p.69.
383
Jeremy Bentham, p.53.
384
Id.
385
Edmund Burke, Reflections on the Revolution in France; see Thomas Paine, The Rights of Man, New York: Penguin Books,
1985, p.68.
pg. 195
international human rights law. Legal rights are almost always qualified, whether by
implication, by the law which created the right itself or by legal rights held by others. A
legal right can be enforced in courts of law against another who has infringed the right.
The right may be enforced by a court order or injunction prohibiting the other person
or persons from infringing a right, by the awarding of money to compensate the holder
of the right. If a person's right to liberty is infringed, he or she may bring an action of
habeas corpus so that a court can order his or her release. The owner of the copyright in
a work may seek monetary compensation against someone who copied the work
without permission. A landowner whose land is being used without his or her
permission may bring an action for trespass. A worker may sue his or her employer for
breach of contract if the employer refuses to pay the employee's wages.
The specific enumeration of legal rights accorded to people has historically differed greatly
from one Century to the next, and from one regime to the next, but nowadays is
normally addressed by the constitutions of the respective nations. The following
documents have each played important historical roles in establishing legal rights
norms around the world.
‫و‬ The Magna Carta (1215; England) required the King of England to renounce certain
rights and respect certain legal procedures, and to accept that the will of the king could
be bound by law.
‫و‬ The Bill of Rights (1689; England) declared that Englishmen, as embodied by
Parliament, possess certain civil and political rights.
‫و‬ The Claim of Right (1689; Scotland) was one of the key documents of Scottish
constitutional law.
‫و‬ Virginia Declaration of Rights (1776) by George Mason declared the inherent natural
rights and separation of powers.
‫و‬ United States Declaration of Independence (1776) succinctly defined the rights of man as
including, but not limited to, ‘Life, liberty, and the pursuit of happiness’ which later
influenced ‘liberté, égalité, fraternité’ (liberty, equality, fraternity) in France. Also,
Article 3 of the Universal Declaration of Human Rights reads, ‘Everyone has the right to
life, liberty and security of person.’
‫و‬ The Declaration of the Rights of Man and of the Citizen (1789; France) was one of the
fundamental documents of the French Revolution, defining a set of individual rights and
collective rights of the people.
‫و‬ The United States Bill of Rights (1789/1791; United States), the first ten amendments of
the United States Constitution, was another influential document.
‫و‬ The Universal Declaration of Human Rights (1948) is an over-arching set of standards by
which governments, organisations and individuals would measure their behaviour
towards each other. The preamble declares that the ‘...recognition of the inherent dignity
and of the equal and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world...’ Though the preamble is not
386
Hobbes, Leviathan, pt. 1, ch. 15 (p. 79)(emphasis in original). See also Rahe, Republics Ancient and Modern,
p. 38
pg. 196
binding per se, it provides interpretive context. The Vienna Convention states the rule
of interpretation that, “The context…shall comprise…the text, including its preamble and
annexes.” 387
‫و‬ The European Convention on Human Rights (1950; Europe) was adopted under the
auspices of the Council of Europe to protect human rights and fundamental freedoms.
‫و‬ The International Covenant on Civil and Political Rights (1966) is a follow-up to the
Universal Declaration of Human Rights, concerning civil and political rights.
‫و‬ The International Covenant on Economic, Social and Cultural Rights (1966) is another
follow-up to the Universal Declaration of Human Rights, concerning economic, social
and cultural rights.
‫و‬ The Afrikan Charter of Human & People Rights (Banjul Charter).
Human rights are political
Rousseau further bifurcates the notion that rights are political and their realization are
dependent on the presence of a political framework, a ‘state. The social contract writer
Jean-Jacques Rousseau, argued that
“people agree to live in common if society protects them. Indeed, the purpose of the state is to
protect those rights that individuals cannot defend on their own.“
Rousseau had set the ground for Paine decades earlier with his Social Contract, in which he
not only lambasted attempts to tie religion to the foundations of political order but
disentangled the rights of a society from natural rights. In Rousseau's view, the rights in
a civil society are hallowed:
"But the social order is a scared right which serves as a basis for other rights. And as it is not a
natural right, it must be one founded on covenants." 388
Rousseau then eleaborated a number of rights of citizens and limits on the sovereign's
power. Controversy continues to swirl over the question whether rights are creations
of particular societies or independent of them.
By the foregoing perspectives, building on the criticisms of Burke and Bentham, and even
from the contractarian views of Rousseau's image of civil society, rights do not exist
independently of human endeavour; they can only be created by human action. Rights
are viewed as the product a particular society and its legal system.
In this vein, Karl Marx also left a legacy of opposition to rights that hindered socialist
thinKers from accommodating rights within their theories of society. Marx denounced
rights as a fabrication of bourgeois society, in which the individual was divorced from
his or her society; rights were needed in capitalist states in order to provide protection
from the state. In the Marxist view of society, an individual is essentially a product of
society and, ideally, should not be seen in an antagonistic relationship where rights are
387
Vienna Convention art. 31(2).
388
Jean-Jacques Rousseau, The Social Contract, Maurice Cranston (trans.), Baltimore: Penguin, 1968, p.50. For Rousseau's
views of the connection between religion and the state, see: Book IV, ch.8.
pg. 197
needed.389 However, many socialists have come to accept certain conceptions of rights
in the late twentieth century. 390
Africans to privilege community over individual is examined. In particular, Julius Nyerere's
Ujamaa, Kwame Nkrumah's "African personality," and Leopold Sedar Senghor's
negritude are contrasted with the work of philosophers such as Ifeanyi Menkiti and
Kwame Gyekye.
A further difficulty, with profound implications, is that human rights theories have to
overcome is their emergence from these Western political traditions. Not only are they
a product of European natural rights, but the particular rights that are viewed as
`natural' have been profoundly shaped by the liberalism that emerged in the 19th and
20th centuries. With human rights, the rhetorical framework of the natural rights
tradition has come to serve as a vehicle for the values of Western liberalism.
An easy and powerful criticism is that human rights, being a product of societal legal
systems, cannot deductively be universal. In their basic concept they are a Western
creation, based on the European tradition that individuals are separable from their
society. But one may question whether these rights can apply to collectivist or
communitarian societies that view the individual as an indivisible element of the whole
society. Westerners, and many others, have come to place a high value on each
individual human, but this is not a value judgment that is universal. There is substantive
disagreement on the extent of, or even the need for, any protection of individuals
against their society. In order for human rights to enjoy universal legitimacy they must
have a basis that survives charges of ideological imperialism. Human rights must have a
universally acceptable basis in order for there to be any substantial measure of
compliance.
Further challenges by positivists and related theorists to human rights conceptions are in
the dual doctrines of unveirsality and inaliniability. Human rights are universal since
they are said to belong to all humans in every society. Human rights are also supposed
to be inalienable; because they flow from and protect human existence, they cannot be
taken away without endangering the value of that existence.
alienable rights and unalienable rights
The distinction between alienable rights and unalienable rights was introduced by
Francis Hutcheson. In his Inquiry into the Original of Our Ideas of Beauty and Virtue
(1725), Hutcheson foreshadowed the Declaration of Independence, stating: ‘For
wherever any Invasion is made upon unalienable Rights, there must arise either a
perfect, or external Right to Resistance. . . . Unalienable Rights are essential Limitations
in all Governments.’ Hutcheson, however, placed clear limits on his notion of
unalienable rights, declaring that ‘there can be no Right, or Limitation of Right,
389
See Karl Marx, "On the Jewish Question", Jeremy Waldron (ed.), Nonsense Upon Stilts.
390
For a full discussion see: Tom Campbell, The Left and Rights: A Conceptual Analysis of the Idea of Socialist
Rights, London: Routledge and Kegan Paul, 1983.
pg. 198
inconsistent with, or opposite to the greatest public good.’ 391 Hutcheson elaborated on
this idea of unalienable rights in his A System of Moral Philosophy392, based on the
Reformation principle of the liberty of conscience. One could not in fact give up the
capacity for private judgment (e.g., about religious questions) regardless of any external
contracts or oaths to religious or secular authorities so that right is ‘unalienable.’
Hutcheson wrote: ‘Thus no man can really change his sentiments, judgments, and inward
affections, at the pleasure of another; nor can it tend to any good to make him profess
what is contrary to his heart. The right of private judgment is therefore unalienable.’ 393
However, these universal and inalienable qualities of human rights are disputable in both
their conception and operation. To some extent, the universality of human rights
depends upon their genesis. Moral standards, such as human rights, can come into
being in two manners. They may simply be invented by people, or they may only need
to be revealed to, or discovered by, humans. If human rights are simply an invention,
then it is rather difficult to argue that every society and government should be bound
by something they disagree with. If human rights have some existence independent of
human creation, however, then it is easier to assert their universality. The fact that no
one culture constitutes the universal culture for all societies, and to that end, all
cultures share in a pool of cultural resource for the development of legal and
constitutional advancement. In other words, cultural jurisprudence engages the
philosophical and radical minds that constitutional development, seen from the
perspective of cultural jurisprudence, endorses a kind of interactiveness and dialogue.
But such independent moral standards may arise in only two ways: if they are created by
God, or if they are inherent in the nature of humankind or human society.
Unfortunately, both these routes pose substantive pitfalls. No divine origin for universal
human rights would be acceptable, nor is it often advanced, since there is no one God
that is recognized universally; just because Christians or Moslems claim that their
divinity has ordained and proscribed certain treatment of humans does not provide the
legitimacy needed for that moral code to bind devotees of another religion. The
alternative origin that could justify universality would be the acceptance of human
rights as natural rights that anyone could deduce from the nature of humankind or
human society. However, an atheistic critique of divine moral standards is just as telling
when applied to rights derived from human nature. The God or human nature that is
said to be the source of human rights may be nothing more than an invention of the
human mind, an invention that may vary according to whoever is reflecting on the
issue.
Further, even if one accepts that there is a God or a core human nature, there is no definitive
way to sort out differing visions that people have of God or human nature. The
391
Francis Hutcheson, An Inquiry into the Original of Our Ideas of Beauty and Virtue in Two Treatises
(Indianapolis, 2004), pp. 192, 193.
392
Francis Hutcheson. A System Of Moral Philosophy: In Three Books : To which is Prefixed Some Account Of The Life,
Writings, And Character Of The Author, Volume 2. Millar, 1755.
393
Hutcheson, Francis. A System of Moral Philosophy. London, 1755, pp. 261–2.
pg. 199
universal authority of any particular view is initially endorsed only by the adherents of
that view. Nevertheless it is possible for human rights to have their genesis in religion
or the prerequisites of human society. Even if human rights start within a specific
religious or societal tradition, they could acquire universality as other people come to
agree. It is also possible for human rights to become globally recognized because
several different approaches may reach the same conclusion. For instance, atheistic
natural rights theorists, Christians, and Muslims, may all eventually agree for quite
different reasons on a number of ways in which people should be treated; these then
can form the basis of human rights standards. However, the different paths to that
agreement only lead to an agreement on the benefits, not necessarily on their origin,
justification, or application. The differences become important when one moves from a
focus on the benefits identified as "human rights" to their practical operation; there is,
as will be discussed below, a great difference between a duty-based and claim-based
fulfillment of the benefits.
Another set of problems arise if human rights are creations, pure and simple, of the human
intellect. Human rights standards could be created in a variety of ways. In one method, a
gradual growth of consensus builds around norms of behaviour that eventually acquire
an obligatory character. It may be difficult to trace the epistemological origins of this
consensus, but the end result is a broad base of agreement that human beings should be
treated in certain ways. In another method, there may be a conscious attempt to create
binding rules of behaviour in a more contractarian manner. A certain group of
individuals or state governments may lead the development of international
agreements on human rights. And, as more states join in these agreements, the moral
and legal force of the international accords become stronger and stronger. Essentially
this is the course that has been followed in the development of the human rights
documents created by the United Nations and other regional international
organizations.
In both these approaches to the creation of human rights, the motivation may be principled
or consequentialist. If principled, human rights are necessary because they reflect
certain moral standards of how humans should be treated. If consequentialist, human
rights are needed because they standards may prevent the awful repercussions of
having no limits on the manner in which governments or groups may treat other human
beings.
Beyond the genesis of human rights, wherever they come from, lies a fundamental
challenge to their universality, regardless of their origin. With any inception of human
rights, one is faced with having to acquire acceptance of their authority. There is a
problem in that not everyone will share the same motivation or inspiration for human
rights. Not everyone will agree that everything asserted as a human right is indeed one.
At a very basic level, the proclamation and acceptance of human rights norms
inherently involves majoritarian morality. Human rights are agreed to exist because a
majority says they do. Specific goods and benefits are treated as human rights because a
majority says they do. But, what of the minorities who object to the concept of universal
pg. 200
human rights, or disagree with the particular entitlements to be included in lists of

human rights? Why should they be bound by what others believe? What happens when
a minority sincerely believe that some benefit being deliberately denied them by the
majority is a matter that they view as a human right? In many specific human rights
contexts, a problem of moral majoritarianism assumes central importance.
With either an invented or natural genesis, human rights are meant to protect some aspect
of humanity. Human rights may be those entitlements that we have by virtue of being
human, but there are real difficulties in determining which attributes of human life
require protection under human rights standards.
Basic human traits are determined by both physical attributes and the activities
undertaken by a human. The most obvious physical qualities encompass gender, race,
size, shape, and health - including disabilities. Among human activities, one can
distinguish between those necessary for sustaining life and those which fill that life. The
requirements for sustaining life include nourishment, shelter, clothing, and sleep.
Proper health care is needed for human life to be sustained in the long term. And the
human species can only survive with procreation. But most humans do not merely exist,
they fill their lives with myriad activities. Perhaps the most important activity is that
which is usually referred to in order to distinguish humans from all other animals:
humans have a creative imagination that provides higher forms of thought that lead to
intellectual inquiry and spirituality. Humans also communicate constantly the results of
their thinking. Physical movement from one place to another is another continuous
activity of all but the most disabled humans. Human beings are in essence very social
animals and much of our activities take place through associating with other humans. In
some instances this association is the special intimacy of kinship or close friendships. In
others, humans act gregariously with acquaintances and many perfect strangers.
The consequences of this gregariousness furnish the underlying problems of establishing
universality in the human attributes described above. Most humans live within readily
identifiable social units, such as family, tribal, or national groups, that fundamentally
shape the manner in which an individual's most basic characteristics are manifested.
These social groupings determine what languages one learns to speak, the style of
dress, acceptable foods, religion, form of communication and etiquette, sense of
physical beauty and ugliness, the kind of shelter, and the notion of division of roles
within one's social groupings. These are not simply superficial differences. While some
individuals willingly adopt new life styles, many believe that their lives can only be
satisfying by maintaining their traditional ways. For some, indeed, styles of dress, food,
and behaviour are inextricably linked to deep religious beliefs. One group's delicacies or
even staples may be quite unacceptable to others. There may be just disdain or
revulsion, such as the reaction of many people to eating raw fish, or there may be a
strong, religious offence taken to certain foods, such as offering pork to Moslems or beef
to Hindus.
pg. 201
Thus, many profound differences emerge among human beings that are the product of
where they were born and with whom they grew up. While one could identify various
qualities of human life that are universal, there is tremendous variation in the manner
in which those qualities are realized.
These acquired societal values pose difficulties when they define, or even conflict with, the
basic attributes of human life listed earlier. Individual societies develop particular
conceptions of what constitutes a dignified life, the essential needs of humans, as well
as the relationship between individuals and their community. Particularly complex
issues arise when there is a clash between conflicting spiritual and temporal values
within or between societies. These difficulties come to the forefront when one tries to
ascertain whether global standards can be set by human rights on the treatment that
must be given to all human beings.
equal protection clause
The constitutional guarantee that no person or class of persons shall be denied the same
protection of the laws that is enjoyed by other persons or other classes in like
circumstances in their lives, liberty, property, and pursuit of happiness.
tax protester
A tax protester is someone who refuses to pay a tax on constitutional or legal grounds,
typically because he or she believes that the tax laws are unconstitutional or otherwise
invalid. Tax protesters raise a number of different kinds of arguments. These include
constitutional arguments, such as claims that the amendments to the Constitution was
not properly ratified or that it is unconstitutional generally, or that being forced to file
an income tax return violates the privilege against self-incrimination. Others are
statutory arguments suggesting that the income tax is constitutional but the statutes
enacting the income tax are ineffective, or that particular subject of tax does not
constitute cash or income. Yet another collection of arguments centers on general
conspiracies involving numerous government agencies. Thus, taxes may be paid under
"protest".
tax resisters
Tax resistance is the refusal to pay tax because of opposition to the government that is
imposing the tax or to government policy or as opposition to the concept of taxation in
itself. Tax resistance is a form of direct action and if in violation of the tax regulations, a
form of civil disobedience. War tax resistance is the refusal to pay some or all taxes that
pay for war and a form of nonviolent resistance. War tax resistance may be practiced by
conscientious objectors, pacifists, or those protesting against a particular war. As a
percentage of income tax funds military expenditure, war tax resisters may avoid or
refuse to pay some or all income tax. For example, war resisters may choose to avoid
taxes by living simply below the income tax threshold. Tax resisters are distinct from
tax protesters who deny that the legal obligation to pay taxes exists or applies. Tax
pg. 202
resisters may accept that some law commands them to pay taxes but they still choose to
resist taxation.
cease and desist order
A cease and desist is an order or request to halt an activity (cease) and not to take it up
again later (desist) or else face legal action. The recipient of the cease-and-desist may
be an individual or an organization.
freedom of the press doctrine
In William Blackstone's Commentaries “Freedom of the Press” is defined as the right to be
free from prior restraints. In addition, he held that a person should not be punished for
speaking or writing the truth, with good motives and for justifiable ends. Truth alone,
however, was not considered a sufficient justification, if published with bad motives.
“ The liberty of the press is indeed essential to the nature of a free state; but this consists in
laying no previous restraints upon publications, and not in freedom from censure for
criminal matter when published. Every freeman has an undoubted right to lay what
sentiments he pleases before the public; to forbid this, is to destroy the freedom of the
press; but if he publishes what is improper, mischievous or illegal, he must take the
consequence of his own temerity”. (4 Bl. Com. 151, 152.)
prior restraint doctrine
Prior restraint (also referred to as prior censorship or pre-publication censorship) is
censorship imposed, usually by a government, on expression before the expression
actually takes place. An alternative to prior restraint is to allow the expression to take
place and to take appropriate action afterward, if the expression is found to violate the
law, regulations, or other rules. Prior restraint prevents the censored material from
being heard or distributed at all; other measures provide sanctions only after the
offending material has been communicated, such as suits for slander or libel. In some
countries (e.g., United States, Argentina) prior restraint by the government is forbidden,
subject to certain exceptions, by a constitution. Prior restraint can be effected in a
number of ways. For example, the exhibition of works of art or a movie may require a
license from a government authority (sometimes referred to a classification board or
censorship board) before it can be published, and the failure or refusal to grant a
license is a form of censorship as is the revoking of a license. It can also take the form of
a legal injunction or government order prohibiting the publication of a specific
document or subject. Sometimes, a government or other party becomes aware of a
forthcoming publication on a particular subject and seeks to prevent it: to halt ongoing
publication and prevent its resumption. These injunctions are considered prior
restraint because potential future publications are stopped in advance.
exclusionary rule
The exclusionary rule is a legal principle, under constitutional law, which holds that
evidence collected or analyzed in violation of the defendant's constitutional rights is
pg. 203
sometimes inadmissible for a criminal prosecution in a court of law. This may be

considered an example of a prophylactic rule formulated by the judiciary in order to
protect a constitutional right. However, in some circumstances at least, the exclusionary
rule may also be considered to follow directly from the constitutional language, such as
the Fifth Amendment's command that no person ‘shall be compelled in any criminal
case to be a witness against himself’ and that no person ‘shall be deprived of life, liberty
or property without due process of law’.
The exclusionary rule is intended to protect citizens from illegal searches and seizures. 394
The exclusionary rule is also designed to provide a remedy and disincentive, which is
short of criminal prosecution in response to prosecutors and police who illegally gather
evidence in violation of the constitution. The exclusionary rule also applies to violations
of the Sixth Amendment, which guarantees the right to counsel.
This rule is occasionally referred to as a legal technicality because it allows defendants a
defense that does not address whether the crime was actually committed. In this
respect, it is similar to the explicit rule in the Fifth Amendment protecting people from
double jeopardy. In strict cases, when an illegal action is used by police/prosecution to
gain any incriminating result, all evidence whose recovery stemmed from the illegal
action—this evidence is known as ‘fruit of the poisonous tree’—can be thrown out from
a jury (or be grounds for a mistrial if too much information has been irrevocably
revealed).
Limitations on the exclusionary rule have included the following:
‫و‬ Evidence unlawfully obtained from the defendant by a private person is admissible. The
exclusionary rule is designed to protect privacy rights, with the Fourth Amendment
applying specifically to government officials.395
‫و‬ Evidence can only be suppressed if the illegal search violated the person's own (the person
making the court motion) constitutional rights. The exclusionary rule does not apply to
privacy rights of a third party. 396 However, there is a narrow exception to this standing
requirement, the jus tertii standing exception. 397
‫و‬ The defendant cannot take advantage of the situation (police breaching rules) to turn the
case to his advantage, in face of other evidence against himself. This falls under the
exigent circumstances exception.398
394
Berg, p. 29
395
Burdeau v. McDowell, 256 U.S. 465 (1921)
396
Oaks, Dallin H. (1970). ‘Studying the exclusionary rule in Search and Seizure’. University of Chicago Law
Review (The University of Chicago Law Review, Vol. 37, No. 4) 37 (4): 665–757. doi:10.2307/1598840.
JSTOR 1598840.
397
See, e.g., Singleton v. Wulff Et Al., 96 S. Ct. 2868, 428 U.S. 106 (U.S. 1976); The Assertion of Constitutional
Jus Tertii: A Substantive Approach, Robert Allen Sedler, California Law Review, Vol. 70, No. 6 (Dec., 1982),
pp. 1308–1344; Standing to Assert Constitutional Jus Tertii, 88 Harv.L.Rev. 423, (1974).
398
Bram v. United States, 168 U.S. 532 (1897).
pg. 204
‫و‬ The exclusionary rule is not applicable to aliens residing outside of U.S. borders. In United
States v. Alvarez-Machain,399 the U.S. Supreme Court decided that property owned by
aliens in a foreign country is admissible in court. Certain persons in the U.S. receive limited
protections, such as prisoners, probationers, parolees, and persons crossing U.S. borders.
Corporations, by virtue of being, also have limited rights under the Fourth Amendment
(see corporate personhood).400
If police officers acting in good faith (bona fides) rely upon a defective search warrant, then
the evidence acquired may still be used under the good-faith exception.401
fundamental rights
Fundamental rights are a generally regarded set of entitlements in the context of a legal
system, wherein such system is itself said to be based upon this same set of basic,
fundamental, or inalienable entitlements or ‘rights.’ Such rights thus belong without
presumption or cost of privilege to all human beings under such jurisdiction. The
concept of human rights has been promoted as a legal concept in large part owing to the
idea that human beings have such ‘fundamental’ rights, such that transcend all
jurisdiction, but are typically reinforced in different ways and with different emphasis
within different legal systems.
Some universally recognized rights as fundamental, i.e., contained in the U.N. Covenant on
Civil and Political Rights or the U.N. Covenant on Economic, Social and Cultural Rights,
are as follows
‫و‬ Right to equal protection under the law
‫و‬ Right to freedom of thought
‫و‬ Right to freedom of speech and press (cf. freedom of expression)
‫و‬ Right to freedom of association
‫و‬ Right to freedom of movement within the country
‫و‬ Right to vote in general election
‫و‬ Right to direct a child's upbringing
‫و‬ Right to privacy
‫و‬ Right to marry
‫و‬ Right to property
Although many fundamental rights are also more widely considered to be human rights,
the classification of a right as fundamental invokes specific legal tests used by courts to
determine the carefully constrained conditions under which the United States
government and the various state governments may impose limitations on these rights.
399
504 U.S. 655
400
Allen, Francis A. (1961). ‘Exclusionary Rule in the American Law of Search and Seizure, The Exclusionary
Rule Regarding Illegally Seized Evidence’. Journal of Criminal Law, Criminology and Police Science 52 (3):
246–254.
401
Barnett, Randy E. (1983). Resolving the Dilemma of the Exclusionary Rule: An Application of Restitutive
Principles of Justice. 32. Emory L. J.. pp. 937
pg. 205
In such legal contexts, as generally determined whether rights are to be considered

fundamental by examining the historical foundations of those rights, and determining
whether their protection was part of a longstanding tradition. Other rights may be
guaranteed as fundamental by individual states.
penumbral rights
A penumbra is a partial shadow between regions of complete darkness and complete
illumination, as in an eclipse. In law, penumbra refers to an area in which something
exists in a lesser or uncertain degree. Penumbral rights are rights that the Constitution
does not specifically mention, but may be implied by the rights that are enumerated.
The idea of penumbral rights is not foreign to the Constitution. The 9th Amendment
assures that ‘The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.’
necessary in a democratic society
The test of ‘necessity in a democratic society’ requires the Court to determine whether the
interference corresponded to a pressing social need. The Contracting States have a
certain margin of appreciation in assessing whether such a need exists, but it goes hand
in hand with European supervision, embracing both the legislation and the decisions
applying it, even those delivered by independent courts. The Court is therefore
empowered to give the final ruling on whether a ‘restriction’ is reconcilable with
freedom of expression.
What the Court has to do is to look at the interference complained of in the light of the case
as a whole, including the content of the statements held against the applicant and the
context in which he or she has made them.In particular, the Court must determine
whether the reasons adduced by the national authorities to justify the interference
were relevant and sufficient and whether the measure taken was proportionate to the
legitimate aims pursued. In doing so, the Court has to satisfy itself that the national
authorities, basing themselves on an acceptable assessment of the relevant facts,
applied standards which were in conformity with the principles of freedom of
expression. Finally, the Court must also ascertain whether the domestic authorities
struck a fair balance between the protection of freedom of expression and the
protection of the reputation of those against whom allegations have been made, a right
which, as an aspect of private life, is protected by the Convention.’ 402
referendum
A referendum (also known as a plebiscite or a vote on a ballot question) is a direct vote in
which an entire electorate is asked to either accept or reject a particular proposal,
usually a piece of legislation which has been passed into law by the local legislative
body and signed by the pertinent executive official(s). This may result in the adoption of
402
Bozhkov v Bulgaria [1] ECHR 700 (an Article 10 case.)
pg. 206
a new constitution, a constitutional amendment, a law, the recall of an elected official or

simply a specific government policy. It is a form of direct democracy.
A number of referendums are routinely held in various jurisdictions:
Foreign policy-oriented referendum
‫و‬ Independence (also known as Political status, devolution, sovereignty, etc.) - a
referendum which is held to determine how a jurisdiction relates to either an incumbent
outside nation-state or to other nation-states.
‫و‬ Treaty (also known as Accession, membership) - a referendum to approve the proposed
accession of the nation-state to a treaty or intergovernmental relationship
Domestic policy-oriented referendum
‫و‬ Constitutional (or charter) - a referendum which is held to ratify a proposed constitution
or constitutional amendment
‫و‬ Prohibition - a referendum which is held to prohibit an action by private parties in a
jurisdiction
‫و‬ Rights - a referendum to determine the status of a class of people within a jurisdiction
federalism
A system of government which has created, by written agreement, a central and national
government to which it has distributed specified legislative (law-making) powers, and
called the federal government, and regional governments (or sometimes called
provinces or states) governments to which is distributed other, specified legislative
powers.
federal paramountcy
A doctrine of constitutional law which gives priority to the application of a federal statute
where those terms conflict with the operation of a provincial statute.
first amendment
The amendment to US Constitution which sets out freedom of expression.
fourteenth amendment
A 1868, post-USA civil war amendment to US Constitution designed to, inter alia, give full
civil and legal rights to former slaves.
fourth amendment
US constitutional protection against unreasonable search or arrest.
open fields doctrine
There is no constitutionally protected expectation of privacy in open spaces.
pg. 207
democracy
A form of government in which the people freely govern themselves; where the executive
(or administrative) and law-making (or legislative) power is given to persons chosen by
the population; the free people.
constitutional supremacy
A system of government in which the law-making freedom of parliamentary supremacy
cedes to the requirements of a Constitution.
proportional representation
Proportional representation (PR) is a concept in voting systems used to elect an assembly
or council. PR means that the number of seats won by a party or group of candidates is
proportionate to the number of votes received. For example, under a PR voting system
if 30% of voters support a particular party then roughly 30% of seats will be won by
that party. PR is an alternative to voting systems based on single member districts or on
bloc voting; these non-PR systems tend to produce disproportionate outcomes and to
have a bias in favour of larger political groups. PR systems tend to produce a
proliferation of political parties, while single member districts encourage a two-party
system.
There are many different forms of proportional representation. Some are focused solely on
achieving the proportional representation of different political parties (such as list PR)
while others permit the voter to chose between individual candidates (such as PR-STV).
The degree of proportionality also varies; it is determined by factors such as the precise
formula used to allocate seats, the number of seats in each constituency or in the
elected body as a whole, and the level of any minimum threshold for election.
representative democracy
Representative democracy is a variety of democracy founded on the principle of elected
people representing a group of people, as opposed to direct democracy. 403 For example,
two countries which use representative democracy are the United Kingdom (a
constitutional monarchy) and Germany (a federal republic). It is an element of both the
parliamentary system and presidential system of government and is typically used in a
lower chamber such as the House of Commons (UK) or Bundestag (Germany), and is
generally curtailed by constitutional constraints such as an upper chamber. It has been
described by some political theorists as Polyarchy.
reverse incorporation (constitutional law)
A similar legal doctrine to incorporation is that of reverse incorporation. Whereas
incorporation applies the Bill of Rights to the states though the Due Process Clause of
the Fourteenth Amendment, in reverse incorporation, the Equal Protection Clause of
403
Victorian Electronic Democracy : Glossary’. 28 July 2005. Archived from the original on 13 December 2007.
Retrieved 14 December 2007.
pg. 208
the Fourteenth Amendment has been held to apply to the federal government through
the Due Process Clause located in the Fifth Amendment. 404 For example, in Bolling v.
Sharpe, 405, which was a companion case to Brown v. Board of Education406, the schools of
the District of Columbia were desegregated even though Washington is federal.
Likewise, in Adarand Constructors, Inc. v. Peña 407, an affirmative action program by the
federal government was subjected to strict scrutiny based on equal protection.
404
Curtis, Michael Kent (1994) [8]. No State Shall Abridge (Second printing in paperback ed.). Duke University
Press. pp. 5, 202. ISBN 0-8223-0599-2.
405
347 U.S. 497 (1954)
406
83 U.S. 36 (1873).
407
515 U.S. 200 (1995)
pg. 209
Powers of the Government

PUBLIC ORDER POWERS
harm principle
It holds that the actions of individuals should only be limited to prevent harm to other
individuals. John Stuart Mill first articulated this principle in On Liberty, where he
argued that ‘the only purpose for which power can be rightfully exercised over any
member of a civilized community, against his will, is to prevent harm to others.’ 408
non-aggression principle, non-aggression axiom, anti-coercion principle, zero
aggression principle, non-initiation of force, NAP
The non-aggression principle (also called the non-aggression axiom, the anti-coercion
principle, the zero aggression principle, the non-initiation of force), or NAP for short, is
a moral stance which asserts that aggression is inherently illegitimate. Aggression, for
the purposes of the NAP, is defined as the initiation or threatening of violence against a
person or legitimately owned property of another. Specifically, any unsolicited actions
of others that physically affect an individual’s property, including that person’s body, no
matter if the result of those actions is damaging, beneficiary or neutral to the owner, are
considered violent when they are against the owner’s free will and interfere with his
right to self-determination, as based on the libertarian principle of self-ownership.
Supporters of NAP use it to demonstrate the immorality of theft, vandalism, assault, and
fraud. In contrast to pacifism, the non-aggression principle does not preclude violence
used in self-defense or defense of others.409
state of emergency
A state of emergency is a governmental declaration that may suspend some normal
functions of the executive, legislative and judicial powers, alert citizens to change their
normal behaviours, or order government agencies to implement emergency
preparedness plans. It can also be used as a rationale for suspending rights and
freedoms, even if guaranteed under the constitution. Such declarations usually come
during a time of natural or man made disaster, during periods of civil unrest, or
following a declaration of war or situation of international or internal armed conflict.
Justitium is its equivalent in Roman law. In some countries, the state of emergency and
its effects on human rights and freedoms and governmental procedure are regulated by
the constitution and/or a law that limits the powers that may be invoked. Rights and
freedoms may be suspended during an emergency, for instance, freedom of movement,
but not non-derogable rights.410 In many countries it is illegal to modify the emergency
law or the constitution during the emergency.
408
John Stuart Mill (1859). On Liberty. Oxford University. pp. 21–22.
409
Walter Block. ‘The Non-Aggression Axiom of Libertarianism (LewRockwell.com, February 17, 2003)’.
410
Non derogable Rights and States of emergency", edited by D. Prémont, C. Stenersen, I. Oseredczuk, Bruylant,
Brussells, 1996, 644p., ISBN 2-8027-0766-3, www.bruylant.be
pg. 210
emergency powers
Presidential emergency powers should be distinguished into two categories, even though
the boundary between them is sometimes obscure: the power to act in a crisis based
entirely on the president's own prerogative; and the power to act in accordance with
laws that give the executive special powers in a declared emergency. The latter is a
long‐standing feature of American law; the former is, from the standpoint of
constitutional theory, more problematic.411
para-constitutional powers
Presidential powers which are laws which are close to the Constitution, such as minority
legislation or electoral law.
extra judicial powers
Power of the president to order the hearing of a case to be dropped, or the conviction to be
set aside, or sentence to be commuted. This is power which is not within the regular
judcial process.
declaration of war
An explicit warning from one state to another, in the form either of a reasoned intent to
commence hostilities or of an ultimatum which carries the same result.
decree
A decision or order of government or judicial body.
unitary executive theory
The unitary executive theory is a theory of American constitutional law holding that the
President controls the entire executive branch. The doctrine is based upon
Constitution, which vests "the executive power" in the President. Although that general
principle is widely accepted, there is disagreement about the strength and scope of the
doctrine.412 It can be said that some favor a "strongly unitary" executive, while others
favor a "weakly unitary" executive.413 The former group argue, for example, that
Parliament's power to interfere with intra-executive decision-making (such as firing
executive branch officials) is limited, and that the President can control policy-making
by all executive agencies within the limits set for those agencies by Congress. Still
others agree that the Constitution requires a unitary executive, but believe this is a bad
thing, and propose its abolition by constitutional amendment. 414
411
U.S. Congress, The National Emergencies Act (Public Law 94–412). Source Book: Legislative History, Texts,
and Other Documents (1976)
412
Lessig, Lawrence and Sunstein, Cass. "The President and the Administration," Columbia Law Review, Volume 94 (1994).
413
Id
414
Berry, Christopher and Gersen, Jacob. “The Unbundled Executive”, University of Chicago Law Review (2008): "We certainly
do not claim that the most sensible or even any plausible interpretation of the US Constitution establishes a plural unbundled
executive; but perhaps it should."
pg. 211
state of exception
A state of exception is a concept in the legal theory of Carl Schmitt, similar to a state of
emergency, but based in the sovereign's ability to transcend the rule of law in the name
of the public good.
decree (executive order)
A decree is a rule of law issued by a head of state (such as the president of a republic),
according to certain procedures (usually established in a constitution). It has the force
of law. The particular term used for this concept may vary from country to country—
the executive orders made by the President of the United States, for example, are
decrees (although a decree is not exactly an order). In non-legal English usage,
however, the term refers to any authoritarian decision and, in this sense, it is often
derogatory.
edict
A decree or law of major import promulgated by a king, queen, or other sovereign of a
government. An edict can be distinguished from a public proclamation in that an edict
puts a new statute into effect whereas a public proclamation is no more than a
declaration of a law prior to its actual enactment.
proclamation
declaration. In English law, a proclamation is a formal announcement (‘royal
proclamation’), made under the great seal, of some matter which the King in Council or
Queen Regnant in Council desires to make known to his or her subjects: e.g., the
declaration of war, or state of emergency, the statement of neutrality, the summoning
or dissolution of Parliament, or the bringing into operation of the provisions of some
statute the enforcement of which the legislature has left to the discretion of the king in
the announcement .
rule by decree
Rule by decree is a style of governance allowing quick, unchallenged creation of law by a
single person or group, and is used primarily by dictators and absolute monarchs,
although philosophers such as Giorgio Agamben have argued that it has been
generalized since World War I in all modern states, including representative
democracies.
The expression is also sometimes used as a pejorative and polemical hyperbole when
describing actions of democratic governments that are perceived to unduly bypass
parliamentarian or popular scrutiny.
Rule by decree allows the ruler to arbitrarily create law, without approval by a legislative
assembly.
pg. 212
When states of emergency such as martial law are in place, rule by decree is common.
While rule by decree is easily susceptible to the whims and corruption of the person in
power, it is also highly efficient: a law can take weeks or months to pass in a legislature,
but can be created with the stroke of a pen by a leader ruling by decree. This is what
makes it valuable in emergency situations.
moratorium
A moratorium is a delay or suspension of an activity or a law. In a legal context, it may refer
to the temporary suspension of a law to allow a legal challenge to be carried out. For
example, Animal rights activists and conservation authorities may request fishing or
hunting moratoriums to protect endangered or threatened animal species. These
delays, or suspensions, prevent people from hunting or fishing the animals in
discussion. Another instance is a delay of legal obligations or payment. A legal official
can order a delay of payment due to extenuating circumstances, which render one party
incapable of paying another.
detention
‘Detainee’ comes to us from the French détenus and its original reference point was the
French ‘police state’ of the eighteenth century. In particular, given the militarized
context of the wider ‘war on terror’, the detainee also smacks of regimes which employ
the military as a means of policing civil order. Symptomatically, detainees are usually
also held in spaces, camps or prisons controlled by the military. The detainee, in other
words, is an emblematic figure of martial law. Indeed, detention, as a legal act, seeks to
separate the status of the detained from that of both ‘prisoner’ and ‘prisoner of war’,
and hence form the basis central to the legal manipulation of attempts to free them or
even to criticize their treatment. The detainee necessarily involves derogation by the
state from the fundamental norms of human rights. In this sense the detainee is central
to precisely the kind of rule against which liberal democracy purports to set itself:
forms of ‘totalitarian’ rule or ‘police states’ in general. Leaving aside the obvious fact
that many of those being detained have been tortured and almost all have been subject
to inhumane treatment, the central issue surrounding them concerns one of the
supposed foundation stones of liberal democracy: the principle of habeas corpus. The
writ of habeas corpus has been used to reform and argue for release of prisoners
interned without charge or trial, affront to a fundamental right of liberty and the
associated belief that any form of imprisonment must follow the rule of law.
cabinet collective responsibility
Cabinet collective responsibility is constitutional convention in governments using the
Westminster System that members of the Cabinet must publicly support all
governmental decisions made in Cabinet, even if they do not privately agree with them.
This support includes voting for the government in the legislature. In the United
Kingdom, the doctrine applies to all members of the government, from members of the
cabinet down to Parliamentary Private Secretaries. Some political parties apply the
pg. 213
convention to their central committee. Its inner workings are set out in the Ministerial
Code. It is related to the fact that, if a vote of no confidence is passed in parliament, the
government is responsible collectively, and thus the entire government resigns. The
consequence will be that a new government will be formed, or parliament will dissolve
and a general election will be called. Cabinet collective responsibility is not the same as
individual ministerial responsibility, which states that ministers are responsible and
therefore culpable for the running of their departments.
executive privilege doctrine
Executive privilege is the power claimed by the President and other members of the
executive branch to resist certain subpoenas and other interventions by the legislative
and judicial branches of government. The concept of executive privilege is not
mentioned explicitly in the United States Constitution, but the Supreme Court of the
United States ruled it to be an element of the separation of powers doctrine, and/or
derived from the supremacy of executive branch in its own area of Constitutional
activity.415
The Supreme Court confirmed the legitimacy of this doctrine in United States v. Nixon416, but
only to the extent of confirming that there is a qualified privilege. Once invoked, a
presumption of privilege is established, requiring the Prosecutor to make a ‘sufficient
showing’ that the ‘Presidential material’ is ‘essential to the justice of the case.’ 417. Chief
Justice Burger further stated that executive privilege would most effectively apply when
the oversight of the executive would impair that branch's national security concerns.
Historically, the uses of executive privilege underscore the untested nature of the doctrine,
since Presidents have generally sidestepped open confrontations with the United States
Congress and the courts over the issue by first asserting the privilege, then producing
some of the documents requested on an assertedly voluntary basis.
censorship (internet)
The concept of freedom of information has emerged in response to state sponsored
censorship, monitoring and surveillance of the internet. Internet censorship includes
the control or suppression of the publishing or accessing of information on the
Internet.418 A widely publicized example of internet censorship is the ‘Great Firewall of
China’ (in reference both to its role as a network firewall and to the ancient Great Wall
of China). The system blocks content by preventing IP addresses from being routed
through and consists of standard firewall and proxy servers at the Internet gateways.
The system also selectively engages in DNS poisoning when particular sites are
requested. The government does not appear to be systematically examining Internet
415
David and Jeanne Heidler, Henry Clay: The Essential American (2010) p.264
416
418 U.S. 683 (1974)
417
418 U.S. at 713-14
418
Deibert, Robert; Palfrey, John G; Rohozinski, Rafal; Zittrain, Jonathan (2008). Access denied: the practice and
policy of global Internet filtering. MIT Press.
pg. 214
content, as this appears to be technically impractical. 419 Internet censorship in the

People's Republic of China is conducted under a wide variety of laws and administrative
regulations. In accordance with these laws, more than sixty Internet regulations have
been made by the People's Republic of China (PRC) government, and censorship
systems are vigorously implemented by provincial branches of state-owned ISPs,
business companies, and organizations.420
delegated legislation
Delegated legislation (also referred to as secondary legislation or subordinate legislation)
is law made by an executive authority under powers given to them by primary
legislation in order to implement and administer the requirements of that primary
legislation. It is law made by a person or body other than the legislature but with the
legislature's authority.
ministerial responsibility
Ministerial responsibility or individual ministerial responsibility is a constitutional
convention in governments using the Westminster System that a cabinet minister bears
the ultimate responsibility for the actions of their ministry or department. Individual
ministerial responsibility is not the same as cabinet collective responsibility, which
states members of the cabinet must approve publicly of its collective decisions or
resign. This means that a motion for a vote of ‘no confidence’ is not in order should the
actions of an organ of Government fail in the proper discharge of their responsibilities.
Where there is ministerial responsibility, the accountable Minister is expected to take
the blame and ultimately resign, but the majority or coalition within Parliament of
which the Minister is part, is not held to be answerable for that Minister's failure. The
principle is considered essential, as it is seen to guarantee that an elected official is
answerable for every single government decision. It is also important to motivate
ministers to closely scrutinize the activities within their departments. One rule coming
from this principle is that each cabinet member answers for their own ministry in
Question Time/Question Period. The reverse of ministerial responsibility is that civil
servants are not supposed to take credit for the successes of their department, allowing
the government to claim them.
oath of alegience
An oath of allegiance is an oath whereby a subject or citizen acknowledges a duty of
allegiance and swears loyalty to monarch or country. In republics, modern oaths specify
allegiance to the country's constitution. However, in a constitutional monarchy, oaths
are sworn to the monarch. Oaths of allegiance are commonly required of newly-
naturalised citizens, members of the armed forces, and those assuming public
(particularly parliamentary and judicial) office.
419
Watts, Jonathan (February 20, 2006). "War of the words". London: The Guardian.
420
II. How Censorship Works in China: A Brief Overview". Human Rights Watch. Retrieved 2006-08-30.
pg. 215
prerogative orders
An Order in Council made under the Royal Prerogative is primary legislation, and does not
depend on any statute for its authority, although it may be overridden by an Act of
Parliament. 421 This type has become less common with the passage of time, as statutes
encroach on areas which used to form part of the Royal Prerogative.
delegated legislation
Executive order (United States), an order by the President of the United States to officers
and employees of the executive branch which is sometimes incorrectly considered
equivalent to an Order-in-Council. In fact, Article, I of US Constitution reserves all
federal legislative authority to the United States Congress except for the Presidential
veto and even that can be overridden by Congress.
orders in council
An Order in Council is a type of legislation in many countries, typically those in the
Commonwealth of Nations. In the United Kingdom this legislation is formally made in
the name of the Queen by the Privy Council (Queen-in-Council), but in other countries
the terminology may vary. The term should not be confused with Order of Council.
421
Council of Civil Service Unions v. Minister for the Civil Service [8] 374 at 399, per Lord Fraser of Tullybelton
.
pg. 216
ADMINISTRATIVE POWER ON THE SEA
york-antwerp rules
A set of internationally-accepted rules, first published in 1890, proposing points of detail in
the application of the maritime law principle of general average.
international convention on salvage, 1989
An international treaty which standardizes, for signatories, the rules related to salvage and
the compensation thereof.
high seas
A term of international and maritime law; the open ocean, not part of the exclusive
economic zone, territorial sea or internal waters of any state.
international jurisdiction (territorial waters)
The exclusive jurisdiction of the flag state422 is not absolute. There are several exceptions by
which other states are granted in varying degrees a share of legislative or enforcement
jurisdiction with the flag state. This sharing of jurisdiction is related in four cases to
offences and in two cases to the nationality of vessels. These provisions are not derived
from a common structure, although some of them are of ancient origin.
Only two basic principles in these provisions find some general application.
1. One is that the states are required to co-operate in the repression of the offences of
piracy,423 illicit drug trade,424 and unauthorized broadcasting;425 co-operation is not, on the
other hand, expected for the prevention of transport of slaves.426
2. Secondly, warships and other vessels and aircraft clearly on government service427 have a
right of visit on foreign vessels suspected of involvement in piracy, the slave trade, or
unauthorized broadcasting.428
Government vessels also have a right of visit on vessels without nationality (important in the
case of vessels which sail under the flags of two or more states 429) and on vessels of
apparently the same nationality as the government ship, even though flying a different flag
422
Art. 92, Para. 1
423
Art. 100
424
Art. 108, Para. 1
425
Art. 109, Para. 1
426
Art. 99
427
Art. 110, Para. 1, 4, 5
428
Art. 110, Subpara. 1(a-c)
429
Art. 92, Para. 2 (110, 1(d))
pg. 217
or refusing to show any flag at all,430 in reality a question of flag state jurisdiction. In the
case of ships involved in illicit drug trade, the jurisdiction of the flag state remains in this
respect unchallenged.431 But the flag state may request co-operation from another state,
including the conducting of a visit on board.432
The jurisdiction of other states on foreign vessels as granted in the right to visit by duly
authorized government vessels is limited to cases of suspicion of certain activities
(piracy, slave trade, unauthorized broadcasting, sailing without nationality, practicing
deception with regard to nationality);433 the boarding vessel may verify the right of the
ship to fly the flag. By checking its documents and, if suspicion remains, proceed to a
further investigation.434 Only in cases of piracy and unauthorized broadcasting are the
rights of other states considerably extended.435 It is significant that the definition of piracy
presumes the involvement of at least two vessels, a pirate vessel and a victim vessel,436
thus excluding hijacking as it has been practiced in recent years from being treated as
piracy. Piracy is the only case in which every state's official vessels may carry out a
seizure437 and the state exercises full jurisdiction with regard to penalties to be imposed
and action to be taken.438 Actions of arrest and seizure due to unauthorized broadcasting,
on the other hand, may be carried out only by states affected by unlawful broadcasting.439
hot pursuit
The right of hot pursuit440 has developed of itself. It allows an official vessel to extend the
sovereignty of the coastal state beyond the territorial sea by maintaining an
uninterrupted chase of a fleeing merchant vessel. The pursuing vessel must be authorized
to make arrests. Hot pursuit may commence when the coastal state has good reason to
believe that the foreign vessel has violated the state's laws and regulations and the vessel
has disobeyed a clear order to stop. The chase must begin within the limits of the
territorial sea or, where relevant rights have been violated, in zones further out. The right
of hot pursuit ceases when the chase is interrupted or the vessel reaches the territorial
sea of its own state or a third state.
law of the flag principle
A principle of maritime and international law; that the sailors and vessel will be subject to
the laws of the state corresponding to the flag flown by the vessel.
430
Art. 110, Subpara. 1(e)
431
Art. 108, 110
432
Art. 108, Para. 2
433
Art. 110, Para. 1
434
Art. 110, Para. 2
435
Art. 101-107; 109
436
Art. 101
437
Art. 107; see also Bernaerts’ Guide To The 1982 United Nations Convention On The Law Of The Sea.
438
Art. 105
439
Art. 109, Para.3-4
440
Art. 111
pg. 218
In US v Jho441, Justice Garza wrote:

‘The law of the flag doctrine ... provides that a merchant ship is part of the territory of the
country whose flag she flies, and that actions aboard that ship are subject to the laws of
the flag state.
‘However ... jurisdiction may be exercised concurrently by a flag state and a territorial state.’
‘The law of the flag doctrine does not mandate that anything that occurs aboard a ship must
be handled by the flag state.... The law of the flag doctrine does not completely trump a
sovereign's territorial jurisdiction to prosecute violations of its laws. The law of the flag
doctrine is chiefly applicable to ships on the high seas, where there is no territorial
sovereign; and as respects ships in foreign territorial waters it has little application
beyond what is affirmatively or tacitly permitted by the local sovereign.
‘The flag state's jurisdiction is not exclusive when the ship is in a port or internal waters of
another state.’
port state jurisdiction
In international law the control and detention of ships by a port State for events occurring
within the port can be readily justified, for 'the port', an inland water of Australia, is
part of the territory of Australia and under international law the principle of territorial
sovereignty generates/bestows jurisdiction over events happening within that
territory. In short the fact that ports are within Australian territory gives the Australian
State jurisdiction over what happens in them. It is important though at the outset to
make the distinction between jurisdiction over ships for events occurring in port and
the jurisdiction the LOSC confers over ships when in port in relation to actions
occurring before they enter port. The former jurisdiction goes with the territory, the
latter is extra-territorial and therefore extraordinary; the LOSC confers the latter 442.
freedom of the high seas
The dominant theme in the international law of the sea dating from the late eighteenth
Century has been that the high seas are res cornmunis — common property — and not
capable of acquisition by any one State. Before the eighteenth Century a notion of
closed seas had existed in which acquisition of the high seas was possible. Commercial
and naval interests though brought an end to mare clausum and ushered in the concept
of mare liberum — freedom of the seas443.
Remembering the classic presumption in international law is that if you have sovereignty
over the territory you have jurisdiction over the events occurring in that territory, it
was natural to presume that no one nation could have jurisdiction over ships navigating
and fishing on the high seas because the high seas could not be acquired by any one
nation as territory. However international law had also developed the notion of flag
state jurisdiction; that is the State whose flag the ship carried had jurisdiction over the
441
Id.
442
(1995) 11MLAANZ Journal — Part 1
443
Shearer I., 'Problems of Jurisdiction and Law Enforcement Against Delinquent Vessels' (1986) 35ICLQ 320.
pg. 219
ship wherever it may be, including the high seas. This was vital to maintaining public
order for without flag state jurisdiction, ships on the high seas would have been beyond
all commands.444
Of course there were limited exceptions — piracy, flying without a flag and hot pursuit
gave some jurisdiction to non flag states. And more recently the Intervention
Convention 1969 which allowed coastal states to intervene in disasters occurring on the
high seas that threatened their coasts (and now embodied in Article 221 LOSC).
However the general principle was that what happened to ships on the high seas
remained in the control of the flag state.
flag-state
The ship shall always carry a flag of a State. This is regularly the flag of a State in whose
register the ship is. As well as identifying the nationality of the ship, the flag also
indicates which State is authorized to exercise flag State jurisdiction over the vessel.
The principle that the flag State has the primary responsibility for the regulation of the
ship carrying its flag is still intact.
legislative jurisdiction
State legislative jurisdiction is the State’s ‘sovereignty’ and thereby the competence to
adopt laws and regulations.
freedom of navigation
Freedom of navigation is a principle of customary international law that, apart from the
exceptions provided for in international law, ships flying the flag of any sovereign state
shall not suffer interference from other states. 445 This right is now also codified as
article 87(1)a of the 1982 United Nations Convention on the Law of the Sea. However,
not all UN member states have ratified the convention; notably, the United States has
signed, but not ratified the convention446.
flag state principle
According to this principle, the flag state is responsible for the reports from all vessels
carrying its flag. The flag state principle ensures that vessels on the high seas will not
be interfered by other states than the state of the flag that it is flying. Accordingly,
reconsideration of the flag state principle essentially extends to that of the freedom of
navigation.
equidistance principle/ meridian principle
The equidistance principle or principle of equidistance is a legal concept stating that a
nation's maritime boundaries should conform to a median line equidistant from the
444
See Brownlie supra n 3 at 178 and 233-4; see the modern restatement in LOSC Article 87.
445
Campbell, "USS Caron’s Black Sea Scrape Furthered International Law, National Interest", THE VIRGINIAS-PILOT AND THE
LEDGER STAR", June 12, 1988, at C3, col. 1.
446
Dupuy, R.J., Vignes, D. (1991) A handbook on the new law of the sea. Martinus Nijhoff Publishers, ISBN 0-
7923-1063-2
pg. 220
shores of neighboring nation-states. 447 This concept was developed in the process of
settling disputes where the borders of adjacent nations were located on a contiguous
continental shelf.
An equidistance line is one for which every point on the line is equidistant from the nearest
points on the baselines being used. The equidistance principle is a methodology that
has been endorsed by the UNCLOS treaty, but predates the treaty and has been used by
the Supreme Court of the United States, states, and nations to equitably establish
boundaries. 448
The principle of equidistance represents one aspect of customary international law, but its
importance is evaluated in light of other factors,449 such as history:
‘Historic rights’ or titles of some or another kind will acquire enhanced, rather than
diminished, importance as a result of the narrowing of the 'physical' rather than the 'legal'
sources of right. The identification of a 'status quo' or 'modus vivendi' line in Tunisia–
Libya was of decisive importance in confirming the equitableness of the first stage of
delimitation. States will scrupulously avoid, more than ever, any appearance of
acquiescence where acquiescence is not intended; prudent coordination can be expected
between petroleum and mining ministries and the legal advisers of foreign ministries.’ 450
International law refers to equidistance. For example, Article 6 of the 1958 Geneva
Convention on the Continental Shelf explains:
‘Where the same continental shelf is adjacent to the territories of two or more States whose
coasts are opposite each other, the boundary of the continental shelf appertaining to such
States shall be determined by agreement between them. In the absence of agreement, and
unless another boundary line is justified by special circumstances, the boundary is the
median line, every point of which is equidistant from the nearest points of the baselines
from which the breadth of the territorial sea of each State is measured.’ 451
natural prolongation principle
The natural prolongation principle or principle of natural prolongation is a legal concept
sgating that a nation's maritime boundaries should reflect the 'natural prolongation' of
447
Dorinda G. Dallmeyer and Louis De Vorsey. (1989). Rights to Oceanic Resources: Deciding and Drawing
Maritime Boundaries. Dordrecht: Martinus Nijhoff Publishers. 10-ISBN 079230019X/13-ISBN
9780792300199; OCLC 18981568
448
Kaye, Stuart B. (1995). Australia's maritime boundaries. Wollongong, New South Wales: Centre for Maritime
Policy (University of Wollongong). 10-ISBN 0864183925/13-ISBN 9780864183927; OCLC 38390208, pp. 12,
172.
449
Highet, Keith. (1989). "Whatever became of natural prolongation," in Rights to Oceanic Resources: Deciding
and Drawing Maritime Boundaries, (Dorinda G. Dallmeyer et al., editors), pp. 97 at Google Books.
450
Id
451
Dorinda G. Dallmeyer and Louis De Vorsey. (1989). Rights to Oceanic Resources: Deciding and Drawing
Maritime Boundaries. Dordrecht: Martinus Nijhoff Publishers. 10-ISBN 079230019X/13-ISBN
9780792300199; OCLC 18981568
pg. 221
where its land territory reaches the coast. 452 This concept was developed in the process
of settling disputes where the borders of adjacent nations were located on a contiguous
continental shelf. 453
The phrase natural prolongation was established as a concept in the North Sea Continental
Cases454 in 1969. 455
The relevance and importance of natural prolongation as a factor in delimitation disputes
and agreements has declined during the period in which international acceptance of
UNCLOS III has expanded. 456
The Malta/Libya Case457 in 1985 is marked as the eventual demise of the natural
prolongation principle being used in delimiting between adjoining national maritime
boundaries. 458
duty to assist at sea
The duty to assist at sea is a fundamental part of U.S. maritime law. In Caminiti v.
Tomlinson Fleet Corp.,459 passengers went overboard from their pleasure craft and two
ships passed by and didn't stop, with one of the ships even shining its spotlight on the
men struggling in the water before callously proceeding on. The men drowned. The
shipping companies denied they had any obligation to assist the drowning men. The
Court disagreed, finding that the ‘law of the sea has always demanded a higher degree of
care, vigilance and diligence.’ The duty to rescue ‘strangers in peril’ exists even if the
ships did not cause the peril in the first place. The Court stated that to accept the
shipping companies' argument would create a situation ‘shocking to humanitarian
considerations and the commonly accepted code of social conduct.’
Currently, there are several international conventions which impose a duty on ships to
assist individuals in distress at sea.
1) The Search and Rescue (SAR) Convention of 1979 gives a clear definition of the term
‘Rescue’. It involves not only ‘an operation to retrieve persons in distress, provide for
their initial medical or other needs’ but also to ‘deliver them to a place of safety’. This
452
Highet, Keith. (1989). "Whatever became of natural prolongation," in Rights to Oceanic Resources: Deciding
and Drawing Maritime Boundaries, (Dorinda G. Dallmeyer et al., editors), pp. 87–100. at Google Books
453
Capaldo, Giuliana Ziccardi. (1995). Répertoire de la jurisprudence de la cour internationale de justice (1947–
1992). p. 409. at Google Books.
454
North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v
Netherlands) ICJ Reports 4 at 42.
455
Kaye, Stuart B. (1995). Australia's maritime boundaries. Wollongong, New South Wales: Centre for Maritime
Policy (University of Wollongong). 10-ISBN 0864183925/13-ISBN 9780864183927; OCLC 38390208, pp. 12,
172.
456
Highet, pp. 89–90. at Google Books;
457
Case Concerning the Continental Shelf (Libyan Arab Jamahiriya v Malta) (Judgment) [8] ICJ Reports 13 at 29
458
See Francalanci, Giampiero; Tullio Scovazzi; and Daniela Romanò. (1994). Lines in the Sea. Dordrecht:
Martinus Nijhoff Publishers. 10-ISBN 0792328469; 13-ISBN 9780792328469; OCLC 30400059
459
1981 MAC 201 (E.D. Ohio)
pg. 222
obligation to initiate action is activated once the responsible authorities of a State Party
receive information that any person is, or appears to be, in distress at sea. It further
states that, once a State Party has accepted responsibility to provide search and rescue
services for a specified area, it is obliged to use search and rescue units and other
available facilities for providing assistance to anyone in distress at sea, and that such
assistance is to be provided ‘regardless of the nationality or status of such a person or
the circumstances in which that person is found’.
2) The Safety of Life at Sea Convention (SOLAS) spells out the obligation on ships' masters
to render assistance. It says, ‘The master of a ship at sea which is in a position to be able
to provide assistance, on receiving a signal from any source that persons are in distress at
sea, is bound to proceed with all speed to their assistance, if possible informing them or the
search and rescue service that the ship is doing so.’ Elsewhere, it stipulates that
contracting Governments should undertake ‘to ensure that necessary arrangements are
made … for the rescue of persons in distress at sea around its coasts.’
The Salvage Convention of 1989, while primarily concerned with the salvage of property
and the prevention of marine pollution, nevertheless restates the SOLAS obligation on
the master to render assistance to any person in danger of being lost at sea.
The Convention on Facilitation of International Maritime Traffic (FAL Convention) sets
forth special facilitation measures for ships calling at ports in order to put ashore sick
or injured crew members, passengers or other persons for emergency medical
treatment.
The LOSC provides for duty to assist persons in distress at sea; a long-established rule of
customary international law. It extends both to other vessels and coastal States in the
vicinity, and all persons, including irregular maritime migrants, remain protected. It has
been codified in LOSC, which prescribes relevant duties for both the flag and the coastal
States. First, with regard to flag States, article 98 (1) of LOSC provides that:
‘Every State shall require the master of a ship flying its flag, in so far as he can do so without
serious danger to the ship, the crew, or the passengers … to render assistance to any
person found at sea in danger of being lost … and to proceed to the rescue of persons in
distress, if informed of their need for assistance, in so far as such action may be reasonably
be expected of him.’
Then, with regard to coastal States, article 98 (2) of LOSC stipulates:
‘Every coastal State shall promote the establishment, operation and maintenance of an
adequate and effective search and rescue service regarding safety on and over the sea and,
where circumstances so require, by way of mutual regional arrangements cooperate with
neighbouring States for this purpose’
All the conventions essentially state that a captain of a ship once notified of persons in
distress shall proceed with all speed to their assistance.
pg. 223
continental shelf
The continental shelf is the extended perimeter of each continent and associated coastal
plain. Much of the shelf was exposed during glacial periods, but is now submerged
under relatively shallow seas (known as shelf seas) and gulfs, and was similarly
submerged during other interglacial periods.
The continental margin, between the continental shelf and the abyssal plain, comprises a
steep continental slope followed by the flatter continental rise. Sediment from the
continent above cascades down the slope and accumulates as a pile of sediment at the
base of the slope, called the continental rise. Extending as far as 500 km from the slope,
it consists of thick sediments deposited by turbidity currents from the shelf and
slope.460 The continental rise's gradient is intermediate between the slope and the shelf,
on the order of 0.5-1°.461
Under the United Nations Convention on the Law of the Sea, the name continental shelf was
given a legal definition as the stretch of the seabed adjacent to the shores of a particular
country to which it belongs. Such shores are also known as territorial waters.
cannon shot' rule
The rule by which a state has territorial sovereignty of that coastal sea within three miles of
land. Its name derives from the fact that in the 17th century this limit roughly
corresponded to the outer range of coastal artillery weapons and therefore reflected
the principle terrae dominum finitur, ubi finitur armorium vis (the dominion of the land
ends where the range of weapons ends). The rule is now not widely recognized: many
nations have established a 6- or 12-mile coastal limit. See also territorial waters.
high seas doctrine
High seas, in maritime law, are all parts of the mass of saltwater surrounding the globe that
are not part of the territorial sea or internal waters of a state. For several centuries
beginning in the European Middle Ages, a number of maritime states asserted
sovereignty over large portions of the high seas. Well-known examples were the claims
of Genoa in the Mediterranean and of Great Britain in the North Sea and elsewhere.
The doctrine that the high seas in time of peace are open to all nations and may not be
subjected to national sovereignty (freedom of the seas) was proposed by the Dutch
jurist Hugo Grotius as early as 1609. It did not become an accepted principle of
international law, however, until the 19th century. Freedom of the seas was
ideologically connected with other 19th-century freedoms, particularly laissez-faire
economic theory, and was vigorously pressed by the great maritime and commercial
powers, especially Great Britain. Freedom of the high seas is now recognized to include
460
Gross, Grant M. Oceanography: A View of the Earth. Englewood Cliffs: Prentice-Hall, Inc., 1972. ISBN 0-13-
629659-9
461
Pinet, Paul R. (1996) Invitation to Oceanography. St. Paul, MN: West Publishing Co., 1996. ISBN 0-7637-
2136-0 (3rd ed.)
pg. 224
freedom of navigation, fishing, the laying of submarine cables and pipelines, and
overflight of aircraft.
By the second half of the 20th century, demands by some coastal states for increased
security and customs zones, for exclusive offshore-fishing rights, for conservation of
maritime resources, and for exploitation of resources, especially oil, found in
continental shelves caused serious conflicts. The first United Nations Conference on the
Law of the Sea, meeting at Geneva in 1958, sought to codify the law of the high seas but
was unable to resolve many issues, notably the maximum permissible breadth of the
territorial sea subject to national sovereignty. A second conference (Geneva, 1960) also
failed to resolve this point; and a third conference began in Caracas in 1973, later
convening in Geneva and New York City.
visit and search
Procedure adopted by a belligerent warship to ascertain whether a merchant vessel is
liable to seizure. If an inspection of the papers shows the ship to be an enemy vessel or
to be carrying contraband, breaking blockade, or engaging in unneutral service, it is
immediately captured. More often there is merely suspicion of such activities, in which
case the vessel may be searched. If the searchers are satisfied the vessel is innocent, it is
allowed to proceed. If suspicion remains, it may be brought into port for a more
thorough search. If it is finally declared innocent and a prize court considers there was
no probable cause for capture, the court may order damages to be paid.
As the size of modern ships makes it impossible to search them thoroughly on the high
seas, the practice of taking them automatically into port for search was adopted by
British warships in World War I. The United States, however, protested on the ground
that international law did not permit diversion of the vessel unless search at sea
showed probable cause for capture. As a result, the British adopted the navicert system
in 1916. The navicert issued by the belligerent’s representative in a neutral country was
tantamount to a ship’s passport, possession of which ensured, in the absence of
suspicious circumstances, that the vessel would be allowed to proceed on its way.
While the principle of freedom of the seas normally forbids visit and search of foreign
merchant vessels on the high seas in time of peace, the practice has occasionally been
extended to “pacific blockades” instituted as measures of reprisal, usually by a large
state against a small one. On Oct. 23, 1962, for example, U.S. Pres. John F. Kennedy
proclaimed a “quarantine” of Cuba, under which any vessel suspected of carrying
prohibited materials, especially missiles, to Cuba would be intercepted within a
designated zone around Cuba, stopped, visited, searched, and, if found to be carrying
such materials, diverted. If it attempted to escape or resist, it would be shot at and
perhaps sunk. A few Soviet vessels were diverted, but none were sunk, and the crisis
was soon terminated. This procedure, which resembled pacific blockade, was criticized
as contrary to the UN Charter, which prohibited the use or threat of force except in
defense against armed attack.
pg. 225
navicert system
Navicert is a certificate specifying the contents of a neutral ship's cargo, issued esp in time
of war by a blockading power. The navicert issued by the belligerent’s representative in
a neutral country was tantamount to a ship’s passport, possession of which ensured, in
the absence of suspicious circumstances, that the vessel would be allowed to proceed
on its way.
prize court
A municipal (national) court in which the legality of captures of goods and vessels at sea
and related questions are determined.
During time of war private enemy ships and neutral merchantmen carrying contraband are
subject to seizure. Title to such vessels and their cargoes does not immediately pass to
the captor state but, under international law, must be adjudicated by the captor state’s
prize court, which may condemn them as lawful prizes. Enemy warships, enemy public
ships (such as prison ships), and neutral ships participating in hostilities, on the other
hand, are subject to capture. Title in them passes immediately to the captor state and is
not subject to condemnation by a prize court.
Although prize courts are municipal courts, and their character and organization are thus
determined by national tradition and law, they apply customary and conventional
international law. There is a practice of long standing for belligerents, at the outbreak of
war, to enact prize law through statutory legislation; such enactments are presumed to
be declaratory of international law but are, in any event, binding on the courts.
In the 20th century, unrestricted sea warfare involving the destruction of merchant
shipping has reduced the role of prize courts. The United States has held no prize courts
since 1899 for the additional reason of its more liberal policy of requisitioning foreign
vessels with compensation rather than appropriating them as prizes.
mare liberum principle
The United Nations Convention on the Law of the Sea (UNCLOS), also called the Law of the
Sea Convention or the Law of the Sea treaty, is the international agreement that
resulted from the third United Nations Conference on the Law of the Sea (UNCLOS III),
which took place between 1973 and 1982. The Law of the Sea Convention defines the
rights and responsibilities of nations in their use of the world's oceans, establishing
guidelines for businesses, the environment, and the management of marine natural
resources.462
The UNCLOS replaces the older and weaker 'freedom of the seas' concept, dating from the
17th century: national rights were limited to a specified belt of water extending from a
nation's coastlines, usually three nautical miles, according to the 'cannon shot' rule
developed by the Dutch jurist Cornelius van Bynkershoek. All waters beyond national
462
"The United Nations Convention on the Law of the Sea (A historical perspective)". United Nations Division for Ocean Affairs
and the Law of the Sea. Retrieved April 30, 2009.
pg. 226
boundaries were considered international waters: free to all nations, but belonging to
none of them (the mare liberum principle promulgated by Grotius).
internal waters
Covers all water and waterways on the landward side of the baseline. The coastal state is
free to set laws, regulate use, and use any resource. Foreign vessels have no right of
passage within internal waters.
territorial waters
Out to 12 nautical miles (22 kilometres; 14 miles) from the baseline, the coastal state is free
to set laws, regulate use, and use any resource. Vessels were given the right of innocent
passage through any territorial waters, with strategic straits allowing the passage of
military craft as transit passage, in that naval vessels are allowed to maintain postures
that would be illegal in territorial waters. "Innocent passage" is defined by the
convention as passing through waters in an expeditious and continuous manner, which
is not "prejudicial to the peace, good order or the security" of the coastal state. Fishing,
polluting, weapons practice, and spying are not "innocent", and submarines and other
underwater vehicles are required to navigate on the surface and to show their flag.
Nations can also temporarily suspend innocent passage in specific areas of their
territorial seas, if doing so is essential for the protection of its security.
archipelagic state
An archipelagic state is any internationally recognized state or country that comprises a
series of islands that form an archipelago. The term is defined by the United Nations
Convention on the Law of the Sea in order to define what borders such states should be
allowed to claim.
In various conferences of the United Nations on the Law of the Sea (UNCLOS), 463 Indonesia,
the Philippines, Papua New Guinea, Fiji and the Bahamas are the five sovereign nations
that obtained approval in the UN Convention on the Law of the Sea (UNCLOS) held in
Jamaica on December 10, 1982 and qualified as Archipelagic States. 464
Archipelagic States are states that are composed of groups of islands forming a state as a
single unit, with the islands and the waters within the baselines as internal waters.
Under this concept ("Archipelagic doctrine"), an archipelago shall be regarded as a
single unit, so that the waters around, between, and connecting the islands of the
archipelago, irrespective of their breadth and dimensions, form part of the internal
waters of the state, and are subject to its exclusive sovereignty.
The approval of the United Nations for the 5 countries as Archipelagic States respect 465
existing agreements with other States and shall recognize traditional fishing rights and
other legitimate activities of the immediately adjacent neighboring States in certain
463
"Preamble to the United Nations Convention on the Law of the Sea: Article 46 - Use of Terms". United Nations. May 13, 2013.
464
"United Nations Convention on the Law of the Sea of 10 December 1982". United Nations. May 13, 2013.
465
"2 laws UNLCOS 200 and Archipelagic States to End Spratlys Disputes: THE ARCHIPELAGIC STATES". Rebuilding for the
Better Philippines. May 13, 2013.
pg. 227
areas falling within archipelagic waters. The terms and conditions for the exercise of
such rights and activities, including the nature, the extent and the areas to which they
apply, shall, at the request of any of the States concerned, be regulated by bilateral
agreements between them. Such rights shall not be transferred to or shared with third
States or their nationals.466
archipelagic waters
The convention set the definition of Archipelagic States in Part IV, which also defines how
the state can draw its territorial borders. A baseline is drawn between the outermost
points of the outermost islands, subject to these points being sufficiently close to one
another. All waters inside this baseline are designated Archipelagic Waters. The state
has full sovereignty over these waters (like internal waters), but foreign vessels have
right of innocent passage through archipelagic waters (like territorial waters).
contiguous zone
Beyond the 12-nautical-mile (22 km) limit, there is a further 12 nautical miles (22 km)
from the territorial sea baseline limit, the contiguous zone, in which a state can continue
to enforce laws in four specific areas: customs, taxation, immigration and pollution, if
the infringement started within the state's territory or territorial waters, or if this
infringement is about to occur within the state's territory or territorial waters. 467 This
makes the contiguous zone a hot pursuit area.
exclusive economic zones (eezs)
These extend from the edge of the territorial sea out to 200 nautical miles (370 kilometres;
230 miles) from the baseline. Within this area, the coastal nation has sole exploitation
rights over all natural resources. In casual use, the term may include the territorial sea
and even the continental shelf. The EEZs were introduced to halt the increasingly
heated clashes over fishing rights, although oil was also becoming important. The
success of an offshore oil platform in the Gulf of Mexico in 1947 was soon repeated
elsewhere in the world, and by 1970 it was technically feasible to operate in waters
4000 metres deep. Foreign nations have the freedom of navigation and overflight,
subject to the regulation of the coastal states. Foreign states may also lay submarine
pipes and cables.
continental shelf
The continental shelf is defined as the natural prolongation of the land territory to the
continental margin’s outer edge, or 200 nautical miles (370 km) from the coastal state’s
baseline, whichever is greater. A state’s continental shelf may exceed 200 nautical miles
(370 km) until the natural prolongation ends. However, it may never exceed 350
nautical miles (650 kilometres; 400 miles) from the baseline; or it may never exceed
466
"PART IV ARCHIPELAGIC STATES: Article 51 - Existing agreements, traditional fishing rights and existing submarine cables".
United Nations. May 13, 2013.
467
"SECTION 4. CONTIGUOUS ZONE, Article 33". UNCLOS PART II – TERRITORIAL SEA AND CONTIGUOUS ZONE. United
Nations. Retrieved 2012-01-19.
pg. 228
100 nautical miles (190 kilometres; 120 miles) beyond the 2,500 meter isobath (the
line connecting the depth of 2,500 meters). Coastal states have the right to harvest
mineral and non-living material in the subsoil of its continental shelf, to the exclusion of
others. Coastal states also have exclusive control over living resources "attached" to the
continental shelf, but not to creatures living in the water column beyond the exclusive
economic zone.
freedom of the seas
Freedom of the seas is a principle in the international law and law of the sea. It stresses
freedom to navigate the oceans. It also disapproves of war fought in water. The freedom
is to be breached only in a necessary international agreement. The doctrine that the
high seas in time of peace are open to all nations and may not be subjected to national
sovereignty ( freedom of the seas) was proposed by the Dutch jurist Hugo Grotius as
early as 1609. It did not become an accepted principle of international law, however,
until the 19th century. Today, the concept of "freedom of the seas" can be found in the
United Nations Convention on the Law of the Sea" under Article 87(1) which states: "the
high seas are open to all states, whether coastal or land-locked." Article 87(1) (a) to (f)
gives a non-exhaustive list of freedoms including navigation, overflight, the laying of
submarine cables, building artificial islands, fishing and scientific research.
possessory action (admiralty practice )
A possessory suit is one which is brought to recover the possession of a vessel, had under a
claim of title.
admiralty law or maritime law
admiralty law (also referred to as maritime law) is a distinct body of law which governs
maritime questions and offenses. It is a body of both domestic law governing maritime
activities, and private international law governing the relationships between private
entities which operate vessels on the oceans. It deals with matters including marine
commerce, marine navigation, shipping, sailors, and the transportation of passengers
and goods by sea. admiralty law also covers many commercial activities, although land
based or occurring wholly on land, that are maritime in character.
admiralty law is distinguished from the Law of the Sea, which is a body of public
international law dealing with navigational rights, mineral rights, jurisdiction over
coastal waters and international law governing relationships between nations.
Although each legal jurisdiction usually has its own enacted legislation governing maritime
matters, admiralty law is characterized by a significant amount of international law
developed in recent decades, including numerous multilateral treaties.
pg. 229
right of access
Landlocked states are given a right of access to and from the sea, without taxation of
traffic.468
law of the sea
Law of the Sea, branch of international law concerned with public order at sea. Much of this
law is codified in the United Nations Convention on the Law of the Sea, signed Dec. 10,
1982. The convention, described as a “constitution for the oceans,” represents an
attempt to codify international law regarding territorial waters, sea-lanes, and ocean
resources. It came into force in 1994 after it had been ratified by the requisite 60
countries; by the early 21st century the convention had been ratified by more than 150
countries.
According to the 1982 convention, each country’s sovereign territorial waters extend to a
maximum of 12 nautical miles (22 km) beyond its coast, but foreign vessels are granted
the right of innocent passage through this zone. Passage is innocent as long as a ship
refrains from engaging in certain prohibited activities, including weapons testing,
spying, smuggling, serious pollution, fishing, or scientific research. Where territorial
waters comprise straits used for international navigation (e.g., the straits of Gibraltar,
Mandeb, Hormuz, and Malacca), the navigational rights of foreign shipping are
strengthened by the replacement of the regime of innocent passage by one of transit
passage, which places fewer restrictions on foreign ships. A similar regime exists in
major sea-lanes through the waters of archipelagos (e.g., Indonesia).
sovereignty (law of the sea)
The Montevideo Convention 19331 codified largely accepted principles of customary
international law and defines a State as an entity having a permanent population, a
defined territory, a government and enjoying the capacity to enter into relations with
other States. The existence of a State appears to be a question of fact because article 3 of
the Montevideo Convention provides that ‘’ the political existence of the state is
independent of recognition by the other states’’. The modern concept of State
sovereignty is often traced back to the Treaty of Westphalia which laid down the basic
principles for the recognition of a State as being a sovereign State: territorial integrity,
border inviolability, the supremacy of the State and a supreme law making body within
the territory. The concept of sovereignty lies at the heart of the existence of all States. It
is a reflection of their ‘’exclusive, supreme and inalienable legal authority to exercise
power within their area of governance’’. A sovereign State possesses legal, executive
and judicial powers and has authority over its subjects within its territory, to the
exclusion of all other States. Sovereignty is the basis for the doctrines of responsibility,
nationality and jurisdiction.4 Article 2(2) of the Charter of the United Nations
recognizes that all States are equal and sovereign because they are all politically
468
Jennifer Frakes, The Common Heritage of Mankind Principle and the Deep Seabed, Outer Space, and Antarctica: Will
Developed and Developing Nations Reach a Compromise? Wisconsin International Law Journal. 2003; 21:409
pg. 230
independent). The United Nations Convention on the Law of the Sea6 provides that the
sovereignty of States extends over 12 nautical miles, called the territorial sea (article 3).
Following the theory laid down by Hugo Grotius in his Mare Liberum, it was established
under international customary law that the high seas cannot be appropriated by any
State. In other words, no State can claim sovereign rights above these regions. The right
of innocent passage was recognized for all civil and military ships of all States.
Moreover States must not infringe upon the rights of the coastal State or disrupt the
peace or represent a security threat for this State (Convention on the law of the Sea,
articles 17 and 19).
pg. 231
SOVEREIGNTY
Sovereignty
Sovereignty means a state or a governing body has the full right and power to govern itself
without any interference from outside sources or bodies. In political theory, sovereignty
is a substantive term designating supreme authority over some polity. 469 It is a basic
principle underlying the dominant Westphalian model of state foundation.
The concept of sovereignty has been discussed throughout history, from the time before
recorded history through to the present day. 470 It has changed in its definition, concept,
and application throughout, especially during the Age of Enlightenment. The current
notion of state sovereignty contains four aspects consisting of territory, population,
authority and recognition.471 According to Stephen D. Krasner, the term could also be
understood in four different ways:
domestic sovereignty
domestic sovereignty – actual control over a state exercised by an authority organized
within this state,472
interdependence sovereignty
interdependence sovereignty – actual control of movement across state's borders,
assuming the borders exist,473
international legal sovereignty
international legal sovereignty – formal recognition by other sovereign states, 474
Westphalian sovereignty
Westphalian sovereignty – lack of other authority over state than the domestic authority
(examples of such other authorities could be a non-domestic church, a non-domestic
political organization, or any other external agent). 475
Often, these four aspects all appear together, but this is not necessarily the case – they are
not affected by one another, and there are historical examples of states that were non-
sovereign in one aspect while at the same time being sovereign in another of these
469
Biersteker, Thomas; Weber, Cynthia (1996). State Sovereignty as Social Construct. Cambridge Studies in International
Relations 46. Cambridge University Press. ISBN 9780521565998.
470
Núñez, Jorge Emilio. "About the Impossibility of Absolute State Sovereignty". International Journal for the Semiotics of Law.
471
Biersteker, Thomas; Weber, Cynthia (1996). State Sovereignty as Social Construct. Cambridge Studies in International
Relations 46. Cambridge University Press. ISBN 9780521565998.
472
Krasner, Professor Stephen D. (2001). Problematic Sovereignty: Contested Rules and Political Possibilities. pp. 6–12. ISBN
9780231121798.
473
9780231121798.
474
9780231121798.
475
9780231121798.
pg. 232
aspects.476 According to Immanuel Wallerstein, another fundamental feature of

sovereignty is that it is a claim that must be recognised by others if it is to have any
meaning: "Sovereignty is more than anything else a matter of legitimacy [...that]
requires reciprocal recognition. Sovereignty is a hypothetical trade, in which two
potentially conflicting sides, respecting de facto realities of power, exchange such
recognitions as their least costly strategy."477
Absolute sovereignty
The sovereign must be hedged in with obligations and conditions, must be able to legislate
without his (or its) subjects' consent, must not be bound by the laws of his
predecessors, and could not, because it is illogical, be bound by his own laws.
Perpetual sovereignty
Sovereignty must be perpetual because anyone with the power to enforce a time limit on
the governing power must be above the governing power, which would be impossible if
the governing power is absolute.
transference of sovereignty , social contract theory, contractarian theory,
sovereignty vis-a-vis social contract, popular sovereignty
This is the concept that the people transfer sovereignty to the sovereign, as per Lockean
and Hobbesian theories of social contract.
The social contract or political contract is a theory or model, originating during the Age of
Enlightenment, that typically addresses the questions of the origin of society and the
legitimacy of the authority of the state over the individual. For the name social contract
(or original contract) often covers two different kinds of contract, and, in tracing the
evolution of the theory, it is well to distinguish them. Both were current in the 17th
century and both can be discovered in Greek political thought generally involved some
theory of the origin of the state. The second form of social contract may be more
accurately called the contract of government, or the contract of submission. Generally, it
has nothing to do with the origins of society, but, presupposing a society already
formed, it purports to define the terms on which that society is to be governed: the
people have made a contract with their ruler which determines their relations with him.
They promise him obedience, while he promises his protection and good government.
While he keeps his part of the bargain, they must keep theirs, but if he misgoverns the
contract is broken and allegiance is at an end. 478 Modern revivals of social contract
theories have not been as concerned with the origin of the state.
Social contract arguments typically posit that individuals have consented, either explicitly
or tacitly, to surrender some of their freedoms and submit to the authority of the ruler
or magistrate (or to the decision of a majority), in exchange for protection of their
476
9780231121798.
477
Wallerstein, Immanuel (2004). World-Systems Analysis: An Introduction. Duke University Press. p. 44. ISBN 9780822334422.
478
J. W. Gough, The Social Contract (Oxford: Clarendon Press, 1936), pp. 2–3.
pg. 233
remaining rights. The question of the relation between natural and legal rights,
therefore, is often an aspect of social contract theory. Hugo Grotius (1625) 479, Thomas
Hobbes (1651)480, Samuel Pufendorf (1673) 481, John Locke (1689) 482, and Jean-Jacques
Rousseau (1762)483, are among the most prominent of 17th- and 18th-century theorists
of social contract and natural rights. Each solved the problem of political authority in a
different way. Grotius posited that individual human beings had natural rights; Hobbes
asserted that humans consent to abdicate their rights in favor of the absolute authority
of government (whether monarchial or parliamentary); Pufendorf disputed Hobbes's
equation of a state of nature with war. 484 Locke believed that natural rights were
inalienable, and that the rule of God therefore superseded government authority; and
Rousseau believed that democracy (self-rule) was the best way of ensuring the general
welfare while maintaining individual freedom under the rule of law.
Consent of the governed theory (sovereignty)
An early critic of social contract theory was Rousseau's friend, the philosopher David
Hume, who in 1742 published an essay "Of Civil Liberty". The second part of this essay,
entitled "Of the Original Contract485", stresses that the concept of a "social contract" is a
convenient fiction:
As no party, in the present age can well support itself without a philosophical or
speculative system of principles annexed to its political or practical one; we accordingly
find that each of the factions into which this nation is divided has reared up a fabric of
the former kind, in order to protect and cover that scheme of actions which it pursues. ...
The one party [defenders of the absolute and divine right of kings, or Tories], by tracing
up government to the DEITY, endeavor to render it so sacred and inviolate that it must
be little less than sacrilege, however tyrannical it may become, to touch or invade it in
the smallest article. The other party [the Whigs, or believers in constitutional
monarchy], by founding government altogether on the consent of the PEOPLE suppose
that there is a kind of original contract by which the subjects have tacitly reserved the
power of resisting their sovereign, whenever they find themselves aggrieved by that
authority with which they have for certain purposes voluntarily entrusted him.
—David Hume, "On Civil Liberty" [II.XII.1]486
Hume argued that consent of the governed was the ideal foundation on which a
government could rest, but that it had not actually occurred this way in general.
479
Grotius, Hugo The Rights of War and Peace Book I, Introduction by Tuck, Richard: Indianapolis: Liberty Fund, 2005.
480
Hobbes, Thomas. Leviathan. 1651.
481
Pufendorf, Samuel, James Tully and Michael Silverthorne. Pufendorf: On the Duty of Man and Citizen according to Natural
Law. Cambridge Texts in the History of Political Thought. Cambridge University Press 1991.
482
Locke, John. Second Treatise on Government 1689.
483
Rousseau, Jean-Jacques. The Social Contract, or Principles of Political Right (1762)
484
Patrick Riley, The Social Contract and Its Critics, chapter 12 in The Cambridge History of Eighteenth-Century Political
Thought, Eds. Mark Goldie and Robert Wokler, Vol 4 of The Cambridge History of Political Thought (Cambridge University
Press, 2006), pp. 347–75.
485
Stallybrass, William Teulon Swan (1918). "A society of states: Or, Sovereignty, independence, and equality in a league of
nations".
486
Stallybrass, William Teulon Swan (1918). "A society of states: Or, Sovereignty, independence, and equality in a league of
nations".
pg. 234
My intention here is not to exclude the consent of the people from being one just
foundation of government where it has place. It is surely the best and most sacred of
any. I only contend that it has very seldom had place in any degree and never almost in
its full extent. And that therefore some other foundation of government must also be
admitted.
—Ibid II.XII.20
Tacit consent theory (sovereignty)
The theory of an implicit social contract holds that by remaining in the territory controlled
by some society, which usually has a government, people give consent to join that
society and be governed by its government, if any. This consent is what gives legitimacy
to such government.
However, other writers have argued that consent to join the society is not necessarily
consent to its government. For that, the government must be according to a constitution
of government that is consistent with the superior unwritten constitutions of nature
and society.487
Voluntarism theory (sovereignty)
According to the will theory of contract, a contract is not presumed valid unless all parties
agree to it voluntarily, either tacitly or explicitly, without coercion. Lysander Spooner, a
19th-century lawyer and staunch supporter of a right of contract between individuals,
argued in his essay No Treason that a supposed social contract cannot be used to justify
governmental actions such as taxation, because government will initiate force against
anyone who does not wish to enter into such a contract. As a result, he maintains that
such an agreement is not voluntary and therefore cannot be considered a legitimate
contract at all.
Modern Anglo-American law, like European civil law, is based on a will theory of contract,
according to which all terms of a contract are binding on the parties because they chose
those terms for themselves. This was less true when Hobbes wrote Leviathan; then,
more importance was attached to consideration, meaning a mutual exchange of benefits
necessary to the formation of a valid contract, and most contracts had implicit terms
that arose from the nature of the contractual relationship rather than from the choices
made by the parties. Accordingly, it has been argued that social contract theory is more
consistent with the contract law of the time of Hobbes and Locke than with the contract
law of our time, and that features in the social contract which seem anomalous to us,
such as the belief that we are bound by a contract formulated by our distant ancestors,
would not have seemed as strange to Hobbes' contemporaries as they do to us. 488
Natural law theory (sovereignty)
487
O. A. Brownson (1866). "'The American Republic: its Constitution, Tendencies, and Destiny". Retrieved 2011-02-13.
488
Joseph Kary, "Contract Law and the Social Contract: What Legal History Can Teach Us About the Political Theory of Hobbes
and Locke", 31 Ottawa Law Review 73 (Jan. 2000)
pg. 235
Legal scholar Randy Barnett has argued489 that, while presence in the territory of a society
may be necessary for consent, it is not consent to any rules the society might make
regardless of their content. A second condition of consent is that the rules be consistent
with underlying principles of justice and the protection of natural and social rights, and
have procedures for effective protection of those rights (or liberties). This has also been
discussed by O.A. Brownson, 490 who argued that, in a sense, three "constitutions" are
involved: first the constitution of nature that includes all of what the Founders called
"natural law"; second the constitution of society, an unwritten and commonly
understood set of rules for the society formed by a social contract before it establishes a
government; by which it does establish the third, a constitution of government. To
consent, a necessary condition is that the rules be constitutional in that sense.
Bodin rejected the notion of transference of sovereignty from people to sovereign; natural
law and divine law confer upon the sovereign the right to rule 491. And the sovereign is
not above divine law or natural law. He is above (ie. not bound by) only positive law,
that is, laws made by humans. The fact that the sovereign must obey divine and natural
law imposes ethical constraints on him. Bodin also held that the lois royales, the
fundamental laws of the French monarchy which regulated matters such as succession,
are natural laws and are binding on the French sovereign. How divine and natural law
could in practice be enforced on the sovereign is a problematic feature of Bodin's
philosophy: any person capable of enforcing them on him would be above him.
Despite his commitment to absolutism, Bodin held some moderate opinions on how
government should in practice be carried out. He held that although the sovereign is not
obliged to, it is advisable for him, as a practical expedient, to convene a senate from
whom he can obtain advice, to delegate some power to magistrates for the practical
administration of the law, and to use the Estates as a means of communicating with the
people
With his doctrine that sovereignty is conferred by divine law, Bodin predefined the scope of
the divine right of kings.
Thomas Hobbes, in Leviathan (1651) borrowed Bodin's definition of sovereignty, which
had just achieved legal status in the "Peace of Westphalia", and explained its origin. He
created the first modern version of the social contract (or contractarian) theory,
arguing that to overcome the "nasty, brutish and short" quality of life without the
cooperation of other human beings, people must join in a "commonwealth" and submit
to a "Soveraigne Power" that is able to compel them to act in the common good. Hobbes'
hypothesis—that the ruler's sovereignty is contracted to him by the people in return for
his maintaining their physical safety—led him to conclude that if and when the ruler
fails, the people recover their ability to protect themselves by forming a new contract.
489
Restoring the Lost Constitution: The Presumption of Liberty, Randy Barnett (2004)
490
O. A. Brownson (1866). "'The American Republic: its Constitution, Tendencies, and Destiny ". Retrieved 2011-02-13.
491
Bodin J., La Response de Joan Bodin a M. De Malestroit, 1568. Cited in European Economic History: Documents and
Reading, p. 22. (1965). Editors: Clough SB, Moiide CG.
pg. 236
Hobbes's theories decisively shape the concept of sovereignty through the medium of
social contract theories. Jean-Jacques Rousseau's (1712–1778) definition of popular
sovereignty (with early antecedents in Francisco Suá rez's theory of the origin of
power), provides that the people are the legitimate sovereign. Rousseau considered
sovereignty to be inalienable; he condemned the distinction between the origin and the
exercise of sovereignty, a distinction upon which constitutional monarchy or
representative democracy is founded. John Locke, and Montesquieu are also key figures
in the unfolding of the concept of sovereignty; their views differ with Rousseau and
with Hobbes on this issue of alienability. This expediency argument attracted many of
the early proponents of sovereignty. Hobbes strengthened the definition of sovereignty
beyond either Westphalian or Bodin's, by saying that it must be indivisible and
absolute.
Absolute theory of sovereignty
Thoams Hobbes argued that sovereignty must be absolute, since conditions could only be
imposed on a sovereign if there were some outside arbitrator to determine when he
had violated them, in which case the sovereign would not be the final authority.
Indivisible theory of sovereignty
Thomas Hobbes argued that the sovereign is the only final authority in his territory; he
does not share final authority with any other entity. Hobbes held this to be true because
otherwise there would be no way of resolving a disagreement between the multiple
authorities.
The second book of Jean-Jacques Rousseau's Du Contrat Social, ou Principes du droit
politique (1762) deals with sovereignty and its rights. Sovereignty, or the general will,
is inalienable, for the will cannot be transmitted; it is indivisible, since it is essentially
general; it is infallible and always right, determined and limited in its power by the
common interest; it acts through laws. Law is the decision of the general will in regard
to some object of common interest, but though the general will is always right and
desires only good, its judgment is not always enlightened, and consequently does not
always see wherein the common good lies; hence the necessity of the legislator. But the
legislator has, of himself, no authority; he is only a guide who drafts and proposes laws,
but the people alone (that is, the sovereign or general will) has authority to make and
impose them
Rousseau, in his 1763 treatise Of the Social Contract 492 argued, "the growth of the State
giving the trustees of public authority more and means to abuse their power, the more
the Government has to have force to contain the people, the more force the Sovereign
should have in turn in order to contain the Government," with the understanding that
the Sovereign is "a collective being of wonder" (Book II, Chapter I) resulting from "the
general will" of the people, and that "what any man, whoever he may be, orders on his
492
Jean-Jacques Rousseau, Oeuvres complètes, ed. B. Gagnebin and M. Raymond (Paris, 1959–95), III, 361; The Collected
Writings of Rousseau, ed. C. Kelley and R. Masters (Hanover, 1990–), IV, 139.
pg. 237
own, is not a law" (Book II, Chapter VI) – and furthermore predicated on the
assumption that the people have an unbiased means by which to ascertain the general
will. Thus the legal maxim, "there is no law without a sovereign." 493
Absoluteness (sovereignty)
An important factor of sovereignty is its degree of absoluteness. 494 A sovereign power has
absolute sovereignty when it is not restricted by a constitution, by the laws of its
predecessors, or by custom, and no areas of law or policy are reserved as being outside
its control. International law; policies and actions of neighboring states; cooperation
and respect of the populace; means of enforcement; and resources to enact policy are
factors that might limit sovereignty. For example, parents are not guaranteed the right
to decide some matters in the upbringing of their children independent of societal
regulation, and municipalities do not have unlimited jurisdiction in local matters, thus
neither parents nor municipalities have absolute sovereignty. Theorists have diverged
over the desirability of increased absoluteness.
Exclusivity theory of sovereignty
A key element of sovereignty in a legalistic sense is that of exclusivity of jurisdiction.
Specifically, the degree to which decisions made by a sovereign entity might be
contradicted by another authority. Along these lines, the German sociologist Max Weber
proposed that sovereignty is a community's monopoly on the legitimate use of force;
and thus any group claiming the same right must either be brought under the yoke of
the sovereign, proven illegitimate, or otherwise contested and defeated for sovereignty
to be genuine.495 International law, competing branches of government, and authorities
reserved for subordinate entities (such as federated states or republics) represent legal
infringements on exclusivity. Social institutions such as religious bodies, corporations,
and competing political parties might represent de facto infringements on exclusivity.
De jure sovereignty and de facto sovereignty
De jure, or legal, sovereignty concerns the expressed and institutionally recognised right to
exercise control over a territory. De facto, or actual, sovereignty is concerned with
whether control in fact exists. Cooperation and respect of the populace; control of
resources in, or moved into, an area; means of enforcement and security; and ability to
carry out various functions of state all represent measures of de facto sovereignty.
When control is practiced predominately by military or police force it is considered
coercive sovereignty.
Sovereignty and independence
493
Hume, Essays, Moral, Political, and Literary, Part II, Essay XII, OF THE ORIGINAL CONTRACT | Library of Economics and
Liberty". Econlib.org. Retrieved 2011-01-20.
494
Núñez, Jorge Emilio. "About the Impossibility of Absolute State Sovereignty". International Journal for the
Semiotics of Law; see also Núñez, Jorge Emilio. "About the Impossibility of Absolute State Sovereignty: The
Middle Ages". International Journal for the Semiotics of Law.
495
Restoring the Lost Constitution: The Presumption of Liberty, Randy Barnett (2004)
pg. 238
State sovereignty is sometimes viewed synonymously with independence, however,

sovereignty can be transferred as a legal right whereas independence cannot. 496 A state
can achieve de facto independence long after acquiring sovereignty, such as in the case
of Cambodia, Laos and Vietnam. 497 Additionally, independence can also be suspended
when an entire region becomes subject to an occupation such as when Iraq had been
overran by the forces to take part in the Iraq War of 2003, Iraq's sovereignty during this
period was not contested by any state including those present on the territory.
Alternatively, independence can be lost completely when sovereignty itself becomes the
subject of dispute. The pre-World War II administrations of Latvia, Lithuania and
Estonia maintained an exile existence (and considerable international recognition)
whilst the entities were annexed by the Soviet Union and governed locally by their pro-
Soviet functionaries. When in 1991 Latvia, Lithuania and Estonia re-enacted
independence, it was done so on the basis of continuity directly from the pre-Soviet
republics.498 Another complicated sovereignty scenario can arise when regime itself is
the subject of dispute. In the case of Poland, the People's Republic of Poland which
governed Poland from 1945 to 1989 is now seen to have been an illegal entity by the
modern Polish administration. The post-1989 Polish state claims direct continuity from
the Second Polish Republic which ended in 1939. For other reasons however, Poland
maintains its communist-era outline as opposed to its pre-World War II shape which
included areas now in Belarus, Lithuania and Ukraine but did not include some of its
western regions that were then in Germany.
Internal sovereignty
Internal sovereignty is the relationship between a sovereign power and its own subjects. A
central concern is legitimacy: by what right does a government exercise authority?
Claims of legitimacy might refer to the divine right of kings or to a social contract (i.e.
popular sovereignty)
With Sovereignty meaning holding supreme, independent authority over a region or state,
Internal Sovereignty refers to the internal affairs of the state and the location of
supreme power within it.499 A state that has internal sovereignty is one with a
government that has been elected by the people and has the popular legitimacy.
Internal sovereignty examines the internal affairs of a state and how it operates. It is
important to have strong internal sovereignty in relation to keeping order and peace.
When you have weak internal sovereignty organization such as rebel groups will
undermine the authority and disrupt the peace. The presence of a strong authority
496
Oxford University Press. p. 50. ISBN 9780198265733.
497
Oxford University Press. p. 50. ISBN 9780198265733.
498
Talmon, Stefan (1998). Recognition of Governments in International Law. Oxford Monographs in International
Law Series. Oxford University Press. p. 50. ISBN 9780198265733; see also Mälksoo, Lauri (2003). Illegal
Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the USSR. M. Nijhoff
Publishers. p. 193. ISBN 9041121773.
499
Heywood, Andrew. "Political Theory". pg. 92. Palgrave Macmillan. Retrieved 25 June 2011.
pg. 239
allows you to keep agreement and enforce sanctions for the violation of laws. The
ability for leadership to prevent these violations is a key variable in determining
internal sovereignty.500 The lack of internal sovereignty can cause war in one of two
ways, first, undermining the value of agreement by allowing costly violations and
second requiring such large subsidies for implementation that they render war cheaper
than peace.501 Leadership needs to be able to promise members, especially those like
armies, police forces, or paramilitaries will abide by agreements. The presence of strong
internal sovereignty allows a state to deter opposition groups in exchange for
bargaining. It has been said that a more decentralized authority would be more efficient
in keeping peace because the deal must please not only the leadership but also the
opposition group. While the operations and affairs within a state are relative to the level
of sovereignty within that state, there is still an argument between who should hold the
authority in a sovereign state.
This argument between who should hold the authority within a sovereign state is called the
traditional doctrine of public sovereignty. This discussion is between an internal
sovereign or an authority of public sovereignty. An internal sovereign is a political body
that possesses ultimate, final and independent authority; one whose decisions are
binding upon all citizens, groups and institutions in society. Early thinkers believe
sovereignty should be vested in the hands of a single person, a monarch. They believed
the overriding merit of vesting sovereignty in a single individual was that sovereignty
would therefore be indivisible; it would be expressed in a single voice that could claim
final authority. An example of an internal sovereign or monarch is Louis XIV of France
during the seventeenth century; Louis XIV claimed that he was the state. Jean-Jacques
Rousseau rejected monarchical rule in favor of the other type of authority within a
sovereign state, public sovereignty. Public Sovereignty is the belief that ultimate
authority is vested in the people themselves, expressed in the idea of the general will.
This means that the power is elected and supported by its members, the authority has a
central goal of the good of the people in mind. The idea of public sovereignty has often
been the basis for modern democratic theory.502
Modern internal sovereignty
Within the modern governmental system, internal sovereignty is usually found in states
that have public sovereignty and rarely found within a state controlled by an internal
sovereign. A form of government that is a little different from both is the UK parliament
system. From 1790 to 1859 it was argued that sovereignty in the UK was vested neither
in the Crown nor in the people but in the "Monarch in Parliament". This is the origin of
the doctrine of parliamentary sovereignty and is usually seen as the fundamental
principle of the British constitution. With these principles of parliamentary sovereignty
majority control can gain access to unlimited constitutional authority, creating what has
been called "elective dictatorship" or "modern autocracy". Public sovereignty in modern
500
Wolford, Rider, Scott, Toby. "War, Peace, and Internal Sovereignty". pg.1. Retrieved 19 June 2011.
501
Wolford, Rider, Scott, Toby. "War, Peace, and Internal Sovereignty". pg.3. Retrieved 19 June 2011.
502
Heywood, Andrew. "Political Theory". pg. 93. Palgrave Macmillan. Retrieved 21 June 2011.
pg. 240
governments is a lot more common with examples like the USA, Canada, Australia and
India where government is divided into different levels.503
External sovereignty
External sovereignty concerns the relationship between a sovereign power and other
states. For example, the United Kingdom uses the following criterion when deciding
under what conditions other states recognise a political entity as having sovereignty
over some territory. External sovereignty is connected with questions of international
law – such as: when, if ever, is intervention by one country onto another's territory
permissible?
territorial sovereignty , Westphalian sovereignty, state sovereignty
Following the Thirty Years' War, a European religious conflict that embroiled much of the
continent, the Peace of Westphalia in 1648 established the notion of territorial
sovereignty as a norm of noninterference in the affairs of other nations, so-called
Westphalian sovereignty, even though the actual treaty itself reaffirmed the multiple
levels of sovereignty of the Holy Roman Empire. This resulted as a natural extension of
the older principle of cuius regio, eius religio (Whose realm, his religion), leaving the
Roman Catholic Church with little ability to interfere with the internal affairs of many
European states. It is a myth, however, that the Treaties of Westphalia created a new
European order of equal sovereign states.504
Westphalian sovereignty is the principle of international law that each nation-state has
sovereignty over its territory and domestic affairs, to the exclusion of all external
powers, on the principle of non-interference in another country's domestic affairs, and
that each state (no matter how large or small) is equal in international law. The
doctrine is named after the Peace of Westphalia, signed in 1648, which ended the Thirty
Years' War, in which the major continental European states – the Holy Roman Empire,
Spain, France, Sweden and the Dutch Republic – agreed to respect one another's
territorial integrity. As European influence spread across the globe, the Westphalian
principles, especially the concept of sovereign states, became central to international
law and to the prevailing world order.505
Scholars of international relations have identified the modern, Western originated,
international system of states, multinational corporations, and organizations, as having
begun at the Peace of Westphalia. 506 Both the basis and the conclusion of this view have
been attacked by some revisionist academics and politicians, with revisionists
503
Heywood, Andrew. "Political Theory". pgs. 94–95. Palgrave Macmillan. Retrieved 21 June 2011.
504
Andreas Osiander, "Sovereignty, International Relations, and the Westphalian Myth", International Organization Vol. 55 No. 2
(Spring 2001), pp. 251–287.
505
Henry Kissinger (2014). "Introduction and Chpt 1". World Order: Reflections on the Character of Nations and the Course of
History. Allen Lane. ISBN 0241004268.
506
Gabel, Medard; Henry Bruner (2003), Global Inc.: An Atlas of the Multinational Corporation, New
York: The New Press, p. 2, ISBN 1-56584-727-X
pg. 241
questioning the significance of the Peace, and some commentators and politicians
attacking the Westphalian system of sovereign nation-states.
sovereignty (international law)
In international law, sovereignty means that a government possesses full control over
affairs within a territorial or geographical area or limit. Determining whether a specific
entity is sovereign is not an exact science, but often a matter of diplomatic dispute.
There is usually an expectation that both de jure and de facto sovereignty rest in the
same organisation at the place and time of concern. Foreign governments use varied
criteria and political considerations when deciding whether or not to recognise the
sovereignty of a state over a territory Membership in the United Nations requires that
"[t]he admission of any such state to membership in the United Nations will be effected
by a decision of the General Assembly upon the recommendation of the Security
Council."507
Sovereignty may be recognized even when the sovereign body possesses no territory or its
territory is under partial or total occupation by another power. The Holy See was in this
position between the annexation in 1870 of the Papal States by Italy and the signing of
the Lateran Treaties in 1929, a 59-year period during which it was recognised as
sovereign by many (mostly Roman Catholic) states despite possessing no territory – a
situation resolved when the Lateran Treaties granted the Holy See sovereignty over the
Vatican City. Another case, sui generis, though often contested, is the Sovereign Military
Order of Malta, the third sovereign entity inside Italian territory (after San Marino and
the Vatican City State) and the second inside the Italian capital (since in 1869 the
Palazzo di Malta and the Villa Malta receive extraterritorial rights, in this way becoming
the only "sovereign" territorial possessions of the modern Order), which is the last
existing heir to one of several once militarily significant, crusader states of sovereign
military orders. In 1607 its Grand masters were also made Reichsfü rst (princes of the
Holy Roman Empire) by the Holy Roman Emperor, granting them seats in the Reichstag,
at the time the closest permanent equivalent to a UN-type general assembly; confirmed
1620). These sovereign rights were never deposed, only the territories were lost. 100
modern states still maintain full diplomatic relations with the order 508 (now de facto
"the most prestigious service club"), and the UN awarded it observer status. 509
The governments-in-exile of many European states (for instance, Norway, Netherlands or
Czechoslovakia) during the Second World War were regarded as sovereign despite
their territories being under foreign occupation; their governance resumed as soon as
the occupation had ended. The government of Kuwait was in a similar situation vis-à -
vis the Iraqi occupation of its country during 1990–1991. 510 The government of
Republic of China was recognized as sovereign over China from 1911 to 1971 despite
507
UN Chart, Article 2". Retrieved 4 October 2011.
508
Bilateral diplomatic relations of the Sovereign Military Order of Malta
509
United Nations General Assembly Session 48 Resolution 265. Observer status for the Sovereign Military Order of Malta in the
General Assembly A/RES/48/265 {{{date}}}. Retrieved 10 September 2007.
510
Nolan, Cathal J. (2002). The Greenwood Encyclopedia of International Relations. Volume 4. Greenwood Publishing Group. p.
1559.
pg. 242
that its mainland China territory became occupied by Communist Chinese forces since
1949. In 1971 it lost UN recognition to Chinese Communist-led People's Republic of
China and its sovereign and political status as a state became disputed and it lost its
ability to use "China" as its name and therefore became commonly known as Taiwan.
The International Committee of the Red Cross is commonly mistaken to be sovereign. It has
been granted various degrees of special privileges and legal immunities in many
countries,[which?] that in cases like Switzerland are considerable, 511 which are
described. The Committee is a private organisation governed by Swiss law. On the other
hand Switzerland does not recognize ICRC issued passports.
Shared sovereignty and pooled sovereignty
Just as the office of head of state can be vested jointly in several persons within a state, the
sovereign jurisdiction over a single political territory can be shared jointly by two or
more consenting powers, notably in the form of a condominium
Likewise the member states of international organizations may voluntarily bind
themselves by treaty to a supranational organization, such as a continental union. In the
case of the European Union members states this is called "pooled sovereignty".
Nation-states sovereignty
A community of people who claim the right of self-determination based on a common
ethnicity, history and culture might seek to establish sovereignty over a region, thus
creating a nation-state. Such nations are sometimes recognised as autonomous areas
rather than as fully sovereign, independent states.
Parliamentary sovereignty
Parliamentary sovereignty refers to a representative democracy where the parliament is
ultimately sovereign and not the executive power nor the judiciary.
Federation sovereignty
In a federal system of government, sovereignty also refers to powers which a constituent
state or republic possesses independently of the national government. In a
confederation constituent entities retain the right to withdraw from the national body,
but in a federation member states or republics do not hold that right.
Different interpretations of state sovereignty in the United States of America, as it related
to the expansion of slavery and fugitive slave laws, led to the outbreak of the American
Civil War. Depending on the particular issue, sometimes both northern and southern
states justified their political positions by appealing to state sovereignty. Fearing that
slavery would be threatened by results of the federal election, eleven slave states
declared their independence from the federal Union and formed a new confederation.
511
By formal agreement between the Swiss government and the ICRC, Switzerland grants full sanctity of all ICRC property in
Switzerland including its headquarters and archive, grants members and staff legal immunity, exempts the ICRC from all taxes
and fees, guarantees the protected and duty-free transfer of goods, services, and money, provides the ICRC with secure
communication privileges at the same level as foreign embassies, and simplifies Committee travel in and out of Switzerland.
pg. 243
The United States government rejected the secessions as rebellion, declaring that
secession from the Union by an individual state was unconstitutional, as the states were
part of an indissolvable federation.
autonomous administrative division, autonomous area, autonomous zone
An autonomous administrative division is an administrative division of a country that has a
degree of autonomy, or freedom from an external authority. Typically it is either
geographically distinct from the rest of the country or populated by a national minority.
Decentralization of self-governing powers and functions to such divisions is a way for a
national government to try to increase democratic participation or administrative
efficiency and/or to defuse internal conflicts. Countries that include autonomous areas
may be federacies, federations, or confederations. Autonomous areas can be divided
into territorial autonomies, subregional territorial autonomies, and local autonomies.
Air sovereignty
Air sovereignty is the fundamental right of a sovereign state to regulate the use of its
airspace and enforce its own aviation law - in extremis by the use of fighter aircraft.
Airspace above the land and sea areas of a state generally forms part of the sovereign state
area. Flights by some civil aircraft into the airspace of a UN member state does not need
prior permission (Convention on International Civil Aviation).
The upper limit of national airspace is not defined by law.
Acquisition of sovereignty
A number of modes of acquisition of sovereignty are presently or have historically been
recognised by international law as lawful methods by which a state may acquire
sovereignty over territory. The classification of these modes originally derived from
Roman property law and from the 15th and 16th century with the development of
international law. The modes are:512
Cession
¯ Cession is the transfer of territory from one state to another usually by means of treaty;
Occupation
¯ Occupation is the acquisition of territory that belongs to no state, or terra nullius;
Prescription
¯ Prescription is the effective control of territory of another acquiescing state;
Operations of nature
¯ Operations of nature is the acquisition of territory through natural processes like river
accretion or volcanism;
512
McPherson, James, Battle Cry of Freedom, (1988) pp. 40, 195, 214, 241
pg. 244
Adjudication
¯ Adjudication is where a dispute resolution body demarcates a territory. and determines
sovereignty.
Conquest
¯ Conquest is where a country practices and enforces sovereignty over a territory acquired
as a result of war.
Limits of national jurisdiction and Limits of sovereignty
There are several limits on national sovereignty, or national jurisdiction, as below:
full national jurisdiction and sovereignty
Full national jurisdiction is exercisable on:
national airspace
the portion of the atmosphere controlled by a country above its territory, including its
territorial waters or, more generally, any specific three-dimensional portion of the
atmosphere. It is not the same as aerospace, which is the general term for Earth's
atmosphere and the outer space in its vicinity.
¯ land territory surface
¯ internal waters surface
¯ internal waters
¯ territorial waters
¯ land territory underground
¯ Continental Shelf underground
restrictions on national jurisdiction and sovereignty
The restrictions on national sovereignty are on the areas of:
¯ territorial waters airspace
¯ contiguous zone airspace
¯ contiguous zone surface
¯ Exclusive Economic Zone surface
¯ Continental Shelf surface
¯ Exclusive Economic Zone
international jurisdiction per common heritage of mankind
The following areas are governed by international law, and no specific country has
jurisdiction.
¯ international airspace
¯ international waters surface
¯ international seabedsurface
pg. 245
¯ international seabed underground

¯ international waters
Freedom of the Seas, mare liberum
Freedom of the seas (Latin: mare liberum, lit. "free sea") is a principle in the international
law and law of the sea. It stresses freedom to navigate the oceans. It also disapproves of
war fought in water. The freedom is to be breached only in a necessary international
agreement.
This principle was one of U.S. President Woodrow Wilson's Fourteen Points proposed
during the First World War. In his speech to the Congress, the president said:
Absolute freedom of navigation upon the seas, outside territorial waters, alike in peace and
in war, except as the seas may be closed in whole or in part by international action for
the enforcement of international covenants.
The United States' allies Britain and France were opposed to this point, as France was also
a considerable naval power at the time. As with Wilson's other points, freedom of the
seas was rejected by the German government.
Today, the concept of "freedom of the seas" can be found in the United Nations Convention
on the Law of the Sea under Article 87(1) which states: "the high seas are open to all
states, whether coastal or land-locked." Article 87(1) (a) to (f) gives a non-exhaustive
list of freedoms including navigation, overflight, the laying of submarine cables, building
artificial islands, fishing and scientific research.
registration (High seas)
According to International law, Article 92 of the convention which describes ships shall sail
under the flag of one state only and, save in exceptional cases expressly provided for in
international treaties or in this Convention, shall be subject to its exclusive jurisdiction
on the high seas; however, when a ship is involved in certain criminal acts, such as
piracy, any nation can exercise jurisdiction under the doctrine of universal jurisdiction.
High seas were defined as any part of the sea that was not either territorial sea or
internal waters, territorial waters and exclusive economic zones. Article 88 of the 1982
Convention states that the high seas shall be reserved for peaceful purpose. Many
countries engage in military maneuvers and the testing of conventional weapons and
nuclear weapons on the high seas. In order to deliver the right punishment to the right
person or state, the ships need to be registered to a country to show proof of
ownership. The owner of the vessel sometimes prefers to pay the lower registration
fees by picking countries such as Panama, Bermuda, Italy, Malta and the Netherlands.
According to Cruise Lines International Association, 90% of commercial vessels calling
on U.S. ports fly foreign flags. To avoid the high cost with more rules and regulations,
ships and tankers sometime prefer lower cost registration with a lower standard of
inspection and regulation by picking a country that exercises less control over their
registered ships, though many ships are owned by individuals or companies in another
pg. 246
country (most commonly Japan and Greece) under a system called 'flag of convenience'.
Registering a ship in Panama means that the ship is governed by the maritime rules of
Panama rather than the ship owner's country. Ship owners do this because Panama has
low taxes and fewer labor and safety regulations than most other countries. Ship
owners can make their staff work longer hours in less safe environments, and therefore
maximize their profits. Other countries, including Liberia, Cyprus and the Bahamas also
offer flags of convenience, but Panama has the most ships registered under the scheme.
Ships registered with the US will cost more, and the employee wages will be even
higher. Freedom of the seas allows a ship to move freely on the ocean as long as it
follows the international law.
internal waters
A nation's internal waters include waters on the landward side of the baseline of a nation's
territorial waters, except in archipelagic states. 513 It includes waterways such as rivers
and canals, and sometimes the water within small bays. According to the United Nations
Convention on the Law of the Sea, the coastal nation is free to set laws, regulate any use,
and use any resource. Foreign vessels have no right of passage within internal waters,
and this lack of right to innocent passage is the key difference between internal waters
and territorial waters.514
International Seabed Authority (ISA)
The International Seabed Authority (ISA) is an intergovernmental body based in Kingston,
Jamaica, that was established to organize and control all mineral-related activities in
the international seabed area beyond the limits of national jurisdiction, an area
underlying most of the world’s oceans. It is an organization established by the Law of
the Sea Convention.
international waters, trans-boundary waters, International waterways
The terms international waters or trans-boundary waters apply where any of the following
types of bodies of water (or their drainage basins) transcend international boundaries:
oceans, large marine ecosystems, enclosed or semi-enclosed regional seas and
estuaries, rivers, lakes, groundwater systems (aquifers), and wetlands.
Oceans, seas, and waters outside of national jurisdiction are also referred to as the high
seas or, in Latin, mare liberum (meaning free seas).
Ships sailing the high seas are generally under the jurisdiction of the flag state (if there is
one);however, when a ship is involved in certain criminal acts, such as piracy, any
nation can exercise jurisdiction under the doctrine of universal jurisdiction.
International waters can be contrasted with internal waters, territorial waters and
exclusive economic zones.
International waterways
513
Article 8 Internal waters, Part II, UN Convention on the Law of the Sea
514
Article 2, Part II, UN Convention on the Law of the Sea
pg. 247
These are narrow channels of marginal sea or inland waters through which international
shipping has a right of passage.
Several international treaties have established freedom of navigation on semi-enclosed
seas.
The Copenhagen Convention of 1857 opened access to the Baltic by abolishing the Sound
Dues and making the Danish Straits an international waterway free to all commercial
and military shipping.
Several conventions have opened the Bosporus and Dardanelles to shipping. The latest,
the Montreux Convention Regarding the Regime of the Turkish Straits, maintains the
straits' status as an international waterway.
Other international treaties have opened up rivers, which are not traditionally
international waterways.
The Danube River is an international waterway so that landlocked Austria, Hungary,
Serbia, and Slovakia can have secure access to the Black Sea.
In International Law, international waterways are straits, canals, and rivers that connect
two areas of the high seas or enable ocean shipping to reach interior ports on
international seas, gulfs, or lakes that otherwise would be land-locked. International
waterways also may be rivers that serve as international boundaries or traverse
successively two or more states. Ships have a right of passage through international
waterways. This right is based on customary international law and treaty
arrangements.
Straits
Some straits are more important than others because they are the sole connecting links
between oceans and interior waters. For example, the Strait of Gibraltar gives access
from the Atlantic Ocean to the Mediterranean and Aegean Seas. Other straits are not as
important. The availability of alternate routes does not in itself deprive a strait of its
character as an international waterway. In the Corfu Channel case, 1949 I.C.J. 4, 1949
WL 1 (I.C.J.), the International Court of Justice rejected the test of essentiality as the only
route, ruling that "the decisive criterion is rather [the strait's] geographic situation as
connecting two parts of the high seas and the fact of its being used for international
navigation."
The 1958 geneva convention on the Territorial Sea and Contiguous Zone (516 U.N.T.S. 205,
15 U.S.T. 1606, T.I.A.S. No. 5639) does not deal comprehensively with international
waterways, but does provide that "[t]here shall be no suspension of innocent passage of
foreign ships through straits which are used for international navigation between one
part of the high seas and another part of the high seas or the territorial sea of a foreign
state" (art. 16, § 4). A territorial sea is the water that comes under the sovereign control
of a state.
pg. 248
A coastal state has somewhat greater control of innocent passage through its territorial
seas than of innocent passage through a strait joining two areas of high seas. Passage
may be suspended through Territorial Waters when essential for security. This means
that warships are free to pass through straits but may be denied access to territorial
seas.
Since the 1960s a great majority of coastal states have extended their claims on territorial
seas from three miles to 12 miles from the low-water mark, some even farther. This
change has been a matter of concern to the U.S. government, as a 12-mile limit converts
121 straits to territorial seas, some of which have strategic military importance.
Canals
With respect to international marine traffic, canals joining areas of the high seas or waters
leading to them are geographically in the same position as straits. However, the
significant canals have been constructed in accordance with international treaties or
later placed under conventional legal regimes. The Suez Canal, located in Egypt, and the
Panama Canal are the two most important canals in international commerce.
The United States played the major role in the construction of the Panama Canal, which
joins the Atlantic and Pacific Oceans across the Isthmus of Panama. The canal is over 40
miles long and has a minimum width of three hundred feet.
In 1903, after several European-financed efforts to build a canal across the isthmus had
failed, the U.S. government negotiated the Hay-Bunau-Varilla Treaty (T.S. No. 431, 33
Stat. 2234, 10 Bevans 663). Under this treaty the United States guaranteed the
independence of Panama (which had just broken away from Colombia) and secured a
perpetual lease on a ten-mile strip for the canal. Panama was to receive an initial
payment of $10 million and an Annuity of $250,000, beginning in 1913.
In 1906, President Theodore Roosevelt directed construction of the canal to begin under
the supervision of the U.S. Army Corps of Engineers. The Panama Canal was completed
in 1914 and officially opened by President woodrow wilson on July 12, 1920.
The Hay-Bunau-Varilla Treaty stated that the canal was to be neutralized and free and open
to vessels of commerce and war on terms of equality, and without discrimination as to
tolls or conditions of passage. However, it did not mandate open access in times of war.
The United States decided, in 1917, to close the canal and the territorial waters of the
canal zone (the ten-mile-wide strip of land that contained the canal) to vessels of enemy
states and their allies whenever the United States is a belligerent. This was done in
World Wars I and II.
From the 1920s to the 1970s, the United States and Panama had many disputes concerning
control of the Panama Canal Zone. Panamanians came to regard the zone as part of their
country and believed that the 1903 treaty was unfairly favorable to the United States. In
1971, the two countries began negotiations for a new treaty to replace the 1903
agreement.
pg. 249
In 1977, Panama and the United States concluded the Treaty Governing the Permanent
Neutrality and Operation of the Panama Canal, and the Panama Canal Treaty (both
Washington, D.C., 1977, in force 1979; Digest of United States Practice in International
Law, 1978, at 1028–560). The treaties provided that the United States would relinquish
control and administration of the canal to Panama by December 31, 1999, and
stipulated an interim period for the training of, and progressive transfer of functions to,
Panamanian personnel under the supervision of a mixed Panama Canal Commission.
The first treaty declared that the canal would be permanently neutralized (as would any
other international waterway later constructed wholly or partly in Panamanian
territory), with the object of securing it for peaceful transit in time of peace or of war
for vessels of all nations on equal terms (arts. 1, 2). The right of passage extends not
only to merchant ships but to vessels of war and auxiliary vessels in noncommercial
service of all nations "at all times," irrespective of their internal operations, means of
propulsion, origin, destination, or armament (art. 3, § 1[e]).
In early December 1999, a United States delegation, headed by former U.S. president jimmy
carter (who signed the original treaty in 1977), attended the official transfer of the
canal into Panamanian hands. Other attendees included Spain's King Juan Carlos, and
the presidents of Bolivia, Columbia, Ecuador, and Mexico. As of 2000, it was estimated
that approximately 1,400 ships pass through the canal annually.
Rivers
Customary international law has never granted equal access and rights to countries that
share navigable rivers either as boundaries between them or as waterways that
traverse them successively. Freer use of international rivers has occurred in the
nineteenth and twentieth centuries through the negotiation of treaties.
The St. Lawrence Seaway, opened for navigation by large ships in 1959, is an example of a
legal and an administrative regime wholly devised and controlled by the two states (the
United States and Canada) that share it. Based on a river in part, the seaway was
developed with the construction of bypass canals, locks, and channel improvements,
sometimes wholly within the territory of one state. In 1909, Canada and the United
States consolidated and extended a number of earlier piecemeal arrangements in the
Boundary Waters Treaty (36 Stat. 2448, 12 Bevans 359), to give both nations equal
liberty of navigation in the St. Lawrence River, the Great Lakes, and the canals and
waterways connecting the lakes. An international boundary line was drawn generally
along the median line of the lakes (with some variation in Lake Michigan), but both
nations were to exercise concurrent admiralty and criminal jurisdiction over the whole
of the lakes and their connecting waterways. The admiralty jurisdiction reflected a
disposition to treat the lakes as the high seas. This view was supported by the U.S.
Supreme Court in United States v. Rodgers, 150 U.S. 249, 14 S. Ct. 109, 37 L. Ed. 1071
(1893), when it referred to the "high seas of the lakes."
pg. 250
The building of the St. Lawrence Seaway was complicated by the failure of Canada and the
United States to negotiate an agreement for the creation of a joint international
authority to supervise the project. Instead, each country established its own national
agency to construct the canals, locks, and other works required for the 27-foot channel,
making each agency responsible for work on its own side of the river. The agencies
coordinated their work in a series of international agreements and informal
arrangements. Where works extended over the international boundary, the two
commissions allocated responsibility through the coordination of work at the technical
level. They agreed on uniform rules of navigation, coordination of pilotage services,
uniform tolls, and arrangements for collection.
Seagoing merchant vessels from other countries use the seaway regularly. Their right to do
so rests not on any general principle of free navigation, but on national agreements and
Article V of the General Agreement on Tariffs and Trade, which mandates freedom of
transit for merchant ships through the territories of signatories for traffic to or from the
territory of other signatories. As the Great Lakes are inland waters and have been
demilitarized since the Rush-Bagot Agreement of 1817 (T.S. No. 110½, 2 Miller 645, 12
Bevans 54), it is unlikely that foreign warships will request or receive permission to
visit their ports.
littoral zone
The littoral zone is the part of a sea, lake or river that is close to the shore. In coastal
environments the littoral zone extends from the high water mark, which is rarely
inundated, to shoreline areas that are permanently submerged. It always includes this
intertidal zone and is often used to mean the same as the intertidal zone. However, the
meaning of "littoral zone" can extend well beyond the intertidal zone.
There is no single definition. What is regarded as the full extent of the littoral zone, and the
way the littoral zone is divided into subregions, varies in different contexts (lakes and
rivers have their own definitions). The use of the term also varies from one part of the
world to another, and between different disciplines. For example, military commanders
speak of the littoral in ways that are quite different from marine biologists.
The adjacency of water gives a number of distinctive characteristics to littoral regions. The
erosive power of water results in particular types of landforms, such as sand dunes, and
estuaries. The natural movement of the littoral along the coast is called the littoral drift.
Biologically, the ready availability of water enables a greater variety of plant and animal
life, and particularly the formation of extensive wetlands. In addition, the additional
local humidity due to evaporation usually creates a microclimate supporting unique
types of organisms.
The word "littoral" is used both as a noun and an adjective. It derives from the Latin noun
litus, litoris, meaning "shore". (The doubled 't' is a late medieval innovation and the
word is sometimes seen in the more classical-looking spelling 'litoral'.)
Supralittoral zone
pg. 251
The supralittoral zone (also called the splash, spray or supratidal zone) is the area above
the spring high tide line that is regularly splashed, but not submerged by ocean water.
Seawater penetrates these elevated areas only during storms with high tides.
Organisms here must cope also with exposure to fresh water from rain, cold, heat and
predation by land animals and seabirds. At the top of this area, patches of dark lichens
can appear as crusts on rocks. Some types of periwinkles, Neritidae and detritus feeding
Isopoda commonly inhabit the lower supralittoral.
Eulittoral zone, Intertidal zone
The eulittoral zone (also called the midlittoral or mediolittoral zone) is the intertidal zone
also known as the foreshore. It extends from the spring high tide line, which is rarely
inundated, to the spring low tide line, which is rarely not inundated. The wave action
and turbulence of recurring tides shapes and reforms cliffs, gaps, and caves, offering a
huge range of habitats for sedentary organisms. Protected rocky shorelines usually
show a narrow almost homogenous eulittoral strip, often marked by the presence of
barnacles. Exposed sites show a wider extension and are often divided into further
zones. For more on this, see intertidal ecology.
Sublittoral zone, Neritic zone
The sublittoral zone starts immediately below the eulittoral zone. This zone is permanently
covered with seawater and is approximately equivalent to the neritic zone.
In physical oceanography, the sublittoral zone refers to coastal regions with significant
tidal flows and energy dissipation, including non-linear flows, internal waves, river
outflows and oceanic fronts. In practice, this typically extends to the edge of the
continental shelf, with depths around 200 meters.
In marine biology, the sublittoral refers to the areas where sunlight reaches the ocean floor,
that is, where the water is never so deep as to take it out of the photic zone. This results
in high primary production and makes the sublittoral zone the location of the majority
of sea life. As in physical oceanography, this zone typically extends to the edge of the
continental shelf. The benthic zone in the sublittoral is much more stable than in the
intertidal zone; temperature, water pressure, and the amount of sunlight remain fairly
constant. Sublittoral corals do not have to deal with as much change as intertidal corals.
Corals can live in both zones, but they are more common in the sublittoral zone.
Within the sublittoral, marine biologists also identify the following:
The infralittoral zone is the algal dominated zone to maybe five metres below the low
water mark.
The circalittoral zone is the region beyond the infralittoral, that is, below the algal zone
and dominated by sessile animals such as oysters.
Shallower regions of the sublittoral zone, extending not far from the shore, are sometimes
referred to as the subtidal zone.
pg. 252
Boundary delimitation, delimitation

Boundary delimitation (or simply delimitation) is the drawing of boundaries, particularly
of electoral precincts, states, counties or other municipalities. In the context of
elections, it can be called redistribution and is used to prevent unbalance of population
across districts. Unbalanced or discriminatory delimitation is called
"gerrymandering."Though there are no internationally agreed processes that guarantee
fair delimitation, several organizations, such as the Commonwealth Secretariat, the
European Union and the International Foundation for Electoral Systems have proposed
guidelines for effective delimitation.
national delimitation
In international law, national delimitation is the process of legally establishing the outer
limits ("borders") of a state within which full territorial or functional sovereignty is
exercised. Occasionally this is used when referring to the maritime boundaries as well,
in this case called maritime delimitation.
Territorial waters, territorial sea
Territorial waters, or a territorial sea, as defined by the 1982 United Nations Convention on
the Law of the Sea, is a belt of coastal waters extending at most 12 nautical miles (22.2
km; 13.8 mi) from the baseline (usually the mean low-water mark) of a coastal state.
The territorial sea is regarded as the sovereign territory of the state, although foreign
ships (both military and civilian) are allowed innocent passage through it; this
sovereignty also extends to the airspace over and seabed below. Adjustment of these
boundaries is called, in international law, maritime delimitation. The term "territorial
waters" is also sometimes used informally to describe any area of water over which a
state has jurisdiction, including internal waters, the contiguous zone, the exclusive
economic zone and potentially the continental shelf.
Baseline, Baseline (sea)
Normally, the baseline from which the territorial sea is measured is the low-water line
along the coast as marked on large-scale charts officially recognized by the coastal state.
This is either the low-water mark closest to the shore, or alternatively it may be an
unlimited distance from permanently exposed land, provided that some portion of
elevations exposed at low tide but covered at high tide (like mud flats) is within 12
nautical miles (22 km; 14 mi) of permanently exposed land. Straight baselines can
alternatively be defined connecting fringing islands along a coast, across the mouths of
rivers, or with certain restrictions across the mouths of bays. In this case, a bay is
defined as "a well-marked indentation whose penetration is in such proportion to the
width of its mouth as to contain land-locked waters and constitute more than a mere
curvature of the coast. An indentation shall not, however, be regarded as a bay unless
its area is as large as, or larger than, that of the semi-circle whose diameter is a line
drawn across the mouth of that indentation". The baseline across the bay must also be
no more than 24 nautical miles (44 km; 28 mi) in length.
pg. 253
Internal waters
Internal and external territorial waters of the Philippines prior to the adoption of new
baselines in 2009.
Internal waters
Waters landward of the baseline are defined as internal waters, over which the state has
complete sovereignty: not even innocent passage is allowed. Lakes and rivers are
considered internal waters. All "archipelagic waters" within the outermost islands of an
archipelagic state such as Indonesia or the Philippines are also considered internal
waters, and are treated the same with the exception that innocent passage through
them must be allowed. However, archipelagic states may designate certain sea lanes
through these waters.
Territorial sea
A state's territorial sea extends up to 12 nautical miles (22.2 km; 13.8 mi) from its baseline.
If this would overlap with another state's territorial sea, the border is taken as the
median point between the states' baselines, unless the states in question agree
otherwise. A state can also choose to claim a smaller territorial sea.
Conflicts still occur whenever a coastal nation claims an entire gulf as its territorial waters
while other nations only recognize the more restrictive definitions of the UN
convention. Two recent conflicts occurred in the Gulf of Sidra where Libya has claimed
the entire gulf as its territorial waters and the U.S. has twice enforced freedom of
navigation rights, in the 1981 and 1989 Gulf of Sidra incidents.
Contiguous zone
The contiguous zone is a band of water extending from the outer edge of the territorial sea
to up to 24 nautical miles (44.4 km; 27.6 mi) from the baseline, within which a state can
exert limited control for the purpose of preventing or punishing "infringement of its
customs, fiscal, immigration or sanitary laws and regulations within its territory or
territorial sea". This will typically be 12 nautical miles (22 km; 14 mi) wide, but could
be more (if a state has chosen to claim a territorial sea of less than 12 nautical miles), or
less, if it would otherwise overlap another state's contiguous zone. However, unlike the
territorial sea, there is no standard rule for resolving such conflicts and the states in
question must negotiate their own compromise. The United States invoked a contiguous
zone out to 24 nmi on 24 September 1999.
exclusive economic zone
An exclusive economic zone extends from the outer limit of the territorial sea to a
maximum of 200 nautical miles (370.4 km; 230.2 mi) from the territorial sea baseline,
thus it includes the contiguous zone. A coastal nation has control of all economic
resources within its exclusive economic zone, including fishing, mining, oil exploration,
and any pollution of those resources. However, it cannot prohibit passage or loitering
above, on, or under the surface of the sea that is in compliance with the laws and
pg. 254
regulations adopted by the coastal State in accordance with the provisions of the UN
Convention, within that portion of its exclusive economic zone beyond its territorial sea.
Before 1982, coastal nations arbitrarily extended their territorial waters in an effort to
control activities which are now regulated by the exclusive economic zone, such as
offshore oil exploration or fishing rights (see Cod Wars). Indeed, the exclusive economic
zone is still popularly, though erroneously, called a coastal nation's territorial waters.
Continental shelf
Article 76 of UNCLOS gives the legal definition of continental shelf of coastal countries. For
the physical geography definition, see the continental shelf page.
The continental shelf of a coastal nation extends out to the outer edge of the continental
margin but at least 200 nautical miles (370 km; 230 mi) from the baselines of the
territorial sea if the continental margin does not stretch that far. The outer limit of a
country's continental shelf shall not stretch beyond 350 nautical miles (650 km; 400
mi) of the baseline, or beyond 100 nautical miles (190 km; 120 mi) from the 2,500
metres (8,200 ft) isobath, which is a line connecting the depths of the seabed at 2,500
meters.
The outer edge of the continental margin for the purposes of this article is defined as:
a series of lines joining points not more than 60 nautical miles (110 km; 69 mi) apart
where the thickness of sedimentary rocks is at least 1% of the height of the continental
shelf above the foot of the continental slope; or
a series of lines joining points not more than 60 nautical miles apart that is not more
than 60 nautical miles from the foot of the continental margin.
The foot of the continental slope is determined as the point of maximum change in the
gradient at its base.
The portion of the continental shelf beyond the 200 nautical mile limit is also known as the
extended continental shelf. Countries wishing to delimit their outer continental shelf
beyond 200 nautical miles have to submit information on their claim to the Commission
on the Limits of the Continental Shelf. The Commission must make recommendations
on matters related to the establishment of the outer limits of their continental shelf. The
limits established based on these recommendations shall be final and binding.
Countries were supposed to lodge their submissions to extend their continental shelf
beyond 200 nautical miles within ten years of UNCLOS coming into force in the country,
or by 13 May 2009 for countries where the convention had come into force before 13
May 1999. As of 1 June 2009, 51 submissions have been lodged with the Commission, of
which eight have been deliberated by the Commission and have had recommendations
issued. The eight are (in the order of date of submission): Russian Federation; Brazil;
Australia; Ireland; New Zealand; the joint submission by France, Ireland, Spain and the
United Kingdom; Norway and Mexico.
Rights over the continental shelf
pg. 255
Articles 77 to 81 of UNCLOS define the rights of a country over its continental shelf.
A coastal nation has control of all resources on or under its continental shelf, living or not,
but no control over any living organisms above the shelf that are beyond its exclusive
economic zone. This gives it the right to conduct petroleum drilling works and lay
submarine cables or pipelines in its continental shelf.
An example of this is the ongoing dispute over resources in the Arctic area, which will be
decided by the exact mapping of the continental shelves.
Airspace , national airspace
Airspace is the portion of the atmosphere controlled by a country above its territory,
including its territorial waters or, more generally, any specific three-dimensional
portion of the atmosphere. It is not the same as aerospace, which is the general term for
Earth's atmosphere and the outer space in its vicinity.
Controlled airspace
Controlled airspace exists where it is deemed necessary that air traffic control has some
form of positive executive control over aircraft flying in that airspace (however, air
traffic control does not necessarily control traffic operating under visual flight rules
(VFR) within this airspace).
Uncontrolled airspace
Uncontrolled airspace is airspace in which air traffic control does not exert any executive
authority, although it may act in an advisory manner.
Airspace may be further subdivided into a variety of areas and zones, including those
where there are either restrictions on flying activities or complete prohibition of flying
activities.
Special designations of airspace.
Horizontal boundary
By international law, the notion of a country's sovereign airspace corresponds with the
maritime definition of territorial waters as being 12 nautical miles (22.2 km) out from a
nation's coastline. Airspace not within any country's territorial limit is considered
international, analogous to the "high seas" in maritime law. However, a country may, by
international agreement, assume responsibility for controlling parts of international
airspace, such as those over the oceans. For instance, the United States provides air
traffic control services over a large part of the Pacific Ocean, even though the airspace is
international.
Vertical boundary
There is no international agreement on the vertical extent of sovereign airspace (the
boundary between outer space—which is not subject to national jurisdiction—and
national airspace), with suggestions ranging from about 30 km (19 mi) (the extent of
pg. 256
the highest aircraft and balloons) to about 160 km (99 mi) (the lowest extent of short-
term stable orbits). The Fédération Aéronautique Internationale has established the
Ká rmá n line, at an altitude of 100 km (62 mi), as the boundary between the Earth's
atmosphere and the outer space, while the United States considers anyone who has
flown above 50 miles (80 km) to be an astronaut; indeed descending space shuttles
have flown closer than 80 km (50 mi) over other nations, such as Canada, without
requesting permission first. Nonetheless both the Ká rmá n line and the U.S. definition
are merely working benchmarks, without any real legal authority over matters of
national sovereignty.
The boundary between public airspace and private air rights is defined by national or local
law.
freedoms of the air
The freedoms of the air are a set of commercial aviation rights granting a country's airlines
the privilege to enter and land in another country's airspace, formulated as a result of
disagreements over the extent of aviation liberalisation in the Convention on
International Civil Aviation of 1944, known as the Chicago Convention. The terms
'freedom' and 'right' are a shorthand way of referring to the type of international
services permitted between two or more countries. The United States had called for a
standardized set of separate air rights to be negotiated between states, but most other
countries were concerned that the size of the U.S. airlines would dominate air travel if
there were not strict rules. The freedoms of the air are the fundamental building blocks
of the international commercial aviation route network. The use of the terms "freedom"
and "right" confer entitlement to operate international air services only within the
scope of the multilateral and bilateral treaties (air services agreements) that allow
them.
The first two freedoms concern the passage of commercial aircraft through foreign airspace
and airports, the other freedoms are about carrying people, mail and cargo
internationally. The first through fifth freedoms are officially enumerated by
international treaties, especially the Chicago Convention. Several other freedoms have
been added, and although most are not officially recognised under broadly applicable
international treaties they have been agreed to by a number of countries. The lower-
numbered freedoms are relatively universal while the higher-numbered ones are rarer
and more controversial. Liberal open skies agreements often represent the least
restrictive form of air services agreements and may include many if not all freedoms.
They are relatively rare but examples include the recent single aviation markets in the
European Union and between Australia and New Zealand.
1st freedom
the right to fly over a foreign country without landing
2nd freedom
pg. 257
the right to refuel or carry out maintenance in a foreign country without embarking or
disembarking passengers or cargo[4]
3rd freedom
the right to fly from one's own country to another[4]
4th freedom
the right to fly from another country to one's own[4]
5th freedom
the right to fly between two foreign countries on a flight originating or ending in one's own
country[4]
6th freedom
the right to fly from a foreign country to another while stopping in one's own country for
non-technical reasons.
7th freedom
the right to fly between two foreign countries while not offering flights to one's own
country[4]
8th freedom
the right to fly inside a foreign country, continuing to one's own country [4]
9th freedom
the right to fly inside a foreign country without continuing to one's own country [4]
Transit rights
The first and second freedoms grant rights to pass through a country without carrying
traffic that originates or terminates there and are known as 'transit rights'.[2]:146 The
Chicago Convention drew up a multilateral agreement in which the first two freedoms,
known as the International Air Services Transit Agreement (IASTA) or "Two Freedoms
Agreement", were open to all signatories. As of mid-2007, the treaty was accepted by
129 countries.
A country granting transit rights may impose fees for the privilege. The reasonableness of
such fees has caused controversy at times.
Traffic rights
In contrast to transit rights, 'traffic rights' allow commercial international services
between, through and in some cases within the countries that are parties to air services
agreements or other treaties. While it was agreed that the third to fifth freedoms shall
be negotiated between states, the International Air Transport Agreement (or "Five
Freedoms Agreement") was also opened for signatures, encompassing the first five
freedoms. The remaining four freedoms are made possible by some air services
pg. 258
agreements but are not 'officially' recognized because they are not mentioned by the
Chicago Convention.
Beyond rights
Beyond rights allow the carriage of traffic between (and sometimes within) countries that
are foreign to the airlines that operate them. Today, the most controversial of these are
fifth freedom rights. Less controversial but still restricted at times, though relatively
more common are sixth freedom rights.
Beyond rights also encompass international flights with a foreign intermediate stop where
passengers may only embark and disembark at the intermediate point on the leg of the
flight that serves the origin of an airline operating it. It also includes 'stopover' traffic
where passengers may embark or disembark at an intermediate stop as part of an
itinerary between the endpoints of a multi-leg flight or connecting flights. Some
international flights stop at multiple points in a foreign country and passengers may
sometimes make stopovers in a similar manner, but because the traffic being carried
does not originate in the country where the flight takes place it is not cabotage but
another form of beyond rights.
bilateral air transport agreement , bilateral air service agreement
A bilateral air transport agreement (also sometimes called a bilateral air service agreement
or ATA or ASA) is an agreement which two nations sign to allow international
commercial air transport services between their territories.
The bilateral system has its basis under the Chicago convention and associated multilateral
treaties. The Chicago Convention was signed in December 1944 and has governed
international air services since then. the convention also has a range of annexes
covering issues such as aviation security, safety oversight, air worthiness, navigation,
environmental protection and facilitation (expediting and departure at airports).
In 1913, in what was probably the earliest such agreement, a bilateral Exchange of Notes
was signed between Germany and France to provide for airship services.
One of the first ATAs following World War II was the Bermuda Agreement, which was
signed in 1946 by the United Kingdom and the United States. Features of this agreement
became models for the thousands of such agreements that were to follow, although in
recent decades some of the traditional clauses in such agreements have been modified
(or "liberalized") in accordance with "open skies" policies adopted by some
governments, notably the United States.
In principle all ATAs should be registered by the International Civil Aviation Organization
in DAGMAR but this source is not absolutely comprehensive.
Air Service Agreements (ASA)are formal treaties between countries- accompanying
Memoranda of Understanding (MoU)and exchanges of formal diplomatic notes. It is not
mandatory to have an ASA in place for international services to operate, but the cases
where services exist without treaty are rare.
pg. 259
ASAs cover the basic framework under which airlines are granted economic bilateral rights
to fly two countries. The frequency, the designated airlines of the two signing countries,
origin and intermediate points,Traffic rights, Type of aircraft and tax issues are
normally covered by MoUs.
Open skies
Open skies is an international policy concept that calls for the liberalization of the rules and
regulations of the international aviation industry—especially commercial aviation—in
order to create a free-market environment for the airline industry. Its primary
objectives are:
to liberalize the rules for international aviation markets and minimize government
intervention as it applies to passenger, all-cargo, and combination air transportation as
well as scheduled and charter services; and
to adjust the regime under which military and other state-based flights may be permitted.
For open skies to become effective, a bilateral (and sometimes multilateral) Air Transport
Agreement must be concluded between two or more nations.
Multilateral Air Transport Agreement
A multilateral air services agreement is the same as bilateral agreement, the only difference
being that it involves more than two contracting states.
Justification of sovereignty
There exist vastly differing views on the moral basis of sovereignty. A fundamental polarity
is between theories that assert that sovereignty is vested directly in the sovereign by
divine or natural right and theories that assert it originates from the people. In the
latter case there is a further division into those that assert that the people transfer their
sovereignty to the sovereign (Hobbes), and those that assert that the people retain their
sovereignty (Rousseau)
During the brief period of Absolute monarchies in Europe, the divine right of kings was an
important competing justification for the exercise of sovereignty. The Mandate of
Heaven had some similar implications in China.
republic
A republic is a form of government in which the people, or some significant portion of
them, retain sovereignty over the government and where offices of state are not
granted through heritage.515 A common modern definition of a republic is a government
having a head of state who is not a monarch.516
Democracy
515
Malanczuk, Peter. Akehurst's Modern Introduction to International Law. International politics/Public international law.
Routledge. pp. pp147–152. ISBN 9780415111201.
516
Montesquieu, The Spirit of the Laws (1748), Bk. II, ch. 1.
pg. 260
Democracy is based on the concept of popular sovereignty. In a direct democracy the public
plays an active role in shaping and deciding policy. Representative democracy permits a
transfer of the exercise of sovereignty from the people to a legislative body or an
executive (or to some combination of legislature, executive and Judiciary). Many
representative democracies provide limited direct democracy through referendum,
initiative, and recall.
Parliamentary sovereignty
Parliamentary sovereignty refers to a representative democracy where the parliament is
ultimately sovereign and not the executive power nor the judiciary.
Views on sovereignty
Classical Liberals(sovereignty) such as Stuart Mill consider every individual as
sovereign on him- or herself.
Realists (sovereignty) view sovereignty as being untouchable and as guaranteed to
legitimate nation-states
Rationalists (sovereignty) see sovereignty similarly to Realists. However, Rationalism
states that the sovereignty of a nation-state may be violated in extreme circumstances,
such as human rights abuses
Internationalists (sovereignty) believe that sovereignty is outdated and an unnecessary
obstacle to achieving peace, in line with their belief of a 'global community'. In the light
of the abuse of power by sovereign states such as Hitler's Germany or Stalin's Soviet
Union, they argue that human beings are not necessarily protected by the state whose
citizens they are, and that the respect for state sovereignty on which the UN Charter is
founded is an obstacle to humanitarian intervention.517
Anarchists(sovereignty) deny the sovereignty of states and governments. Anarchists
often argue for a specific individual kind of sovereignty, such as the Anarch as a
sovereign individual. Salvador Dalí, for instance, talked of "anarcho-monarchist" (as
usual for him, tongue in cheek); Antonin Artaud of Heliogabalus: Or, The Crowned
Anarchist; Max Stirner of The Ego and Its Own; Georges Bataille and Jacques Derrida of
a kind of "antisovereignty". Therefore, anarchists join a classical conception of the
individual as sovereign of himself, which forms the basis of political consciousness. The
unified consciousness is sovereignty over one's own body, as Nietzsche demonstrated
(see also Pierre Klossowski's book on Nietzsche and the Vicious Circle). See also
sovereignty of the individual and self-ownership.
Imperialists (sovereignty) hold a view of sovereignty where power rightfully exists with
those states that hold the greatest ability to impose the will of said state, by force or
threat of force, over the populace or other states with weaker military or political will.
517
Andreas Osiander, "Sovereignty, International Relations, and the Westphalian Myth", International Organization Vol. 55 No. 2
(Spring 2001), pp. 251–287.
pg. 261
They effectively deny the sovereignty of the individual in deference to either the 'good'
of the whole, or to divine right
According to Matteo Laruffa "sovereignty resides in every public action and policy as the
exercise of executive powers by institutions open to the participation of citizens to the
decision-making processes"518
sovereignty and rule of law
Another topic is whether the law is held to be sovereign, that is, whether it is above
political or other interference. Sovereign law constitutes a true state of law, meaning
the letter of the law (if constitutionally correct) is applicable and enforceable, even
when against the political will of the nation, as long as not formally changed following
the constitutional procedure. Strictly speaking, any deviation from this principle
constitutes a revolution or a coup d'état, regardless of the intentions.519
law of space
Space law is an area of the law that encompasses national and international law governing
activities in outer space. International lawyers have been unable to agree on a uniform
definition of the term "outer space", although most lawyers agree that outer space
generally begins at the lowest altitude above sea level at which objects can orbit the
Earth, approximately 100 km (60 mi).
The inception of the field of space law began with the launch of the world's first artificial
satellite by the Soviet Union in October 1957. Named Sputnik 1, the satellite was
launched as part of the International Geophysical Year. Since that time, space law has
evolved and assumed more importance as mankind has increasingly come to use and
rely on space-based resources.
Beginning in 1957, nations began discussing systems to ensure the peaceful use of outer
space.520 Bilateral discussions between the United States and USSR in 1958 resulted in
the presentation of issues to the UN for debate. 521 In 1959, the UN created the
Committee on the Peaceful Uses of Outer Space (COPUOS). COPUOS in turn created two
subcommittees, the Scientific and Technical Subcommittee and the Legal Subcommittee.
The COPUOS Legal Subcommittee has been a primary forum for discussion and
negotiation of international agreements relating to outer space.
Five international treaties have been negotiated and drafted in the COPUOS:
1. The 1967 Treaty on Principles Governing the Activities of States in the Exploration and
Use of Outer Space, including the Moon and Other Celestial Bodies (the "Outer Space
Treaty").
518
Matteo Laruffa, "The European Integration and National Interests: from an intergovernmental model to a Constitutional
Agreement"(Hungarian Academy of Social Sciences, Budapest, 3rd July 2014)
519
Herbermann, Charles, ed. (1913). Catholic Encyclopedia. Robert Appleton Company.
520
UN website UN Resolution 1148 (XII).
521
Google books Nuclear Weapons and Contemporary International Law N.Singh, E. WcWhinney (p.289); SEE ALSO UN
website UN Resolution 1348 (XIII).
pg. 262
2. The 1968 Agreement on the Rescue of Astronauts, the Return of Astronauts and the
Return of Objects Launched into Outer Space (the "Rescue Agreement").
3. The 1972 Convention on International Liability for Damage Caused by Space Objects
(the "Liability Convention").
4. The 1975 Convention on Registration of Objects Launched into Outer Space (the
"Registration Convention").
5. The 1979 Agreement Governing the Activities of States on the Moon and Other Celestial
Bodies (the "Moon Treaty").
The five treaties and agreements of international space law cover "non-appropriation of
outer space by any one country, arms control, the freedom of exploration, liability for
damage caused by space objects, the safety and rescue of spacecraft and astronauts, the
prevention of harmful interference with space activities and the environment, the
notification and registration of space activities, scientific investigation and the
exploitation of natural resources in outer space and the settlement of disputes." 522
The United Nations General Assembly adopted five declarations and legal principles which
encourage exercising the international laws, as well as unified communication between
countries. The five declarations and principles are:
law of airspace
Airspace means the portion of the atmosphere controlled by a country above its territory,
including its territorial waters or, more generally, any specific three-dimensional
portion of the atmosphere. It is not the same as aerospace, which is the general term for
Earth's atmosphere and the outer space in its vicinity.
‫ ٮ‬Controlled airspace exists where it is deemed necessary that air traffic control has some
form of positive executive control over aircraft flying in that airspace (however, Air traffic
control does not necessarily control traffic operating under visual flight rules within this
airspace).
‫ ٮ‬Uncontrolled airspace is airspace in which air traffic control does not exert any executive
authority, although it may act in an advisory manner.
Airspace may be further subdivided into a variety of areas and zones, including those
where there are either restrictions on flying activities or complete prohibition of flying
activities.
By international law, the notion of a country's sovereign airspace corresponds with the
maritime definition of territorial waters as being 12 nautical miles (22.2 km) out from a
nation's coastline. Airspace not within any country's territorial limit is considered
international, analogous to the "high seas" in maritime law. However, a country may, by
international agreement, assume responsibility for controlling parts of international
airspace, such as those over the oceans. For instance, the United States provides air
522
United Nations Office for Outer Space Affairs. "United Nations Treaties and Principles on Space Law.".
Retrieved 16 February 2011.
pg. 263
traffic control services over a large part of the Pacific Ocean, even though the airspace is
international.
There is no international agreement on the vertical extent of sovereign airspace (the
boundary between outer space—which is not subject to national jurisdiction—and
national airspace), with suggestions ranging from about 30 km (19 mi) (the extent of
the highest aircraft and balloons) to about 160 km (99 mi) (the lowest extent of short-
term stable orbits).
air law
This is the body of law directly or indirectly concerned with civil aviation. Aviation in this
context extends to both heavier-than-air and lighter-than-air aircraft. Air-cushion
vehicles are not regarded as aircraft by the International Civil Aviation Organization
(ICAO), but the practice of individual states in this regard is not yet settled. The earliest
legislation in air law was a 1784 decree of the Paris police forbidding balloon flights
without a special permit.
pg. 264
DIPLOMACY & INTERNATIONAL RELATIONS
Jus legationis
A Legal Latin term meaning the capacity to send and receive consuls and diplomats.
diplomacy
diplomacy, the established method of influencing the decisions and behaviour of foreign
governments and peoples through dialogue, negotiation, and other measures short of
war or violence. Diplomatic practices pioneered in Europe had been adopted
throughout the world, and diplomacy had expanded to cover summit meetings and
other international conferences, parliamentary diplomacy, the international activities of
supranational and subnational entities, unofficial diplomacy by nongovernmental
elements, and the work of international civil servants. Diplomacy is the principal
substitute for the use of force or underhanded means in statecraft; it is how
comprehensive national power is applied to the peaceful adjustment of differences
between states. It may be coercive (i.e., backed by the threat to apply punitive measures
or to use force) but is overtly nonviolent. Its primary tools are international dialogue
and negotiation, primarily conducted by accredited envoys (a term derived from the
French envoyé, meaning “one who is sent”) and other political leaders. Unlike foreign
policy, which generally is enunciated publicly, most diplomacy is conducted in
confidence, though both the fact that it is in progress and its results are almost always
made public in contemporary international relations.
informal diplomacy, track II diplomacy
Informal diplomacy (sometimes called Track II diplomacy) has been used for centuries to
communicate between powers. Most diplomats work to recruit figures in other nations
who might be able to give informal access to a country's leadership. This occurs in
situations where governments wish to express intentions or to suggest methods of
resolving a diplomatic situation, but do not wish to express a formal position. Track II
diplomacy is a specific kind of informal diplomacy, in which non-officials (academic
scholars, retired civil and military officials, public figures, social activists) engage in
dialogue, with the aim of conflict resolution, or confidence-building. Sometimes
governments may fund such Track II exchanges. Sometimes the exchanges may have no
connection at all with governments, or may even act in defiance of governments; such
exchanges are called Track III.
Preventive diplomacy
Preventive diplomacy is action to prevent disputes from arising between parties, to
prevent existing disputes from escalating into conflicts and to limit the spread of the
latter when they occur. Since the end of the Cold War the international community
through international institutions has been focusing on preventive diplomacy.
pg. 265
Public diplomacy
Public diplomacy is exercising influence through communication with the general public in
another nation, rather than attempting to influence the nation's government directly.
This communication may take the form of propaganda, or more benign forms such as
citizen diplomacy, individual interactions between average citizens of two or more
nations. Technological advances and the advent of digital diplomacy now allow instant
communication with foreign publics, and methods such as Facebook diplomacy and
Twitter diplomacy are increasingly used by world leaders and diplomats.
Soft power, hearts and minds diplomacy
Soft power, sometimes called hearts and minds diplomacy, as defined by Joseph Nye, is the
cultivation of relationships, respect, or even admiration from others in order to gain
influence, as opposed to more coercive approaches.
Monetary diplomacy, Dollar diplomacy
Monetary diplomacy is the use of foreign aid or other types of monetary policy as a means
to achieve a diplomatic agenda.
Counterinsurgency diplomacy
Counterinsurgency diplomacy, developed by diplomats deployed to civil-military
stabilization efforts in Iraq and Afghanistan, employs diplomats at tactical and
operational levels, outside traditional embassy environments and often alongside
military or peacekeeping forces. Counterinsurgency diplomacy may provide political
environment advice to local commanders, interact with local leaders, and facilitate the
governance efforts, functions and reach of a host government. 523
Gunboat diplomacy
Gunboat diplomacy is the use of conspicuous displays of military strength as a means of
intimidation in order to influence others.
Appeasement
Appeasement is a policy of making concessions to an aggressor in order to avoid
confrontation.
Nuclear diplomacy
Nuclear diplomacy is the area of diplomacy related to preventing nuclear proliferation and
nuclear war. One of the most well-known (and most controversial) philosophies of
nuclear diplomacy is Mutually Assured Destruction (MAD).
foreign policy
Foreign policy establishes goals, prescribes strategies, and sets the broad tactics to be used
in their accomplishment. It may employ secret agents, subversion, war, or other forms
523
Green, Dan. "Counterinsurgency Diplomacy: Political Advisors at the Operational and Tactical levels." , Military Review, May-
June 2007.
pg. 266
of violence as well as diplomacy to achieve its objectives. The purpose of foreign policy
is to further a state’s interests, which are derived from geography, history, economics,
and the distribution of international power. Safeguarding national independence,
security, and integrity—territorial, political, economic, and moral—is viewed as a
country’s primary obligation, followed by preserving a wide freedom of action for the
state. The political leaders, traditionally of sovereign states, who devise foreign policy
pursue what they perceive to be the national interest, adjusting national policies to
changes in external conditions and technology.
non-interference in internal affairs
The theory or system of government that upholds the autonomous character of the
economic order, believing that government should intervene as little as possible in the
direction of economic affairs. The practice or doctrine of noninterference in the affairs
of others, especially with reference to individual conduct or freedom of action, is a chief
foreign policy tool of certain nations, especially China.
terra nullius
Terra nullius is a Latin expression deriving from Roman law meaning ‘land belonging to no
one’ (or ‘no man's land’),524 which is used in international law to describe territory
which has never been subject to the sovereignty of any state, or over which any prior
sovereign has expressly or implicitly relinquished sovereignty. Sovereignty over
territory which is terra nullius may be acquired through occupation, 525 though in some
cases doing so would violate an international law or treaty. The colonialists used the
same concept to deprive the aboriginal/indigenous peoples their rights to land. In its
celebrated Mabo judgment of 1992, the High Court of Australia overturned the concept
of terra nullius and said that Aboriginal people did have a common law legal title to land
they had a long, strong and continuous connection to under customary law. Later High
Court judgments such as Wik further clarified the position by deciding that pastoral
rights of settler-farmers could co-exist with native title and in some cases supercede
them.
estrada doctrine
The doctrine was the most influential and representative instrument in the country's
foreign policy for seventy years, it claims that foreign governments should not judge,
positively or negatively, the governments or changes in government of other nations, in
that such action would imply a breach to their sovereignty. 526 This policy was said to be
524
Connor, Michael. "The invention of terra nullius", Sydney: Macleay Press, 2005.
525
See W. Schivelbusch, The Culture of Defeat at page 106 (Henry Holt and Co. 2001). Emperor Napoleon III
had declared and lost the war, and, in the Treaty of Frankfurt, France lost Alsace-Lorraine, previously annexed
by King Louis XIV in the 17th century.
526
Pereña-García, Mercedes (2001). Las Relaciones Diplomáticas de México. Plaza y Valdés, p. 94. ISBN 968-
856-917-8.
pg. 267
based on the principles of non-intervention, peaceful resolution of disputes and self-

determination of all nations.527
castañeda doctrine
The Castañ eda Doctrine is a term used as reference to Mexico's foreign policy during the
presidency of Vicente Fox. Its name derives from Jorge G. Castañ eda, proponent of the
policy. President Fox appointed Castañ eda to be his Secretary of Foreign Affairs at the
beginning of his term. Castañ eda immediately broke with the old-style foreign policy,
known as the Estrada Doctrine. The new foreign policy called for an openness and an
acceptance of criticism from the international community, and the increase of Mexican
involvement in foreign affairs. However, after a series of foreign policy blunders, among
which include Mexico's temporary rift with Cuba and criticism from many Latin
American countries such as Argentina and Venezuela for adopting a pro-US stance with
this doctrine, the Castañ eda has been effectively, if not officially, discontinued under the
Calderó n administration.
diplomatic mission
A diplomatic mission is a group of people from one state or an international inter-
governmental organisation (such as the United Nations) present in another state to
represent the sending state/organisation in the receiving state. 528 In practice, a
diplomatic mission usually denotes the permanent mission, namely the office of a
country's diplomatic representatives in the capital city of another country. As well as
being a diplomatic mission to the country in which it is situated, it may also be a non-
resident permanent mission to one or more other countries. There are thus resident
and non-resident embassies.529
embassy
A permanent diplomatic mission is typically known as an embassy, and the person in
charge of the mission is known as an ambassador. The term ‘embassy’ is often used to
refer to the building or compound housing an ambassador's offices and staff.
Technically, however, ‘embassy’ refers to the diplomatic delegation itself, while the
office building in which they work is known as a chancery.
Ambassadors can reside within or outside of the chancery; for example, American
diplomatic missions maintain separate housing for their ambassadors apart from their
embassies. Ambassadors residing outside of the chancery retain special protection from
the host country's security forces and the ambassadorial residences enjoy the same
rights as missions. Like embassies, such residences are considered inviolable and,
527
Secretariat of Foreign Affairs (2005) La Política Exterior Mexicana en la Transición. FCE, SRE, p. 281. ISBN
968-16-7745-5.
528
Tom Nierop, Systems and Regions in Global Politics (Wiley, John and Sons 1994 ISBN 978-0-471-94942-8),
p. 67).;
529
see also Deon Geldenhuys, Isolated States: A Comparative Analysis (University of Cambridge 1990 ISBN 0-
521-40268-9), p. 158
pg. 268
extraterritorial. The residences of high commissioner, who are similar to ambassadors,

have the same rights.
consulate
A consulate is similar to (but not the same as) a diplomatic office, but with focus on dealing
with individual persons and businesses, as defined by the Vienna Convention on
Consular Relations. A consulate or consulate general is generally a representative of the
embassy in locales outside of the capital city. For instance, the United Kingdom has its
Embassy of the United Kingdom in Washington, D.C., but also maintains seven
consulates-general and four consulates elsewhere in US. The person in charge of a
consulate or consulate-general is known as a consul or consul-general, respectively.
Similar services may also be provided at the embassy (to serve the region of the capital)
in what is sometimes called a consular section.
extra territoriality
Extraterritoriality is the state of being exempt from the jurisdiction of local law, usually as
the result of diplomatic negotiations. Extraterritoriality can also be applied to physical
places, such as military bases of foreign countries, or offices of the United Nations. The
three most common cases recognized today internationally relate to the persons and
belongings of foreign heads of state, the persons and belongings of ambassadors and
certain other diplomatic agents, and ships in foreign waters.
Extraterritoriality is often extended to friendly or allied militaries, particularly for the
purposes of allowing that military to simply pass through one's territory.
It is distinguished from personal jurisdiction in the sense that extraterritoriality operates
to the prejudice of local jurisdiction530.
protocols
There are two meanings of the word protocol. In the legal sense, it is defined as an
international agreement that supplements or amends a treaty. In the diplomatic sense,
the term refers to the set of rules, procedures, conventions and ceremonies that relate
to relations between states. In general, protocol represents the recognized and
generally accepted system of international courtesy. The term protocol is derived from
the Greek word protokollan (first glue). This comes from the act of gluing a sheet of
paper to the front of a document to preserve it when it was sealed, which imparted
additional authenticity to it. In the beginning, the term protocol related to the various
forms of interaction observed in official correspondence between states, which were
often elaborate in nature. In course of time, however, it has come to cover a much wider
range of international relations.
1. The 1949 conventions have been modified with three amendment protocols:
530
DeVorsey, Louis,1966,The Indian Boundaries in the Southern Colonies, 1763–1775 (Chapel Hill: Univ. of
North Carolina Press); Sutton, Imre, 1976, "Sovereign States and the Changing Definition of the Indian
Reservation," Geographical Review,66(3):281-95.
pg. 269
2. Protocol I (1977) relating to the Protection of Victims of International Armed Conflicts

3. Protocol II (1977) relating to the Protection of Victims of Non-International Armed
Conflicts
4. Protocol III (2005) relating to the Adoption of an Additional Distinctive Emblem.
protecting powers
A protecting power is a state that is not taking part in the armed conflict, but that has
agreed to look after the interests of a state that is a party to the conflict. The protecting
power is a mediator enabling the flow of communication between the parties to the
conflict. The protecting power also monitors implementation of these Conventions,
such as by visiting the zone of conflict and prisoners of war. The protecting power must
act as an advocate for prisoners, the wounded, and civilians.
hamburg rules
The Hamburg Rules are a set of rules governing the international shipment of goods,
resulting from the United Nations International Convention on the Carriage of Goods by
Sea adopted in Hamburg on 31 March 1978. The Convention was an attempt to form a
uniform legal base for the transportation of goods on oceangoing ships. A driving force
behind the convention was the attempt of developing countries' to level the playing
field.
government in exile
A government in exile is a political group which claims to be a country's legitimate
government, but is unable to exercise legal power and instead resides in a foreign
country. Governments in exile usually plan to one day return to their native country and
regain formal power. A government in exile differs from a rump state in the sense that a
rump state controls at least part of its former territory. For example, during World War
I, nearly all of Belgium was occupied by Germany, but Belgium and its allies held on to a
small slice in the country's west. A government in exile, conversely, has lost all its
territory. Governments in exile frequently occur during wartime occupation, or in the
aftermath of a civil war, revolution, or military coup.
gunboat diplomacy or big stick diplomacy
In international politics, gunboat diplomacy (also referred to as Big Stick Diplomacy) refers
to the pursuit of foreign policy objectives with the aid of conspicuous displays of
military power — implying or constituting a direct threat of warfare, should terms not
be agreeable to the superior force. The term comes from the period of colonial
imperialism, where the European powers would intimidate other states into granting
trade or other concessions (unequal treaties) through a demonstration of their superior
military power. A country negotiating with a European power would notice that a
warship or fleet of ships had appeared off its coast. The mere sight of such power
almost always had a considerable effect, and it was rarely necessary for such boats to
use other measures, such as demonstrations of cannon fire. Aside from military
pg. 270
conquest, gunboat diplomacy was the dominant way to establish new trade partners,
colonial outposts and expansion of empire.531
Diplomatic recognition
Diplomatic recognition in international law is a unilateral political act with domestic and
international legal consequences, whereby a state acknowledges an act or status of
another state or government in control of a state (may be also a recognized state).
Recognition can be accorded either de facto or de jure, usually by a statement of the
recognizing government. Recognition can be implied by other acts, like the visit of the
head of state, or the signing of a bilateral treaty. Though used as a factor in judging
sovereignty, Article 3 of the Montevideo Convention states, "The political existence of
the state is independent of recognition by other states."
Diplomatic immunity
Diplomatic immunity is a form of legal immunity that ensures that diplomats are given safe
passage and are considered not susceptible to lawsuit or prosecution under the host
country's laws, although they can still be expelled. It was agreed as international law in
the Vienna Convention on Diplomatic Relations (1961), though the concept and custom
have a much longer history. Many principles of diplomatic immunity are now
considered to be customary law. Diplomatic immunity as an institution developed to
allow for the maintenance of government relations, including during periods of
difficulties and even armed conflict. When receiving diplomats—who formally
represent the sovereign—the receiving head of state grants certain privileges and
immunities to ensure they may effectively carry out their duties, on the understanding
that these are provided on a reciprocal basis.
Military occupation
Military occupation is effective provisional control of a certain ruling power over a
territory which is not under the formal sovereignty of that entity, without the volition of
the actual sovereign.532 The intended temporary nature of occupation, when no claim
for permanent sovereignty is made by the occupying entity, distinguishes occupation
from annexation.533 The Hague Convention of 1907 specify that "[t]erritory is
considered occupied when it is actually placed under the authority of the hostile army."
The form of administration by which an occupying power exercises government
authority over occupied territory is called "military government." Neither the Hague
Conventions nor the Geneva Conventions specifically define or distinguish an act of
"invasion." The terminology of "occupation" is used exclusively.
Military government
531
J. Cable, Gunboat diplomacy, 1919-1991: political applications of limited naval force (third edition),
Basingstoke: Macmillan/IISS, 1994, p.14.
532
A Roberts. Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967 - Am. J. Int'l L., 1990, p. 47.
533
David M. Edelstein. Occupational Hazards: Why Military Occupations Succeed or Fail. Journal of Peace Research 2010; 47;
59
pg. 271
Military government may be broadly characterized as the administration or supervision of

occupied territory, or as the governmental form of such an administration. Military
government is distinguished from martial law, which is the temporary rule by domestic
armed forces over disturbed areas. The rules of military government are delineated in
various international agreements, primarily the Hague Convention of 1907, the Geneva
Conventions of 1949, as well as established state practice. The relevant international
conventions, the International Committee of the Red Cross (ICRC) Commentaries, and
other treaties by military scholars provide guidelines on such topics as rights and duties
of the occupying power, protection of civilians, treatment of prisoners of war,
coordination of relief efforts, issuance of travel documents, property rights of the
populace, handling of cultural and art objects, management of refugees, and other
concerns which are very important both before and after the cessation of hostilities. A
country that establishes a military government and violates internationally agreed
upon norms runs the risk of censure, criticism, or condemnation. In the current era, the
practices of military government have largely become a part of customary international
law, and form a part of the laws of war.
Annexation
Annexation (Latin ad, to, and nexus, joining) is the forcible acquisition of a state's territory
by another state.534 Usually, it is implied that the territory and population being
annexed is the smaller, more peripheral, and weaker of the two merging entities,
barring physical size. It can also imply a certain measure of coercion, expansionism or
unilateralism on the part of the stronger of the merging entities. Because of this, more
positive euphemisms like political union/unification or reunification are sometimes
seen in discourse. Annexation differs from cession and amalgamation, because unlike
cession where territory is given or sold through treaty, or amalgamation (where the
authorities of both sides are asked if they agree with the merge), annexation is a
unilateral act where territory is seized and held by one state and legitimized via general
recognition by the other international bodies (i.e. countries and intergovernmental
organisations).535 During World War II, the use of annexation deprived whole
populations of the safeguards provided by international laws governing military
occupations. The authors of the Fourth Geneva Convention made a point of "giving
these rules an absolute character", thus making it much more difficult for a state to
bypass international law through the use of annexation. 536
exclusive mandate
An exclusive mandate is a government's assertion of its legitimate authority over a certain
territory, part of which another government controls with stable, de facto sovereignty.
It is also known as a claim to sole representation or an exclusive authority claim. The
534
Hofmann, Rainer (February 2013). "Annexation". Max Planck Encyclopedia of Public International Law. Oxford University
Press.
535
Chisholm, Hugh, ed. (1911). "Annexation". Encyclopædia Britannica (11th ed.). Cambridge University Press.
536
Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.Commentary on Part
III : Status and treatment of protected persons #Section III : Occupied territories Art. 47 by the ICRC
pg. 272
concept was particularly important during the Cold War period when a number of
states were divided on ideological grounds.
Uncontacted peoples, isolated peoples, lost tribes, voluntary isolation
Uncontacted peoples, also referred to as isolated peoples or lost tribes, are communities
who live, or have lived, either by choice (peoples living in voluntary isolation) or by
circumstance, without significant contact with globalized civilization. Few peoples have
remained totally uncontacted by global civilization. Indigenous rights activists call for
such groups to be left alone, stating that it will interfere with their right to self-
determination. Most uncontacted communities are located in densely forested areas in
South America, New Guinea and India.
Empire
An empire is a multi-ethnic state, multinational state, or a group of nations with a central
government established usually through coercion (on the model of the Roman Empire).
An empire often includes self-governing regions, but these will possess autonomy only
at the sufferance of the central government. On the other hand, a political entity that is
an empire in name, may in practice consist of multiple autonomous kingdoms organised
together in a federation, with a high king designated as an emperor. One example of this
was Imperial Germany.
federal government
The federal government is the common or national government of a federation. A federal
government may have distinct powers at various levels authorized or delegated to it by
its member states. The structure of federal governments vary. Based on a broad
definition of a basic federalism, there are two or more levels of government that exist
within an established territory and govern through common institutions with
overlapping or shared powers as prescribed by a constitution.
Federal government is the government at the level of the sovereign state. Usual
responsibilities of this level of government are maintaining national security and
exercising international diplomacy, including the right to sign binding treaties.
Basically, a modern federal government, within the limits defined by its constitution,
has the power to make laws for the whole country, unlike local governments.
Devolved state
A federation differs from a devolved state, such as Indonesia, the United Kingdom and the
Kingdom of Spain, because, in a devolved state, the central government can revoke the
independence of the subunits (Scottish Parliament, Welsh National Assembly, Northern
Ireland Assembly in the case of the UK) without changing the constitution.
Associated States
A federation also differs from an associated state, such as the Federated States of
Micronesia (in free association with the United States) and Cook Islands and Niue
pg. 273
(which form part of the Realm of New Zealand). There are two kinds of associated
states: in case of Micronesia, association is concluded by treaty between two sovereign
states; in case of Cook Islands and Niue, association is concluded by domestic legal
arrangements.
Crown dependencies
The relation between the Crown dependencies of the Isle of Man and the bailiwicks of
Guernsey and Jersey in the Channel Islands and the United Kingdom is very similar to a
federate relation: the Islands enjoy independence from the United Kingdom, which, via
The Crown, takes care of their foreign relations and defence – although the UK
Parliament does have overall power to legislate for the dependencies. However, the
islands are neither an incorporated part of the United Kingdom, nor are they considered
to be independent or associated states. The Isle of Man does not have a monarch, per se;
rather, the British Monarch is, ex officio, Lord of Mann (irrespective of the incumbent's
sex).
Overseas territories
Overseas territories, such as the British overseas territories, are vested with varying
degrees of power; some enjoy considerable independence from the sovereign state,
which only takes care of their foreign relations and defence. However, they are neither
considered to be part of it, nor recognised as sovereign or associated states.
de facto federations
The distinction between a federation and a unitary state is often quite ambiguous. A
unitary state may closely resemble a federation in structure and, while a central
government may possess the theoretical right to revoke the autonomy of a self-
governing region, it may be politically difficult for it to do so in practice. The self-
governing regions of some unitary states also often enjoy greater autonomy than those
of some federations. For these reasons, it is sometimes argued that some modern
unitary states are de facto federations. De facto federations, or quasi-federations, are
often termed "regional states".
federation
A federation (from Latin: foedus, gen.: foederis, "covenant"), also known as a federal state,
is a political entity characterized by a union of partially self-governing states or regions
under a central (federal) government. In a federation, the self-governing status of the
component states, as well as the division of power between them and the central
government, are typically constitutionally entrenched and may not be altered by a
unilateral decision of either party, the states or the federal political body.
federacy
A federacy is essentially an extreme case of an asymmetric federation, either due to large
differences in the level of autonomy, or the rigidity of the constitutional arrangements.
pg. 274
The term federacy is more often used for the relation between the sovereign state and
its autonomous areas.
confederation
A confederation, in modern political terms, is usually limited to a permanent union of
sovereign states for common action in relation to other states. The closest entity in the
world to a confederation at this time is the European Union.
unitary state, unitary government
A unitary state is a state governed as one single unit in which the central government is
supreme and any administrative divisions (subnational units) exercise only powers that
their central government chooses to delegate. The great majority of states in the world
have a unitary system of government. A unitary state is sometimes one with only a
single, centralised, national tier of government. However, unitary states often also
include one or more self-governing regions. The difference between a federation and
this kind of unitary state is that in a unitary state the autonomous status of self-
governing regions exists by the sufferance of the central government, and may be
unilaterally revoked.
Multiculturalism
Multiculturalism is an official policy in many states, establishing the ideal of peaceful
existence among multiple ethnic, cultural, and linguistic groups. Many nations have
laws protecting minority rights.
nation state
A nation state is a geographical area that can be identified as deriving its political
legitimacy from serving as a sovereign nation. A state is a political and geopolitical
entity, while a nation is a cultural and ethnic one. The term "nation state" implies that
the two coincide, but "nation state" formation can take place at different times in
different parts of the world, and has become the dominant form of world organization.
The concept of a nation state can be compared and contrasted with that of the
multinational state, city state empire, confederation, and other state formations with
which it may overlap. The key distinction is the identification of a people with a polity in
the "nation state."
federalism
The governmental or constitutional structure found in a federation is known as federalism.
It can be considered the opposite of another system, the unitary state. Germany with
sixteen Lä nder is an example of a federation, whereas neighboring Austria and its
Bundeslä nder was a unitary state with administrative divisions that became federated,
and neighboring France by contrast has always been unitary.
country
pg. 275
A country is a region identified as a distinct entity in political geography. A country may be

an independent sovereign state or one that is occupied by another state, as a non-
sovereign or formerly sovereign political division, or a geographic region associated
with sets of previously independent or differently associated peoples with distinct
political characteristics. Regardless of the physical geography, in the modern
internationally accepted legal definition as defined by the League of Nations in 1937
and reaffirmed by the United Nations in 1945, a resident of a country is subject to the
independent exercise of legal jurisdiction.
nation
A nation refers to a large group of people who share a common language, culture, ethnicity,
descent, or history.[
micronation
A micronation, sometimes referred to as a model country or new country project, is an
entity that claims to be an independent nation or state but is not officially recognized by
world governments or major international organizations.
Micronations are distinguished from imaginary countries and from other kinds of social
groups (such as eco-villages, campuses, tribes, clans, sects, and residential community
associations) by expressing a formal and persistent, even if unrecognized, claim of
sovereignty over some physical territory.
Several micronations have issued coins, flags, postage stamps, passports, medals, and other
items, which are rarely accepted outside of their own community.
In international law, the Montevideo Convention on the Right and Duties of States sets
down the criteria for statehood in article 1: The state as a person of international law
should possess the following qualifications: (a) a permanent population; (b) a defined
territory; (c) government; and (d) capacity to enter into relations with the other states.
The first sentence of article 3 of the Montevideo Convention explicitly states that "The
political existence of the state is independent of recognition by the other states."
Under these guidelines, any entity which meets all of the criteria set forth in article 1 can be
regarded as sovereign under international law, whether or not other states have
recognized it.
The Sovereign Military Order of Malta, as an independent subject of international law does
not meet all the criteria for recognition as a State (however it does not claim itself a
State either), but is and has been recognized as a sovereign nation for centuries.
Territorial integrity of States
The doctrine of territorial integrity does not effectively prohibit unilateral secession from
established states in international law, per the relevant section from the text of the
Final Act of the Conference on Security and Cooperation in Europe, also known as the
Helsinki Final Act, Helsinki Accords or Helsinki Declaration:
pg. 276
The participating States will respect the territorial integrity of each of the participating
States.
Accordingly, they will refrain from any action inconsistent with the purposes and
principles of the Charter of the United Nations against the territorial integrity, political
independence or the unity of any participating State, and in particular from any such
action constituting a threat or use of force.
The participating States will likewise refrain from making each other's territory the object
of military occupation or other direct or indirect measures of force in contravention of
international law, or the object of acquisition by means of such measures or the threat
of them. No such occupation or acquisition will be recognized as legal.
In effect, this states that other states (i.e., third parties), may not encourage secession in a
state. This does not make any statement as regards persons within a state electing to
secede of their own accord.
pg. 277
STATE FORMATION
travaux prepatoires
The travaux préparatoires (French: ‘preparatory works’, in the plural) are the official
record of a negotiation. Sometimes published, the ‘travaux’ are often useful in clarifying
the intentions of a treaty or other instrument. This is reflected in Article 32 of the
Vienna Convention on the Law of Treaties (VCLT).537
When interpreting treaties, the VCLT places this form of interpretation as secondary or less
important than looking to the ordinary meaning (see Articles 31 and 32). The travaux
are often available to the public on the websites created for a specific treaty (such as the
Rome Statute) or on the United Nations website.
rump state
A rump state is the remnant of a once-larger government.
Some states labeled as rump states, or that today would be considered rump states, at one
point or another are listed below.
tobar doctrine
A political principle proscribing the extension of recognition to any government that
accedes to power by other than constitutional means. Tobar proposed that the
American states sign an agreement allowing for intervention in the internal affairs of
Latin American countries with such a government.
de facto and de jure states
Most sovereign states are states de jure and de facto (i.e. they exist both in law and in
reality). However, sometimes states exist only as de jure states in that an organisation is
recognised as having sovereignty over and being the legitimate government of a
territory over which they have no actual control. Many continental European states
maintained governments-in-exile during the Second World War which continued to
enjoy diplomatic relations with the Allies, notwithstanding that their countries were
under Nazi occupation. A present day example is the State of Palestine, which is
recognized by multiple states, but doesn't have control over any of its claimed territory
in Palestine538 and possess only extraterritorial areas (i.e. embassies and consulates).
Other states may have sovereignty over a territory but lack international recognition;
these are considered by the international community to be only de facto states (they are
537
Jonathon Green, Dictionary of Jargon, Routledge, 1987, ISBN 0-7100-9919-3, p. 567.
538
Staff writers (20 February 2008). "Palestinians 'may declare state'". BBC News(British Broadcasting Corporation). Retrieved
2011-01-22.:"Saeb Erekat, disagreed arguing that the Palestine Liberation Organisation had already declared independence in
1988. "Now we need real independence, not a declaration. We need real independence by ending the occupation. We are not
Kosovo. We are under Israeli occupation and for independence we need to acquire independence".
pg. 278
considered de jure states only according to their own Law and by states that recognize
them). Somaliland is commonly considered to be such a state. 539
dependant state
A dependent territory, dependent area or dependency is a territory that does not possess
full political independence or sovereignty as a sovereign state, and remains politically
outside of the controlling state's integral area.540
A dependency is commonly distinguished from other subnational entities in that they are
not considered to be part of the integral territory of the governing State. A subnational
entity typically represents a division of the State proper, while a dependent territory
often maintains a great degree of autonomy from the controlling State. Historically,
most colonies were considered to be dependencies of their controlling State. Most of
these have either become independent, by joining neighbouring independent countries,
or assimilated into the conquering state. The dependencies that remain generally
maintain a very high degree of political autonomy. Although dependencies retain a
degree of autonomy, not all autonomous entities are considered to be dependencies. 541
Many political entities have a special position recognized by international treaty or
agreement resulting in a certain level of autonomy or differences in immigration rules.
These are sometimes542 considered dependencies, but are officially considered by their
controlling states to be integral parts of the state. 543 Examples are Å land of Finland,
Svalbard of Norway, the Azores and Madeira of Portugal, and Hong Kong and Macau of
China.
dependent state, independent state, controlling state or protecting state
States can be classified into two general categories: dependent and independent. A
dependent state does not exercise the full range of power over external affairs that an
independent state possesses under International Law. The controlling or protecting
state may also regulate some of the internal affairs of the dependent state. Formal
treaties and the conditions under which the status of dependency has been recognized
by other states govern the balance of sovereign powers exercised by the protecting
state and the dependent state. Various terms have been used to describe different types
of dependent states, such as condominium, mandate, protectorate, and vassal state.
Since 1945 there has been strong international pressure to eliminate forms of
dependency associated with colonialism.
539
Gold, Dore; Institute for Contemporary Affairs (26 August 2005). "Legal Acrobatics: The Palestinian Claim that Gaza is Still
"Occupied" Even After Israel Withdraws". Jerusalem Issue Brief, Vol. 5, No. 3. Jerusalem Center for Public Affairs. Retrieved
2010-07-16.
540
United Nations General Assembly Resolution 1514
541
United Nations Trusteeship Council
542
United Nations General Assembly 15th Session - The Trusteeship System and Non-Self-Governing Territories
(pages:509-510)
543
Id
pg. 279
constituetive theory
A sovereign state (or simply state) is classically defined as a state with a defined territory
on which it exercises internal and external sovereignty, 544 a permanent population, a
government, and the capacity to enter into relations with other sovereign states. 545 It is
also normally understood to be a state which is neither dependent on nor subject to any
other power or state.546 The existence or disappearance of a state is a question of fact. 547
While according to the declaratory theory of state recognition a sovereign state can
exist without being recognised by other sovereign states, unrecognised states will often
find it hard to exercise full treaty-making powers and engage in diplomatic relations
with other sovereign states.
The word ‘country’ is often colloquially used to refer to sovereign states, although it means,
originally, only a geographic region, and subsequently its meaning became extended to
the sovereign polity which controls the geographic region. Up until the 19th Century,
the radicalised concept of a ‘standard of civilisation’ was routinely deployed to
determine that certain peoples in the world were ‘uncivilised’, and lacking organised
societies. That position was reflected and constituted in the notion that their
‘sovereignty’ was either completely lacking, or at least of an inferior character when
compared to that of ‘civilised’ people.’548
state recognition
State recognition signifies the decision of a sovereign state to treat another entity as also
being a sovereign state.549 Recognition can be either express or implied and is usually
retroactive in its effects. It does not necessarily signify a desire to establish or maintain
diplomatic relations.
There is no definition that is binding on all the members of the community of nations on
the criteria for statehood. In actual practice, the criteria are mainly political, not legal. 550
L.C. Green cited the recognition of the unborn Polish and Czech states in World War I
544
Bateman, C.G. (15 February 2011). Nicaea and Sovereignty: Constantine's Council of as an Important Crossroad in the
Development of European State Sovereignty. University of British Columbia. pp. 54–91. SSRN 1759006.
545
Shaw, Malcolm Nathan (2003). International law. Cambridge University Press. p. 178. "Article 1 of the Montevideo Convention
on Rights and Duties of States, 1933 lays down the most widely accepted formulation of the criteria of statehood in
international law. It note that the state as an international person should possess the following qualifications: '(a) a permanent
population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with other states'"; see also
Jasentuliyana, Nandasiri, ed. (1995). Perspectives on international law. Kluwer Law International. p. 20. "So far as States are
concerned, the traditional definitions provided for in the Montevideo Convention remain generally accepted."
546
Wheaton, Henry (1836). Elements of international law: with a sketch of the history of the science. Carey, Lea & Blanchard. p.
51. "A sovereign state is generally defined to be any nation or people, whatever may be the form of its internal constitution,
which governs itself independently of foreign powers."; see also "sovereign", The American Heritage Dictionary of the English
Language (Houghton Mifflin Company), 2004, retrieved 21 February 2010, "adj. 1. Self-governing; independent: a sovereign
state."; see also "sovereign", The New Oxford American Dictionary (Oxford: Oxford University Press), ISBN 0-19-517077-6,
"adjective ... [ attrib. ] (of a nation or state) fully independent and determining its own affairs."
547
Lalonde, Suzanne (2002). "Notes to pages". Determining boundaries in a conflicted world: the role of uti possidetis. McGill-
Queen's Press - MQUP. p. 181. ISBN 978-0-7735-2424-8.
548
Ralph Wilde, 'From trusteeship to self-determination and back again: the role of the Hague Regulations in the evolution of
international trusteeship, and the framework of rights and duties of occupying powers,' Fall, 2009, 31 Loy. L.A. Int'l & Comp. L.
Rev. 85, page 94,
549
Crawford, James. The Creation of States in International Law. Oxford University Press, 2005. ISBN 0-19-825402-4, pp. 15–24.
550
See B. Broms, "IV Recognition of States", pp 47-48 in International law: achievements and prospects, UNESCO Series,
Mohammed Bedjaoui(ed), Martinus Nijhoff Publishers, 1991, ISBN 92-3-102716-6
pg. 280
and explained that ‘since recognition of statehood is a matter of discretion, it is open to

any existing State to accept as a state any entity it wishes, regardless of the existence of
territory or of an established government.’ 551
In international law, however, there are several theories of when a state should be
recognized as sovereign.552
constitutive theory
The constitutive theory of statehood defines a state as a person of international law if, and
only if, it is recognized as sovereign by other states. This theory of recognition was
developed in the 19th Century. Under it, a state was sovereign if another sovereign state
recognized it as such. Because of this, new states could not immediately become part of
the international community or be bound by international law, and recognized nations
did not have to respect international law in their dealings with them. 553 In 1815 at the
Congress of Vienna the Final Act only recognised 39 sovereign states in the European
diplomatic system, and as a result it was firmly established that in future new states
would have to be recognized by other states, and that meant in practice recognition by
one or more of the great powers.554
One of the major criticisms of this law is the confusion caused when some jurisdictions
recognize a new entity, but other states do not. Hersch Lauterpacht, one of the theory's
main proponents, suggested that it is a state's duty to grant recognition as a possible
solution. However, a state may use any criteria when judging if they should give
recognition and they have no obligation to use such criteria. Many jurisdictionsmay
only recognize another state if it is to their advantage.555
In 1912, L. F. L. Oppenheim had the following to say on constitutive theory:
“...International Law does not say that a State is not in existence as long as it is not recognised,
but it takes no notice of it before its recognition. Through recognition only and exclusively
a State becomes an International Person and a subject of International Law.” 556
declarative theory
By contrast, the ‘declarative’ theory defines a state as a person in international law if it
meets the following criteria: 1) a defined territory; 2) a permanent population; 3) a
government and 4) a capacity to enter into relations with other states. According to
declarative theory, an entity's statehood is independent of its recognition by other
states. The declarative model was most famously expressed in the 1933 Montevideo
Convention. Article 3 of the Convention declares that statehood is independent of
551
Thomas D. Grant, The recognition of states: law and practice in debate and evolution (Westport, Connecticut: Praeger, 1999),
chapter 1.
552
Hillier, Tim (1998). Sourcebook on Public International Law. Routledge. pp. 201–2. ISBN 1-85941-050-2.
553
Shaw, Malcolm Nathan (2003). International law. Cambridge University Press. p. 369.
554
Kalevi Jaakko Holsti Taming the Sovereigns p. 128.
555
Hillier, Tim (1998). Sourcebook on Public International Law. Routledge. pp. 201–2. ISBN 1-85941-050-2.
556
Lassa Oppenheim, Ronald Roxburgh (2005). International Law: A Treatise. The Lawbook Exchange, Ltd.. pp. 135. ISBN 1-
58477-609-9, 9781584776093.
pg. 281
recognition by other states. In contrast, recognition is considered a requirement for

statehood by the constitutive theory of statehood.
A similar opinion about ‘the conditions on which an entity constitutes a state’ is expressed by
the European Economic Community Opinions of the Badinter Arbitration Committee,
which found that a state was defined by having a territory, a population, and a political
authority.
state practice
State practice relating the recognition states typically falls somewhere between the
declaratory and constitutive approaches.557 International law does not require a state to
recognise other states.558 Recognition is often withheld when a new state is seen as
illegitimate or has come about in breach of international law. Almost universal non-
recognition by the international community of Rhodesia and Northern Cyprus are good
examples of this. In the former case, recognition was widely withheld when the white
minority seized power and attempted to form a state along the lines of Apartheid South
Africa, a move that the United Nations Security Council described as the creation of an
‘illegal racist minority régime’.559 In the latter case, recognition was widely withheld
from a state created in Northern Cyprus on land illegally invaded by Turkey in 1974. 560
sovereign state
Asovereign state is a nonphysical juridical entity of the international legal system that is
represented by one centralized government that has supreme independent authority
over a geographic area. International law defines sovereign states as having a
permanent population, defined territory, one government, and the capacity to enter
into relations with other sovereign states. It is also normally understood to be a state
which is neither dependent on nor subject to any other power or state. The existence or
disappearance of a state is a question of fact. While according to the declarative theory
of state recognition a sovereign state can exist without being recognised by other
sovereign states, unrecognised states will often find it hard to exercise full treaty-
making powers and engage in diplomatic relations with other sovereign states.
Westphalian sovereignty
Westphalian sovereignty is the concept of nation-state sovereignty based on territoriality
and the absence of a role for external agents in domestic structures. It is an
international system of states, multinational corporations, and organizations that began
with the Peace of Westphalia in 1648.
Sovereignty is a term that is frequently misused. 561 Up until the 19th century, the
radicalised concept of a "standard of civilisation" was routinely deployed to determine
that certain peoples in the world were "uncivilised", and lacking organised societies.
557
Shaw, Malcolm Nathan (2003). International law. Cambridge University Press. p. 369.
558
Opinion No. 10. of the Arbitration Commission of the Conference on Yugoslavia.
559
United Nations Security Council Resolution 216
560
United Nations Security Council Resolution 541
561
Krasner, Stephen D. (1999). Sovereignty: Organized Hypocrisy. Princeton University Press. ISBN 0-691-00711-X.
pg. 282
That position was reflected and constituted in the notion that their "sovereignty" was
either completely lacking, or at least of an inferior character when compared to that of
"civilised" people."562 Lassa Oppenheim said "There exists perhaps no conception the
meaning of which is more controversial than that of sovereignty. It is an indisputable
fact that this conception, from the moment when it was introduced into political science
until the present day, has never had a meaning which was universally agreed upon." 563
In the opinion of H. V. Evatt of the High Court of Australia "sovereignty is neither a
question of fact, nor a question of law, but a question that does not arise at all." 564
Sovereignty has taken on a different meaning with the development of the principle of self-
determination and the prohibition against the threat or use of force as jus cogens norms
of modern international law. The United Nations Charter, the Draft Declaration on
Rights and Duties of States, and the charters of regional international organisations
express the view that all states are juridically equal and enjoy the same rights and
duties based upon the mere fact of their existence as persons under international law. 565
The right of nations to determine their own political status and exercise permanent
sovereignty within the limits of their territorial jurisdictions is widely recognised. 566
In political science, sovereignty is usually defined as the most essential attribute of the
state in the form of its complete self-sufficiency in the frames of a certain territory, that
is its supremacy in the domestic policy and independence in the foreign one. 567
In casual usage, the terms "country", "nation", and "state" are often used as if they were
synonymous; but in a more strict usage they can be distinguished: []
 Nation denotes a people who are believed to or deemed to share common customs,
religion, language, origins, ancestry or history. However, the adjectives national and
international are frequently used to refer to matters pertaining to what are strictly
sovereign states, as in national capital, international law.
 State refers to the set of governing and supportive institutions that have sovereignty
over a definite territory and population. Sovereign states are legal persons.
562
Wilde, Ralph (2009). "From Trusteeship to Self-Determination and Back Again: The Role of the Hague Regulations in the
Evolution of International Trusteeship, and the Framework of Rights and Duties of Occupying Powers". Loy. L.A. Int'l & Comp.
L. Rev. 31: 85–142 [p. 9].
563
Lassa Oppenheim, International Law 66 (Sir Arnold D. McNair ed., 4th ed. 1928)
564
Akweenda, S. (1997). "Sovereignty in cases of Mandated Territories". International law and the protection of Namibia's
territorial integrity. Martinus Nijhoff Publishers. p. 40. ISBN 90-411-0412-7.
565
"Chapter IV Fundamental Rights and Duties of States". Charter of the Organization of American States. Secretariat of The
Organization of American States. Retrieved 21 November 2010. See also "Draft Declaration on Rights and Duties of States".
UN Treaty Organization. 1949. Retrieved 21 November 2010.
566
Schwebel, Stephen M., The Story of the U.N.'s Declaration on Permanent Sovereignty over Natural Resources, 49 A.B.A. J.
463 (1963)
567
Grinin L. E. Globalization and Sovereignty: Why do States Abandon their Sovereign Prerogatives? Age of Globalization.
Number 1 / 2008
pg. 283
State practice
State practice relating the recognition states typically falls somewhere between the
declaratory and constitutive approaches.568 International law does not require a state to
recognise other states.569
Recognition is often withheld when a new state is seen as illegitimate or has come about in
breach of international law. Almost universal non-recognition by the international
community of Rhodesia and Northern Cyprus are good examples of this. In the former
case, recognition was widely withheld when the white minority seized power and
attempted to form a state along the lines of Apartheid South Africa, a move that the
United Nations Security Council described as the creation of an "illegal racist minority
régime".570 In the latter case, recognition was widely withheld from a state created in
Northern Cyprus on land illegally invaded by Turkey in 1974. 571
De facto states and de jure states
Most sovereign states are states de jure and de facto (i.e. they exist both in law and in
reality). However, sometimes states exist only as de jure states in that an organisation is
recognised as having sovereignty over and being the legitimate government of a
territory over which they have no actual control. Many continental European states
maintained governments-in-exile during the Second World War which continued to
enjoy diplomatic relations with the Allies, notwithstanding that their countries were
under Nazi occupation. The State of Palestine, which is recognized by most states
doesn't have control over any of its claimed territory in Palestine and possess only
extraterritorial areas (i.e. embassies and consulates). Other states may have sovereignty
over a territory but lack international recognition; these are considered by the
international community to be only de facto states (they are considered de jure states
only according to their own Law and by states that recognize them). Somalilandis
commonly considered to be such a state. 572 For a list of entities that wish to be
universally recognized as sovereign states, but do not have complete worldwide
diplomatic recognition.
Relationship Between State and Government
Although the terms "state" and "government" are often used interchangeably, 573
international law is predicated on a distinction between nonphysical states and their
governments, and in fact, the concept of "government-in-exile" is predicated upon the
distinction between states and their governments. 574 States are nonphysical juridical
568
Shaw, Malcolm Nathan (2003). International law (5th ed.). Cambridge University Press. p. 369. ISBN 0-521-53183-7.
569
Opinion No. 10. of the Arbitration Commission of the Conference on Yugoslavia.
570
s:United Nations Security Council Resolution 216
571
s:United Nations Security Council Resolution 541
572
Arieff, Alexis (2008). "De facto Statehood? The Strange Case of Somaliland". Yale Journal of International Affairs 3: 60–79.
573
Id
574
Crawford, J. (2006). The Creation of States in International Law (2nd ed.). Oxford: Clarendon Press. ISBN 0-19-826002-4.
pg. 284
entities, and not organizations of any kind, 575 though, ordinarily, only the government of
a state is allowed to obligate or bind it, for example by treaty. 576
State Extinction
Generally speaking, states are durable entities, though it is possible for them to be become
extinguished, either through voluntary means or by military conquest. Because states
are nonphysical juridical entities, their extinction cannot be due to only physical force
alone.577 Instead the physical actions of the military must be associated with the correct
social or judiciary actions in order to abolish a state.
government in exile
A government in exile is a political group which claims to be a country's legitimate
government, but is unable to exercise legal power and instead resides in a foreign
country. Governments in exile usually plan to one day return to their native country and
regain formal power. A government in exile differs from a rump state in the sense that a
rump state controls at least part of its former territory. For example, during World War
I, nearly all of Belgium was occupied by Germany, but Belgium and its allies held on to a
small slice in the country's west. A government in exile, conversely, has lost all its
territory.
Governments in exile frequently occur during wartime occupation, or in the aftermath of a
civil war, revolution, or military coup. For example, during German expansion in World
War II, some European governments sought refuge in the United Kingdom, rather than
face destruction at the hands of Nazi Germany. A government in exile may also form
from widespread belief in the illegitimacy of a ruling government. For instance, the
National Coalition for Syrian Revolutionary and Opposition Forces was formed as a
result of the Syrian civil war, which sought to end the rule of the ruling Ba'ath Party.
The effectiveness of a government in exile depends primarily on the amount of support it
can receive, either from foreign governments or from the population of its own country.
Some governments in exile develop into a formidable force, posing a serious challenge
to the incumbent regime of the country, while others are maintained chiefly as a
symbolic gesture.
The phenomenon of a government in exile predates formal use of the term. In periods of
monarchical government, exiled monarchs or dynasties sometimes set up exile courts—
as the House of Stuart did when driven from their throne by Oliver Cromwell and at the
Glorious Revolution, or the House of Bourbon did during the French Revolution and the
rule of Napoleon. With the spread of constitutional monarchy, monarchical
governments in exile started to include a prime minister, such as the Dutch government
during World War II headed by Pieter Sjoerds Gerbrandy.
575
Robinson, Edward Heath (2010). "An Ontological Analysis of States: Organizations vs. Legal Persons". Applied Ontology 5:
109–125.
576
Crawford, J. (2006). The Creation of States in International Law (2nd ed.). Oxford: Clarendon Press. ISBN 0-19-826002-4.
577
Robinson, Edward Heath (2011). "The Involuntary Extinction of States: An Examination of the Destruction of States though the
Application of Military Force by Foreign Powers since the Second World War". The Journal of Military Geography 1: 17–29.
pg. 285
pg. 286
RIGHTS & DUTIES OF STATES IN INTERNATIONAL LAW
common external tarrif

When a group of countries form a customs union they must introduce a common external
tariff. The same customs duties, import quotas, preferences or other non-tariff barriers
to trade apply to all goods entering the area, regardless of which country within the
area they are entering. It is designed to end re-exportation; but it may also inhibit
imports from countries outside the customs union and thereby diminish consumer
choice and support protectionism of industries based within the customs union.
Important examples of common external tariff are that of the Mercosur countries
(Brazil, Argentina, Venezuela, Paraguay and Uruguay) as well as the Common Customs
Tariff of the Customs Union of Belarus, Kazakhstan and Russia.
proportionality (community law)
The principle of proportionality is a political maxim which states that no layer of
government should take any action that exceeds that which is necessary to achieve the
objective of government (Regardless of intent of objective).
It is a fundamental principle of European Union law. According to this principle, the EU
may only act to exactly the extent that is needed to achieve its objectives, and no
further. This principle has underpinned the European Communities since their
inception in 1957. In the presently applicable primary law, the principle of
proportionality is clearly formulated in the third paragraph of Article 5 of the Treaty
establishing the European Community as follows:
Any action by the Community shall not go beyond what is necessary to achieve the
objectives of this Treaty.
This principle is also explicitly specified in the new Treaty of Lisbon.
Proportionality is a principle in law which covers two distinct (although related) concepts.
Within municipal (domestic) law it is used to convey the idea that the punishment of an
offender should fit the crime. Under international humanitarian law governing the legal
use of force in an armed conflict, proportionality and distinction are important factors
in assessing military necessity.578
complementarity(community law)
Enshrined in article 1 of the ICC statute, and various regional/union laws; this principle
gives both national and international courts jurisdiction over international crimes such
as crimes against humanity, war crimes, genocide, apartheid, torture and other
international humanitarian violations. It applies to criminal, as opposed to civil matters.
578
Eric Engle, The History of the General Principle of Proportionality
pg. 287
proportionality test (community law)

The proportionality test was first developed in the High State Administrative Courts
(Oberlandesgericht) in Germany in the late 19th Century, to review actions by the
police.579
In European Union law there generally acknowledged to be four stages to a proportionality
test, namely,580
(i) there must be a legitimate aim for a measure

(ii) the measure must be suitable to achieve the aim (potentially with a requirement of
evidence to show it will have that effect)
(iii) the measure must be necessary to achieve the aim, that there cannot be any less
onerous way of doing it
(iv)the measure must be reasonable, considering the competing interests of different groups
at hand
It is, however, often seen that the third and fourth criterion are often merged into one by
the European Court of Justice, depending on the margin of discretion that the Court sees
as being afforded to the member state. Examples are found in R (Seymour-Smith) v
Secretary of State for Employment581, where the ECJ points out that a member state has
some discretion in the policies it pursues, surrounding unfair dismissal, in reducing
unemployment.
odious debt
In international law, odious debt is a legal theory that holds that the national debt incurred
by a regime for purposes that do not serve the best interests of the nation, should not be
enforceable. Such debts are, thus, considered by this doctrine to be personal debts of
the regime that incurred them and not debts of the state. In some respects, the concept
is analogous to the invalidity of contracts signed under coercion. The doctrine was
formalized in a 1927 treatise by Alexander Nahum Sack, 582 a Russian émigré legal
theorist, based upon 19th-Century precedents including Mexico's repudiation of debts
incurred by Emperor Maximilian's regime, and the denial by the United States of Cuban
liability for debts incurred by the Spanish colonial regime.
According to Sack:
When a despotic regime contracts a debt, not for the needs or in the interests of the state, but
rather to strengthen itself, to suppress a popular insurrection, etc, this debt is odious for
the people of the entire state. This debt does not bind the nation; it is a debt of the regime,
a personal debt contracted by the ruler, and consequently it falls with the demise of the
579
Lothar Hirschberg, Der Grundsatz der Verhältnismaßigkeit (Schwarz 1981)
580
P Craig and G de Burca, EU Law (5th edn OUP 2011) 526
581
[0] UKHL 12 and (1999) C-167/97
582
Graeme Smith A new euro crisis strategy: deny the debt The Globe and Mail 20 November 201
pg. 288
regime. The reason why these odious debts cannot attach to the territory of the state is
that they do not fulfil one of the conditions determining the lawfulness of State debts,
namely that State debts must be incurred, and the proceeds used, for the needs and in the
interests of the State. Odious debts, contracted and utilised for purposes which, to the
lenders' knowledge, are contrary to the needs and the interests of the nation, are not
binding on the nation – when it succeeds in overthrowing the government that contracted
them – unless the debt is within the limits of real advantages that these debts might have
afforded. The lenders have committed a hostile act against the people, they cannot expect
a nation which has freed itself of a despotic regime to assume these odious debts, which
are the personal debts of the ruler.583
In a Policy Analysis for the Cato Institute, Patricia Adams suggested that the debts incurred
by the Iraqi state during the rule of Saddam Hussein are odious, as the money borrowed
was spent on weapons, instruments of repression and palaces. 584
A recent article by economists Seema Jayachandran and Michael Kremer has renewed
interest in this topic. They propose that the idea can be used to create a new type of
economic sanction to block further borrowing by dictators. 585 Jayachandran proposed
her new recommendations November 2010 at the 10th anniversary of the Jubilee
movement held at the Center for Global Development in Washington, D.C. 586
lex posterior derogat legi priori
Relied on by a court to refuse extradition on the ground that the basic rights of the fugitive
will be violated by the requesting state if he is extradited. Primacy is in effect accorded
to a human rights norm over the extradition treaty.587
mutual recognition
The doctrine of judicial stability or non-interference in the regular orders or judgments of a
co-equal court, as an accepted axiom in adjective law, serves as an insurmountable
barrier to the competencia of the Makati court to entertain the habeas corpus case on
account of the previous assumption of jurisdiction by the Cavite court, and the
designation of petitioners as guardians ad litem of the ward. Indeed, the policy of
peaceful co-existence among courts of the same judicial plane, so to speak, was aptly
described in Republic vs. Reyes588.
583
Jubileeiraq.org
584
Adams, Patricia (1991). Odious Debts: Loose Lending, Corruption, and the Third World's Environmental
Legacy. Energy Probe Research. ISBN 0-919849-14-8.
585
Odious Debt by Seema Jayachandran and Michael Kremer
586
Cato Institute Policy Analysis no. 526 ‘Iraq's Odious Debts’ by Patricia Adams
587
Consider refusal to extradite a criminal to US State of Texas, because the state had death penalty, which is
considered an infringement on the right to life by European states
588
155 SCRA 313 [8]
pg. 289
non-interference
The doctrine of non-interference has been regarded as an elementary principle of higher
importance in the administration of justice that the judgment of a court of competent
jurisdiction may not be opened, modified, or vacated by any court of concurrent
jurisdiction.
universal jurisdiction
Universal jurisdiction or universality principle is a principle in public international law (as
opposed to private international law) whereby states claim criminal jurisdiction over
persons whose alleged crimes were committed outside the boundaries of the
prosecuting state, regardless of nationality, country of residence, or any other relation
with the prosecuting country. The state backs its claim on the grounds that the crime
committed is considered a crime against all, which any state is authorized to punish, as
it is too serious to tolerate jurisdictional arbitrage.
The concept of universal jurisdiction is therefore closely linked to the idea that some
international norms are erga omnes, or owed to the entire world community, as well as
the concept of jus cogens – that certain international law obligations are binding on all
states and cannot be modified by treaty.589
According to critics, the principle justifies a unilateral act of wanton disregard of the
sovereignty of a nation or the freedom of an individual concomitant to the pursuit of a
vendetta or other ulterior motives, with the obvious assumption that the person or
state thus disenfranchised is not in a position to bring retaliation to the state applying
this principle.
extraterritorial jurisdiction
International jurisdiction differs from ‘territorial jurisdiction‘, where justice is exercised by
a state in relation to crimes committed on its territory (territorial jurisdiction). States
can also exercise jurisdiction on crimes committed by their nationals abroad
(extraterritorial jurisdiction), even if the act the national committed was not illegal
under the law of the territory in which an act has been committed 590. States can also in
certain circumstances exercise jurisdiction over acts committed by foreign nationals on
foreign territory. This form of jurisdiction tends to be much more controversial.
lotus principle
That restriction on States cannot be presumed but must be found in conventional law
specifically accepted by them or in customary law generally accepted by the community
589
See Lyal S. Sunga Individual Responsibility in International Law for Serious Human Rights Violations, Nijhoff
(1992) 252 p. ISBN 978 07 92 31453 0
590
Hans Köchler, ‘The judgment of the International Court of Justice (2002) and its implications for the exercise
of universal jurisdiction by national courts: the case of Belgium,’ in: Global Justice or Global Revenge?
International Criminal Justice at the Crossroads. Vienna and New York: Springer, 2003, pp. 85–101. ISBN 3-
211-00795-4
pg. 290
of nations.
doctrines of foreign sovereign immunity
Sovereign immunity, or crown immunity, is a legal doctrine by which the sovereign or state
cannot commit a legal wrong and is immune from civil suit or criminal prosecution. In
constitutional monarchies the sovereign is the historical origin of the authority which
creates the courts. Thus the courts had no power to compel the sovereign to be bound
by the courts, as they were created by the sovereign for the protection of his or her
subjects. Under international law, and subject to some conditions, countries are
immune from legal proceedings in another state. This stems from customary
international law.591
sovereign equality
This principle means that each state is obliged to respect the sovereignty of other
participants in the system, that is their right to exercise within their own territory
legislative, executive, administrative and judicial powers without any interference from
other states, as well as independently conduct its foreign policy. Sovereign equality,
which follows from the definition of par in parem non habet potestatem (equal over
equal power has not), now is the basis of interstate relations, as reflected in Clause 1,
Article 2 of the UN Charter: ‘The organization was founded on the principle of sovereign
equality of all its members. ‘ First of all, this means that all norms of international law
apply to all states equally, regardless of different political, economic and other features.
According to the Declaration in 1970 the concept of sovereign equality includes the
following elements: States are juridically equal; Each State enjoys the rights inherent in
full sovereignty; State has the duty to respect the personality of other States; The
territorial integrity and political independence of the State are inviolable; Each State has
the right freely to choose and develop its political, social, economic and cultural systems;
Each state is obliged to fully and faithfully comply with its international obligations and to
live in peace with other nations.
Despite the fact that the formal legal status of all of the same, still remains the de facto
inequality, which resulted in the great state have more mechanisms to influence the
process of international norm-setting.
necessity (international law)
Under International law, a customary international obligation or an obligation granted
under a Bilateral Investment Treaty may be suspended under the Doctrine of Necessity.
It is ‘an exception from illegality and in certain cases even as an exception from
responsibility.’592 In order to invoke the Doctrine of Necessity:
(1) Invoking State must not have contributed to the state of necessity,
591
Akehurst's modern introduction to international law, by Peter Malanczuk, Michael Barton Akehurst, Routledge
7 ed., 1997, ISBN 041511120X, Page 118
592
See Continental Casualty Company v Argentine Republic, ICSID Case No ARB/03/09.
pg. 291
(2) Actions taken were only way to safeguard an essential interest from grave and impending
danger.593
full powers
Full Powers is a term in international law and is the authority of a person to sign a treaty or
convention on behalf of a sovereign state. Persons other than the head of state, head of
government or foreign minister of the state must produce Full Powers in order to sign a
treaty binding their government. Such a person is called a plenipotentiary.
uti possidetis juris
Uti possidetis juris or uti possidetis iuris (Latin for "as you possess under law") is a principle
of international law that states that newly formed sovereign states should have the
same borders that their preceding dependent area had before their independence. Uti
possidetis juris is a modified form of uti possidetis; created for the purpose of avoiding
terra nullius, the original version of uti possidetis began as a Roman law governing the
rightful possession of property. During the medieval period it evolved into a law
governing international relations and has recently been modified for situations of newly
independent states. Uti possidetis juris has been applied to in modern history such
regions as South America, Africa, Yugoslavia, the Soviet Union, and numerous other
regions of where centralized governments were broken up, or where imperial rulers
were overthrown. It is often applied to prevent foreign intervention by eliminating any
contested terra nullius, or no man's land, that foreign powers could claim. 594
legal reciprocity or comity
In international relations and treaties, the principle of reciprocity states that favours,
benefits, or penalties that are granted by one state to the citizens or legal entities of
another, should be returned in kind. For example, reciprocity has been used in the
reduction of tariffs, the grant of copyrights to foreign authors, the mutual recognition
and enforcement of judgments, and the relaxation of travel restrictions and visa
requirements. The principle of reciprocity also governs agreements on extradition.
equality of states
Principle of equality of states informs the operation of the organisation vis-à -vis of the
member states. This principle implies that resolutions of the organisation must be
based on unanimity and also that member states are only bound by those decisions that
have been signed or ratified by them. Because of this therefore in most cases member
states will modify these principles based on the purpose and functions which they
intend their organisation to have. Application of the principle of equality of states
therefore means that all member states must have equal votes in the operation of the
organisation.
593
Id. at page 72, paragraph 165.
594
Shaw, Malcolm N. (1997). "Peoples, Territorialism and Boundaries." European Journal of International Law 8
(3).
pg. 292
docrine of attribution (international law)

Before a state can be held responsible for any action, it is necessary to prove a causal
connection between the injury and an official act or omission attributable to the state
alleged to be in breach of its obligations.
principles of transnational state responsibility
The laws of state responsibility are the principles governing when and how a state is held
responsible for a breach of an international obligation. The Draft Articles on the
Responsibility of States for Internationally Wrongful Acts (‘Draft Articles’) by the
International Law Commission (ILC) in August 2001. 595 They establish (1) the
conditions for an act to qualify as internationally wrongful, (2) the circumstances under
which actions of officials, private individuals and other entities may be attributed to the
state, (3) general defences to liability and (4) the consequences of liability.
State responsibility is an age-old principle of international law that was developed to
protect the rights of aliens.596 It arises when a state commits an international wrong
against another state.597 This rule has now been elevated to the status of a general
principle of international law.598 In Chorzów Factory (Germany v Poland),599 the
Permanent Court of International Justice defined it not only as a principle of
international law but also as ‘a greater conception of law’ involving an obligation to
make reparation for any breach of an engagement. 600 According to the Court, ‘reparation
is therefore the indispensable complement of a failure to apply a convention and there
is no necessity for this to be stated in the convention itself’. 601 The principle of state
responsibility emanates from the nature of the international legal system, which relies
on states as a means of formulating and implementing its rules, and arises out of the
twin doctrines of state sovereignty and equality of states. 602 In The Chorzow Factory
Case 9 where the courts stated that:
‘…any breach of an engagement involves an obligation to make reparation.’ 603
Further, in British Claims in the Spanish Zone of Morocco (Spain v United Kingdom) 604 the
court highlighted the significance of the notion of state responsibility: ‘Responsibility is
the necessary corollary of a right. All rights of an international character involve
595
Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work
of its Fifty-third Session, UN GAOR, 56th Sess, Supp No 10, p 43, UN Doc A/56/10 (2001).
596
Ian Brownlie, System of the Law of Nations: State Responsibility: Part 1 (1983) 9.
597
Ian Brownlie, Principles of Public International Law (5th ed, 1998) 435–6.
598
Ibid 436.
599
PCIJ (ser A) No 13.
600
Ibid 29. See also Corfu Channel (United Kingdom v Albania) (Merits) ICJ Rep 4, 23.
601
See Chorzów Factory (Germany v Poland) (Claim for Indemnity) PCIJ (ser A) No 8, 21.
602
Malcom Shaw, International Law (5th ed, 2003) 541.
603
P.C.I.J. Rep., Ser.A, No. 17 (1928) at 29; See also Draft Article 31.
604
(1923) 2 RIAA 615, 641
pg. 293
international responsibility. Responsibility results in the duty to make reparation if the

obligation in question is not met’.
principle of differentiated responsibility
The principle of Common but Differentiated Responsibility (CBDR) is one of the
cornerstones of sustainable development. It has emerged as a principle of International
Environmental Law and has been explicitly formulated in the context of the 1992 Rio
Earth Summit. It finds its origins in equity considerations and equity principles in
international law. It informs in particular the United Nations Framework Convention on
Climate Change (UNFCCC) and the Kyoto Protocol.
The Principle
Principle 7 of the Rio Declaration provides the first formulation of the CBDR, and it states:
"In view of the different contributions to global environmental degradation, States have
common but differentiated responsibilities. The developed countries acknowledge the
responsibility that they bear in the international pursuit of sustainable development in
view of the pressures their societies place on the global environment and of the
technologies and financial resources they command."
The CBDR has two matrices. The first is the common responsibility, which arises from the
concept of common heritage and common concern of humankind, and reflects the duty
of States of equally sharing the burden of environmental protection for common
resources; the second is the differentiated responsibility, which addresses substantive
equality: unequal material, social and economic situations across States; different
historical contributions to global environmental problems; and financial, technological
and structural capacity to tackle those global problems. In this sense the principle
establishes a conceptual framework for an equitable allocation of the costs of global
environmental protection.
Particularly important is the relationship that the CBDR establishes between the past
economic exploitation of global commons and the responsibility to carry out actions
that remedy or mitigate the consequences of such exploitation. It anchors responsibility
on past harm done, or culpability. Prior to Rio differentiated responsibilities were based
on different capabilities and needs were often recognized in International Agreements
through differential treatment provisions. The novelty of the CBDR is the emergence of
the historical responsibility dimension. This aspect and the inequality of economic,
social and institutional development conditions generate then different priorities and
agendas across countries, which must be reconciled in the international forum where
nations meet to tackle common environmental, economic and social issues. Another
consequence of the principle is, for some scholars, that it entails a duty to participate in
international efforts to address global environmental problems.
pg. 294
reparation
The breach of an international obligation entails two types of legal consequences.
1) Firstly, it creates new obligations for the breaching state, principally, duties of cessation
and non-repetition (Article 30), and a duty to make full reparation (Article 31).
2) Second, the articles create new rights for injured states, principally, the right to invoke
responsibility (Articles 42 and 48) and a limited right to take countermeasures (Articles
49-53). These rights, however, are heavily state-centred and do not deal with how state
responsibility is to be implemented if the holder of the right is an individual or an
organisation. The principal element of progressive development in this area is Article 48,
which provides that certain violations of international obligations can affect the
international community as a whole such that state responsibility can be invoked by states
on behalf of the larger community.
This provision picks up on the ICJ's celebrated suggestion in Barcelona Traction that some
obligations are owed erga omnes, toward the international community as a whole. 605
Article 33(1) characterises these secondary obligations as being owed to other states or
to the international community as a whole.
If illegal actions are continuing, the state has a duty to cease. 606 The state also has duties to
make reparation, which could involve restitution, compensation, or satisfaction.
Remedies will be dependent on the particular forum, such as the United Nations,
International Court of Justice, World Trade Organisation, International Tribunal for the
Law of the Sea, International Criminal Court, and on the purpose of reparation. 607
There is solid grounding in international law for the concept of state responsibility based
on the principle that one state has a duty not to cause harm in or to the territory of
another state.608 In the Trail Smelter609 case, Canada was found to be in violation of
international law when emissions from an industrial plant located in British Columbia
were causing environmental damage in the United States. The claims tribunal held that
under the principles of international law . . . no State has the right to use or permit the
use of its territory in such a manner as to cause injury by fumes in or to the territory of
another or the properties or persons therein, when the case is of serious consequence
and the injury is established by clear and convincing evidence. 610 Principle 22 of the
1972 Stockholm Declaration sets forth the current ‘standard’ governing liability for
transnational environmental damage: ‘States shall co-operate to develop further the
international law regarding liability and compensation for the victims of pollution and
605
Barcelona Traction, Light & Power Co. (Belgium v. Spain), New Application, 1970 ICJ Reports 4, 32.
606
Note 1, Art 30.
607
Hardman Reis, T., Compensation for Environmental Damages under International Law, Kluwer Law
International, The Hague, 2011, ISBN 978-90-411-3437-0
608
See, e.g., Corfu Channel, (U.K. v. Alb.), 1949 I.C.J. Pleadings, (1 Corfu Channel) 4, 22 (Sept. 30, 1949).
609
Trail Smelter Case, (U.S. v. Can.), 3 R.I.A.A. 1905 (1941).
610
Id. at 1965.
pg. 295
other environmental damage caused by activities within the jurisdiction or control of such
States to areas beyond their jurisdiction.’611
thalweg rule
The rule for determining the boundary line between two states that are separated by a
navigable river containing a newly formed island. According to this rule, the boundary
line moves with the centre of the navigable channel, i.e. it is delineated as being the
centre of the course with the strongest current, so that the newly formed island must lie
on one side of it or the other. On non-navigable rivers, however, the middle line of the
river will mark the boundary between the two states between which it flows. Thus, a
newly formed island might well fall partly on one side of the boundary line and partly
on the other. See also accretion; avulsion.
formal reciprocity
A form of international agreement wherein the signatories agree to give each other's
citizens and corporations legal treatment no less favourable to that given to their own
citizens and corporations.
démarche
A word coined by the diplomatic community and referring to a strongly worded warning by
one country to another and often, either explicitly or implicitly, with the threat of
military consequence.
equality principle (international law)
The principle of equality in public international law is far from a monolithic notion.
Nevertheless, attention may in particular be paid to two important expressions of the
equality principle in this field of the law, namely the principle of sovereign equality of
States and the principle of equality or nondiscrimination as a fundamental human right.
611
Conference on the Human Environment, at 7, U.N. Doc. A/CONF.48/14 (1972), reprinted in 11 I.L.M. 1416,
1420 (1972). The recent Rio Declaration uses nearly the same language. Principle 13 encourages states to
‘develop further international law regarding liability and compensation . . . .’ Conference on Environment and
Development, at 4, U.N. Doc. A/CONF.151/5 (1992), reprinted in 31 I.L.M. 874, 878 (1992).
pg. 296
sovereign equality of states

The sovereign equality of States is one of the fundamental principles of international law 612,
which inter alia finds an expression in Article 2(1) of the Charter of the United Nations
and in the Helsinki Final Act.613 The equality of States directly flows from their
sovereignty: by virtue of the latter it is impossible to place States in a kind of hierarchy
vis-à -vis each other.614 One of the important consequences of the principle is that States
are only bound by legal rules that they themselves agree to.615
retorsion
A phrase used in International Law to describe retaliatory action taken by one foreign
government against another for the stringent or harsh regulation or treatment of its
citizens who are within the geographical boundaries of the foreign country. The typical
methods of retorsion are the use of comparably severe measures against citizens of the
foreign nation found within the borders of the retaliating nation.
Retorsion is a phrase used in International Law is an act perpetrated by one nation upon
another in retaliation or reprisal for a similar act perpetrated by the other nation. The
typical methods of retorsion are the use of comparably severe measures against citizens
of the foreign nation found within the borders of the retaliating nation. It is different
from a reprisal in that the retorsion is always an action in conformity with international
law, though unmistakably an unfriendly one. Examples include international trade,
where disputes within the WTO are typically tackled in this manner, if dispute
settlement does not reach its goal. Retorsion signifies also the act by which an
individual returns to his adversary evil for evil.
countermeasure
Countermeasure in public international law refers to reprisals not involving the use of
force. In other words, it refers to non-violent acts which are illegal in themselves, but
612
See inter alia I. Brownlie, Principles of Public International Law (Oxford, Oxford University Press1998, 5th
ed.), 289; P. Kooijmans, The Doctrine of the Legal Equality of States: An Inquiry into theFoundations of
International Law (Leyden, Sijthoff 1964); R. Jennings and A. Watts, Oppenheim’sInternational Law, I.1
(London, Longman 1992, 9th ed.), 339-379; I.A. Shearer, Starke’s InternationalLaw (London, Butterworth,
1994, 11th ed.), 99-102; Verhoeven, supra n. 70, 125. As far as factualinequalities between States – especially
between industrialized and developing States – are concerned,see inter alia P. Daillier, A. Pellet and N. Quoc
Dinh, Droit international public (Parijs, L.G.D.J. 1999,6th ed.), pp. 1014-1025, paras. 620-626. See more
particularly with regard to differential treatment in itsmore recent appearances in international law, Ph. Cullet,
‘Differential Treatment in International Law:Towards a New Paradigm of Inter-State Relations’, (1999) 10
European Journal of International Law,549-582. On the significance of the concept of sovereignty for
managing factual inequalities, see B.Kingsbury, ‘Sovereignty and Inequality’, (1998) 9 European Journal of
International Law, 599-625.
613
Final Act of the Conference on Security and Co-operation in Europe, Helsinki, 1 August 1975, under the
heading ‘I. Sovereign equality, respect for the rights inherent in sovereignty’.
614
See A. Bleckmann, ‘Article 2(1)’, in B. Simma (ed.), The Charter of the United Nations.
Commentary (München, Beck 1995), p. 87, para. 44.
615
A. Bleckmann, in The Charter of the United Nations: A Commentary, p. 87, para. 44.
pg. 297
become legal when executed by one state in response to the commission of an earlier
illegal act by another state towards the former. The leading case on countermeasure is
the International Court of Justice decision in Gabčíkovo – Nagymaros Dams case616. The
court remarked that, for a countermeasure to be justifiable, it must meet the conditions
below:
1. The act constituting countermeasure must be taken in response to a previous intentional
wrongful act of another state and must be directed against that state.
2. The injured state must have already called upon the state committing the wrongful act to
discontinue its wrongful conduct or to make reparation, but the request was refused.
3. The countermeasure must be commensurate with the injury suffered, taking into account
the rights in question.
4. The purpose behind evoking the countermeasure is to induce the wrongdoing state to
comply with its obligations under international law. Therefore, the measure must be
reversible.
Article 22 of the International Law Commission draft articles on state responsibility states
that the wrongfulness of an act is precluded if the act constitutes a countermeasure.
Therefore, a validly executed countermeasure is legal under international law.
state responsibility
responsible for a breach of an international obligation. Rather than set forth any
particular obligations, the rules of state responsibility determine, in general, when an
obligation has been breached and the legal consequences of that violation. In this way
they are "secondary" rules that address basic issues of responsibility and remedies
available for breach of "primary" or substantive rules of international law, such as with
respect to the use of armed force. Because of this generality, the rules can be studied
independently of the primary rules of obligation. They establish (1) the conditions for
an act to qualify as internationally wrongful, (2) the circumstances under which actions
of officials, private individuals and other entities may be attributed to the state, (3)
general defences to liability and (4) the consequences of liability.
Until recently, the theory of the law of state responsibility was not well developed. The
position has now changed, with the adoption of the Draft Articles on the Responsibility of
States for Internationally Wrongful Acts (draft Articles") by the International Law
Commission (ILC) in August 2001. 617 The Draft Articles are a combination of
codification and progressive development. They have already been cited by the
International Court of Justice618 and have generally been well received.
616
Gabčíkovo-Nagymaros Project (Hungary/Slovakia) ... Latest developments in the case. 07/10/1998 - Press Release 1998/31
617
Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work of its Fifty-third
Session, UN GAOR, 56th Sess, Supp No 10, p 43, UN Doc A/56/10 (2001).
618
The ICJ cited an earlier draft text of the Articles in Gabčíkovo-Nagyamaros Project (Hungary/Slovakia), ICJ Reports 1997, at
7.
pg. 298
Although the articles are general in coverage, they do not necessarily apply in all cases.
Particular treaty regimes, such as the General Agreement on Tariffs and Trade and the
European Convention on Human Rights, have established their own special rules of
responsibility. Traditionally, the term "state responsibility" referred only to state
responsibility for injuries to aliens. It included not only "secondary" issues such as
attribution and remedies, but also the primary rights and duties of states, for example
the asserted international standard of treatment and the right of diplomatic protection.
This responsibility for internationally wrongful acts7 is enshrined in Article 1 of the
Articles on the Responsibility of States for Internationally Wrongful Acts,8 which states:
“every internationally wrongful act of a state entails the international responsibility of the
state.”
And is further acknowledged in The Chorzow Factory Case619 where the courts stated that:
“…any breach of an engagement involves an obligation to make reparation.” 620
Further, contemporary International Law also recognizes the concept of erga omnes, that
is, obligations owed by the state to the international community as a whole. These
obligations were identified by the international court of justice in the Barcelona
Traction Case621 as deriving from:
“…the rules concerning the basic human rights of the human person…” 622
internationally wrongful acts
According to the Draft Articles, an internationally wrongful act must:
‫و‬ be attributable to the state under international law; and
‫و‬ constitute a breach of an international obligation of the state.623
An internationally wrongful act which results from the breach by a State of an international
obligation so essential for the protection of fundamental interests of the international
community that its breach is recognized as a crime by that community as a whole
constitutes an international crime. On the basis of the rules of international law in force,
an international crime may result, inter alia, from:
a. a serious breach of an international obligation of essential importance for the
maintenance of international peace and security, such as that prohibiting aggression;
b. a serious breach of an international obligation of essential importance for safeguarding
the right of self-determination of peoples, such as that prohibiting the establishment or
maintenance by force of colonial domination;
c. a serious breach on a widespread scale of an international obligation of essential
importance for safeguarding the human being, such as those prohibiting slavery, genocide
619
P.C.I.J. Rep., Ser.A, No. 17 (1928).
620
Ibid. at 29 See also Draft Article 31.
621
I.C.J. Rep. 1970 at 3
622
Ibid. at 32.
623
James Crawford, The International Law Commission's Articles on State Responsibility: Introduction, Text and Commentaries
(Cambridge University Press, 2002) at 12.; see also Note 1, Article 2.
pg. 299
and apartheid;
d. a serious breach of an international obligation of essential importance for the
safeguarding and preservation of the human environment, such as those prohibiting
massive pollution of the atmosphere or of the seas.
Any internationally wrongful act which is not an international crime in accordance with
paragraph 2 constitutes an international delict.
attribution
alleged to be in breach of its obligations. This has become an increasingly significant
contemporary issue, as non-state actors such as Al Qaeda, multinational corporations,
and non-governmental organisations play greater international roles, and as
governments privatise some traditional functions.
The state is responsible for all actions of its officials and organs, even if the organ or official
is formally independent624 and even if the organ or official is acting ultra vires.625
Persons or entities not classified as organs of the State may still be imputable, when
they are otherwise empowered to exercise elements of governmental authority, and act
in that capacity in the particular instance. Persons or entities not performing public
functions may equally be imputable, if they in fact acted under the direction or control
of the State.626 Where there is a breakdown of normal governmental authority and
control, such as in so-called "failed states", the actions of those acting as the
"government" in a de facto sense will be acts of the state. 627 The acts of an
"insurrectional or other movement that becomes the new government of an existing
state or succeeds in establishing a new state" can also be attributed to the state. 628 This
is also the case where a state acknowledges and adopts the conduct of private persons
as its own.629
Despite their apparent concreteness, the standards stated in some rules involve important
ambiguities, and their application will often require significant fact-finding and
judgment. Most rules state responsibility involving private acts already arise under
primary rules. For example, environmental and human rights agreements require states
to prevent abuses by private parties.
reparations
624
Note 1, Art 5.
625
Note 1, Art 7.
626
Note 1, Art 8.
627
Note 1, Art 9.
628
Note 1, Art 10. See further Liesbeth Zegveld, The Accountability of Armed Opposition Groups in International Law (Cambridge
University Press, 2002).
629
Note 1, Article 11.
630
Note 1, Art 30.
pg. 300
collective responsibility
The doctrine632 of collective responsibility provides for checks and balances by the
ministers being directly accountable to parliament [sovereign] though our
parliamentarians have tended to abuse this power and maybe an introduction of the
ombudsmen will see to it that authorities do not ‘go beyond their powers’.
631
Hardman Reis, T., Compensation for Environmental Damages under International Law, Kluwer Law International, The Hague,
2011, ISBN 978-90-411-3437-0
632
Emerson H. Tiller and Frank B. Cross, ‘What is Legal Doctrine?,’ Northwestern University Law Review, Vol.
100:1, 2006.
pg. 301
Dispute Resolution In Energy Law

DISPUTES & DISPUTE RESOLUTION
Dispute
A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or
demand on one side, met by contrary claims or allegations on the other. The subject of
litigation; the matter for which a suit is brought and upon which issue is joined, and in
relation to which jurors are called and witnesses examined. A labor dispute is any
disagreement between an employer and his or her employees concerning anything job-
related, such as tenure, hours, wages, fringe benefits, and employment conditions.
legal dispute
Disagreement over the existence of a legal duty or right, or over the extent and kind of
compensation that may be claimed by the injured party for a breach of such duty or
right.
legal case
A legal case is a dispute between opposing parties resolved by a court, or by some
equivalent legal process. A legal case may be either civil or criminal. There is a
defendant and an accuser. Legal cases, whether criminal or civil, are premised on the
idea that a dispute will be fairly resolved when a legal procedure exists by which the
dispute can be brought to a factfinder not otherwise involved in the case, who can
evaluate evidence to determine the truth with respect to claims of guilt, innocence,
liability, or lack of fault. Details of the procedure may depend on both the kind of case
and the kind of system in which the case is brought - whether, for example, it is an
inquisitorial system or an adversarial system.
civil case
A civil case, more commonly known as a lawsuit or controversy, begins when a plaintiff
files a document called a complaint with a court, informing the court of the wrong that
the plaintiff has allegedly suffered because of the defendant, and requesting a remedy. A
civil case can also be arbitrated through arbitration. The remedy sought may be money,
an injunction, which requires the defendant to perform or refrain from performing
some action, or a declaratory judgment, which determines that the plaintiff has certain
legal rights. Whoever wins gets either released from custody or gets nothing (Accuser).
The plaintiff must also make a genuine effort to inform the defendant of the case through
service of process, by which the plaintiff delivers to the defendant the same documents
that the plaintiff filed with the court.
At any point during the case, the parties can agree to a settlement, which will end the case,
although in some circumstances, such as in class actions, a settlement requires court
pg. 302
approval in order to be binding.

criminal case
A criminal case, in common law jurisdictions, begins when a person suspected of a crime is
indicted by a grand jury or otherwise charged with the offense by a government official
called a prosecutor or district attorney.
Like a civil case, a criminal case may also be settled before a trial through a plea bargain, in
some jurisdictions. If a person does not go to trial, he/she may endure even bigger
penalties.
Fact in Dispute
A fact is said to be in dispute when it is alleged by one party and denied by the other, and
by both with some show of reason. A mere naked allegation, without evidence, or
against the evidence, cannot create a dispute within the meaning of the law. 633
Dispute resolution
Dispute resolution is the process of resolving disputes between parties.
Methods of dispute resolution include:
 facilitation lawsuits (litigation)
 arbitration
 collaborative law
 mediation
 conciliation
 many types of negotiation
One could theoretically include violence or even war as part of this spectrum, but dispute
resolution practitioners do not usually do so; violence rarely ends disputes effectively,
and indeed, often only escalates them.
Not all disputes, even those in which skilled intervention occurs, end in resolution. Such
intractable disputes form a special area in dispute resolution studies.
Dispute Resolution is an important requirement in International Trade: Negotiation,
Mediation, Arbitration and Legal Action.
dispute resolution methods, dispute resolution mechanisms, dispute resolution,
Dispute mechanisms, grievance mechanisms
A dispute mechanism is a structured process that addresses disputes or grievances that
arise between two or more parties engaged in business, legal, or societal relationships.
Dispute mechanisms are used in dispute resolution, and may incorporate conciliation,
conflict resolution, mediation, and negotiation.
633
Knight's Appeal, 19 Pa. 493, 494 (Pa. 1852)
pg. 303
Otherwise known as grievance mechanisms, dispute mechanisms are typical non-judicial in

nature, meaning that they are not resolved within the court of law. According to
research produced by the non-judicial grievance mechanism task force of John Ruggie,
Special Representative of Business and Human Rights to the United Nations, those who
design and oversee non-judicial mechanisms should acknowledge core human rights
processes defined by "all core UN human rights treaties.”
Dispute mechanisms comprise a way for socially responsible businesses to meet
requirements of corporate responsibility-related agreements or pacts, reduce risk while
capacity-building or developing internationally, and assist larger processes that create
positive social change.
Dispute mechanisms are an increasingly effective tool for establishing communication
channels between businesses and communities. When successful, they offer a trusted
way for local peoples or communities to voice and resolve concerns related to
development projects, while providing companies with transparent, effective ways to
address community concerns. Generally, it is agreed that a well-functioning grievance
mechanism should:
 Provides a predictable, transparent, and credible process to all parties, resulting in
outcomes that are seen as fair, effective, and lasting
 Builds trust as an integral component of broader community relations activities
 Enables more systematic identification of emerging issues and trends, facilitating
corrective action and preemptive engagement.
Judicial dispute resolution
The legal system provides resolutions for many different types of disputes. However, some
disputants will not reach agreement through a collaborative processes. Some disputes
need the coercive power of the state to enforce a resolution. Perhaps more importantly,
many people want a professional advocate when they become involved in a dispute,
particularly if the dispute involves perceived legal rights, legal wrongdoing, or threat of
legal action against them.
The most common form of judicial dispute resolution is litigation. Litigation is initiated
when one party files suit against another. In the United States, litigation is facilitated by
the government within federal, state, and municipal courts. The proceedings are very
formal and are governed by rules, such as rules of evidence and procedure, which are
established by the legislature. Outcomes are decided by an impartial judge and/or jury,
based on the factual questions of the case and the application law. The verdict of the
court is binding, not advisory; however, both parties have the right to appeal the
judgment to a higher court. Judicial dispute resolution is typically adversarial in nature,
for example, involving antagonistic parties or opposing interests seeking an outcome
most favorable to their position.
Retired judges or private lawyers often become arbitrators or mediators; however, trained
and qualified non-legal dispute resolution specialists form a growing body within the
pg. 304
field of ADR. In the United States of America, many states now have mediation or other
ADR programs annexed to the courts, to facilitate settlement of lawsuits.
Extrajudicial dispute resolution
Some use the term dispute resolution to refer only to alternative dispute resolution (ADR),
that is, extrajudicial processes such as arbitration, collaborative law, and mediation
used to resolve conflict and potential conflict between and among individuals, business
entities, governmental agencies, and (in the public international law context) states.
ADR generally depends on agreement by the parties to use ADR processes, either before
or after a dispute has arisen. ADR has experienced steadily increasing acceptance and
utilization because of a perception of greater flexibility, costs below those of traditional
litigation, and speedy resolution of disputes, among other perceived advantages.
However, some have criticized these methods as taking away the right to seek redress
of grievances in the courts, suggesting that extrajudicial dispute resolution may not
offer the fairest way for parties not in an equal bargaining relationship, for example in a
dispute between a consumer and a large corporation. In addition, in some
circumstances, arbitration and other ADR processes may become as expensive as
litigation or more so.
Alternative dispute resolution (ADR)
Alternative dispute resolution (ADR) refers to a variety of processes that help parties
resolve disputes without a trial. Typical ADR processes include mediation, arbitration,
neutral evaluation, and collaborative law.
Online dispute resolution
Dispute resolution can also take place on-line or by using technology in certain cases.
Online dispute resolution, a growing field of dispute resolution, uses new technologies
to solve disputes. Online Dispute Resolution is also called "ODR". Online Dispute
Resolution or ODR also involves the application of traditional dispute resolution
methods to disputes which arise online.
pg. 305
TYPES OF DISPUTES
Two types of disputes

They can be either civil or criminal.
civil dispute
A civil dispute is between you and another person. Example: A calls B a filthy liar and a
cheat in front of all of his friends and co-workers causing B great embarrassment. B can
then sue for slander. The suit would be a civil suit. Civil disputes can be between
individuals, or an individual and a trader, business or company, or between companies.
criminal dispute
A criminal dispute, on the other hand, is between you and the State. Example: A is caught
shoplifting at Cocacola. Cocacola won't sue, they'll notify the cops and the cops will
charge A with larceny. This would be a criminal dispute. As with civil disputes, criminal
disputes can be between individuals, or an individual and a trader, business or
company, or between companies
There are essentially other classifications of disputes as below:
State vs. State Disputes
These are primarily boundary disputes concerning natural resource fields that cross
international borders, most of which are located in maritime waters. Strictly speaking,
they only involve governments since only they are able to claim sovereign title and
resolve boundaries with their neighboring states. However, natural resource companies
get indirectly involved in these disputes when they are granted concessions that
straddle disputed boundary lines.
Companies are sometimes asked by developing nations to fund the dispute costs, and
provide data and legal expertise to aid in resolving the boundary dispute. Companies
therefore need to be familiar with these disputes and be able to manage them properly
when they find themselves in the middle of one.
Company vs. State Disputes
These are often called investor-state or state investment disputes. They occur when
governments significantly change the terms of the original deal or expropriate an
investment. The investor (in this case a natural resource company or a consortium of
natural resource companies) can base its claim on its investment contract (e.g. a
production sharing contract or risk service agreement) or an investment treaty, or
possibly both. Most treaty claims are made under bilateral investment treaties (BITs),
which are negotiated and ratified by two sovereign states.
pg. 306
There are presently more than 2,500 BITs involving some 180 countries in existence
around the world. There is one multilateral investment treaty of significance to the
natural resource industry and that is the Energy Charter Treaty.634
Companies should structure their investments and negotiate their host government
contracts to take advantage of the investment protection provided by these treaties and
to access the facilities of the International Centre for the Settlement of Investment
Disputes (ICSID) as the forum of choice for any dispute with a sovereign state. That is
essentially accomplished by incorporating their investing company and managing their
business out of a jurisdiction that has a strong BIT with the host country and by
including an ICSID dispute resolution clause in their host government contract. These
disputes do not often happen to international oil companies (IOCs). But when they do
occur, they involve large sums of money and therefore have a significant impact on a
company’s bottom line. Companies should therefore seek qualified legal advice on how
best to structure their investments and draft the dispute resolution clauses in their host
government contracts.
Company vs. Company Disputes
These are usually called international commercial disputes. There are two subcategories of
disputes occurring between companies. The first subcategory is amongst joint venture
participants in contracts such as:
 Joint Operating Agreements
 Unitization Agreements
 Farmout Agreements
 Area of Mutual Interest Agreements
 Sale and Purchase Agreements
 Confidentiality Agreements
The second subcategory of disputes is between operators and service contractors for the
following kinds of agreements:
 Service Agreements
 Construction Contracts
 Equipment and Facilities Contracts
 Transportation and Processing Contracts
These disputes make up the majority of disputes in which natural resource companies find
themselves.
They run the full gamut of size, complexity and financial significance.
Individual vs. Company Disputes
634
S ee http://www.encharter.org for more details.
pg. 307
There are a number of situations where individuals initiate claims against natural resource
companies. The first is when an individual suffers a personal injury and begins a tort
claim against a company. Foreign claims are usually started in local courts but can
sometimes be filed in other jurisdictions.635
The second group of claims by individuals arise when promoters of companies allege they
have an interest in contract and the accompanying joint operating agreement,
sometimes in the context of a claim of tortious interference by a third party.
The final group of claims concerns agents or consultants who demand payment under their
agent agreements for winning a government contract for a company. There are a series
of arbitrations that have happened over the last 50 years where companies have
refused to pay their agent based upon corruption allegations after securing the host
government contract.636
personal disputes
Personal disputes are disagreements as to rights and responsibilities, between individuals.
They can be either civil or criminal.
635
See Jonathan Drimmer, Human Rights and the Extractive Industries: Litigation and Compliance Trends, Journal of World Energy Law
& Business (Vol 3, No 2—July 2010) for more details on these claims worldwide.
636
See A. Timothy Martin, “International Arbitration and Corruption: An Evolving Standard”, 20th Annual Institute for Transnational
Arbitration, June, 2009. Available at: http:// www.timmartin.ca/qualifications/publications.
pg. 308
ELEMENTS OF EFFECTIVE DISPUTE RESOLUTION METHODS
Characteristics of effective dispute mechanisms

There are a number of dispute resolution methods that parties can use in their disputes.
They can use one or several of them together. Some are better than others depending
on the circumstances. Whatever parties choose, they need to draft their dispute
resolution clause so that the different methods work properly together. Otherwise a
party will receive some unpleasant surprises at the time of the dispute. The various
types of dispute resolution methods include negotiation, mediation, expert
determination, dispute review boards, litigation and arbitration.
Irrespective of the method, such mechanisms must at a minimum be:
Legitimacy (dispute resolution)
A dispute mechanism must have clear, transparent and sufficiently independent
governance structures to ensure that no party to a particular grievance process can
interfere with the fair conduct of that process;
Accessibility (dispute resolution)
A dispute mechanism must be publicized to those who may wish to access it and provide
adequate assistance for aggrieved parties who may face barriers to access, including
language, literacy, awareness, finance, distance, or fear of reprisal;
Predictability (dispute resolution)
A dispute mechanism must provide a clear and known procedure with a time frame for
each stage and clarity on the types of process and outcome it can (and cannot) offer, as
well as a means of monitoring the implementation of any outcome;
Equity(dispute resolution)
A dispute mechanism must ensure that aggrieved parties have reasonable access to sources
of information, advice and expertise necessary to engage in a grievance process on fair
and equitable terms;
Rights-compatibility (dispute resolution)
A dispute mechanism must ensure that its outcomes and remedies accord with
internationally recognized human rights standards;
Transparent (dispute resolution)
A dispute mechanism must provide sufficient transparency of process and outcome to meet
the public interest concerns at stake and should presume transparency wherever
possible; non-State mechanisms in particular should be transparent about the receipt of
complaints and the key elements of their outcomes.
pg. 309
TYPES OF DISPUTE RESOLUTION METHODS
two types of dispute resolution processes

Dispute resolution processes fall into two major types:
 Adjudicative processes
 Consensual processes
Adjudicative processes
Adjudicative processes, such as litigation or arbitration, in which a judge, jury or arbitrator
determines the outcome.
Consensual processes
Consensual processes, such as collaborative law, mediation, conciliation, or negotiation, in
which the parties attempt to reach agreement.
Conflict resolution, reconciliation
Conflict resolution, otherwise known as reconciliation, is conceptualized as the methods
and processes involved in facilitating the peaceful ending of conflict and retribution.
Often, committed group members attempt to resolve group conflicts by actively
communicating information about their conflicting motives or ideologies to the rest of
the group (e.g., intentions; reasons for holding certain beliefs), and by engaging in
collective negotiation. Dimensions of resolution typically parallel the dimensions of
conflict in the way the conflict is processed. Cognitive resolution is the way disputants
understand and view the conflict, with beliefs and perspectives and understandings and
attitudes. Emotional resolution is in the way disputants feel about a conflict, the
emotional energy. Behavioral resolution is how one thinks the disputants act, their
behavior. Ultimately, a wide range of methods and procedures for addressing conflict
exist, including but not limited to negotiation, mediation, diplomacy, and creative
peacebuilding. The term conflict resolution may also be used interchangeably with
dispute resolution, where arbitration and litigation processes are critically involved.
Furthermore, the concept of conflict resolution can be thought to encompass the use of
nonviolent resistance measures by conflicted parties in an attempt to promote effective
resolution.
Conflict management
Conflict management refers to the long-term management of intractable conflicts. It is the
label for the variety of ways by which people handle grievances—standing up for what
they consider to be right and against what they consider to be wrong. Those ways
include such diverse phenomena as gossip, ridicule, lynching, terrorism, warfare,
feuding, genocide, law, mediation, and avoidance. Which forms of conflict management
will be used in any given situation can be somewhat predicted and explained by the
social structure—or social geometry—of the case. Conflict management is often
considered to be distinct from conflict resolution. In order for actual conflict to occur,
pg. 310
there should be an expression of exclusive patterns, and tell why the conflict was
expressed the way it was. Conflict is not just about simple inaptness, but is often
connected to a previous issue. The latter refers to resolving the dispute to the approval
of one or both parties, whereas the former concerns an ongoing process that may never
have a resolution. Neither is it considered the same as conflict transformation, which
seeks to reframe the positions of the conflict parties.
Alternative dispute resolution (ADR), external dispute resolution
Alternative dispute resolution (ADR; known in some countries, such as Australia, as
external dispute resolution) includes dispute resolution processes and techniques that
act as a means for disagreeing parties to come to an agreement short of litigation. It is a
collective term for the ways that parties can settle disputes, with (or without) the help
of a third party.
Despite historic resistance to ADR by many popular parties and their advocates, ADR has
gained widespread acceptance among both the general public and the legal profession
in recent years. In fact, some courts now require some parties to resort to ADR of some
type, usually mediation, before permitting the parties' cases to be tried (indeed the
European Mediation Directive (2008) expressly contemplates so-called "compulsory"
mediation; this means that attendance is compulsory, not that settlement must be
reached through mediation).
The rising popularity of ADR can be explained by the increasing caseload of traditional
courts, the perception that ADR imposes fewer costs than litigation, a preference for
confidentiality, and the desire of some parties to have greater control over the selection
of the individual or individuals who will decide their dispute. Some of the senior
judiciary in certain jurisdictions (of which England and Wales is one) are strongly in
favour of this (ADR) use of mediation to settle disputes.
Salient features of ADR
ADR is generally classified into at least four types: negotiation, mediation, collaborative
law, and arbitration. (Sometimes a fifth type, conciliation, is included as well, but for
present purposes it can be regarded as a form of mediation. See conciliation for further
details.) ADR can be used alongside existing legal systems such as sharia courts within
common law jurisdictions such as the UK.
ADR traditions vary somewhat by country and culture. There are significant common
elements which justify a main topic, and each country or region's difference should be
delegated to sub-pages.
Alternative Dispute Resolution is of two historic types. First, methods for resolving
disputes outside of the official judicial mechanisms. Second, informal methods attached
to or pendant to official judicial mechanisms. There are in addition free-standing and or
independent methods, such as mediation programs and ombuds offices within
pg. 311
organizations. The methods are similar, whether or not they are pendant, and generally
use similar tool or skill sets, which are basically sub-sets of the skills of negotiation.
ADR includes informal tribunals, informal mediative processes, formal tribunals and formal
mediative processes. The classic formal tribunal forms of ADR are arbitration (both
binding and advisory or non-binding) and private judges (either sitting alone, on panels
or over summary jury trials). The classic formal mediative process is referral for
mediation before a court appointed mediator or mediation panel. Structured
transformative mediation as used by the U.S. Postal Service is a formal process. Classic
informal methods include social processes, referrals to non-formal authorities (such as
a respected member of a trade or social group) and intercession. The major differences
between formal and informal processes are (a) pendency to a court procedure and (b)
the possession or lack of a formal structure for the application of the procedure.
For example, freeform negotiation is merely the use of the tools without any process.
Negotiation within a labor arbitration setting is the use of the tools within a highly
formalized and controlled setting.
Calling upon an organizational ombudsman's office is never, by itself, a formal procedure.
Nno one can be compelled to use an ombuds office.
Organizational ombuds offices refer people to all conflict management options in the
organization: formal and informal, rights-based and interest-based. But, in addition, in
part because they have no decision-making authority, ombuds offices can, themselves,
offer a wide spectrum of informal options.
This spectrum is often overlooked in contemporary discussions of "ADR." "ADR" often
refers to external conflict management options that are important, but used only
occasionally. An organizational ombuds office typically offers many internal options
that are used in hundreds of cases a year. These options include:
 delivering respect, for example, affirming the feelings of a visitor, while staying explicitly
neutral on the facts of a case,
 active listening, serving as a sounding board,
 providing and explaining information, one-on-one, for example, about policies and rules,
and about the context of a concern,
 receiving vital information, one-on-one, for example, from those reporting unacceptable
or illegal behavior,
 reframing issues,
 helping to develop and evaluate new options for the issues at hand,
 offering the option of referrals to other resources, to "key people" in the relevant
department, and to managers and compliance offices,
 helping people help themselves to use a direct approach, for example, helping people
collect and analyze their own information, helping people to draft a letter about their
issues, coaching and role-playing,
pg. 312
 offering shuttle diplomacy, for example, helping employees and managers to think
through proposals that may resolve a dispute, facilitating discussions,
 offering mediation inside the organization,
 "looking into" a problem informally,
 facilitating a generic approach to an individual problem, for example instigating or
offering training on a given issue, finding ways to promulgate an existing policy,
 identifying and communicating throughout the organization about "new issues,"
 identifying and communicating about patterns of issues,
 working for systems change, for example, suggesting new policies, or procedures,
 following up with a visitor, following up on a system change recommendation. 637
 Informal referral to a co-worker known to help people work out issues is an informal
procedure. Co-worker interventions are usually informal.
Conceptualizing ADR in this way makes it easy to avoid confusing tools and methods (does
negotiation once a lawsuit is filed cease to be ADR? If it is a tool, then the question is the
wrong question) (is mediation ADR unless a court orders it? If you look at court orders
and similar things as formalism, then the answer is clear: court annexed mediation is
merely a formal ADR process).
Dividing lines in ADR processes are often provider driven rather than consumer driven.
Educated consumers will often choose to use many different options depending on the
needs and circumstances that they face.
Finally, it is important to realize that conflict resolution is one major goal of all the ADR
processes. If a process leads to resolution, it is a dispute resolution process.
Appropriate dispute resolution vis a vis Alternative dispute resolution
"Alternative" dispute resolution is usually considered to be alternative to litigation. It also
can be used as a colloquialism for allowing a dispute to drop or as an alternative to
violence.
In recent years there has been more discussion about taking a systems approach in order
to offer different kinds of options to people who are in conflict, and to foster
"appropriate" dispute resolution.
That is, some cases and some complaints in fact ought to go to formal grievance or to court
or to the police or to a compliance officer or to a government IG. Other conflicts could
be settled by the parties if they had enough support and coaching, and yet other cases
need mediation or arbitration. Thus "alternative" dispute resolution usually means a
method that is not the courts. "Appropriate" dispute resolution considers all the
possible responsible options for conflict resolution that are relevant for a given issue.
ADR can increasingly be conducted online, which is known as online dispute resolution
(ODR, which is mostly a buzzword and an attempt to create a distinctive product). It
637
See Rowe, Mary, Informality — The Fourth Standard of Practice, in JIOA, vol 5, no 1, (2012) pp 8–17.
pg. 313
should be noted, however, that ODR services can be provided by government entities,
and as such may form part of the litigation process. Moreover, they can be provided on
a global scale, where no effective domestic remedies are available to disputing parties,
as in the case of the UDRP and domain name disputes. In this respect, ODR might not
satisfy the "alternative" element of ADR.
Benefits of ADR
ADR has been increasingly used internationally, both alongside and integrated formally
into legal systems, in order to capitalise on the typical advantages of ADR over
litigation:
 Suitability for multi-party disputes
 Flexibility of procedure - the process is determined and controlled by the parties to the
dispute
 Lower costs
 Less complexity ("less is more")
 Parties choice of neutral third party (and therefore expertise in area of dispute) to direct
negotiations/adjudicate
 Likelihood and speed of settlements
 Practical solutions tailored to parties’ interests and needs (not rights and wants, as they
may perceive them)
 Durability of agreements
 Confidentiality
 The preservation of relationships and the preservation of reputations
mediation
In mediation, there is a third party, a mediator, who facilitates the resolution process (and
may even suggest a resolution, typically known as a "mediator's proposal"), but does
not impose a resolution on the parties. In some countries (for example, the United
Kingdom), ADR is synonymous with what is generally referred to as mediation in other
countries.
Mediation requires the parties to be well prepared and committed to the process, their
decision makers at the table, and a skilled mediator to work properly. When that
happens, mediation can be a very effective and successful dispute resolution tool. The
focus is on the real interests of the parties, not their contractual or legal entitlements. 638
It is frequently used domestically in common law jurisdictions such as the United States,
England, Canada and Australia. It is starting to slowly spread to civil law jurisdictions.
Mediation is the alternative dispute resolution (ADR) method of choice in the business
community, i.e., alternative from litigation and arbitration. It is overwhelmingly chosen
over other ADR methods across different jurisdictions.
638
Herbert Smith LL P, The Inside Track: How Blue-Chips are Using ADR, (London UK, November 2007). This research is based on
interviews with in-house lawyers at 21 leading multinational companies conducted by the Herbert Smith law firm in 2007.
pg. 314
Mediation is faster and cheaper than arbitration 639 and has a high success rate of
settlement.640
Mediation can cost less than 5% of the cost of an arbitration dealing with a similar dispute,
take less than 15% of the time of an arbitration and have a success rate in the 75% to
85% range. Despite those obvious advantages, it is still infrequently used in
international disputes. There are a number of reasons for mediation not being widely
used in international business disputes including lack of familiarity with the process,
differences in culture, language and values, and the large distances separating the
parties.
Finally, successful mediation requires compromise from all parties involved and some
disputes simply do not lend themselves to compromise.
An important thing to remember about mediation is that it is not a legally binding process.
The results of mediation only become binding with a signed settlement agreement. It
should therefore be seen as an adjunct and not as a replacement to a binding process,
such as international arbitration.
Despite its present infrequent use, it will likely grow as a useful and worthwhile
international dispute resolution tool in appropriate circumstances with the support of
companies and mediation organizations.641
collaborative law, collaborative divorce
In collaborative law or collaborative divorce, each party has an attorney who facilitates the
resolution process within specifically contracted terms. The parties reach agreement
with support of the attorneys (who are trained in the process) and mutually-agreed
experts. No one imposes a resolution on the parties. However, the process is a
formalized process that is part of the litigation and court system. Rather than being an
Alternative Resolution methodology it is a litigation variant that happens to rely on ADR
like attitudes and processes.
arbitration , voluntary arbitration, mandatory arbitration
In arbitration, participation is typically voluntary, and there is a third party who, as a
private judge, imposes a resolution. Arbitrations often occur because parties to
contracts agree that any future dispute concerning the agreement will be resolved by
arbitration. This is known as a 'Scott Avery Clause'. In recent years, the enforceability of
arbitration clauses, particularly in the context of consumer agreements (e.g., credit card
See A. Timothy Martin, International Mediation: An Evolving Market, in Contemporary Issues in International Arbitration and
639
Mediation, The Fordham Papers 2010 (A. Rovine, ed.).
640
Centre for Effective Dispute Resolution [CEDR], The Fourth Mediation Audit: A Survey of Commercial Mediator Attitudes and
Experience, 8 (London, UK, 11 May 2010).
641
See the International Mediation Institute at: http://imimediation.org for more resources in this area.
pg. 315
agreements), has drawn scrutiny from courts. Although parties may appeal arbitration
outcomes to courts, such appeals face an exacting standard of review.
Beyond the basic types of alternative dispute resolutions there are other different forms of
ADR:
Case evaluation: a non-binding process in which parties present the facts and the issues to
a neutral case evaluator who advises the parties on the strengths and weaknesses of
their respective positions, and assesses how the dispute is likely to be decided by a jury
or other adjudicator.
Early neutral evaluation
This is a process that takes place soon after a case has been filed in court. The case is
referred to an expert who is asked to provide a balanced and neutral evaluation of the
dispute. The evaluation of the expert can assist the parties in assessing their case and
may influence them towards a settlement.
Family group conference
This is a meeting between members of a family and members of their extended related
group. At this meeting (or often a series of meetings) the family becomes involved in
learning skills for interaction and in making a plan to stop the abuse or other ill-
treatment between its members.
Neutral fact-finding
This is a process where a neutral third party, selected either by the disputing parties or by
the court, investigates an issue and reports or testifies in court. The neutral fact-finding
process is particularly useful for resolving complex scientific and factual disputes.
Ombud, Ombudsman
This is a third party selected by an institution – for example a university, hospital,
corporation or government agency – to deal with complaints by employees, clients or
constituents. The Standards of Practice for Organizational Ombuds may be found at
http://www.ombudsassociation.org/standards/.
An organizational ombudsman works within the institution to look into complaints
independently and impartially.
negotiation
In negotiation, participation is voluntary and there is no third party who facilitates the
resolution process or imposes a resolution. (NB – a third party like a chaplain or
organizational ombudsperson or social worker or a skilled friend may be coaching one
or both of the parties behind the scene, a process called "Helping People Help
Themselves".642
642
see Helping People Help Themselves, in Negotiation Journal July 1990, pp. 239–248
pg. 316
Negotiation between the parties at the time of a dispute usually happens as a matter of
course. A provision for negotiation may or may not be drafted into an agreement. It can
be formalized as part of a multi-step dispute resolution process. If it is, the agreement
needs to set a clear time frame when each step is finished. Otherwise, failure to
complete one step can be used as an obstacle to get to a binding process. It is the least
expensive of any dispute resolution method and potentially the most commercially
viable solution. But it needs the full co-operation of the parties and a great deal of
objectivity and detachment in the parties’ behavior to avoid negative emotions and
entrenched views that get in the way of a settlement. It should not be the only dispute
resolution method relied upon since it may likely result in no resolution.
Facilitation
Neutral facilitators can help parties work together to resolve disputes. Facilitators can
organize meetings so participants can focus on the issues, contribute ideas and work
toward solutions. Facilitation ensures that meetings stay party-focused, clarify points
of agreement and disagreement, model effective communication and listening, support
all parties in participating fully, and encourage parents and schools to identify new
options to address unresolved problems.
Expert Determination
Expert determination has been most often used in economic valuations or technical
assessments in natural resource disputes. The decision of an expert is not enforceable
as an arbitration award but only as a contract between the parties in court systems
around the world. It would require the written agreement of the parties. It is only
effective in highly technical matters, but has difficulty when there are matters of both
fact and law being disputed (which is the case for many disputes). It is not widely used
in international disputes and when it is, it should be used only on narrow technical
grounds. A number of international institutions, such as the ICC International Centre for
Expertise, provide lists of experts and administered services in this area. 643
Dispute Review Board
Dispute review boards began in the U.S. construction industry and have spread into the
international construction industry. They usually consist of a three member board that
is appointed for the duration of a large construction project. They have proven to be
quite effective in the construction industry, but have not spread to the energy sector in
any significant manner. If they were used, they would be most effective in the
construction of large energy infrastructure projects. A number of institutions provide
assistance and services in this area.644
Administrative Boards
643
See http://www.iccwbo.org/court/adr for more details on their services.
644
This includes the ICC, the International Centre for Dispute Resolution (ICDR) at: http://www.adr.org/sp.asp?id=28819 and the
Dispute Review Federation at: http://dbfederation.org.
pg. 317
These are boards established by statute for various specific industries, to enable the
resolution of disputes in these sectors, before the matter can be litigious. The most
common ones are:
 labour review boards
 military review boards
 land boards
 water boards
Litigation
Litigation in the courts is the most familiar dispute resolution tool to lawyers. It is most
frequently used in the domestic energy business with parties from the same jurisdiction
(in particular in the U.S., Canada, the UK and Australia). It is not the preferred forum for
international disputes for a number of reasons including problems in enforcing court
judgments in foreign jurisdictions, cost and length of trials, and aversion to local courts
by foreign investors. As a result, it is rarely chosen as a dispute resolution mechanism in
international natural resource agreements.645 It is sometimes chosen in international
natural resource agreements when all the parties come from the same jurisdiction and
they are all comfortable with the courts of their home country.
Arbitration
Arbitration is the most widely accepted and used dispute resolution method in the
international energy sector. It is a legally binding process that provides the most
flexibility to parties in how they want to resolve their dispute. Arbitration provides
many advantages including allowing parties to choose their arbitrators, selecting the
kind and extent of their arbitration process, and choosing the venue and forum where
the arbitration will be held. It also has the advantage of the recognition and
enforcement of arbitral awards in foreign jurisdictions, which court judgments
generally do not have.
Along with that flexibility comes a number of problems, including that adverse parties can
make the process look a lot like litigation resulting in high costs and time consuming
processes.
Companies can adopt a number of strategies to manage time and cost concerns in
international arbitration that are discussed. Despite some of its shortcomings, when
given a choice between the only two legally binding dispute resolution processes
available—local courts and arbitration—international businesses always choose
international arbitration.
international arbitration
645
An example is the development of the AIPN Model JOA. The first two versions included the alternative of court litigation. That was
eliminated in the third and last version of the AIPN Model JOA. The only binding process now provided is international arbitration.
pg. 318
International arbitration is a leading method for resolving disputes arising from

international commercial agreements and other international relationships. As with
arbitration generally, international arbitration is a creation of contract, i.e., the parties'
decision to submit disputes to binding resolution by one or more arbitrators selected by
or on behalf of the parties and applying adjudicatory procedures, usually by including a
provision for the arbitration of future disputes in their contract. The practice of
international arbitration has developed so as to allow parties from different legal and
cultural backgrounds to resolve their disputes, generally without the formalities of their
respective legal systems.
International arbitration has enjoyed growing popularity with business and other users
over the past 50 years. There are a number of reasons that parties elect to have their
international disputes resolved through arbitration. These include the desire to avoid
the uncertainties and local practices associated with litigation in national courts, the
desire to obtain a quicker, more efficient decision, the relative enforceability of
arbitration agreements and arbitral awards (as contrasted with forum selection clauses
and national court judgments), the commercial expertise of arbitrators, the parties'
freedom to select and design the arbitral procedures, confidentiality and other benefits.
International arbitration is sometimes described as a hybrid form of dispute resolution,
which permits parties broad flexibility in designing arbitral procedures. As one
example, consider the International Bar Association (IBA)'s Rules on the Taking of
Evidence in International Commercial Arbitration, revised in 2010. These rules adopt
neither the common law jurisdictions' broad disclosure procedures (Discovery), nor
follow fully the civil law in eliminating entirely the ability to engage in some disclosure-
related practices. The IBA Rules blend common and civil systems so that parties may
narrowly tailor disclosure to the agreement's particular subject matter.
Rules of evidence represents just one example of the different practice that applies to
international arbitration, and which distinguishes it from provincial forms of
arbitration rooted in the procedures of a particular legal system. There are a variety of
approaches to international arbitration at the national level, even where model laws
have been adopted. These approaches can be further impacted by arbitral rules that
may be agreed between the parties. Similarly, international arbitral practice has given
rise to its own non-country-specific standards of ethical conduct which are believed to
apply in international proceedings and, more to the point, to the arbitrators who are
appointed to conduct them.
International arbitration is a significant variant of the practice in many countries of
arbitration, from which it is derived and shares many features. It is not just the fact that
international arbitration arises in the context of international contracts that makes it
different. In the international dispute resolution community, it is widely accepted to be
a different animal entirely, involving different practices and rules, and being
represented by a different community of arbitrators and legal practitioners.
pg. 319
It is essential to draw a firm distinction between Arbitration and Mediation or Conciliation,

which are both sometimes characterized as forms of ADR (Alternative Dispute
Resolution). In countries where mediation is new or struggling to be introduced as a
concept, this association has given rise to the misleading impression that mediation is a
form of non-binding arbitration, with the arbitrator proposing or suggesting outcomes
based on an assessment of the parties' rights. In fact, arbitration and mediation or
conciliation are fundamentally different: the former is a binding determination of legal
rights, the latter two forms of dispute resolution involve facilitated negotiation which
aims at producing a consensual settlement. The one leads to a binding determination
(arbitration), the other only in the event the parties agree to settle their dispute on
mutually satisfactory terms (mediation).
international litigation, transnational litigation
International litigation (sometimes called "transnational litigation") is the practice of
litigation in connection with disputes among businesses or individuals residing or
based in different countries.
pg. 320
INTERNATIONAL LITIGATION, CONFLICT OF LAWS
International litigation
International litigation (sometimes called "transnational litigation") is the practice of
litigation in connection with disputes among businesses or individuals residing or
based in different countries.
The main difference between international litigation and domestic litigation is that, in the
former, certain issues are more likely to be of significance — such as personal
jurisdiction, service of process, evidence from abroad, and enforcement of judgments.
Jurisdiction (International litigation), Long arm jurisdiction
Long arm jurisdiction is the statutory grant of jurisdiction to local courts over out-of-state
defendants. A long-arm statute authorizes a court in a state to exercise jurisdiction over
an out-of-state defendant. Without a long arm statute, the courts in a state might not
have personal jurisdiction over an out-of-state defendant. The use of a long arm statute
is usually considered constitutional where the defendant has certain minimum contacts
with the forum state and there has been reasonable notice of the action against that
defendant.
Service of process (International litigation)
In every lawsuit, the plaintiff must effect service of process upon the defendant(s). In the
international context, the issue of service of process is more complex.
In the local courts, service of process is routinely carried out by private lawyers or their
agents. In contrast, many other countries consider the activity of serving process in a
judicial proceeding to be one appropriate only for the government or an arm of the
government.
As a result of differing approaches to the issue of service of process, several nations signed
the Hague Service Convention (1965), under which each member nation is required to
establish a Central Authority to receive, review, and execute requests from foreign
courts for carrying out service of process.
Most countries that are signatories to the Hague Service Convention will accept requests
for service that are signed by the lawyer for the plaintiff (claimant). Two exceptions are
the UK and Israel.
Any lawyer who ignores the international aspects of service of process when suing a non-
US defendant might find that the resulting judgment cannot be enforced where the
defendants' assets are available.
Evidence (International litigation)
In contrast to the domestic situation, when a party to an international dispute needs to
obtain evidence located in a foreign country, that party will usually need to make a
request of the local court for it (the court) to issue a Letter of Request pursuant to the
pg. 321
Hague Evidence Convention. Under the HEC, each member state is required to designate
a Central Authority to receive, review, and carry out incoming requests to obtain
evidence from persons (or other entities) located in the receiving country.
Trial considerations (International litigation)
Once a lawsuit proceeds past the discovery stage and is ready for trial, the differences
between domestic litigation and international litigation are much less pronounced.
Depending upon the language sophistication of the witnesses on behalf of the non-local
party, it might be necessary to arrange for an interpreter to translate trial testimony.
Interpreters cost money, which increases the costs of the trial.
Recognition and enforcement (International litigation)
The Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil
and Commercial Matters is a multilateral treaty governing the enforcement of
judgments entered by one nation's legal authorities in other signatory nations. It is one
of a number of conventions in the area of Private International Law of the Hague
Conference on Private International Law in 1971.
Most states have enacted the Foreign Judgments Recognition Statues which governs the
recognition of non-local judgments.
As a general rule, grounds for non-recognition can be predicated upon:
 Lack of conclusiveness: if the judgment was rendered under a system which does not
provide impartial tribunals or procedures compatible with the requirements of due
process of law.
 the foreign court did not have personal jurisdiction over the defendant.
 The foreign court did not have jurisdiction over the subject matter;
 The defendant in the proceedings in the foreign court did not receive notice of the
proceedings in sufficient time to enable him to defend;
 The judgment was obtained by fraud;
 The cause of action on which the judgment is based is repugnant to the public policy of the
state where enforcement is sought;
 The judgment conflicts with another final and conclusive judgment;
 The proceeding in the foreign court was contrary to an agreement between the parties
under which the dispute in question was to be settled otherwise than by proceedings in
that court; or
 In the case of jurisdiction based only on personal service, the foreign court was a seriously
inconvenient forum for the trial of the action; or
 The judgment seeks to enforce the revenue and taxation laws of a foreign jurisdiction.
pg. 322
INTERNATIONAL ARBITRATION
Legal Framework for International Arbitration

There are a number of elements that together provide an effective and enforceable legal
framework for international arbitration. They are the:
 Arbitration Agreement or Clause
 Arbitration Conventions and Investment
 Treaties
 Arbitration Procedural Rules
 National Laws
 National Courts
Arbitration Agreement
The arbitration agreement or dispute resolution clause is the foundation of international
arbitration. It is based on the principle of party autonomy, i.e., parties have the right to
decide how and where they wish to resolve their disputes and to provide for that in
their contracts in a binding, enforceable manner. Given the flexibility of international
arbitration, parties need to maximize their benefits while minimizing their risks by
carefully drafting their dispute resolution clauses.
principle of party autonomy
According to this principle, the parties in an international dispute have the right to decide
how and where they wish to resolve their disputes and to provide for that in their
contracts in a binding, enforceable manner.
Arbitration Conventions and Investment Treaties
There are a number of international conventions and treaties that provide for the
recognition and enforcement of arbitral awards and the protection of investments. They
are:
New York Convention
The first and most important convention in the international arbitration world is the
United Nations Convention on the Recognition and Enforcement of Foreign Arbitral
Awards (“New York Convention”) that came into force in 1958. This is the primary
convention used to recognize, enforce, and challenge international arbitral awards. To
access the benefits of this convention the seat of the arbitration should be in a country
that is a signatory to the Convention and the counter-party (or its assets) against whom
an agreement or award is to be enforced should be from a country that is a party to the
New York Convention.646
Regional Conventions
646
Current status of the NY Convention is available at: http://www.uncitral.org/.
pg. 323
There are a number of regional conventions that replicate the benefits of the New York
Convention.
One is the Inter-American Convention on International Commercial Arbitration (“Panama
Convention”) that came into force in 1975. There are a total of 19 signatories, including
the U.S. and many of the Latin American countries. In the U.S., the Panama Convention
applies over the New York Convention if a majority of the signatories to the arbitration
agreement are citizens of states that have ratified the Panama Convention and are
members of the Organization of American States.
Other regional conventions include the Arab Convention on Commercial Arbitration
(Amman, 1987), the European Convention (Geneva, 1961) and the Moscow Convention
(1972).
Washington or ICSID Convention
The Convention on the Settlement of Investment Disputes between States and Nationals of
Other States (“Washington Convention” or “ICSID Convention”) came into force in 1966.
It provides for the resolution of disputes between host States and foreign investors. The
International Centre for the Settlement of Investment Disputes (“ICSID”), which is a
branch of the World Bank in Washington, D.C., administers this convention.
Contracting States
Ratifying States are called “Contracting States” under the Convention. 647 Contracting States
improve their investment climate through ratifying the ICSID Convention and investors
gain direct access to an effective forum that provides its own enforcement mechanism.
ICSID provides facilities for arbitration or conciliation where investors in foreign countries
can have a fair hearing and access a self-enforcing mechanism for awards issued under
the Convention. In order for this to work effectively, sovereign governments that are
signatories to the Convention waive their sovereign immunity from lawsuits and claims
and their courts are required to accept the awards without review. The reality is that
ICSI D awards must still be enforced in local courts, which have sometimes ignored this
requirement. To ensure that this waiver is treated properly, the Convention requires
that strict conditions must be met before it can be invoked. An investor initiating a
claim under the provisions of ICSID must satisfy the. Secretariat of ICSID that the claim
properly falls within its jurisdiction. In particular, three conditions must be fulfilled:
 Parties must agree in their investment contract that disputes will be submitted to ICSID
arbitration.
 The dispute must be between a Contracting State and a national of another Contracting
State.
 The claim must be a legal dispute arising directly out of a qualified investment.
647
15 Current status of the ICSI D Convention is available at: http://icsid.worldbank.org/ICSI D
pg. 324
The issue of jurisdiction is disputed in many ICSID proceedings by States that want to stop
claims against them. Arguments to prevent jurisdiction include the nature of the
dispute, the nature of the investment, whether the investor has exhausted its local
remedies, whether the dispute is with the State, the identity of the investor, and
whether the State has consented to jurisdiction. A Contracting State can notify ICSID
that it chooses not to submit certain classes of disputes, such as disputes dealing with
natural resource investments, to ICSID jurisdiction. Also consent by a constituent
subdivision or agency of a Contracting State, such as a national oil company, requires
the approval of that State unless the State notifies ICSID that no approval is required. It
is therefore important for companies to obtain qualified legal advice prior to making
investments in foreign countries and negotiating host government agreements to access
the benefits of the ICSID Convention.
Advance consent by member states may be found in BITs and in multilateral trade
agreements such as the Energy Charter Treaty, the North American Free Trade
Agreement (NAFTA), the Central American Free Trade Agreement (CAFTA), the
Cartagena Free Trade Agreement, and the Colonia Investment Protocol of Mercosur.
In addition, ICSID has its Additional Facility Rules for certain types of disputes falling
outside the scope of the Convention.
Energy Charter Treaty
The Energy Charter Treaty (“ECT”)648 entered into force in April 1998. As its name implies,
the ECT focuses on energy investments, in particular upstream and transit investments
in Eastern and Western Europe. It provides investment promotion and protection,
including prohibitions on expropriation, and dispute resolution mechanisms for those
investments. There are 51 member states in addition to the European Community, 47 of
whom have ratified the treaty. There are 23 observer states and 10 international
observer organizations (NGOs). Observer states include the United States, Canada and
China. Russia withdrew provisional application of its member status effective 20
October 2009. The ECT provides for provisional application of the ECT to signatories
even if not yet ratified by the State. The protections of the ECT continue for 20 years
after the effective date of withdrawal from ECT for investments existing at the time of
withdrawal. The ECT allows states to elect in advance to deny the advantages of
investment protections from certain individuals, such as mailbox companies.
The ECT provides dispute resolution mechanisms for disputes between parties to the
treaty (i.e., States), transit disputes, trade disputes, competition and environmental
disputes, and disputes between investors and host governments.
An investor can choose to arbitrate its dispute in any of the following fora:
 ICSID if the Contracting Party and the Investor’s state are both parties to the Washington
Convention
648
See http://www.encharter.org for more details.
pg. 325
 ICSID under the Additional Facility Rules if one state is a party to the Washington
Convention
 Ad hoc arbitration under the UNCITRAL Rules
 Arbitration Institute of the Stockholm Chamber of Commerce (SCC) under its rules.
Unless a State has previously elected so, there is no “fork in the road” provision that would
prevent an investor from pursuing an action under the ECT after attempting redress in
another forum.
Bilateral Investment Treaties
Bilateral Investment Treaties (“BITs”) are treaties between two countries designed to
encourage and protect investments between the two countries.
The first BIT was signed between Germany and Pakistan more than 50 years ago. There are
now more than 2,500 BITs and growing. A BIT would usually contain provisions for:
 No direct or indirect expropriation
 Fair and equitable treatment of investments
 Most favored nation status
Investors may be able to take advantage of terms in BITs between the host state where it is
making its investment and other countries either when the other BIT is more favorable
than those in the
BIT between the state and the investor’s originating country or when the investor’s
originating country does not have a BIT with the host state.
An investor accomplishes this by incorporating its investment company and carrying out
its business through the other State with the more favorable BIT. Criteria for qualifying
as an investor vary from one BIT to another, so qualified legal advice is needed in
structuring such investments.
A BIT may contain a “fork in the road” provision for initiating disputes, i.e., the investor
must choose either litigation in the local courts, arbitration under the contract, or
arbitration of its treaty claims through ICSID or its additional facilities.
An election to follow a certain path will prevent following another path later on; i.e.,
choosing to arbitrate under the contract will constitute an election not to proceed under
the BIT at ICSID. This provision is found in the standard form U.S. BIT.
Multilateral Trade Agreements
There are a number of multilateral trade agreements including NAFTA and CAFTA. Both
agreements contain provisions requiring the signatory States to encourage
international commercial arbitration and arbitration provisions for state to state
disputes and investor-state disputes.
Arbitration Procedural Rules
pg. 326
All arbitrations are subject to the procedural rules of the lex arbitri, i.e., the arbitration laws
of the place of arbitration. However, those rules tend to be broad and non-specific.
Therefore the parties need to agree upon a detailed set of procedural rules to conduct
their arbitration. They have basically two choices—ad hoc or institutional arbitration.
An ad hoc arbitration is one that is conducted pursuant to rules agreed by the parties or
determined by the arbitration tribunal. An institutional arbitration is one that is
conducted using the rules of a specialized arbitration institution and which is
administered by that institution.
In addition to the arbitration procedural rules, parties often need to agree upon more
detailed evidentiary rules in large, complex arbitrations.
The most well known and used rules are the IBA Rules on the Taking of Evidence in
International Arbitration649 and for more guidance on the production of documents and
exchange of information the ICDR Guidelines for Arbitrators Concerning Exchanges of
Information650 are being increasingly relied upon. Parties can agree upon these
additional evidentiary rules either in their dispute resolution clause or in the
procedural order issued by the tribunal at the beginning of the arbitration.
National Laws
The national laws of a country implement the rights and obligations of the arbitral
conventions and treaties described above. They provide the enforcement mechanisms
for arbitration agreements and awards, along with filling in the gaps in parties’
arbitration agreements or dispute resolution clauses. In addition, national laws govern
the nullification or setting aside of awards rendered in a country and the waiver of
sovereign immunity.
Most countries have laws that deal with both domestic and international arbitration,
including how their courts recognize, deal with challenges of and enforce arbitral
awards. Many countries have adopted, either entirely or substantially, the UNCITRAL
Model Law on International Commercial Arbitration as their law dealing with
international arbitration.651 The United States and the United Kingdom are exceptions
with their respective U.S. Federal Arbitration Act and English Arbitration Act, 1996.652
National Courts
The national courts provide the muscle to enforce arbitration agreements and awards.
They also provide orders in aid of arbitration, such as interim relief and measures to
649
I BA Rules on the Taking of Evidence in International Arbitration (International Bar Association)
adopted by a resolution of the IBA Council on 29 May 2010. Available at http://www.ibanet.org.
I CDR Guidelines for Arbitrators Concerning Exchanges of Information (International Centre for Dispute Resolution, the international
650
arm of the American Arbitration Association). Effective 1 June 2008. Available at http://www.adr.org.
651
See http://www.uncitral.org/uncitral/en/uncitral_texts/arbitration.html for more details.
652
See http://www.legislation.gov.uk/ukpga/1996/23/contents for more details.
pg. 327
preserve evidence, documentary disclosure and the attendance of witnesses. Courts

ensure procedural due process and the fundamental fairness of arbitral proceedings.
Courts can also stymie, derail, and undo the arbitral process, which emphasizes the
importance in selecting the seat of the arbitration since it is those courts that will either
support or obstruct the arbitration.
Arbitration provides finality in the resolution of an international dispute. But that means it
is not appealable on mistakes of law or fact, and can only be challenged in very limited
circumstances.
All of this reinforces the need to draft the dispute resolution clause properly.
pg. 328
NATIONAL DISPUTE RESOLUTION INSTITUTIONS
ombudsman, public advocate , Inspector General, Citizen Advocate, Children's

Ombudsman and Information Commissioner, Parliamentary Commissioner
An ombudsman or public advocate is usually appointed by the government or by
parliament, but with a significant degree of independence, who is charged with
representing the interests of the public by investigating and addressing complaints of
maladministration or a violation of rights. In some countries an Inspector General,
Citizen Advocate or other official may have duties similar to those of a national
ombudsman, and may also be appointed by a legislature. Below the national level an
ombudsman may be appointed by a state, local or municipal government. Unofficial
ombudsmen may be appointed by, or even work for, a corporation such as a utility
supplier, newspaper, NGO, or professional regulatory body.
The typical duties of an ombudsman are to investigate complaints and attempt to resolve
them, usually through recommendations (binding or not) or mediation. Ombudsmen
sometimes also aim to identify systematic issues leading to poor service or breaches of
people's rights. At the national level, most ombudsmen have a wide mandate to deal
with the entire public sector, and sometimes also elements of the private sector (for
example, contracted service providers). In some cases, there is a more restricted
mandate, for example with particular sectors of society. More recent developments
have included the creation of specialized Children's Ombudsman and Information
Commissioner agencies.
In some jurisdictions an ombudsman charged with handling concerns about national
government is more formally referred to as the "Parliamentary Commissioner" (e.g. the
United Kingdom Parliamentary Commissioner for Administration, and the Western
Australian state Ombudsman). In many countries where the ombudsman's
responsibility includes protecting human rights, the ombudsman is recognized as the
national human rights institution. The post of ombudsman had by the end of the 20th
century been instituted by most governments and by some intergovernmental
organizations such as the European Union.
tribunal
A tribunal in the general sense is any person or institution with the authority to judge,
adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in
its title. For example, an advocate appearing before a court on which a single judge was
sitting could describe that judge as 'their tribunal'. Many governmental bodies that are
titled 'tribunals' are so described to emphasize that they are not courts of normal
jurisdiction. For example, the International Criminal Tribunal for Rwanda is a body
specially constituted under international law; in Great Britain, employment tribunals
are bodies set up to hear specific employment disputes. Private judicial bodies are also
often styled 'tribunals'. The word tribunal is not conclusive of a body's function. For
pg. 329
example, in Great Britain, the Employment Appeal Tribunal is a superior court of

record.
The term is derived from the tribunes, magistrates of the Classical Roman Republic.
"Tribunal" originally referred to the office of the tribunes, and the term is still
sometimes used in this sense in historical writings.
court
A court is a tribunal, often a governmental institution, with the authority to adjudicate legal
disputes between parties and carry out the administration of justice in civil, criminal,
and administrative matters in accordance with the rule of law. In both common law and
civil law legal systems, courts are the central means for dispute resolution, and it is
generally understood that all persons have an ability to bring their claims before a
court. Similarly, the rights of those accused of a crime include the right to present a
defense before a court.
The system of courts that interprets and applies the law is collectively known as the
judiciary. The place where a court sits is known as a venue. The room where court
proceedings occur is known as a courtroom, and the building as a courthouse; court
facilities range from simple and very small facilities in rural communities to large
buildings in cities.
The practical authority given to the court is known as its jurisdiction (Latin jus dicere) – the
court's power to decide certain kinds of questions or petitions put to it. According to
William Blackstone's Commentaries on the Laws of England, a court is constituted by a
minimum of three parties: the actor or plaintiff, who complains of an injury done; the
reus or defendant, who is called upon to make satisfaction for it, and the judex or
judicial power, which is to examine the truth of the fact, to determine the law arising
upon that fact, and, if any injury appears to have been done, to ascertain and by its
officers to apply a legal remedy. It is also usual in the superior courts to have attorneys,
and advocates or counsel, as assistants, though, often, courts consist of additional
attorneys, bailiffs, reporters, and perhaps a jury.
The term "the court" is also used to refer to the presiding officer or officials, usually one or
more judges. The judge or panel of judges may also be collectively referred to as "the
bench" (in contrast to attorneys and barristers, collectively referred to as "the bar"). In
the United States, and other common law jurisdictions, the term "court" (in the case of
U.S. federal courts) by law is used to describe the judge himself or herself.
In the United States, the legal authority of a court to take action is based on personal
jurisdiction, subject-matter jurisdiction, and venue over the parties to the litigation.
administrative review boards
Review of administrative decisions refers to a method where courts review decisions made
by the administrative agencies authorized to enforce legislative mandates. Any
potential party affected by the decision of an administrative agency can petition for a
pg. 330
review. However, a court that reviews decision of an administrative agency gives a

decision most favorable to the agency. If the agency’s decision is reasonable according
to the evidence provided or if the evidence supports the decision, then the court will
confirm the decision of the agency. An Administrative Law Judge (ALJ) is an official who
presides at an administrative hearing to resolve disputes between a government agency
and someone affected by a decision or action of that agency.
Generally, decisions made by an Administrative Law Judge (ALJ) can be reviewed by the
filing of a request for review. When an ALJ renders a decision called an administrative
order, it may be reviewed by either a higher level within the agency or by a court. A
person denied claim by an ALJ must "exhaust his/her administrative remedies" (take
every step, including appeals) with the agency and its system before the administrative
ruling may be appealed by a lawsuit in court. Parties can petition to the circuit court if
there is an order by the agency that is not final and which decides rights and liabilities;
which has legal consequences that follow immediately after the order; and waiting for a
final decision which might result in an irreparable harm, damage or loss.
A person who files a petition against the agency decision is called the petitioner. A
petitioner has to file a petition within 30 days after the agency decision, the date agency
sent notice of its decision or date when the notice of agency decision was received
whichever is earlier. Petitions can be filed in a circuit court for the county where the
petitioner resides or carries on his business. Filing fees are waived by the court for
people who are unable to pay. At the time of filing, advance filing fees must be paid
unless it is an appeal from certain specific departments.
Center for Alternative Dispute Resolution
The Center for Alternative Dispute Resolution works with organizations and individuals to
increase the knowledge, quality, and use of alternative dispute resolution (ADR). The
Center serves as an information resource to both DOT ADR providers and users. ADR is
designed to assist parties in resolving differences. These processes involve a third party
neutral and are typically voluntary. ADR does not replace more traditional dispute
resolution mechanisms but merely offers an alternative. If an ADR process does not
resolve a conflict, you retain all rights to pursue more traditional approaches.
The Center offers awareness and skill-based training workshops on a variety of topics. The
Center partners with the Office of the Dispute Resolution Specialist at the Department
of Health and Human Services to offer this training. Working together, we offer a variety
of courses, instructors, and coaches to our employees and provide them with
opportunities to learn in a diverse environment and to recognize that the issues they
face occur in a variety of organizational settings.
arbitral tribunal, arbitration tribunal
An arbitral tribunal (or arbitration tribunal) is a panel of one or more adjudicators which is
convened and sits to resolve a dispute by way of arbitration. The tribunal may consist of
a sole arbitrator, or there may be two or more arbitrators, which might include either a
pg. 331
chairman or an umpire. The parties to a dispute are usually free to agree the number
and composition of the arbitral tribunal. In some legal systems, an arbitration clause
which provides for two (or any other even number) of arbitrators is understood to
imply that the appointed arbitrators will select an additional arbitrator as a chairman of
the tribunal, to avoid deadlock arising. Different legal systems differ as to how many
arbitrators should constitute the tribunal if there is no agreement.
Arbitral tribunals are usually constituted (appointed) in two types of proceedings:
 ad hoc arbitration proceedings
 institutional arbitration proceedings
ad hoc arbitration proceedings
Ad hoc arbitration proceedings are those in which the arbitrators are appointed by the
parties without a supervising institution, relying instead on the procedural law and
courts of the place of arbitration to resolve any differences over the appointment,
replacement, or authority of any or all of the arbitrators; and
institutional arbitration proceedings , Permanent tribunals
Institutional arbitration proceedings are those in which the arbitrators are appointed
under the supervision of professional bodies providing arbitration services, such as the
American Arbitration Association (which conducts international proceedings through
its New York-based division, the ICDR), the LCIA in London or the ICC in Paris. Although
these institutions (and many others) are headquartered in their respective cities, they
are capable of supervising the appointment of arbitral tribunals in nearly any country,
avoiding the need for the parties to involve local courts and procedures in the event of
disagreement over the appointment, replacement, or authority of any or all of the
arbitrators.
Permanent tribunals tend to have their own rules and procedures, and tend to be much
more formal. They also tend to be more expensive, and, for procedural reasons, slower.
pg. 332
INTERNATIONAL DISPUTE RESOLUTION INSTITUTIONS
international judicial institutions

International judicial institutions can be divided into courts, arbitral tribunals and quasi-
judicial institutions. Courts are permanent bodies, with near the same composition for
each case. Arbitral tribunals, by contrast, are constituted anew for each case. Both
courts and arbitral tribunals can make binding decisions. Quasi-judicial institutions, by
contrast, make rulings on cases, but these rulings are not in themselves legally binding;
the main example is the individual complaints mechanisms available under the various
UN human rights treaties.
Institutions can also be divided into global and regional institutions.
International courts
 International Court of Justice
 International Tribunal for the Law of the Sea
 International Criminal Tribunal for the Former Yugoslavia
 International Criminal Tribunal for Rwanda
 International Criminal Court
 International Military Tribunal (Defunct)
 International Military Tribunal for the Far East (Defunct)
 International Prize Court (Never established)
 Permanent Court of International Justice (Defunct. Replaced by the International Court of
Justice)
International arbitral tribunals
 Permanent Court of Arbitration
 WTO Appelate Body
 WTO Dispute Settlement Panels
 NAFTA Dispute Settlement Panels
 International Centre for the Settlement of Investment Disputes
 Court of Arbitration for Sport
 OSCE Court of Conciliation and Arbitration
Quasi-judicial international institutions
 Human Rights Committee
 Committee on the Elimination of Racial Discrimination
 Committee on the Elimination of Discrimination Against Women
 Committee on Economic, Social and Cultural Rights
 Committee on the Rights of the Child
 Committee Against Torture
 Committee on Migrant Workers
pg. 333
 Committee on the Rights of Persons with Disabilities

international dispute resolution institutions
Three of the most well known and frequently used international dispute resolution
institutions, the International Chamber of Commerce (ICC), the London Court of
International Arbitration (LCIA), and the International Centre for Dispute Resolution
(ICDR), which is the international division of the American Arbitration Association, only
administer about 100 mediations a year compared to over 1,800 arbitrations registered
per year at all three institutions.
pg. 334
Dispute Resolution Mechanisms in Administrative Law

HOLDING GOVERNMENT ACCOUNTABLE (JUDICIAL REVIEW)
Judicial Review
Judicial review is the doctrine under which legislative and executive actions are subject to
review by the judiciary. A court with judicial review power may invalidate laws and
decisions that are incompatible with a higher authority, such as the terms of a written
constitution. Judicial review is one of the checks and balances in the separation of
powers: the power of the judiciary to supervise the legislative and executive branches.
The doctrine varies between jurisdictions, so the procedure and scope of judicial review
may differ between and within countries. Judicial review is considered a key check on
the powers of the other two branches of government by the judiciary, although the
power itself is not granted by the Constitution.653
Judicial review of administrative acts
Most modern legal systems allow the courts to review administrative acts (individual
decisions of a public body, such as a decision to grant a subsidy or to withdraw a
residence permit). In most systems, this also includes review of secondary legislation
(legally-enforceable rules of general applicability adopted by administrative bodies).
Some countries (notably France and Germany) have implemented a system of
administrative courts which are charged with resolving disputes between members of
the public and the administration. In other countries (including the United States,
Scotland and the Netherlands), judicial review is carried out by regular civil courts
although it may be delegated to specialized panels within these courts (such as the
Administrative Court within the High Court of England and Wales). The United States
employs a mixed system in which some administrative decisions are reviewed by the
United States district courts (which are the general trial courts), some are reviewed
directly by the United States courts of appeals and others are reviewed by specialized
tribunals such as the United States Court of Appeals for Veterans Claims (which, despite
its name, is not technically part of the federal judicial branch). It is quite common that
before a request for judicial review of an administrative act is filed with a court, certain
preliminary conditions (such as a complaint to the authority itself) must be fulfilled. In
most countries, the courts apply special procedures in administrative cases.
Judicial review of primary legislation
There are three broad approaches to judicial review of the constitutionality of primary
legislation—that is, laws passed directly by an elected legislature. Some countries do
not permit a review of the validity of primary legislation. In the United Kingdom,
statutes cannot be set aside under the doctrine of parliamentary sovereignty. Another
example is the Netherlands, where the constitution expressly forbids the courts to rule
on the question of constitutionality of primary legislation.
653
Montesquieu, Baron Charles de, The Spirit of Laws
pg. 335
public interest principle

Whether public officials are liable for their actions is an important issue at every level of
government service, from the President to a local water board terminating service to
delinquent customers, the issues are very similar. In each case, the guiding principle is
the same: The public interest in shielding officials from litigation and personal financial
liability, for damages caused by their actions while carrying out public business,
outweighs the potential harm of those actions.
Selective enforcement
Selective enforcement is the ability that executors of the law (such as police officers or
administrative agencies, in some cases) have to arbitrarily select choice individuals as
being outside of the law. The use of enforcement discretion in an arbitrary way is
referred to as selective enforcement or selective prosecution.
Historically, selective enforcement is recognized as a sign of tyranny, and an abuse of
power, because it violates rule of law, allowing men to apply justice only when they
choose. Aside from this being inherently unjust, it almost inevitably must lead to
favoritism and extortion, with those empowered to choose being able to help their
friends, take bribes, and threaten those from whom they desire favors.
Selective enforcement
Selective enforcement is the ability that executors of the law (such as police officers or
administrative agencies, in some cases) have to arbitrarily select choice individuals as
being outside of the law. The use of enforcement discretion in an arbitrary way is
referred to as selective enforcement or selective prosecution.
Historically, selective enforcement is recognized as a sign of tyranny, and an abuse of
power, because it violates rule of law, allowing men to apply justice only when they
choose. Aside from this being inherently unjust, it almost inevitably must lead to
favoritism and extortion, with those empowered to choose being able to help their
friends, take bribes, and threaten those from whom they desire favors.
Arbitrary and capricious
In administrative law, a government agency's resolution of a question of fact, when decided
pursuant to an informal rulemaking under the Administrative Procedure Act (APA), is
reviewed on the arbitrary and capricious standard. Arbitrary and capricious is a legal
ruling wherein an appellate court determines that a previous ruling is invalid because it
was made on unreasonable grounds or without any proper consideration of
circumstances. This is an extremely deferential standard.
Abuse of discretion
Where a lower court has made a discretionary ruling (such as whether to allow a party
claiming a hardship to file a brief after the deadline), that decision will be reviewed for
abuse of discretion. It will not be reversed unless the decision is "plain error". One
pg. 336
consideration is whether "unpreserved" error exists—that is, mistakes made by the

lower court that were not objected to as the law requires. In such a case, the appellate
court may still choose to look at the lower court's mistake even though there was no
objection, if the appellate court determines that the error was evident, obvious, and
clear and materially prejudiced a substantial right, meaning that it was likely that the
mistake affected the outcome of the case below in a significant way.
In federal court, if a party commits forfeiture of error, e.g. by failing to raise a timely
objection, then on appeal, the burden of proof is on that party to show that plain error
occurred. If the party did raise a timely objection that was overruled, then on appeal,
the burden of proof is on the other party to show that the error was harmless error.
This approach is dictated by Federal Rule of Criminal Procedure 52, which holds, "[a]ny
error, defect, irregularity, or variance that does not affect substantial rights must be
disregarded, [while a] plain error that affects substantial rights may be considered even
though it was not brought to the court's attention." The appellate court has discretion
as to whether or not to correct plain error. Usually the court will not correct it unless it
led to a brazen miscarriage of justice.
Arbitrary and capricious
In administrative law, a government agency's resolution of a question of fact, when decided
pursuant to an informal rulemaking under the Administrative Procedure Act (APA), is
reviewed on the arbitrary and capricious standard. Arbitrary and capricious is a legal
ruling wherein an appellate court determines that a previous ruling is invalid because it
was made on unreasonable grounds or without any proper consideration of
circumstances. This is an extremely deferential standard.
Abuse of discretion
Where a lower court has made a discretionary ruling (such as whether to allow a party
claiming a hardship to file a brief after the deadline), that decision will be reviewed for
abuse of discretion. It will not be reversed unless the decision is "plain error". One
consideration is whether "unpreserved" error exists—that is, mistakes made by the
lower court that were not objected to as the law requires. In such a case, the appellate
court may still choose to look at the lower court's mistake even though there was no
objection, if the appellate court determines that the error was evident, obvious, and
clear and materially prejudiced a substantial right, meaning that it was likely that the
mistake affected the outcome of the case below in a significant way.
In federal court, if a party commits forfeiture of error, e.g. by failing to raise a timely
objection, then on appeal, the burden of proof is on that party to show that plain error
occurred. If the party did raise a timely objection that was overruled, then on appeal,
the burden of proof is on the other party to show that the error was harmless error.
This approach is dictated by Federal Rule of Criminal Procedure 52, which holds, "[a]ny
error, defect, irregularity, or variance that does not affect substantial rights must be
disregarded, [while a] plain error that affects substantial rights may be considered even
pg. 337
though it was not brought to the court's attention." The appellate court has discretion
as to whether or not to correct plain error. Usually the court will not correct it unless it
led to a brazen miscarriage of justice
efficiency principle
These persons are covered under public official immunity on the principle of efficiency, so
that they are not hesitant to take action, given their broad base of discretionary actions.
This can be traced to Ronald Coase’s efficiency theorem on economic analysis of law,
which argues that the role of law ought to be guided by the most efficient 654 solution.
procedural justice
Procedural justice refers to the idea of fairness in the processes that resolves disputes and
allocates resources. One aspect of procedural justice is related to discussions of the
administration of justice and legal proceedings. This sense of procedural justice is
connected to due process (U.S.), fundamental justice (Canada), procedural fairness
(Australia) and natural justice (other Common law jurisdictions), but the idea of
procedural justice can also be applied to non-legal contexts in which some process is
employed to resolve conflict or divide benefits or burdens. 655
Procedural justice concerns the fairness and the transparency of the processes by which
decisions are made, and may be contrasted with distributive justice (fairness in the
distribution of rights or resources), and retributive justice (fairness in the punishment
of wrongs). Hearing all parties before a decision is made is one step which would be
considered appropriate to be taken in order that a process may then be characterised as
procedurally fair. Some theories of procedural justice hold that fair procedure leads to
equitable outcomes, even if the requirements of distributive or restorative justice are
not met.656
administrative summons
These are summons issued by administrative agencies. For instance, the revenue authority
may summon a tax payer. The person summoned may be required to produce books,
papers, records, or other data, and to give testimony under oath. The summons may be
enforced by a court order, and the law provides a criminal penalty of up to one year in
prison or a fine, or both, for failure to obey the summons, except that the person
summoned may, to the extent applicable, assert a privilege against self incrimination or
other evidentiary privileges, if applicable.
654
Coase, The Problem of Social Cost, 386–405
655
Rawls, A Theory of Justice, revised edition, Oxford: Oxford University Press 1999 Chapter II, Section 14
656
Robert Bone, Agreeing to Fair Process: The Problem with Contractarian Theories of Procedural Fairness, 83
Boston University Law Review 485 (2003).
pg. 338
administrative subpoena
An administrative subpoena is a subpoena issued by an executive agency without prior
judicial oversight.657 Administrative subpoenas have most commonly been issued by the
Offices of the Inspector General of various federal agencies.658
administrative hearing
Although administrative hearings are not ordinarily considered trials, they retain many
elements found in more ‘formal’ trial settings. When the dispute goes to judicial setting,
it is called an administrative trial, to review the administrative hearing, depending on
the jurisdiction. The types of disputes handled in these hearings is governed by
administrative law and auxiliarily by the civil trial law.
administrative hearing or administrative trial
Although administrative hearings are not ordinarily considered trials, they retain many
elements found in more "formal" trial settings. When the dispute goes to judicial setting,
it is called an administrative trial, to revise the administrative hearing, depending on
the jurisdiction. The types of disputes handled in these hearings is governed by
administrative law and auxiliarily by the civil trial law.
breach of rules of natural justice
The rules of natural justice require that the decision maker approaches the decision
making process with 'fairness'659. What is fair in relation to a particular case may differ.
Below are some examples of what the rules of natural justice require:
writ of mandamus or mandamus
Writ of mandamus or mandamus (which means ‘we command’ in Latin; or sometimes
mandate, is the name of one of the prerogative writs in the common law, and is ‘issued
by a superior court to compel a lower court or a government officer to perform
mandatory or purely ministerial duties correctly.’ Mandamus is a judicial remedy which
is in the form of an order from a superior court to any government subordinate court,
corporation or public authority to do or forbear from doing some specific act which that
body is obliged under law to do or refrain from doing, as the case may be, and which is
in the nature of public duty and in certain cases of a statutory duty. 660 It cannot be
issued to compel an authority to do something against statutory provision.
There are three kinds of mandamus:
657
Sklaire, Michael R. (December 2005). "Administrative Subpoenas Blur the Line between Civil and Criminal Enforcement".
Legal Opinion Letter (Washington Legal Foundation) 15 (23).
658
Doyle, Charles (2005-04-15). "Administrative Subpoenas and National Security Letters in Criminal and Foreign Intelligence
Investigations: Background and Proposed Adjustments". CRS Report for Congress. Congressional Research Service.
Retrieved August 29, 2012.
659
see J, Rawls, ‘A Theory Of Justice’ (Oxford Unveirsity Press, 1966) pp 235.
660
A.T. Markose: Judicial Control of Administrative Action in India, p.364.
pg. 339
alternative mandamus
A mandamus issued upon the first application for relief, commanding the defendant either
to perform the act demanded or to appear before the court at a specified time to show
cause for not performing it.
peremptory mandamus
An absolute and unqualified command to the defendant to do the act in question. It is
issued when the defendant defaults on, or fails to show sufficient cause in answer to, an
alternative mandamus.661
continuing mandamus
A Mandamus issued to a lower authority in general public interest asking the officer or the
authority to perform its tasks expeditiously for an unstipulated period of time for
preventing miscarriage of justice.662
ouster clause, finality clause, no certiorari clause, shall not be questioned clause, as if
enacted clause, conclusive evidence clause
An ouster clause is a provision in legislation excluding particular actions from judicial
review. They exist in the form of ‘finality clause’, ‘no certiorari clause’, ‘shall not be
questioned clause’, ‘as if enacted clause’, and ‘conclusive evidence clause’.
These are attempts by the legislature to protect or immunize executive decisions from any
challenge in court by the enactment of what is generally called "privative clauses". The
attempt continues notwithstanding the decisions that such clauses do not completely
exclude judicial review of decisions that are made in error of jurisdiction or in breach of
natural justice. A typical ouster clause would say that the decision "shall not be called in
question in any court of law" or alternatively that "no court shall have jurisdiction to
entertain or determine any application, question or proceedings in whatever form on
any ground".
A passive approach to ouster clauses, in the face of important executive decisions they
invariably seek to protect, is unjustifiable. A robust approach is called for in full
appreciation of the proper role of the courts.
Notwithstanding the wide and strong language in which these clauses have been expressed,
the courts have traditionally refused to recognise that they protect manifest
jurisdictional errors or ultra vires acts. The approach of the Kenyan courts is to refuse to
give literal effect to an exclusion clause even if it seeks to protect a decision that is
based on grounds, which are absurd or perverse or mala fide, or is a wholly extraneous
and irrelevant ground, the decision has been held to be impugnable.
Further, decision in error of jurisdiction is not a real decision and therefore not protected
by the ouster clause. Also, the courts are slowly adopting a Rights Based Approach
661
RK Choudhary's Law of Writs; Mandamus.
662
Vineet Narain v. Union of India, AIR 1996 SC 3386.
pg. 340
(RBA), by using fundamental rights as the basis for their decisions; inferring strong
judicial presumptions; and requiring the administrative bodies to justify to a greater
extent their discretionary powers and the use thereof. The courts also articulate
principles of good governance; relevance of decisions; openness of institutions;
rationality; legality; procedural propriety; participation; legal certainty and
proportionality and for accountability of the government. In inferring the above, the
court justifies its actions using the principles of separation of powers, which gives the
power of judicial decision making to the courts alone, the ‘rule of law’ principle and the
Human Rights Act (in our case, the fundamental rights).
Also, in refusing to accept ouster clauses, the courts infer and apply the irrefutable
presumption of parliamentary intent, which intent is derived from constitutional theory
and practice (the source of separation of powers doctrine) and from judicial practice 663.
The courts hence conclude that parliament intend that questions of law be determined
by the courts.
In addition to the above ouster clauses, it is important to note that there are also exclusions
of the court to hear judicial review applications by virtue of statutory intervention, but
generally, the right of appeal is both statutory and also inherent as a right of the
courts.664
duty to give reasons
A duty to give reasons may be imposed by statute. Where it is not, Common Law
presumptions may imply such a duty and the courts do so particularly with regard to
judicial and quasi-judicial decisions. It also helps to guarantee objectivity and
impartiality by ensuring human dignity is respected since there has to be a reason why
one is being treated in a given way.
three principles of administrative law
Administrative law follows three basic principles.
1) Principle of the legality of the authority, which means that there is no acting against the
law and no acting without a law.
2) Principle of legal security, which includes a principle of legal certainty and the principle of
nonretroactivity
3) Principle of proportionality, which says that an act of an authority has to be suitable,
necessary and appropriate665
The administrative law in Germany can be divided into three main parts, which are
constitutional law, general administrative law and special administrative law.
663
KenyaAairways V. Kenya Airline Pilots Asociation, Misc. Appl No. 254 of 2001
664
The constitution of Kenya, section 60,64, and 67.
665
Oberath, öffentliches Wirtschaftsrecht p. 12-14
pg. 341
legitimate expectation
Legitimate expectation arises from administrative law, a branch of public law. In
proceedings for judicial review, it applies the principles of fairness and reasonableness
to the situation where a person has an expectation or interest in a public body retaining
a long-standing practice or keeping a promise.
The traditional constraint on a public body has been the test of irrationality, also known as
Wednesbury unreasonableness following Associated Provincial Picture Houses Ltd v.
Wednesbury Corp666 which stated that a decision would be unreasonable if, ‘. . .no
reasonable authority could ever have come to it’ (per Lord Greene). But if the courts are
to establish a justification for a more interventionist approach, irrationality will always
be defeated if the particular decision has sufficient qualities of reasonableness, i.e. it
should never be irrational to prefer the good of the many to the interests of the few.
The doctrine of legitimate expectation addresses circumstances in which a decision maker
may have operated a practice or made a promise that raised expectations that it would
be unfair or unreasonable to dishonor. 667 The doctrine has developed both in the
context of reasonableness and in the context of natural justice. Whether a legitimate
expectation has arisen (and whether it can be overridden) will depend on a number of
factors.
‫و‬ Whether the words or conduct which gave rise to the expectation were clear and
unequivocal,
‫و‬ Whether the person who promised the benefit had the legal power to grant it (or whether
he was acting ultra vires), and;
‫و‬ Whether the recipient of the promise took action in reliance upon it to their detriment.
irrebutable presumption of parliamentary intent
In refusing to accept ‘ouster clauses’, the courts infer and apply the irrebutible
and practice (the source of seperation of powers doctrine) and from judicial practice 668.
by the courts.
consistency
The principle states that a public body shall follow its own policies and a departure from
the same must be accompanied by requisite explanations and reasons as of right. This is
buttressed by the principle of legitimate expectations and its main function is hence to
encourage the need for consultation and notice whenever a decision is being carried
out. This need for consultation is enshrined in the “Rights Based Approach” to decision
making which is guided by the fact that there are participatory rights that must be
666
1 KB 223
667
h.l.a hart’”the concept of law” (clarendon press, 1961) pp 156
668
pg. 342
accorded to the people that shall be affected by the decision and this is usually done
through the ‘notice-comment’ structure.
non-delegation
Doctrine of nondelegation describes the theory that one branch of government must not
authorize another entity to exercise the power or function which it is constitutionally
authorized to exercise itself. It is explicit or implicit in all written constitutions that
impose a strict structural separation of powers. It is usually applied in questions of
constitutionally improper delegations of powers of any of the three branches of
government to either of the other, to the administrative state, or to private entities.
Although it is usually constitutional for executive officials to delegate executive powers
to executive branch subordinates, there can also be improper delegations of powers
within an executive branch.
intelligible principle
to guide the executive branch: ‘'In determining what Congress may do in seeking assistance
from another branch, the extent and character of that assistance must be fixed
according to common sense and the inherent necessities of the government co-
ordination.' So long as Congress 'shall lay down by legislative act an intelligible
principle to which the person or body authorized to [exercise the delegated authority]
is directed to conform, such legislative action is not a forbidden delegation of legislative
power.'‘669
natural justice
Natural justice is a term of art that denotes specific procedural rights in the English legal
system and the systems of other nations based on it. Whilst the term natural justice is
often retained as a general concept, it has largely been replaced and extended by the
more general ‘duty to act fairly’. What is required to fulfil this duty depends on the
context in which the matter arises. There are two rules that natural justice is concerned
with. These are the rule against bias (nemo iudex in causa sua) and the right to a fair
hearing (audi alteram partem).
right to a fair hearing
The right to a fair hearing requires that individuals should not be penalized by decisions
affecting their rights or legitimate expectations unless they have been given prior notice
of the case, a fair opportunity to answer it, and the opportunity to present their own
case. Natural justice is identified with the two constituents of a fair hearing, 670which are
the rule against bias (nemo iudex in causa sua, or ‘no man a judge in his own cause’), and
the right to a fair hearing (audi alteram partem, or ‘hear the other side’). 671
669
Mistretta v. United States (1989), citing J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct.
348, 351(1928)
670
De Smith's Judicial Review, p. 322
pg. 343
opportunity to be heard
Every person has the right to have a hearing and be allowed to present his or her own
case.672 Should a person not attend the hearing, even with adequate notice given, the
adjudicator has the discretion to decide if the hearing should proceed. In Ridge v.
Baldwin, a chief constable succeeded in having his dismissal from service declared void
as he had not been given the opportunity to make a defence. In another case, Chief
Constable of the North Wales Police v. Evans,673 a chief constable required a police
probationer to resign on account of allegations about his private life which he was given
no fair opportunity to rebut. The House of Lords found the dismissal to be unlawful.
Likewise in Surinder Singh Kanda v. Government of the Federation of Malaya, 674 a public
servant facing disciplinary proceedings was not supplied with a copy of a prejudicial
report by a board of inquiry which the adjudicating officer had access to before the
hearing. The Privy Council held that the proceedings had failed to provide him a
reasonable opportunity of being heard.
However, this requirement does not necessarily mean the decision-maker has to meet the
complainant face to face – ‘Natural justice does not generally demand orality’. 675 It has
been suggested that an oral hearing will almost be as good as useless if the affected
person has no prior knowledge of the case. 676 In Lloyd v. McMahon,677 an oral hearing did
not make a difference to the facts on which the case was based. Giving judgment in the
Court of Appeal of England and Wales, Lord Justice Harry Woolf held that an oral
hearing may not always be the ‘very pith of the administration of natural justice’. 678 It
has also been suggested that an oral hearing is only required if issues concerning
deprivations of legal rights or legally protected interests arise. 679
671
David Phillip Jones; Anne S. de Villars (2009), ‘Natural Justice and the Duty to be Fair’, Principles of
Administrative Law (5th ed.), Carswell, pp. 208–223 at 209, ISBN 978-0779-821-26-6.
672
Kioa, p. 582: ‘It is a fundamental rule of the common law doctrine of natural justice expressed in traditional
terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest
or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to
be given an opportunity of replying to it ... . The reference to 'right or interest' in this formulation must be
understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to
proprietary rights and interests.’
673
Chief Constable of the North Wales Police v. Evans [8] UKHL 10, [8] 1 W.L.R. 1155, H.L. (United Kingdom)
674
Surinder Singh Kanda v. Government of the Federation of Malaya [6] UKPC 2, [6] A.C. 322 at 337, Privy
Council (on appeal from Malaya).
675
R. (Morgan Grenfell & Co. Ltd.) v. Special Commissioner of Income Tax [0] EWCA Civ 329, [0] 2 W.L.R. 255
at 286, para. 47, C.A. (England & Wales).
676
Morgan Grenfell, p. 287, para. 50.
677
Lloyd v. McMahon [8] 1 A.C. 625, C.A. (England & Wales) and H.L. (United Kingdom).
678
Lloyd, p. 670, citing R. v. Local Government Board, ex parte Arlidge 1 K.B. 160 at 192–193, H.C. (K.B.)
(England & Wales).
679
Endicott, p. 128.
pg. 344
conduct of the hearing

When deciding how the hearing should be conducted, the adjudicator has to ask whether
the person charged has a proper opportunity to consider, challenge or contradict any
evidence, and whether the person is also fully aware of the nature of the allegations
against him or her so as to have a proper opportunity to present his or her own case. 680
In Secretary of State for the Home Department v. AF,681 Lord Phillips of Worth Matravers
said:
‘The best way of producing a fair trial is to ensure that a party to it has the fullest information
of both the allegations that are made against him and the evidence relied upon in support
of those allegations. Where the evidence is documentary, he should have access to the
documents. Where the evidence consists of oral testimony, then he should be entitled to
cross-examine the witnesses who give that testimony, whose identities should be
disclosed’.682
right to legal representation
There is no inherent common law right to legal representation before a domestic tribunal.
A tribunal has the discretion to admit either a legally qualified or unqualified counsel to
assist the person appearing before it, based on the facts of the case. 683 When assessing
whether a party should be offered legal assistance, the adjudicator should first ask
whether the right to be heard applies, and, secondly, whether counsel's assistance is
needed for an effective hearing given the subject matter, bearing in mind the
consequences of such a denial. 684
In R. v. Secretary of State for Home Department, ex parte Tarrant,685 Webster J. set out six
factors to be considered when deciding whether to allow representation by counsel,
namely:686
‫و‬ the seriousness of the charge and the potential penalty;

‫و‬ whether any points of law are likely to arise.;
‫و‬ whether the prisoner is capable of presenting his own case;
‫و‬ whether they are any procedural difficulties faced by prisoners in conducting their own
defence;
680
Kay Swee Pin v. Singapore Island Country Club [0] 2 S.L.R.(R.) 802 at 806, para. 7.
681
Secretary of State for the Home Department v. AF [0] UKHL 28, 2 A.C. 269, H.L. (United Kingdom)
682
AF, p. 355, para. 64.
683
Kok Seng Chong v. Bukit Turf Club [9] 3 S.L.R.(R.) 772, H.C. (Singapore).
684
Thio, p. 192.
685
R. v. Secretary of State for Home Department, ex parte Tarrant [8] 1 Q.B. 251, Divisional Court (England &
Wales).
686
Ex parte Tarrant, pp. 285–286.
pg. 345
‫و‬ whether there is reasonable speed in making the adjudication; and

‫و‬ whether there is a need for fairness between prisoners or between prisoners and prison
officers.
It has also been suggested that where a tribunal hearing concerns the individual's
reputation or right to livelihood, there is a greater need for allowing legal
representation as this vindicates the idea of equality before the law. 687
When one refuses legal representation, one cannot expect to receive a higher ‘standard’ of
natural justice. This was enunciated in Singapore in Ho Paul v. Singapore Medical
Council (2008).688 Dr. Ho, who had been charged with professional misconduct, chose to
appear before the Council in person and declined to cross-examine the Council's key
witness. Subsequently, he argued that he should have been warned of the legal
implications of not being legally represented. The High Court rejected this argument
and held he had suffered no prejudice. Dr. Ho had been given a fair opportunity of
presenting his own case and, most importantly, had not been deprived of his right to
cross-examine the witnesses.
It is also not a court's obligation to provide assistance when a party presents his or her case
without legal representation. In Rajeevan Edakalavan v. Public Prosecutor (1998),689 the
accused had appeared in person before a magistrate and had entered a plea of guilt. He
later petitioned the High Court for criminal revision, arguing that as the magistrate had
not informed him of the defences available to him, his plea had been equivocal. The
Court held:690
rule against bias
The basis for the rule against bias is the need to maintain public confidence in the legal
system. Bias can take the form of actual bias, imputed bias or apparent bias. Actual bias
is very difficult to prove in practice while imputed bias, once shown, will result in a
decision being void without the need for any investigation into the likelihood or
suspicion of bias. Cases from different jurisdictions currently apply two tests for
apparent bias: the ‘reasonable suspicion of bias’ test and the ‘real likelihood of bias’ test.
One view that has been taken is that the differences between these two tests are largely
semantic and that they operate similarly.
A person is barred from deciding any case in which he or she may be, or may fairly be
suspected to be, biased. This principle embodies the basic concept of impartiality, and
applies to courts of law, tribunals, arbitrators and all those having the duty to act
judicially.691 A public authority has a duty to act judicially whenever it makes decisions
687
Doresamy v. Public Services Commission [7] 2 M.L.J. [Malayan Law Journal] 127, High Court (Malaysia).
688
Ho Paul v. Singapore Medical Council [0] 2 S.L.R.(R.) 780, H.C. (Singapore).
689
Rajeevan Edakalavan v. Public Prosecutor [9] 1 S.L.R.(R.) 10, H.C. (Singapore).
690
Rajeevan Edakalavan, p. 19, para. 22.
691
Lord Mackay of Clashfern, ed.-in-chief (2010), Halsbury's Laws of England, 61 (5th ed.), London: LexisNexis,
para. 629, ISBN 978-1-4057-3424-0.
pg. 346
that affect people's rights or interests, and not only when it applies some judicial-type
procedure in arriving at decisions. 692
The basis on which impartiality operates is the need to maintain public confidence in the
legal system. The erosion of public confidence undermines the nobility of the legal
system, and leads to ensuing chaos. 693 The essence of the need for impartiality was
observed by Lord Denning,694 ‘Justice must be rooted in confidence and confidence is
destroyed when right-minded people go away thinking: 'The judge was biased.'695
Public confidence as the basis for the rule against bias is also embodied in the often-quoted
words of Lord Hewart, the Lord Chief Justice of England and Wales, that ‘it is not merely
of some importance, but of fundamental importance that justice should not only be done,
but should manifestly be seen to be done’.696
actual and imputed bias
Bias may be actual, imputed or apparent. Actual bias is established where it is actually
established that a decision-maker was prejudiced in favour of or against a party.
However, in practice, the making of such an allegation is rare as it is very hard to prove.
One form of imputed bias is based on the decision-maker being a party to a suit, or having a
pecuniary or proprietary interest in the outcome of the decision. Once this fact has been
established, the bias is irrebuttable and disqualification is automatic – the decision-
maker will be barred from adjudicating the matter without the need for any
investigation into the likelihood or suspicion of bias. A classic case is Dimes v. Grand
Junction Canal Proprietor697, which involved an action between Dimes, a local
landowner, and the proprietors of the Grand Junction Canal, in which the Lord
Chancellor, Lord Cottenham, had affirmed decrees made to the proprietors. However, it
was discovered by Dimes that Lord Cottenham in fact owned several pounds worth of
shares in the Grand Junction Canal. This eventually led to the judge being disqualified
from deciding the case. There was no inquiry as to whether a reasonable person would
consider Lord Cottenham to be biased, or as to the circumstances which led Lord
Cottenham to hear the case. The case covers the point that ‘Judges must not appear to be
biased or impartial’.
In certain limited situations, bias can also be imputed when the decision-maker's interest
in the decision is not pecuniary but personal. This was established in the
692
See the ‘Right to a fair hearing‘ section below.
693
Tang Kin Hwa v. Traditional Chinese Medicine Practitioners Board [0] 4 S.L.R.(R.) [Singapore Law Reports
(Reissue)] 604 at 610, para. 11, High Court (Singapore).
694
the Master of the Rolls, in Metropolitan Properties Co. (F.G.C.) Ltd. v. Lannon (1968): Metropolitan
Properties Co. (F.G.C.) Ltd. v. Lannon EWCA Civ 5, 1 Q.B. 577, Court of Appeal (England and Wales).
695
‘Metropolitan Properties, p. 599
696
Dimes v. Grand Junction Canal Proprietors (1852) 3 H.L. Cas. 759, 10 E.R. 301, House of Lords (UK).
697
(1852) 3 HL Cas 759
pg. 347
unprecedented case of R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte

Pinochet Ugarte. 698
apparent bias
Apparent bias is present where a judge or other decision-maker is not a party to a matter
and does not have an interest in its outcome, but through his or her conduct or
behaviour gives rise to a suspicion that he or she is not impartial. 699An issue that has
arisen is the degree of suspicion which would provide the grounds on which a decision
should be set aside for apparent bias. Currently, cases from various jurisdictions apply
two different tests: ‘real likelihood of bias’ and ‘reasonable suspicion of bias’.
real likelihood test
The real likelihood test centres on whether the facts, as assessed by the court, give rise to a
real likelihood of bias700. In R. v. Gough701 the House of Lords chose to state the test in
terms of a ‘real danger of bias’, and emphasized that the test was concerned with the
possibility, not probability, of bias. Lord Goff of Chievely also stated that ‘the court
should look at the matter through the eyes of a reasonable man, because the court in
cases such as these personifies the reasonable man’. 702 However, the test in Gough has
been disapproved of in some Commonwealth jurisdictions. One criticism is that the
emphasis on the court's view of the facts gives insufficient emphasis to the perception
of the public703.These criticisms were addressed by the House of Lords in Porter v.
Magill704. The Court adjusted the Gough test by stating it to be ‘whether the fair-minded
and informed observer, having considered the facts, would conclude that there was a
real possibility that the tribunal was biased’. Porter v. Magill705. This case therefore
established the current test in the UK to be one of a ‘real possibility of bias’.
reasonable suspicion test
On the other hand, the reasonable suspicion test asks whether a reasonable and fair-
minded person sitting in court and knowing all the relevant facts would have a
reasonable suspicion that a fair trial for the litigant is not possible. 706
It has been suggested that the rule requiring a fair hearing is broad enough to include the
rule against bias since a fair hearing must be an unbiased hearing. However, the rules
698
(No. 2) (1999). R. v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [9]
UKHL 1, [0] 1 A.C. 119 at 133, H.L. (UK).
699
Ex parte Pinochet, pp. 132–133.
700
R. v. Rand (1866) L.R. 1 Q.B. 230 at 233, H.C. (Queen's Bench) (England & Wales)
701
(1993) R. v. Gough [9] UKHL 1, [9] A.C. 646, H.L. (UK).,
702
Gough, p. 670
703
Webb v. The Queen (1994) 181 C.L.R. 41, auto
704
Porter v. Magill [0] UKHL 67, [0] 2 A.C. 357, H.L. (UK)
705
p. 494, para. 103
706
R. v. Liverpool City Justices, ex parte Topping [8] 1 W.L.R. 119 at 123, H.C. (Q.B.) (England & Wales).
pg. 348
are often treated separately. It is fundamental to fair procedure that both sides should
be heard.707 The right to a fair hearing requires that individuals are not penalized by
decisions affecting their rights or legitimate expectations unless they have been given
prior notice of the cases against them, a fair opportunity to answer them, and the
opportunity to present their own cases.708
Besides promoting an individual's liberties, the right to a fair hearing has also been used by
courts as a base on which to build up fair administrative procedures. 709 It is now well
established that it is not the character of the public authority that matters but the
character of the power exercised.710 However, in the United Kingdom prior to Ridge v.
Baldwin,711 the scope of the right to a fair hearing was severely restricted by case
law following Cooper v. Wandsworth Board of Works.712 In R. v. Electricity Commissioners,
ex parte London Electricity Joint Committee Co. Ltd.,713 Lord Atkin observed that the right
only applied where decision-makers had ‘the duty to act judicially’. 714 In natural justice
cases this dictum was generally understood to mean that a duty to act judicially was not
to be inferred merely from the impact of a decision on the rights of subjects; such a duty
would arise only if there was a ‘superadded’ express obligation to follow a judicial-type
procedure in arriving at the decision.715
The mere fact that a decision-maker is conferred wide discretion by law is not reason
enough for a weakening of the requirements of natural justice. In the United Kingdom
context, this is demonstrated by Ahmed v. H.M. Treasury. 716
The Treasury had
exercised powers to freeze the appellants' financial assets and economic resources on
the ground that it reasonably suspected the appellants were or might be persons who
had committed, attempted to commit, participated in or facilitated the commission of
terrorism, pursuant to the Terrorism (United Nations Measures) Order 2006 717 and the
Al-Qaida and Taliban (United Nations Measures) Order 2006 718 made under the United
Nations Act 1946.719
707
Allison, p. 757.
708
supra
709
Wade & Forsyth, p. 402.
710
Wade & Forsyth, p. 405.
711
Ridge v. Baldwin [6] UKHL 2, [6] A.C. 40, H.L. (United Kingdom).
712
R. v. Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd. 1 K.B. 171,
H.C. (K.B.) (England & Wales).
713
R. v. Electricity Commissioners, ex parte London Electricity Joint Committee Co. (1920), Ltd. 1 K.B. 171,
H.C. (K.B.) (England & Wales).
714
Ex parte London Electricity Joint Committee Co. (1920), Ltd., p. 205.
715
De Smith's Judicial Review, p. 330.
716
Ahmed v. Her Majesty's Treasury (No. 1) (2010) UKSC 2, 2 A.C. 534, Supreme Court (UK).
717
Terrorism (United Nations Measures) Order 2006 (S.I. 2006 No. 2657)
718
Al-Qaida and Taliban (United Nations Measures) Order 2006 (S.I. 2006 No. 2952)
719
United Nations Act 1946 (1946 c. 45), s. 12.
pg. 349
The Supreme Court of the United Kingdom held that since the Al-Qaida Order made no
provision for basic procedural fairness, it effectively deprived people designated under
the order the fundamental right of access to a judicial remedy and hence was ultra vires
the power conferred by the United Nations Act 1946 for the making of the Order. 720
judicial review
Judicial review is a procedure in by which the courts supervise the exercise of public power
on the application of an individual. A person who feels that an exercise of such power
by a government authority, such as a minister, the local council or a statutory tribunal,
is unlawful, perhaps because it has violated his or her rights, may apply to the
Administrative Court (a division of the High Court) for judicial review of the decision
and have it set aside (quashed) and possibly obtain damages. A court may also make
mandatory orders or injunctions to compel the authority to do its duty or to stop it from
acting illegally.
At the same time, the doctrine of Parliamentary sovereignty does not allow for the judicial
review of primary legislation (Acts of Parliament). This limits judicial review in
Common lawto the decisions of public bodies and secondary (delegated) legislation,
against which ordinary common law remedies as well as special ‘prerogative orders‘
are available in certain circumstances.
The constitutional theory of judicial review has long been dominated by the doctrine of
ultra vires, under which a decision of a public authority can only be set aside if it
exceeds the powers granted to it by Parliament. The role of the courts was seen as
enforcing the ‘will of Parliament’ in accordance with the doctrine of Parliamentary
sovereignty.
three stances on judicial review
Judicial Review is a High Court procedure for challenging administrative actions; it is the
power to strike down that law, overturn that official act, or order a public official to act
in a certain manner if the court believes the law or act to be unconstitutional, or (in
some jurisdictions) believes the law or act to be contrary to law in a free and
democratic society.
exclusivity rule
The House of Lords held in O'Reilly v Mackman721 that where public law rights were at
stake, the claimants could only proceed by way of judicial review. They could not
originate their action under the general civil law procedure, because that would be
avoiding the procedural safeguards afforded to public authorities by the judicial review
procedure, such as the requirement of sufficient interest, timely submission and
permission for judicial review. However, a defendant may still raise public law issues as
a defence in civil proceedings. So for example, a tenant of the public authority could
720
See, for instance, Ahmed, p. 685, para 246, per Lord Mance J.S.C.
721
[8] 2 AC 237
pg. 350
allege illegality of its decision to raise the rents when the authority sued him for failing
to pay under the tenancy contracts. He was not required to commence a separate
judicial review process722. If an issue is a mix of private law rights, such as the right to
get paid under a contract, and public law issues of the competence of the public
authority to take the impugned decision, the courts are also inclined to allow the
claimant to proceed using ordinary civil procedure, at least where it can be
demonstrated that the public interest of protecting authorities against frivolous or late
claims has not been breached723.
grounds for review
In Council of Civil Service Unions v Minister for the Civil Service 724, Lord Diplock summarised
the grounds for reversing an administrative decision by way of judicial review as
follows:
‫و‬ Illegality
‫و‬ Irrationality (Unreasonableness)
‫و‬ Procedural impropriety
The first two grounds are known as substantive grounds of judicial review because they
relate to the substance of the disputed decision. Procedural impropriety is a procedural
ground because it is aimed at the decision-making procedure rather than the content of
the decision itself. The three grounds are mere indications: the same set of facts may
give rise to two or all three grounds for judicial review.
illegality
In Lord Diplock's words, this ground means that the decision maker ‘must understand
correctly the law that regulates his decision-making power and must give effect to it.’ 725 A
decision may be illegal for many different reasons. There are no hard and fast rules for
their classification, but the most common examples of cases where the courts hold
administrative decisions to be unlawful are the following:
unlawful sub-delegation
If the law empowers a particular authority, e.g. a minister, to take certain decisions, the
Minister cannot sub delegate this power to another authority, e.g. an executive officer
or a committee. This differs from a routine job not involving much discretion being
done by civil servants in the Minister's name, which is not considered delegation. 726 An
722
Wandsworth London Borough Council v Winder [8] 3 W.L.R. 1254
723
Roy v Kensington and Chelsea and Westminster Family Practitioner Committee (1992), Trustees of the Dennis
Rye Pension Fund v Sheffield City Council (1997)
724
[8] AC 374
725
Council of Civil Service Unions v Minister for the Civil Service [8] AC 374
726
Allingham v The Minister of Agriculture and Fisheries (High Court, 1948); Carltona v Commissioner of Works
(Court of Appeal, 1943); R v Secretary of State for the Home Office Ex p Oladehinde (House of Lords, 1990)
pg. 351
example of when this happened was in Allingham v Minister of Agriculture and

Fisheries727 where a notice preventing farmers from growing sugar beet was unlawful
because the power to put up the sign was delegated by the original committee.
principle in anisminic
Anisminic728 is an important House of Lords decision in the area of English administrative
law, establishing in particular that any error of law made by a public body will make its
decision a nullity and that a statutory exclusion clause does not deprive the courts from
their jurisdiction in judicial review unless it expressly states this. As a result of the Suez
Crisis some mining properties of the appellant Anisminic located in the Sinai peninsula
were seized by the Egyptian government before November 1956. The appellants then
sold the mining properties to an Egyptian government-owned organisation called TEDO
in 1957. In 1959, a piece of subordinate legislation was passed under the Foreign
Compensation Act 1950 to distribute compensation paid by the Egyptian government to
the UK government with respect to British properties it had nationalised. The
appellants claimed that they were eligible for compensation under this piece of
subordinate legislation, which was determined by a tribunal (the respondents in this
case) set up under the Foreign Compensation Act 1950. The tribunal, however, decided
that the appellants were not eligible for compensation, because their ‘successors in title’
(TEDO) did not have the British nationality as required under one of the provisions of
the subordinate legislation.
There were two important issues on the appeal to the Court of Appeal and later, the House
of Lords.
‫و‬ The first was straightforward: whether the tribunal had made an error of law in
construing the term ‘successor of title’ under the subordinate legislation.
‫و‬ The second issue was more complex and had important implications for the law on
judicial review. Even if the tribunal had made an error of law, the House of Lords had to
decide whether or not an appellate court had the jurisdiction to intervene in the tribunal's
decision. Section 4(4) of the Foreign Compensation Act 1950 stated that:
‘The determination by the commission of any application made to them under this Act shall
not be called into question in any court of law’.
This was a so called ‘ouster clause’.
By a 3-2 majority, the House of Lords decided that section 4(4) of the Foreign
Compensation Act did not preclude the court from inquiring whether or not the order of
the tribunal was a nullity, and accordingly it decided that the tribunal had misconstrued
the legislation (the term ‘successor in title’), and that the determination by the
defendant tribunal that the appellant did not qualify to be paid compensation was null,
727
2 All. E.R. 724; 1 K.B. 148
728
Anisminic Ltd v Foreign Compensation Commission 2 AC 147, 2 WLR 163
pg. 352
and that they were entitled to have a share of the compensation fund paid by the
Egyptian government..
The decision illustrates the courts' reluctance to give effect to any legislative provision that
attempts to exclude their jurisdiction in judicial review. Even when such an exclusion is
relatively clearly worded, the courts will hold that it does not preclude them from
scrutinising the decision on an error of law and quashing it when such an error occurs.
It also establishes that any error of law by a public body will result in its decision being
ultra vires.
error of law or error of fact
The court will quash a decision where the authority has misunderstood a legal term or
incorrectly evaluated a fact that is essential for deciding whether or not it has certain
powers. So, in R v Secretary of State for the Home Department, ex parte Khawaja 729, the
House of Lords held that the question whether the applicants were ‘illegal immigrants’
was a question of fact that had to be positively proved by the Home Secretary before he
could use the power to expel them. The power depended on them being ‘illegal
immigrants’ and any error in relation to that fact took the Home Secretary outside his
jurisdiction to expel them. However, where a term to be evaluated by the authority so
broad and vague that reasonable people may reasonably disagree about its meaning, it
is generally for the authority to evaluate its meaning. For example, in R v Hillingdon
Borough Council ex Parte Pulhofer 730, the local authority had to provide homeless
persons with accommodation. The applicants were a married couple, who lived with
her two children in one room and applied to the local authority for aid. The local
authority refused aid because it considered that the Pulhofers were not homeless and
the House of Lords upheld this decision because whether the applicants had
accommodation was a question of fact for the authority to determine.
fettering discretion
An authority will be acting unreasonably where it refuses to hear applications or makes
certain decisions without taking individual circumstances into account by reference to a
certain policy.731 When an authority is given discretion, it cannot bind itself as to the
way in which this discretion will be exercised either by internal policies or obligations
to others. Even though an authority may establish internal guidelines, it should be
prepared to make exceptions on the basis of every individual case. 732 This has changed
in modern times, with the new coalition government providing an overrulement.
729
[8] AC 74
730
[8] AC 484
731
BOC v Minister of technology 1971
732
Lavender v Minister of Housing and Local Government 1 WLR 1231; British Oxygen v Minister of
Technology [7] AC 610
pg. 353
wednesbury unreasonableness
See irrationality
irrationality
Under Lord Diplock's classification, a decision is irrational if it is ‘so outrageous in its
defiance of logic or of accepted moral standards that no sensible person who had
applied his mind to the question could have arrived at it.’ This standard is also known
as Wednesbury unreasonableness, after the decision in Associated Provincial Picture
Houses Ltd v Wednesbury Corporation 733, where it was first imposed. [An Common
lawcase which set down the standard of unreasonableness of public body decisions which
render them liable to be quashed on judicial review.] The court stated three conditions on
which it would intervene to correct a bad administrative decision, including on grounds of
its unreasonableness in the special sense later articulated in Council of Civil Service Unions
v Minister for the Civil Service734 by Lord Diplock:
‘So outrageous in its defiance of logic or accepted moral standards that no sensible person
who had applied his mind to the question to be decided could have arrived at it.’
In 1947 a cinema company, Associated Provincial Picture Houses, was granted a licence by
the Wednesbury Corporation, the local authority of the market town of Wednesbury in
Staffordshire, to operate a cinema on condition that no children under 15 were
admitted to the cinema on Sundays. Associated Provincial Picture Houses sought a
declaration that such a condition was unacceptable, and outside the power of the
Corporation to impose. The court held that it could not intervene to overturn the
decision of the defendant simply because the court disagreed with it. To have the right
to intervene, the court would have to form the conclusion that:
‫و‬ the Wednesbury Corporation, in making that decision, took into account factors that
ought not to have been taken into account, or
‫و‬ the Corporation failed to take into account factors that ought to have been taken into
account, or
‫و‬ the decision was so unreasonable that no reasonable authority would ever consider
imposing it.
The court held that the condition did not fall into any of these categories. Therefore, the
claim failed and the decision of the Wednesbury Corporation was upheld. According to
Lord Green, M. R.,
‘ It is true the discretion must be exercised reasonably. Now what does that mean? Lawyers
familiar with the phraseology commonly used in relation to exercise of statutory
discretions often use the word ‘unreasonable’ in a rather comprehensive sense. It has
frequently been used and is frequently used as a general description of the things that
733
1 KB 223
734
Council of Civil Service Unions v Minister for the Civil Service [8] UKHL 6at para. 410, [8] 3 All ER 935, [8]
3 WLR 1174, [8] ICR 14, [8] AC 374, [8] IRLR 28, House of Lords
pg. 354
must not be done. For instance, a person entrusted with a discretion must, so to speak,
direct himself properly in law. He must call his own attention to the matters which he is
bound to consider. He must exclude from his consideration matters which are irrelevant to
what he has to consider. If he does not obey those rules, he may truly be said, and often is
said, to be acting ‘unreasonably.’ Similarly, there may be something so absurd that no
sensible person could ever dream that it lay within the powers of the authority.
Warrington LJ in Short v Poole Corporation 735 gave the example of the red-haired teacher,
dismissed because she had red hair. That is unreasonable in one sense. In another sense it
is taking into consideration extraneous matters. It is so unreasonable that it might almost
be described as being done in bad faith; and, in fact, all these things run into one another.
Unlike illegality and procedural impropriety, the courts under this head look at the merits
of the decision, rather than at the procedure by which it was arrived at or the legal basis
on which it was founded. The question to ask is whether the decision ‘makes sense’. In
many circumstances listed under ‘illegality’, the decision may also be considered
irrational.
arbitrary and capricious’ standard
This is a test set in the dominant case of Chevron U.S.A. v. Natural Resources Defense
Council,736 where a government official's official action may be challenged for being
unreasonable. The legal standard, however, that is most comparable to Wednesbury
unreasonableness is the ‘arbitrary and capricious’ standard applied to most regulatory
decisions undertaken without trial-type procedures (those rendered after trial-type
procedures must be ‘supported by substantial evidence’).
proportionality (administrative law)
Proportionality is a requirement that a decision is proportionate to the aim that it seeks to
achieve. E.g. an order to forbid a protest march on the grounds of public safety should
not be made if there is an alternative way of protecting public safety, e.g. by assigning
an alternative route for the march. Proportionality exists as a ground for setting aside
administrative decisions in most continental legal systems and is recognised. However,
it is not as yet a separate ground of judicial review, although Lord Diplock has alluded
to the possibility of it being recognised as such in the future. At present, lack of
proportionality may be used as an argument for a decision being irrational. 737
procedural impropriety
A decision suffers from procedural impropriety if in the process of its making the
procedures prescribed by statute have not been followed or if the 'rules of natural
justice' have not been adhered to.
735
Ch. 66, 90, 91
736
467 U.S. 837 (1984)
737
R v Inner London Education Authority, ex parte Westminster City Council [8] 1 W.L.R. 28, House of
Lords (UK).
pg. 355
remedies (administrative law)

The following remedies are available in proceedings for judicial review:
‫و‬ Quashing order;
‫و‬ Prohibiting order;
‫و‬ Mandatory order;
‫و‬ Declaration;
‫و‬ Injunction;
‫و‬ Damages
In any case more than one remedy can be applied for; however, the granting of all remedies
is entirely at the court’s discretion.
quashing order
A quashing order nullifies a decision which has been made by a public body. The effect is to
make the decision completely invalid. Such an order is usually made where an authority
has acted outside the scope of its powers (‘ultra vires’). The most common order made
in successful judicial review proceedings is a quashing order. If the court makes a
quashing order it can send the case back to the original decision maker directing it to
remake the decision in light of the court’s findings. Or, very rarely, if there is no purpose
in sending the case back, it may take the decision itself.
prohibiting order
A prohibiting order is similar to a quashing order in that it prevents a tribunal or authority
from acting beyond the scope of its powers. The key difference is that a prohibiting
order acts prospectively by telling an authority not to do something in contemplation.
Examples of where prohibiting orders may be appropriate include stopping the
implementation of a decision in breach of natural justice, or to prevent a local authority
licensing indecent films, or to prevent the deportation of someone whose immigration
status has been wrongly decided.
mandatory order
A mandatory order compels public authorities to fulfill their duties. Whereas quashing and
prohibition orders deal with wrongful acts, a mandatory order addresses wrongful
failure to act. A mandatory order is similar to a mandatory injunction (below) as they
are orders from the court requiring an act to be performed. Failure to comply is
punishable as a contempt of court. Examples of where a mandatory order might be
appropriate include: compelling an authority to assess a disabled person’s needs, to
approve building plans, or to improve conditions of imprisonment. A mandatory order
may be made in conjunction with a quashing order, for example, where a local
authority’s decision is quashed because the decision was made outside its powers, the
pg. 356
court may simultaneously order the local authority to remake the decision within the
scope of its powers.
declaration
A declaration is a judgment by the Administrative Court which clarifies the respective
rights and obligations of the parties to the proceedings, without actually making any
order. Unlike the remedies of quashing, prohibiting and mandatory order the court is
not telling the parties to do anything in a declaratory judgment. For example, if the court
declared that a proposed rule by a local authority was unlawful, a declaration would
resolve the legal position of the parties in the proceedings. Subsequently, if the authority
were to proceed ignoring the declaration, the applicant who obtained the declaration
would not have to comply with the unlawful rule and the quashing, prohibiting and
mandatory orders would be available.
injunction
An injunction is an order made by the court to stop a public body from acting in an
unlawful way. Less commonly, an injunction can be mandatory, that is, it compels a
public body to do something. Where there is an imminent risk of damage or loss, and
other remedies would not be sufficient, the court may grant an interim injunction to
protect the position of the parties before going to a full hearing. If an interim injunction
is granted pending final hearing, it is possible that the side which benefits from the
injunction will be asked to give an undertaking that if the other side is successful at the
final hearing, the party which had the benefit of the interim protection can compensate
the other party for its losses. This does not happen where the claimant is legally aided.
damages (judicial review)
Damages are available as a remedy in judicial review in limited circumstances.
Compensation is not available merely because a public authority has acted unlawfully.
For damages to be available there must be either: (a) A recognised ‘private’ law cause of
action such as negligence or breach of statutory duty or; (b) A claim under Human
Rights.
privative clause
Privative clause is a provision in a statute that tries to remove a court’s ability to review
decisions of a tribunal (or other administrative agency). They are also known as ‘ouster
clauses’. The word ‘privative’ is derived from the Latin privare, meaning ‘to deprive’.
justiciability
Justiciability concerns the limits upon legal issues over which a court can exercise its
judicial authority.738 It includes, but is not limited to, the legal concept of standing,
which is used to determine if the party bringing the suit is a party appropriate to
738
May, Christopher N.; Ides, Allan (2007). Constitutional Law: National Power and Federalism (4th ed.). New
York, NY: Aspen Publishers. pp. 97–99.
pg. 357
establishing whether an actual adversarial issue exists. 739 Essentially, justiciability in

American law seeks to address whether a court possesses the ability to provide
adequate resolution of the dispute; where a court feels it cannot offer such a final
determination, the matter is not justiciable. Justiciable issues are not speculative.
standing
Standing or locus standi is the term for the ability of a party to demonstrate to the court
sufficient connection to and harm from the law or action challenged to support that
party's participation in the case. 740 In the United States, the current doctrine is that a
person cannot bring a suit challenging the constitutionality of a law unless the plaintiff
can demonstrate that the plaintiff is (or will imminently be) harmed by the law.
Otherwise, the court will rule that the plaintiff ‘lacks standing’ to bring the suit, and will
dismiss the case without considering the merits of the claim of unconstitutionality. To
have a court declare a law unconstitutional, there must be a valid reason for the lawsuit.
The party suing must have something to lose in order to sue unless it has automatic
standing by action of law. 741
Standing exists from one of three causes:
1. The party is directly subject to an adverse effect by the statute or action in question, and
the harm suffered will continue unless the court grants relief in the form of damages or
a finding that the law either does not apply to the party or that the law is void or can be
nullified. This is called the "something to lose" doctrine, in which the party has standing
because they directly will be harmed by the conditions for which they are asking the
court for relief.
2. The party is not directly harmed by the conditions by which they are petitioning the
court for relief but asks for it because the harm involved has some reasonable relation
to their situation, and the continued existence of the harm may affect others who might
not be able to ask a court for relief. Because while the plaintiff might not be directly
affected, the law might so adversely affect others that one might never know what was
not done or created by those who fear they would become subject to the law – the so-
called "chilling effects" doctrine.
3. The party is granted automatic standing by act of law. Under some environmental laws,
a party may sue someone causing pollution to certain waterways without a federal
permit, even if the party suing is not harmed by the pollution being generated. The law
allows them to receive a portion of any fines collected by the government from their
violation of law. In some jurisdictions, a person who believes a book, film or other work
739
Flast v. Cohen, 392 U.S. 83, 100 (1968) (‘[W]hen standing is placed in issue in a case, the question is whether
the person whose standing is challenged is a proper party to request an adjudication of a particular issue, and not
whether the issue itself is justiciable.’).
740
Smith, Rhona K. M., Textbook on International Human Rights. 4th Edition. 2010
741
See generally, The Metaphor of Standing and the Problem of Self-Governance, by Steven L. Winter, 40 Stan.
L. Rev. 1371, July, 1988.
pg. 358
of art is obscene may sue in their own name to have the work banned directly without
having to ask a District Attorney to do so.
There are three standing requirements:
1. locus standi (Injury): The plaintiff must have suffered or imminently will suffer injury
—an invasion of a legally protected interest that is concrete and particularized. The
injury must be actual or imminent, distinct and palpable, not abstract. This injury could
be economic as well as non-economic.
2. locus standi (Causation): There must be a causal connection between the injury and
the conduct complained of, so that the injury is fairly traceable to the challenged action
of the defendant and not the result of the independent action of some third party who is
not before the court.742
3. locus standi (Redressability): It must be likely, as opposed to merely speculative, that
a favorable court decision will redress the injury.743
Prohibition of Third-party standing
A party may only assert his or her own rights and cannot raise the claims of a third party
who is not before the court; exceptions exist where the third party has interchangeable
economic interests with the injured party, or a person unprotected by a particular law
sues to challenge the oversweeping of the law into the rights of others. For example, a
party suing over a law prohibiting certain types of visual material, may sue because the
rights of theirs, and others engaged in similar displays, might be damaged.
Additionally, third parties who do not have standing may be able to sue under the next
friend doctrine if the third party is an infant, mentally handicapped, or not a party to a
contract. One example of a statutory exception to the prohibition of third party standing
exists in the qui tam provision.
prohibition of generalized grievances
A plaintiff cannot sue if the injury is widely shared in an undifferentiated way with many
people. For example, the general rule is that there is no federal taxpayer standing, as
complaints about the spending of federal funds are too remote from the process of
acquiring them. Such grievances are ordinarily more appropriately addressed in the
representative branches.
zone of interest test
There are in fact two tests used by the United States Supreme Court for the zone of interest
1. Zone of injury - The injury is the kind of injury that Congress expected might be
addressed under the statute.744
742
For example, Massachusetts v. Environmental Protection Agency (global warming caused by EPA's refusal to regulate carbon
dioxide emissions satisfied element of causation for Massachusetts's alleged injury of loss of coastland).
743
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
744
Federal Election Commission v. Akins, 524 U.S. 11 (1998).
pg. 359
2. Zone of interests - The party is arguably within the zone of interest protected by the
statute or constitutional provision.745
taxpayer standing
Taxpayer standing is the concept that any person who pays taxes should have standing to
file a lawsuit against the taxing body if that body allocates funds in a way that the
taxpayer feels is improper. In Florida, a taxpayer has standing to sue if the state
government is acting unconstitutionally with respect to public funds, or if government
action is causing some special injury to the taxpayer that is not shared by taxpayers in
general. An individual taxpayer generally has standing to challenge an act of a city or
county where they live, but does not have general standing to challenge state
expenditures.
standing to challenge statutes
With limited exceptions, a party cannot have standing to challenge the constitutionality of a
statute unless they will be subjected to the provisions of that statute. There are some
exceptions, however, e.g. courts will accept challenges to a statute on overbreadth
grounds, where a person who is only partially affected by a statute can challenge parts
that do not affect them on the grounds that laws that restrict speech have a chilling
effect on other people's right to free speech.
chilling effects doctrine
In a legal context, a chilling effect is the inhibition or discouragement of the legitimate
exercise of natural and legal rights by the threat of legal sanction. The right that is most
often described as being suppressed by a chilling effect is US constitutional right to free
speech. A chilling effect may be caused by legal actions such as the passing of a law, the
decision of a court, or the threat of a lawsuit; any legal action that would cause people
to hesitate to exercise a legitimate right (freedom of speech or otherwise) for fear of
legal repercussions. When that fear is brought about by the threat of a libel lawsuit, it is
called libel chill. A lawsuit initiated specifically for the purpose of creating a chilling
effect may be called a Strategic Lawsuit Against Public Participation, or "SLAPP" suit.
strategic lawsuit against public participation (SLAPP) or slapp suit
A strategic lawsuit against public participation (SLAPP) is a lawsuit that is intended to
censor, intimidate, and silence critics by burdening them with the cost of a legal defense
until they abandon their criticism or opposition. The typical SLAPP plaintiff does not
normally expect to win the lawsuit. The plaintiff's goals are accomplished if the
defendant succumbs to fear, intimidation, mounting legal costs or simple exhaustion
and abandons the criticism. A SLAPP may also intimidate others from participating in
the debate. A SLAPP is often preceded by a legal threat. The difficulty is that plaintiffs do
not present themselves to the Court admitting that their intent is to censor, intimidate
or silence their critics. Hence, the difficulty in drafting SLAPP legislation, and in
745
Allen v. Wright, 468 U.S. 737 (1984).
pg. 360
applying it, is to craft an approach which affords an early termination to invalid abusive
suits, without denying a legitimate day in court to valid good faith claims.
SLAPPs take various forms. The most common used to be a civil suit for defamation, which
in the English common law tradition was a tort. The common law of libel dates to the
early 17th century and (unusual in English law) is reverse onus, meaning, once
someone alleges a statement is libelous, the burden was on the defendant to prove that
it is not. The Defamation Act 2013 removed most of the uses of defamation as a SLAPP
in the United Kingdom by requiring the proof of special damage. Various abusive uses of
this law including political libel (criticism of the political actions or views of others)
have ceased to exist in most places, but persist in some jurisdictions (notably British
Columbia and Ontario) where political views can be held as defamatory. A common
feature of SLAPP suits is forum shopping, wherein plaintiffs find courts that are more
favourable towards the claims to be brought than the court in which the defendant (or
sometimes plaintiffs) live.
Other widely mentioned elements of a SLAPP are the actual effectiveness at silencing
critics, the timing of the suit, inclusion of extra or spurious defendants (such as relatives
or hosts of legitimate defendants), inclusion of plaintiffs with no real claim (such as
corporations that are affiliated with legitimate plaintiffs), making claims that are very
difficult to disprove or rely on no written record, ambiguous or deliberately mangled
wording that lets plaintiffs make spurious allegations without fear of perjury, refusal to
consider any settlement (or none other than cash), characterization of all offers to settle
as insincere, extensive and unnecessary demands for discovery, attempts to identify
anonymous or pseudonymous critics, appeals on minor points of law, demands for
broad rulings when appeal is accepted on such minor points of law, and attempts to run
up defendants' costs even if this clearly costs more to the plaintiffs.
right of access to the courts
It has been said:
“Since the Magna Carta, the world has recognized the importance of justice in a free society.
“To no one will we sell, to no one will we refuse or delay, right or justice.” (Magna Carta,
1215.)
reverse onus clause
A reverse onus clause is a provision within a statute that shifts the burden of proof on to
the individual specified to disprove an element of the information. Typically, this
provision concerns a shift in burden onto a defendant in either a criminal offence or tort
claim. For example, the automotive legislation in many countries provides that any
driver who hits a pedestrian has the burden of establishing that they were not
negligent. The concept of reverse onus is a shift in burden of proof with the
presupposition that the applicant (usually prosecution) will be granted their
application by the courts. The onus is on the respondent to make a reasonable
application of the rule of law with which the application is incompatible.
pg. 361
Barratry is a legal term with several meanings. In common law, barratry is the offense
committed by people who are “overly officious in instigating or encouraging
prosecution of groundless litigation” or who bring “repeated or persistent acts of
litigation” for the purposes of profit or harassment. It is a crime in some jurisdictions.
Litigation for the purpose of profit is referred to as “Ambulance chasing”: If for the
purpose of harassment, for example to silence critics, it is known as a strategic lawsuit
against public participation (SLAPP). Jurisdictions that otherwise have no barratry laws
may have SLAPP laws. The term barratry is predominantly used in the first sense of a
frivolous or harassing litigant.
ambulance chasing or barrantry
Ambulance chasing, also known as barratry, refers to a lawyer using an event as a way to
find legal clients. The term Ambulance chasing comes from the stereotype of lawyers
that follow ambulances to the emergency room to find clients. Ambulance chasing is
prohibited in US as violating Rules of Professional Conduct and to prevent any who
attempt to solicit business from disaster victims at the scene.
legislative supremacy
As in England, the legislative branch should rule. We should trust normal democratic
processes; the need to build coalitions means minority rights get respected.
judicial supremacy
Because the High Court is unelected, it can stand above the passions of popular
government, making sure that our highest political and moral principles as a people are
maintained.
prior notice of hearing
Natural justice allows a person to claim the right to adequate notification of the date, time,
place of the hearing as well as detailed notification of the case to be met. 746 This
information allows the person adequate time to effectively prepare his or her own case
and to answer the case against him or her. In Cooper v. Wandsworth,747 Chief Justice
William Erle went so far as to state that the lack of notice and hearing afforded to
Cooper could be said to be a form of abuse, as he had been treated as if he did not
746
Thio Li-ann (1999), ‘Law and the Administrative State’, in Kevin Y[ew] L[ee] Tan, The Singapore Legal
System (2nd ed.), Singapore: Singapore University Press, pp. 160–229 at 192–193, ISBN 978-9971-69-213-1
(pbk.).
747
Cooper v. Wandsworth Board of Works (1863) 14 C.B.N.S. 180, 143 E.R. 414, Court of Common Pleas
(England). This was seen in cases such as Local Government Board v. Arlidge A.C. 120, H.L. (United
Kingdom); and R. v. Leman Street Police Station Inspector, ex parte Venicoff 3 K.B. 72, H.C. (K.B.) (England
& Wales).
pg. 362
matter.748 As Lord Mustill famously held in R. v. Secretary of State for the Home
Department, ex parte Doody749:
‘Since the person affected usually cannot make worthwhile representations without knowing
what factors may weigh against his interests fairness will very often require that he is
informed of the gist of the case which he has to answer.’750
It has been suggested that the requirement of prior notice serves three important
purposes: 751
‫و‬ The interest in good outcomes – giving prior notice increases the value of the proceedings
as it is only when the interested person knows the issues and the relevant information that
he or she can make a useful contribution.
‫و‬ The duty of respect – the affected person has the right to know what is at stake, and it is
not enough to simply inform him or her that there will be a hearing.
‫و‬ The rule of law – notice of issues and disclosure of information opens up the operations of
the public authority to public scrutiny.
The British courts have held it is not enough for an affected person to merely be informed
of a hearing. He must also be told what is at stake; in other words, the gist of the case. 752
legality principle in administrative law
This principle can be seen in the desire for state officials to be bound by and apply the law
rather than acting upon whim. As such advocates of the principle are normally against
discretionary powers.
balancing test in administrative law
One balancing test from American administrative procedure law applies to the question of
due process of law. Due Process questions concern what type of procedures are
appropriate when the government takes away property or a privilege from an
individual; the individual would argue that the government should have, for example,
given them a hearing before taking away their driver's license or cutting off their Social
Security benefits.
This balancing test weighs the three considerations of;
1. Private interest effected by an official action taken by a government agency, official, or
non-governmental entity (company) acting as a governmental agency. (i.e., how
important is the property or privilege that is being withheld or confiscated?)
748
Timothy [Andrew Orville] Endicott (2009), Administrative Law, New York, N.Y.: Oxford University Press,
p. 110, ISBN 978-0199-277-28-5.
749
[9] 1 AC 531
750
Infra
751
R. v. Secretary of State for the Home Department, ex parte Doody [9] UKHL 8, [9] 1 A.C. 531 at 560, H.L.
(United Kingdom).
752
Endicott, p. 127.
pg. 363
2. The risk of some deprivation being erroneously inflicted on the respondent through the
process used or if no process is used. (i.e., does giving the person a hearing or whatever
else they asked for actually make it less likely that the government will make some sort of
error by giving the individual an opportunity to point out the government's mistake?)
3. The government’s interest in a specific outcome. (For example, the government may say
that giving a hearing is too expensive.)
strict scrutiny
The strict scrutiny standard of judicial review is based on the equal protection clause. It is
one of three employed by the courts in reviewing laws and government policies against
a constitutional right or principle. The lesser standards are rational basis review and
exacting or intermediate scrutiny. The notion of ‘levels of judicial scrutiny’, including
strict scrutiny, was introduced in footnote 4 of the U.S. Supreme Court decision in
United States v. Carolene Products (1938), one of a series of decisions testing the
constitutionality of New Deal legislation, that is, legisaltions passed during the first
term of President Franklin D. Roosevelt in response to teh Great Depression, to provide
Relief for the unemployed and poor; Recovery of the economy to normal levels; and
Reform of the financial system to prevent a repeat depression, also known as 3Rs.
Strict scrutiny is the most rigorous form of judicial review. Once a court determines that
strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional.
The government has the burden of proving that its challenged policy is constitutional.
To withstand strict scrutiny, the government must show that its policy is necessary to
achieve a compelling state interest. If this is proved, the state must then demonstrate
that the legislation is narrowly tailored to achieve the intended result.
The case of Roe V. Wade753, which invalidated state laws that prohibited Abortion,
illustrates the application of strict scrutiny. The Court held that the right to privacy is a
fundamental right and that this right ‘is broad enough to encompass a woman's
decision whether or not to terminate her pregnancy.’ Based on these grounds, the Court
applied strict scrutiny. The state of Texas sought to proscribe all abortions and claimed
a compelling State Interest in protecting unborn human life. Though the Court
acknowledged that this was a legitimate interest, it held that the interest does not
become compelling until that point in pregnancy when the fetus becomes ‘viable’
(capable of ‘meaningful life outside the mother's womb’). The Court held that a state
may prohibit abortion after the point of viability, except in cases where abortion is
necessary to preserve the life or health of the mother, but the Texas law was not
narrowly tailored to achieve this objective. Therefore, the state did not meet its Burden
of Proof and the law was held unconstitutional.
The Court must use strict scrutiny if one of these tests is met:
1. the impact is so ‘stark and dramatic’ as to be unexplainable on non-racial grounds, as in
Yick Wo v. Hopkins
753
410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973)
pg. 364
2. the historical background suggests intent

3. the legislative and administrative records show intent
intermediate scrutiny
Intermediate scrutiny, in constitutional law, is the second level of deciding issues using
judicial review. The other levels are typically referred to as rational basis review (least
rigorous) and strict scrutiny (most rigorous). In order to overcome the intermediate
scrutiny test, it must be shown that the law or policy being challenged furthers an
important government interest in a way that is substantially related to that interest.
Wengler v. Druggists Mutual Ins. Co., 754 This should be contrasted with strict scrutiny,
the higher standard of review which requires narrowly tailored and least restrictive
means to further a compelling governmental interest.
rational basis test or rational basis review
The rational basis test is the third and lowest form of judicial scrutiny. It is used in cases
where a plaintiff alleges that the legislature has made an Arbitrary or irrational
decision. When employed, the Rational Basis Test usually results in a court upholding
the constitutionality of the law, because the test gives great deference to the legislative
branch. Such a court subsequently upholds and sustains the principle.
Rational basis review, in constitutional law and administrative law, refers to a level of
scrutiny applied by courts when deciding cases presenting constitutional due process
or equal protection issues. Rational basis is the lowest level of scrutiny that a court
applies when engaging in judicial review. The higher levels of scrutiny include
intermediate scrutiny and strict scrutiny. Rational basis is the default level of review;
however, rational basis review does not usually apply in situations where a suspect or
quasi-suspect classification is involved, or a fundamental right is implicated.
The rational basis review tests whether a governmental action is a reasonable means to an
end that may be legitimately pursued by the government. This test requires that the
governmental action be ‘rationally related’ to a ‘legitimate’ government interest. 755
Under this standard of review, the ‘legitimate interest’ does not have to be the
government’s actual interest. Rather, if the court can merely hypothesize a ‘legitimate’
interest served by the challenged action, it will withstand the rational basis review. 756
This test also applies to both legislative and executive action whether those actions be of a
substantive or procedural nature.
Congress is required to have a rational basis for legislation that, without it, might violate a
right of a person but is not required to validate scientific conclusions to the same
754
446 U.S. 142, 150
755
United States v. Carolene Products Co., 304 U.S. 144 (1938).; See also http://www.huffingtonpost.com/emma-
rubysachs/equal-potection-in-florid_b_147325.html
756
Sullivan, Kathleen M. & Gunther Gerald. Constitutional Law. Foundation Press, New York, NY. 16th Ed. Chapter 9 (2007).
pg. 365
degree that may be required in academic science; rather, the legislative reasoning must
not be arbitrary.757
To understand the concept of rational basis review, it is easier to understand what it is not.
Rational basis review is not intelligent basis review; the legislature is merely required
to be rational, not smart. A court applying rational basis review will virtually always
uphold a challenged law unless every proffered justification for it is a grossly illogical
non sequitur (or even worse, a word salad). In 2008, Justice John Paul Stevens
reaffirmed the lenient nature of rational basis review in a concurring opinion: ‘[A]s I
recall my esteemed former colleague, Thurgood Marshall, remarking on numerous
occasions:
'The Constitution does not prohibit legislatures from enacting stupid laws.'‘758
heightened scrutiny test
The phrase ‘heightened scrutiny’ has been used interchangeably with ‘intermediate
scrutiny’ but it is unclear if the two are actually legally interchangeable. In Witt v.
Department of the Air Force, 759 the United States Court of Appeals for the Ninth Circuit
ruled that the law commonly known as ‘don't ask, don't tell’ (DADT) was subject to
‘heightened’ scrutiny based on its analysis of Lawrence. The court articulated a three-
pronged test for heightened scrutiny. To pass, the law ‘must advance an important
governmental interest, the intrusion must significantly further that interest, and the
intrusion must be necessary to further that interest’. This differs from the ‘substantially
related to important governmental interests’ two-prong test for ‘intermediate’ scrutiny.
The heightened scrutiny test is used in cases involving matters of discrimination based on
sex. As articulated in Craig v. Boren, 760 , ‘classifications by gender must serve important
governmental objectives and must be substantially related to the achievement of those
objectives.’
natural justice principle
Natural justice is the administration, maintenance, provision or observance of what is just,
right, proper, correct, morally upright, merited or deserved by virtue of the inherent
nature of a person or based on the inherent sense of right and wrong. These principles
of natural justice govern procedure and conduct of administrative bodies. They are
implied and presumed to be existent and hence shall apply in every case so long as a
public body has power to determine a question affecting a person’s rights and person’s
interest. These principles are broadly espoused in two legal doctrines. The doctrine that
procedures must be free from bias and the doctrine that no person should be
757
Killian, Johnny H., George A. Costello, & Kenneth R. Thomas, co-eds., The Constitution of the United States of America:
Analysis and Interpretation: Analysis of Cases Decided by the Supreme Court of the United States to June 28, 2002, by
Congressional Research Service, Library of Congress (Senate Document No. 108-17, 108th Congress, 2d Session)
(Washington [D.C.]: U.S. Gov't Printing Ofc. 2004) (short title: Constitution Annotated), pp. 1906–1910 (pp. 242–246 per Adobe
Acrobat Reader)
758
New York State Bd. of Elections v. Lopez Torres, 552 U.S. ___, ___ (2008) (Stevens, J., concurring).
759
527 F.3d 806 (9th Cir. 2008)
760
429 U.S. 190, 97 S. Ct. 451, 50 L. Ed. 2d 397 (1976)
pg. 366
condemned unheard. The rationale of the observance of this doctrine is that there is a
connection between procedural due process and the substantive justice of the final
outcome.761
legitimate expectation doctrine
The doctrine of legitimate expectation addresses circumstances in which a decision maker
may have operated a practice or made a promise that raised expectations that it would
be unfair or unreasonable to dishonor. 762 The doctrine has developed both in the
context of reasonableness and in the context of natural justice. Whether a legitimate
expectation has arisen (and whether it can be overridden) will depend on a number of
factors.
‫و‬ Whether the words or conduct which gave rise to the expectation were clear and
unequivocal,
‫و‬ Whether the person who promised the benefit had the legal power to grant it (or whether
he was acting ultra vires), and;
‫و‬ Whether the recipient of the promise took action in reliance upon it to their detriment.
irrebutable presumption of parliamentary intent principle
In refusing to accept ‘ouster clauses’, the courts infer and apply the irrebutible
and practice (the source of separation of powers doctrine) and from judicial practice 763.
by the courts.
consistency principle
The principle states that a public body shall follow its own policies and a departure from
the same must be accompanied by requisite explanations and reasons as of right. This is
buttressed by the principle of legitimate expectations and its main function is hence to
encourage the need for consultation and notice whenever a decision is being carried
out. This need for consultation is enshrined in the ‘Rights Based Approach’ to decision
making which is guided by the fact that there are participatory rights that must be
accorded to the people that shall be affected by the decision and this is usually done
through the ‘notice-comment’ structure.
rule against bias
The first basic rule of natural justice is that nobody may be a judge in his own case. Any
person that makes a judicial decision - and this includes e.g. a decision of a public
authority on a request for a license - must not have any interest, personal or pecuniary)
in the outcome of the decision. If such interest is present, the decision maker must be
761
J. rensick, (1977) ‘due process and procedural justice’ (eds) pp.217
762
H.L.A Hart’’The Concept Of Law’ (Clarendon Press, 1961) Pp 156
763
pg. 367
disqualified even if no actual bias can be shown, i.e. it is not demonstrated that the
interest has influenced the decision. The test as to whether the decision should be set
aside is whether ‘a fair-minded and informed observer would conclude that there was a
real possibility [of bias]’. However, there are exceptions which can also operate as
defences when the administrative body is put on notice over its seeming impartiality.
These are;
‫و‬ Necessity: in which case, maybe the only person who can hear the case is the one against
whom the issue of bias ahs been raised.
‫و‬ Statutory exemption: in which case the statute gives an administrative body both
adjudicatorail and prosecutorial powers.
‫و‬ Where the party who has been aggrieved waivered his right to object tot eh bias either
directly or through implication, though the inference that he waivered must be so strong
and with no doubt as to whether he new he was actually wavering the right.
Whether or not a person was given a fair hearing of his case will depend on the
circumstances and the type of the decision to be made. The minimum requirement is
that the person gets the chance to present his case. If the applicant has certain
legitimate expectations, for example to have his licence renewed, the rules of natural
justice may also require that he is given an oral hearing and that his request may not be
rejected without giving reasons. Where the decision is judicial in nature, for example a
dismissal of an official in punishment for improper conduct, the rules of natural justice
require a hearing and the person question must know the case against him and be able
to examine and object to the evidence.
duty to give reasons
A duty to give reasons may be imposed by statute. Where it is not, Common Law
presumptions may imply such a duty and the courts do so particularly with regard to
judicial and quasi-judicial decisions. It also helps to guarantee objectivity and
impartiality by ensuring human dignity is respected since there has to be a reason why
one is being treated in a given way.
proportionality (administrative law)
The principle of proportionality requires the maintenance of an appropriate balance
between the adverse effects which an administrative authority decision may have on
the liberty and interests of the person concerned and the purpose which the authority
is seeking to pursue.
aboriginal
Pertaining to things or land or person or members of a race, which are indigenous to, or
first occupied a specified territory.
pg. 368
abuse of discretion
A decision of a judicial body based on an erroneous finding of fact or conclusion of law, or
an improper application of law to fact.
accardi doctrine
An agency must abide by its own regulations.
administration of justice
The personnel, activity and structure of the justice system - courts and police - in the
detection, investigation, apprehension, interviewing and trial of persons suspected of
crime.
oath
In law, oaths are made by a witness to a court of law before giving testimony and usually by
a newly-appointed government officer to the people of a state before taking office. In
both of those cases, though, an affirmation can be usually substituted. A written
statement, if the author swears the statement is the truth, the whole truth, and nothing
but the truth, is called an affidavit. The oath given to support an affidavit is frequently
administered by a notary, who will certify the giving of the oath by affixing her or his
seal to the document. Willfully delivering a false oath (or affirmation) is the crime of
perjury.
invidious discrimination
Invidious Discrimination is treating a class of persons unequally in a manner that is
malicious, hostile, or damaging. If there is rational justification for the different
treatment, then the discrimination is not invidious. The criteria delineating the groups,
such as gender, race, or class, determine the kind of discrimination.
Invidious discrimination generally refers to treating one group of people less well than
another on such grounds as their race (racism), gender (sexism), religion (religious
discrimination), caste, ethnic background, nationality, disability, sexual orientation,
sexual preference or behavior, results of IQ testing, age (ageism) or political views.
Discrimination on the basis of such grounds as subcultural preference (Punks, Hippies,
Mods, vs. Rockers) is also common. The effects of invidious discrimination span the
spectrum from mild, such as slow or unhelpful retail service, through racial and ethnic
slurs, denial of employment or housing, to hate crimes and genocide.
exhaustion of remedies doctrine (administrative law)
Exhaustion of administrative remedies requires a person to first go to the agency which
administers the statute; this process usually involves filing a petition, then going to a
hearing, and finally using the agency's internal appeal process. Once the agency's own
procedures are finished, or ‘exhausted’, and then the aggrieved person can file a
complaint in a federal court.
pg. 369
Exhaustion of remedies prevents parties from seeking relief in the courts first.
certiorari
Certiorari a type of writ seeking judicial review, recognized in U.S., Roman, English,
Philippine,764 and other law. Certiorari (‘to be more fully informed’) is the present
passive infinitive of the Latin certiorare (‘to show, prove, or ascertain’). A writ of
certiorari currently means an order by a higher court directing a lower court, tribunal,
or public authority to send the record in a given case for review. At common law,
certiorari was a supervisory writ, serving to keep ‘all inferior jurisdictions within the
bounds of their authority … [protecting] the liberty of the subject, by speedy and
summary interposition.’765
functus officio doctrine
Once an officer has performed his function, he cannot go and do it again.
bias rule
Decision makers need to be aware of the requirements of procedural fairness when making
decisions which affect a person's rights or interest. This newsletter focuses on the
'hearing rule' principle.
hearing rule
Breach of the hearing rule will usually, though not always, amount to jurisdictional error
and void the decision. In cases of a minor breach, the court may consider that the
breach of the hearing rule made no difference to the decision. In these rare
circumstances, breach of the hearing rule may not be fatal to a decision. 766 ‘The objection
for want of notice can never be got over… Even God did not pass sentence on Adam before
he was called upon to make his defence.’767
objective legal reasonableness test
A test used in determining qualified immunity defense as follows:
``Government officials performing discretionary functions generally are shielded from liability
for civil damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.'' 768
764
3 Wm. Blackstone, Commentaries on the Laws of England 42 (1765).
765
Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675
766
Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145; Re Refugee Review Tribunal; Ex
parte Aala (2000) 204 CLR 82 at 122.
767
R v University of Cambridge (1723) 1 Strange 557; 98 ER 698 per Fortescue J, cited in Forbes ‘Justice in
Tribunals’ p 90.
768
Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738 (1982). For a comprehensive analysis of the Harlow decision, see
Higginbotham, ``Defending Law Enforcement Officers Against Personal Liability in Constitutional Tort
Litigations,'' FBI Law Enforcement Bulletin, vol. 54, Nos. 4-5, April and May 1985.
pg. 370
clearly established law test

The unlawfulness of the challenged conduct must be apparent in light of preexisting law.
769
The actions of a reasonably competent officer should be assessed in the light of the
legal rules that were ``clearly established'' at the time the action was taken. 770 A legal
right is ``clearly established'' if the contours of that right are sufficiently clear that
reasonable law enforcement officials would understand that what they are doing
violates that right. This is in consonance with the principle of legality.
special interest test
To determine whether exercise of a rule is ultra vires.
sunshine doctrine
‘Sunshine’ or ‘open meetings’ laws require that the public be given access to official
meetings in which important policy decisions are being made. Public officials cannot
hold meetings in secret or without providing adequate public notice so that the media
and citizens may attend. The primary argument against ‘sunshine laws’ is that it can
slow down the decision making process because of the requirement to provide notice of
the meeting and the expectation that the public will have opportunity to comment on
the proposed policies or actions
principles of legality
Exercise of conferral of power must be within the limits of the conferring legislation.
aggregation principle
This principle permits aggregation of the conduct of a member, employee, agent or senior
officer of such a body, with the conduct of other employees, agents or senior officers of
the Crown.
carltona principle
That it is impossible for certain government officials to deal with cases on a one on one
basis hence the need for delegation.
769
Id. at 3038.
770
Id. at 3039.
pg. 371
SUING PUBLIC OFFICERS
sovereign immunity
cannot commit a legal wrong and is immune from civil suit or criminal prosecution.
In constitutional monarchies the sovereign is the historical origin of the authority which
subjects.
Under international law, and subject to some conditions, countries are immune from legal
proceedings in another state. This stems from customary international law. 771
abrogation doctrine
The Abrogation doctrine is a constitutional law doctrine expounding when and how the
Congress may waive a state's sovereign immunity and subject it to lawsuits to which the
state has not consented (i.e., to "abrogate" their immunity to such suits).
In Seminole Tribe v. Florida,772 the Supreme Court ruled that the Congress's authority, under
Article One of the United States Constitution, could not be used to abrogate state sovereign
immunity.773 However, the Congress can authorize lawsuits seeking monetary damages
against individual U.S. states when it acts pursuant to powers delegated to it by
amendments subsequent to the Eleventh Amendment. This is most frequently done
pursuant to Section 5 of the Fourteenth Amendment, which explicitly allows the Congress
to enforce its guarantees on the states and thus overrides states' Eleventh Amendment
immunity.
The doctrine was first announced by the Supreme Court in a unanimous decision written
by then-Associate Justice William Rehnquist, Fitzpatrick v. Bitzer,774. Bitzer "continued
the line of reasoning that Rehnquist had acknowledged in Fry v. United States ... that
cases involving Congress’ authority under Section 5 present different problems than
cases involving the Congress’s Commerce Clause authority."775
congruence and proportionality test
this is a limitation to the abrogation doctrine, first discussed in City of Boerne v. Flores,776.
Because the Fourteenth Amendment allows Congress to take "appropriate" action to
enforce rights, the Court has determined that such action must be congruent and
proportional to the deprivation of the right that the Congress is seeking to remedy. An
771
Akehurst's modern introduction to international law, by Peter Malanczuk, Michael Barton Akehurst, Routledge
7 ed., 1997, ISBN 041511120X, Page 118
772
517 U.S. 44 (1996)
773
But see Central Virginia Community College v. Katz (state sovereign immunity not implicated by the exercise of in rem
jurisdiction by bankruptcy courts established under Article I's Bankruptcy Clause).
774
427 U.S. 445 (1976)
775
R. Colker & J. Scott, Rehnquist & Federalism: an Empirical Perspective in C. Bradley, THE REHNQUIST LEGACY, 279
776
521 U.S. 507 (1997)
pg. 372
example of a case where an act of the Congress failed the Boerne test is Kimel v. Florida
Board of Regents,777. An example where an act passed the Boerne test is Nevada
Department of Human Resources v. Hibbs,778.
adequate and independent state ground doctrine
This is a doctrine is a doctrine of United States law governing the power of the U.S.
Supreme Court to review judgments entered by state courts.
The adequate and independent state ground doctrine states that when a litigant petitions
the U.S. Supreme Court to review the judgment of a state court which rests upon both
federal and non-federal (state) law, the U.S. Supreme Court does not have jurisdiction
over the case if the state ground is (1) ‘adequate’ to support the judgment, and (2)
‘independent’ of federal law. The ‘adequacy’ prong primarily focuses on state court
dismissals of federal claims on state procedural grounds, as procedural requirements
are by definition logically antecedent. Antecedent state-law grounds (i.e., state rules of
procedure) are adequate to support a judgment unless they (1) are arbitrary,
unforeseen, or otherwise deprive the litigant of a reasonable opportunity to be heard, 779
or (2) impose an undue burden on the ability of litigants to protect their federal
rights780.
The ‘independence’ prong focuses on decisions where the state and federal rules are not
clearly distinct. If it is not ‘apparent from the four corners’ of the opinion that the
judgment rests on an independent state law rule, then, unless it is ‘necessary or
desirable’ to obtain clarification from the state court itself, the Supreme Court will
presume that the decision rested in part on federal law, thereby rendering it
reviewable.781 Furthermore, when federal law limits the states’ ability to change the
definition of state-created legal interests, the Supreme Court has jurisdiction to review
the state court’s characterization of the law both before and after the change.
For example, the U.S. Supreme Court routinely reviews state court determinations of state
property law to determine whether a litigant has been deprived of ‘property’ within the
meaning of the Due Process clause.
personal legal liability of public officers
This doctrine states that a public officer who acts outside the mandate of office and
discretionary powers can be liable personally, under the following causes of action:
‫و‬ tortuous liability
‫و‬ criminal liability
‫و‬ liability under administrative law
‫و‬ contractual liability
777
528 U.S. 62 (2000)
778
538 U.S. 721 (2003)
779
see, e.g., Staub v. City of Baxley 355 U.S. 313, 319-20 (1958)
780
see, e.g., Felder v. Casey, 487 U.S. 131, 138 (1988)
781
Michigan v. Long, 463 U.S. 1032, 1040 & n.6.
pg. 373
‫و‬ corrupt conduct and

‫و‬ constitutional torts
‫و‬ statutory torts.
public trust doctrine
In addition to personal liability under contract, tort, criminal law and administrative law,
there are underlying notions of "public trust" and fiduciary obligations with the public
stakeholders being the beneficiaries or the fiduciaries and public sector directors being
the trustees.
public interest principle
Whether public officials are liable for their actions is an important issue at every level of
government service, from the President to a local water board terminating service to
delinquent customers, the issues are very similar. In each case, the guiding principle is
the same: The public interest in shielding officials from litigation and personal financial
liability, for damages caused by their actions while carrying out public business,
outweighs the potential harm of those actions.
accountability (public administration), integrity (public administration) &
transparency (public administration)
The concepts of accountability, together with the twin concepts of integrity, transparency
have been identified by the UN countries, collectively and individually, as part of the
founding principles of public administration. 782 In public administration, integrity refers
to “honesty” or “trustworthiness” in the discharge of official duties, serving as an
antithesis to “corruption” or “the abuse of office.” Transparency refers to unfettered
access by the public to timely and reliable information on decisions and performance in
the public sector. Accountability refers to the obligation on the part of public officials to
report on the usage of public resources and answerability for failing to meet stated
performance objectives. For instance, in Yemen, to uphold integrity, “public servants
must neither solicit nor accept anything from their fellow citizens to perform their
duties, thus creating a climate of confidence in themselves and in the public service as a
whole.”783 In South Africa, “transparency must be fostered by providing the public with
timely, accessible and accurate information.”784 In the United Kingdom, accountability is
a standard of public life, where “holders of public office are accountable for their
decisions and actions to the public and must submit themselves to whatever scrutiny is
appropriate to their offices.”785
782
2 The UN Charter states, “The paramount consideration in the employment of the (UN) staff … shall be the
necessity of securing the highest standards of efficiency, competence and integrity.” (Article 101) In addition,
many Member States identify integrity, transparency and accountability among core values or founding
principles for their public administrations in their constitutions and relevant laws.
783
Yemeni Civil Service Act No. 19 (1991) and By-Law No. 122 (1992), cited in forthcoming UN Report, Public
Sector Transparency and Accountability in Selected Arab Countries: Policies and Practices
784
Constitution of the Republic of South Africa, 1996, Chapter 10, Article 195 (g)
pg. 374
efficiency principle
The principle of efficiency can be traced to Ronald Coase’s efficiency theorem on economic
analysis of law, which argues that the role of law ought to be guided by the most
efficient786 solution.
immunity of public officers
The immunity of public officers from personal liability for acts performed in the course of
their official duties has its origin in the common law. It is based upon a long standing
public policy that public officers and employees should not be deterred in the
performance of official duties by fear they will be personally liable for consequences
that may result from the performance of those duties. Clearly, public administrators
have to exercise substantial discretion in managing their programs and agencies, and
most are aware of the potential legal ramifications of their actions 787.
In recent years, however, the courts have qualified the immunity of officials (meaning that
it is not absolute). The change in direction has been attributed to the case of Bivens v. Six
Unknown Federal Narcotics Agents 788 in which narcotics agents burst into Bivens’ home
without a search warrant and without probable cause, used excessive force, threatened
to arrest his family, and interrogated and jailed him.
On the other side, there is immunity being given to certain public officers due to their work,
with its origins in common law, from personal liability for acts performed in the course
of their official duties. It is based upon a long standing public policy that public officers
and employees should not be deterred in the performance of official duties by fear they
will be personally liable for consequences that may result from the performance of
those duties. This hence calls for a special balancing of the treatment accorded to the
public officers.
corruption
corruption broadly to mean the solicitation or acceptance, directly or indirectly, by a public
official, of any goods of monetary value, or benefits, such as a gift, favour, promise,
advantage or any other form of gratification for himself or herself or for another person
or entity, in exchange for any act or omission in the performance of his or her public
functions
public servants, state officers, public officers, public employees
Public servant refers to all people who do government’s work, including staff and officials,
elected members of boards and commissions, elected representatives/officials, and
785
12 Pope, Jeremy, forthcoming unpublished background paper for the 6th Global Forum on Reinventing
Government, Dimensions of Transparency in Governance
786
Coase, The Problem of Social Cost, 386–405
787
Warren, 1997: 277
788
Bivens v. Six Unknown Federal Narcotics Agents 403 U.S. 388 (1971), available at
http://www.hrcr.org/safrica/enforcement/bivens_narcotics.html accessed on July 19, 2011
pg. 375
other workers.789 It also refers to people who do the work on a contractual basis,
together with government business enterprises.790
Public officer or state officer on the other hand, in case of natural legal persons, refers to a
public servant whose office is specifically created by legislation, take oath of office,
perform legal duties and have discretion in performance of duties 791. In case of juridical
legal persons, refers to a corporation which is a creation of law, and performs public
functions, either as independent contractor, constitutional commission, tribunals,
chartered corporation, government business enterprises or public corporation. 792 These
persons are covered under public official immunity on the principle of efficiency, so that
they are not hesitant to take action, given their broad base of discretionary actions.
Public employees on the other hand are those whose duties are administrative, and hence
act more or less at the discretion of others. 793 They include law enforcement personnel,
public works officials, etc. The main reason for failing to cover them with public official
immunity is because they have clearly written codes of action, and do not have wide
discretion in decision making, which might hamper efficient performance of duties.
They hence benefit from qualified immunity, which insulates responsible officers ``from
undue interference with their duties and from the potentially disabling threat of liability,''
and it shields from civil liability ``all but the plainly incompetent or those who knowingly
violate the law.''794
personal contract liability or "warranty of authority" rule
Senior public officers are in a reasonably secure position when it comes to contracts.
They are generally not a party to a contract or liable under it. They will be liable only if they
contact personally, and not as an agent of the employer, or, if they come within the
"warranty of authority" rule.
This "warranty of authority" rule might make the public servant or agent liable to the third
party if that person:
 did not have authority to bind the Government;
 represented expressly that he or she had authority; and
 the third party entered into the contract in reliance on that representation.
There 1897 English Court of Appeal decision of Dunn v Macdonald 795 held that a
Government servant acting on behalf of the Government could not be held personally
789
Anita Brown. (2002) County and Municipal Government in Northern Carolina. Chapter 12, ‘Civil Liability of Local Government
and Its Employees’ . North Carolina. ISBN. 978-8-105511
790
Id
791
See Piggot v City of Wilmington. 50 NC, App. 401 , 273,. S. ed 752
792
Deductive expansion of the doctrine of corporate legal personality under Salomons Rule, as stated in Lee v Lee's Air Farming
[6] AC 12
793
Id at Pg. 275
794
See Harlow v. Fitzgerald, 102 S.Ct. 2727, 2738 (1982). For a comprehensive analysis of the Harlow decision,
see Higginbotham, ``Defending Law Enforcement Officers Against Personal Liability in Constitutional Tort
Litigations,'' FBI Law Enforcement Bulletin, vol. 54, Nos. 4-5, April and May 1985.
795
1 QB 55]
pg. 376
liable under an implied warranty of authority. The rule however does not apply where,
In any event, the rule does not apply where:
 the agent's lack of authority is clear as a matter of law; and
 the third party should have been aware of this lack of authority. If a government employee
enters into a private contract which necessarily or tends directly to interfere with the
proper discharge of his or her duties, the contract will be contrary to public policy and
void 796
Officers who negotiate or enter into contracts that bind the Government and who exceed
their authority or, by some misconduct, negligence, incompetence, carelessness,
impropriety or inefficiency, cause loss or damage to the Government, may be dealt with
under the disciplinary provisions of the various Acts or by a special inquiry.
personal criminal liability
The Government, in all its capacities, can be subject to criminal liability by express words
or implication in a statute. Of course, the Government cannot be imprisoned, but fines
and other penalties can be imposed.797 The Government can only act through its officers
and agents. If the Government is immune from a criminal provision by express words or
implication, so too might the Government officer or agent be immune. Each statute
applicable to a given or proposed set of facts will now have to be examined specifically
to ascertain the potential and scope for the possible allocation of personal criminal
responsibility. With the proliferation of strict liability offences in recent years,
particularly in the environmental area, public officers must re-examine their potential
liability in all areas in which they operate.
As to the extent to which public officers may share the immunity of the Government, a lot
depends on whether the criminal conduct was undertaken in the course of employment
and whether the application of the provision would prejudice the interests of the
Government. If there is no prejudice to the Government the officer may be liable. If
there is prejudice, the officer will be protected.798
prosecution between government departments, inter se
The policy of collective responsibility doctrine in government relations; requires
government agencies to work together. However, within the pollution control area,
some departments, or even states in a federation, like US and Australia, can and do
prosecute each other, for, conduct of individual public officers.
personal liability in administrative law
In administrative law, invalid administrative decisions do not give rise to liability in
damages. Decisions of public officers, particularly those exercising independent
796
[Wood v Little (1921) 29 CLR 56].
797
[See, generally, Hogg, op cit, pages 232 to 235.]
798
Id 232-235
pg. 377
decision-making power, are open to be declared invalid for being, or being found to be,
ultra vires. The doctrine of ultra vires can be described in a number of ways. There are
two broad areas:
 The first is variously called narrow or simple ultra vires and involves a complete lack of
substantive or incidental power to do an act.
 The second area is broad, or extended ultra vires which covers procedural defects and
deficiencies (sometimes called "procedural ultra vires") and abuse of power, a category
which contains the remainder of the administrative law rules that could render decisions
void or illegal.
Put together, the two areas of ultra vires provide for grounds of judicial review under the
relevant Acts or the common law.
Personal liability can also be used to discipline government officials and assesses it as an
alternative to traditional administrative law.
personal liability for independent acts
If a government officer is granted an independent power or duty, the exercise of which is
not subject to the supervision or direction of anyone, that officer is personally liable for
any consequences flowing from an independent act. The Government or Government
employer of that officer is not vicariously liable at common law for such acts. The
rationale for the principle is that the person is not a servant or agent of his or her
employer in relation to the exercise of these independent, and usually statutory,
powers.799 Most governments have Acts that specifically permit the Government to be
vicariously liable in respect of independent acts of police officers. Some jurisdictions
leave their position to be dictated by the common law. In yet some other jurisdictions,
vicarious liability applies to government employees or servants, but not when they
exercise an independent statutory discretion.
independent statutory discretion principle
Another novel feature of some jurisdictions in their jurisprudence in personal liability of
public officers is the independent statutory discretion doctrine. Some jurisdictions
consider that an officer exercising independent discretionary power is not necessarily a
"servant" or "agent" of the government and so, that officer might be personally liable for
independent acts.
If a government officer and the Government are successfully sued for the tortuous conduct
of the officer in the course of employment, the Government now pays the damages and
cannot look to its officers for reimbursement or contribution. However, the
Government may do so if the conduct of the officer who committed the tort constituted
serious and willful misconduct. 800 If a negligent government officer is the only one
799
[See, Enever v The King (1906) 3 CLR 969; Baume v Commonwealth (1906) 4 CLR 97; and Little v
Commonwealth (1947) 75 CLR94.]
800
[section 5(a) Employees Liability Act 199].
pg. 378
successfully sued and not the Government the officer would have to pay. Obviously the
plaintiff would try to join the Government as a defendant, under the deep pocket
doctrine of litigation801.
professional liability insurance802
Professional liability insurance covers allegations that an employee violated the rights of
another employee or a private citizen while carrying out his or her official duties. If the
allegation results in a criminal or administrative investigation, the insurance policy
would provide a private lawyer to represent the accused employee during the
investigation. If a disciplinary action, such as a suspension or a removal, is proposed or
taken, the policy would cover representation of the employee until the Board makes a
final decision. In cases where an employee is accused of a constitutional tort, the policy
would cover attorney representation and the payment of any personal judgment
against the covered employee. Some policies also cover representation during
arbitration under a collective bargaining agreement.
executing a bond
Apart from liability insurance, public officers can also execute a bond, which acts as
insurance, to cover legal costs.
insurance for public officers by government (bodies)
The government, or other state body, may also dispense with the rigueur of stat immunity,
and purchase insurance for its public officers, so as to dispense with the complex
difficulty in ascertaining whether or not state immunity will act to protect the public
officer. This dispenses with the uncertainty, which is the main public interest goal of
having immunity in the first place. This is further a good public policy tool since the
government then will provide a remedy for citizens who would otherwise not be
compensated by the wrongful acts of its employees and public servants. Finally, such
insurance, when purchased, is limited to tort claims, hence offers clear certainty for
both defendants, and claimants. This also acts as a cap on the amount that can be
claimed, and informs the actions of the claimants.
participation in risk pools
Risk pools are agreements which involve various legal entities, mainly corporate bodies,
either jointly purchasing insurance or pooling resources and keeping in a kitty to pay
for claims.
insurance’ fund
An organisation can establish an agency based fund to pay for claims against it by
claimants, or plaintiffs.
801
See deep pocket doctrine, Ojijo. General Principles of Law
802
See generally, Anita Brown. (2002) County and Municipal Government in Northern Carolina. Chapter 12, ‘Civil Liability of
Local Government and Its Employees’ . North Carolina. ISBN. 978-8-105511
pg. 379
absolute immunity
Certain officials have been given absolute immunity due to the importance of their function
in government. These include legislators, judges, public officials on the witness stand
(but not as complaining witnesses), some administrative review boards and panels, and
prosecutors. It shields public officials from being sued for official acts without regard to
motive.
test for absolute immunity
The general tests for whether the office qualifies for absolute immunity are: (1) whether a
common law basis for immunity exists, (2) whether, without the immunity, and
unreasonable risk of litigation exists, and (3) whether alternatives to damage suits exist
to control wrongful conduct by the official.
discretionary immunity
See principle of qualified immunity
qualified immunity
Positions that have qualified immunity are school board trustees, city council members,
water board directors and elected county officials. Some appointed officials, such as
directors of non-profit corporations, industrial development corporations and housing
finance corporations, do not, however, have the same statutory and common law
immunities from suit.
discretionary immunity
The courts will not revise decisions that have been left to the discretion of local legislative
bodies. Discretionary immunity is a narrow court-created exception to the Legislature’s
abolition of sovereign immunity. 803 Discretionary immunity serves to assure that courts
refuse to pass judgment on policy decisions in the province of coordinate branches of
government.804 To be protected by such immunity, an act, omission, or decision must
involve an exercise of basic policy evaluation, judgment and expertise by the
governmental agency involved.805 The activity must involve basic policy discretion
rather than the implementation of policy. 806 Thus, only “high level discretionary acts
exercised at a truly executive level” are protected.807
discretionary function
Discretionary function is “an action that involves room for policy judgment or the
responsibility for deciding the adaptation of means to an end, and discretion in
determining how or whether the act shall be done or the course pursued. . . . Insofar as an
official action involves both the determination of facts and simple cause-and-effect
803
Bender v. Seattle, 99 Wn.2d 582, 587, 664 P.2d 492 (1983); Evangelical United Brethren Church v. State, 67 Wn.2d 246, 255,
407 P.2d 440 (1965); see also Haberman v WPPSS, 109 Wn.2d 107, 158, 744 P.2d 1032 (1987)
804
Bender, at 588; King v. Seattle, 84 Wn.2d 239, 246, 525 P.2d 228 (1974).
805
Evangelical United Brethren Church, at 255.
806
Mason v. Bitton, 85 Wn.2d 321, 327-29, 534 P.2d 1360 (1975); Bender, at 588-90.
807
Bender, at 588.
pg. 380
relationships and also the assessment of costs and benefits, the evaluation of relative
effectiveness and risks, and a choice among competing goals and priorities, an official has
discretion to the extent that he has been delegated responsibility for the latter kind of
value judgment.”808
discretionary duty
A discretionary duty is defined as "one requiring the exercise of judgment in its performance,
in contrast to a ministerial duty, which is one where nothing is left to discretion--a simple
and definite duty, imposed by law, and arising under conditions admitted or proved to
exist.”809
judicial immunity
Judicial Immunity is a form of legal immunity which protects judges and others employed
by the judiciary from lawsuits brought against them for official conduct in office, no
matter how incompetent, negligent, or malicious such conduct might be, even if this
conduct is in violation of statutes.810
The purpose of judicial immunity is twofold: it encourages judges to act in a ‘fair and just’
manner, without regard to the possible extrinsic harms their acts may cause outside of
the scope of their work. It protects government workers from harassment from those
whose interests they might negatively affect.
Judicial immunity doesn't protect judges from suits stemming from administrative
decisions made while off the bench, like hiring and firing decisions. But immunity
generally does extend to all judicial decisions in which the judge has proper jurisdiction,
even if a decision is made with ‘corrupt or malicious intent.’ 811
Historically, judicial immunity was associated with the English common law idea that ‘the
King can do no wrong.’ (Compare Sovereign immunity.) Judges, the King's delegates for
dispensing justice, accordingly ‘ought not to be drawn into question for any supposed
corruption [for this tends] to the slander of the justice of the King.’ 812
sovereign immunity
cannot commit a legal wrong and is immune from civil suit or criminal prosecution. In
constitutional monarchies the sovereign is the historical origin of the authority which
subjects.
808
Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. Or. 2005)
809
Crowell v. Kirkpatrick, 2009 U.S. Dist. LEXIS 105410 (D. Vt. Sept. 14, 2009)
810
Jones, Ashby (November 12, 2009). ‘New Lawsuits Try to Pierce Shield of Judicial Immunity’. The Wall
Street Journal.
811
Meiners, Roger; Ringleb & Edwards (2008). The Legal Environment of Business, Tenth Edition. pp. 43.
ISBN 978-0-324-65436-3.
812
Floyd & Barker, 12 Co. Rep. 23, 25, 77 Eng. Rep. 1305, 1307 (Star Chamber 1607).
pg. 381
legislative immunity
The absolute immunity given to legislators for their action is called legislative immunity,
and only applies where the defendant was acting in legislative capacity, and the act was
legal. The act need not be in good faith.813
qualified immunities
Qualified immunity protects public officials from being sued for damages unless they
violated “clearly established” law of which a reasonable official in his position would
have known. It aims to protect civil servants from the fear of litigation in performing
discretionary functions entrusted to them by law. The qualified immunity test requires
a two-part analysis: "(1) Was the law governing the official's conduct clearly
established? (2) Under that law, could a reasonable officer have believed the conduct
was lawful?" Government officials performing discretionary functions generally are
shielded from liability for civil damages as long as as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person
would have known.Positions that have qualified immunity are school board trustees,
city council members, water board directors and elected county officials. Some
appointed officials, such as directors of non-profit corporations, industrial development
corporations and housing finance corporations, do not, however, have the same
statutory and common law immunities from suit.
tests of good faith for qualified immunity
There are two tests of good faith the public official must pass before qualified immunity is
earned: “objective” and “subjective.”
test of objective good faith
The first test of objective good faith is failed if an official knew or should have reasonably
known that the action he/she took within the sphere of official responsibility would
violate an individual’s statutory or constitutional rights. In other words, if an official
knows (or should have known) what the rules are and collates them to damage of
another, he/she may not have immunity from litigation.
test of subjective good faith
A public official can fail the test of subjective good faith is he/she acts with malicious intent
to cause the deprivation of an individual’s clearly established statutory or constitutional
rights. However, it the official acts in bad faith, and willful and malicious intent, then
there will be damages awarded against them. As long as public official act in good faith,
damages will not be awarded against them. No public interest is served by granting
public officers immunity from intentional wrongful acts.
813
Vereen V Holden. 121 NC App 779
pg. 382
liability for corrupt conduct

Another area of potential personal liability is in "corrupt conduct". There is much public
confusion when there is heard a public official has been found corrupt under relevant
acts. The public has its own understanding of the meaning of corruption. It involves
bribes, fraud, secret commissions, and serious abuses of power and trust. This is also
corruption in the common law sense.
However, corrupt conduct814 is:
 the conduct of any person (whether or not a public official)
 that adversely affects or could adversely affect
 either directly or indirectly
 the honest or impartial exercise of
 official functions.
It constitutes or involves:
 a breach of public trust
 a misuse of information or material acquired in the course of official
 functions
 fraud
 treating
 tax or revenue evasion
 embezzlement
 secret commissions
 bribery
 blackmail, and
 official misconduct.[See more categories of corrupt conduct.
Official misconduct includes:
 fraud in office
 breach of trust
 nonfeasance
 misfeasance
 oppression
 extortion or
 imposition.
Corrupt conduct only relates to "serious matters", because conduct is not corrupt unless it
could constitute or involve:
 a criminal offence;
 a disciplinary offence; or
 reasonable grounds for dismissal.
814
s8 (2) of the ICAC Act.]
pg. 383
The reality is that it is improbable that a senior officer will be dismissed or fined for
inefficiency or carelessness.
illegality
The decision maker must understand correctly the law that regulates his decision-making
power and must give effect to it. Whether he has or not is par excellence a justiciable
question’. A number of examples of illegality are listed below.
delegates non potest delegare (the carltona principle)
This Latin phrase translates as "a delegate cannot delegate", i.e., an agent cannot delegate
his own responsibilities or obligations as an agent to a sub-agent without the
permission or knowledge of the principal of whom he/she is the agent. Therefore, an
exception of the above rule is when the principal consents to allow the agent to delegate
the agent's duties to a sub-agent. Most functions of administrative bodies are made easy
by the virtue and application of this principle, which allows them to make legislations
and regulations. Such legislations are called ‘delegated legislation’ (sometimes
referred to as secondary legislation or subordinate legislation), that is, law made by
an executive authority under powers given to them by primary legislation in order to
implement and administer the requirements of the acts. Such legislation is subject
specific, using technical knowledge from qualified individuals, creating a more
thorough, detailed and smoother running piece of legislation. The Carltona Principle
simply states that it is impossible for certain government officals to deal with cases on a
one on one basis hecne the need for delegation.
decision ultra vires
This principle states that an administrative body must act only within the powers given to
it by the statutes815. An act hence is deemed to be substantively ultra vires when
either it is against the particular wording of the statute in matters of substance through;
exercising power in excess of statutory limits; acting in excess of jurisdiction; and
breach of the principles of natural justice, and to be procedurally ultra vires if the
administrative body fails to follow prescribed procedure or an error occurs in following
procedure matters of procedure that are not in the statutes may be applicable under
common law.816
maker acting ultra vires
When a body is described as acting ultra vires it is acting beyond its prescribed powers. An
action can be ultra vires where it the body has taken an action which is incompatible
with a higher legal authority (such as primary or subordinate legislation). Difficulties in
this area can also arise where a body is using a statutory power for a collateral purpose
(namely one which is alien to the purpose for which it was granted). Where a body
(such as a local authority) is exercising a power where the statute under which it acts
815
P.craig, “ultra vires and the foundatiuon of judicial review” (1996) c.l.j. 63
816
p.p. craig ‘(2003) administrative law” 5th edition.
pg. 384
has set out a particular prescribed procedure, if the procedure is not followed, this may
(in some circumstances) also make the action ultra vires.
unlawfully delegating power or fettering discretion
A public body is not entitled either to improperly delegate its powers or to act under a
completely inflexible policy. In particular, while it is accepted that Ministers cannot
personally make every decision issued in their name where legislation confers a power
on a specified individual or body, the power cannot be delegated to another person or
body. Moreover, a body or tribunal is not entitled blindly to follow policy guidelines.
Neither is it entitled to fetter the exercise of its discretion.
taking into account irrelevant considerations
A claim for judicial review can lie where a body or tribunal has either disregarded a
relevant consideration, or taken into account an irrelevant consideration when reaching
a decision.
error of law or error of fact
The court will quash a decision where the authority has misunderstood a legal term or
incorrectly evaluated a fact that is essential for deciding whether or not it has certain
powers. However, where a term to be evaluated by the authority so broad and vague
that reasonable people may reasonably disagree about its meaning, it is generally for
the authority to evaluate its meaning.
irrationality
A decision is irrational if it is so outrageous in its defiance of logic or of accepted moral
standards that no sensible person who had applied his mind to the question could have
arrived at it. Unlike illegality and procedural impropriety, the courts under this head
look at the merits of the decision, rather than at the procedure by which it was arrived
at or the legal basis on which it was founded. The question to ask is whether the
decision ‘makes sense’. In many circumstances listed under ‘illegality’, the decision may
also be considered ‘irrational’. They include;
obligation to act reasonably
It is not practical to say that a decision must be absolutely correct or that the courts would
necessarily have made the same decision. However, in making the decision you must
apply logical or rational principles. If a decision is challenged, the court will examine the
decision to see whether it was made according to logical principles, and will often
expressly disavow any intention to substitute its own decision for that of the decision
maker. There are sound practical, as well as legal/constitutional reasons for the Court
adopting this ‘hands off’ approach: the decision maker may be aware of policy
implications or other aspects of the public interest which are not obvious to the Court.
pg. 385
fairness
Fairness demands that a public body should never act so unfairly that it amounts to an
abuse of power. This means that there are express procedures laid down by legislation
that it must follow in order to reach a decision, it must follow them and further, it must
not breach the rules of natural justice. One of the key issues here is the rule against bias,
which requires the public body to be impartial and to be seen to be so.
There must also be a ‘fair hearing’ before a decision is reached, although this does not
always literally mean an oral hearing. Basically, a person is entitled to know the case
against them, and must have the opportunity to put their case properly. Any other
requirements above and beyond this will depend on the seriousness of the issue, for
example, if someone’s livelihood or liberty is at stake.
Unfairness could include the following:
a. Failing to tell the individual what the case was against them, or taking into account
evidence or factors, which s/he was not aware of
b. Failing to allow the individual to put their case forward
c. Failing to give the individual the facilities for putting their case forward properly
d. Refusing to hear evidence which might have led to a different decision
e. Denying access to relevant documents
f. Holding a hearing in the absence of the individual when they had a good reason for not
being able to attend
g. Failing to notify the individual of the time and place of the hearing that would lead to the
decision being taken
h. Failing to consult those who the public body had a duty to consult, or those who had
‘legitimate expectation’ that they would be consulted before the decision was made,
perhaps because they had been consulted in the past or because it would seem obvious
that someone has an interest in a matter and should be consulted.
i. Finally, fairness may also demand that the public body give reasons for their decision.
Certain statutory procedures will require this, although there is no specific requirement in
law generally.
procedural impropriety
Complaints can also be made, not merely in respect of the decision taken, but the procedure
by which the decision was made. A decision suffers from procedural impropriety if in
the process of its making the procedures prescribed by statute have not been followed
or if the 'rules of natural justice' have not been adhered to. Some examples are listed
below:
pg. 386
statutory procedures
An Act of Parliament may subject the making of a certain decision to a procedure, such as
the holding of a hearing or a consultation with an external adviser. Some decisions may
be subject to approval by a higher body. Courts distinguish between ‘mandatory’
requirements and ‘directory’ requirements. A breach of mandatory procedural
requirements will lead to a decision being set aside for procedural impropriety.
pg. 387
seven principles of public life

Administrative officers, and public officers, are guided by the 'Seven Principles of Public Life'
should apply to all in the public service. These are:
1. principles of public life (Selflessness): Holders of public office should act solely in terms
of the public interest. They should not do so in order to gain financial or other benefits for
themselves, their family or their friends.
2. principles of public life (Integrity): Holders of public office should not place themselves
under any financial or other obligation to outside individuals or organisations that might
seek to influence them in the performance of their official duties.
3. principles of public life (Objectivity): In carrying out public business, including making
public appointments, awarding contracts, or recommending individuals for rewards and
benefits, holders of public office should make choices on merit.
4. principles of public life (Accountability): Holders of public office are accountable for
their decisions and actions to the public and must submit themselves to whatever scrutiny
is appropriate to their office.
5. principles of public life (Openness): Holders of public office should be as open as possible
about all the decisions and actions that they take. They should give reasons for their
decisions and restrict information only when the wider public interest clearly demands.
6. principles of public life (Honesty): Holders of public office have a duty to declare any
private interests relating to their public duties and to take steps to resolve any conflicts
arising in a way that protects the public interest.
7. principles of public life (Leadership): Holders of public office should promote and
support these principles by leadership and example.
Administrative law is the body of law that governs the activities of administrative agencies
of government. Government agency action can include rulemaking, adjudication, or the
enforcement of a specific regulatory agenda. Administrative law is considered a branch
of public law. As a body of law, administrative law deals with the decision-making of
administrative units of government (for example, tribunals, boards or commissions)
that are part of a national regulatory scheme in such areas as police law, international
trade, manufacturing, the environment, taxation, broadcasting, immigration and
transport. Administrative law expanded greatly during the twentieth Century, as
legislative bodies worldwide created more government agencies to regulate the
increasingly complex social, economic and political spheres of human interaction.
Civil law countries often have specialized courts, administrative courts, which review these
decisions. The plurality of administrative decisions contested in administrative courts is
related to taxation.
absolute nullity
The civil law doctrine of absolute nullity and its common law ‘void’ equivalent deprive
offending contracts of their intended effect because the societal interests impinged
upon by the contested agreement transcend those of the individual contracting parties.
pg. 388
test of good faith (qualified immunity)

There are two tests of good faith the public official must pass before qualified immunity is
earned: ‘objective’ and ‘subjective.’ The first test of objective good faith is failed if an
official knew or should have reasonably known that the action he/she took within the
sphere of official responsibility would violate an individual’s statutory or constitutional
rights. In other words, if an official knows (or should have known) what the rules are
and collates them to damage of another, he/she may not have immunity from litigation.
A public official can fail the test of subjective good faith is he/she acts with malicious
intent to cause the deprivation of an individual’s clearly established statutory or
constitutional rights. As long as public official act in good faith, damages will not be
awarded against them. However, it the official act sin bad faith, and willful and
malicious intent, then there will be damages awarded against them.
public duty
Those certain local government activities do not create liability for individual members of
the public.
There are two exceptions to the public duty doctrine.
‫و‬ First, there may be a special relationship between the plaintiff, and the government, for
instance, the relationship between police and informant.
‫و‬ The second exception is when the government makes a special promise to the plaintiff.
quo warranto
Quo warranto (Medieval Latin for ‘by what warrant?’) is a prerogative writ requiring the
person to whom it is directed to show what authority they have for exercising some
right or power (or ‘franchise‘) they claim to hold. In some jurisdictions which have
enacted judicial review statutes, such as Queensland (Australia), the prerogative writ of
quo warranto has been abolished.817
writ of prohibition
A writ of prohibition is a writ directing a subordinate to stop doing something the law
prohibits. In practice, the Court directs the Clerk to issue the Writ, and directs the
Sheriff to serve it on the subordinate, and the Clerk prepares the Writ and gives it to the
Sheriff, who serves it. This writ is normally issued by a superior court to the lower court
asking it not to proceed with a case which does not fall under its jurisdiction.
abuse of process doctrine
Despite the sanctity of the courts and judicial organs in preserving and protecting the legal
rights, there are certain instances when litigants maliciously and deliberately misuse
the court process. This use of legal process to accomplish an unlawful purpose; causing
a summons, writ, warrant, mandate, or any other process to issue from a court in order
817
Sn 42 Abolition of quo warranto, Judicial Review Act 1991, Queensland Consolidated Acts
pg. 389
to accomplish some purpose not intended by the law is called abuse of process. 818 The
courts, as houses of justice, must hence protect their integrity, and disallow any person
from misusing the judicial process for unfair and unjust ends. To facilitate this, the
courts have developed a common law maxim of the doctrine of abuse of court process.
Abuse of process has been defined as something so unfair and wrong with the
prosecution that the court should not allow a prosecutor to proceed with what is, in all
other respects.819 'Unfair and wrong' is for the court to discretionally820 determine on
the individual facts of each case.
Elsewhere, abuse of process is defined as a cause of action in tort arising from one party
making a malicious and deliberate misuse or perversion of regularly issued court
process (civil or criminal) not justified by the underlying legal action.
‘The doctrine of abuse of process engages the inherent power of the court to prevent the
misuse of its procedure in a way that would be manifestly unfair to a party to the
litigation before it or would in some other way bring the administration of justice into
disrepute. It is a flexible doctrine unencumbered by the specific requirements of concepts
such as issue estoppel.’821
822
In the case of Cartwright v. Wexler, Wexler & Heller, Ltd., the courts gave a definition of
the elements of abuse of process thus:
1. the existence of an ulterior purpose or motive underlying the use of process, and
2. some act in the use of the legal process not proper in the regular prosecution of the
proceedings.”
Elements of abuse of process are:
i. improper use of the court’s process;
ii. ulterior or improper motive of the defendant in exercising such illegal use of process;
iii. damage to the plaintiff resulted from such abuse of process.
The doctrine of abuse of process serves dual purposes of ensuring justice, on one side,
while also protecting the dignity and sanctity of the courts as a judicial institution.
Andrew L.T. Choo 823 argues that the development of the abuse of process discretion in civil
litigation has been one which has been taking place gradually for over 100 years. On the
criminal side, however, the discretion received relatively little attention until the 1964
818
See Black's Law Dictionary, 6th ed (St. Paul: West Pub Co, 1990), p 305.
819
Hui Chi-Ming v R [9] 1 A.C. 34, PC).
820
Discretion was defined in the English case of R V WILKENS [ 4 B URR 252.] in which Lord Marsfield C.J
wrote that ‘discretion when applied to a course of justice means sound discretion guided by law. It must be
governed by rule not by humour. It must not be arbitrary, vague and fanciful but legal and regular’
821
See Toronto (City) v. C.U.P.E., Local 79, [0] 3 S.C.R. 77 and Canam Enterprises Inc. v. Coles (2000), 51 O.R.
(3d) 481 (C.A.)
822
369 N.E.2d 185, 187 (Ill. App. Ct. 1977).
823
(1993)
pg. 390
decision of the House of Lords in Connelly v DPP824 and thus the development of the
discretion has been confined in the main to the last three decades.
Justice C.K. Thakker,825 has listed what amounts to abuse of the process. He writes that a
party in litigation may also be guilty of abuse of the process of the court in various
cases, for example., gaining an unfair advantage by the rule of procedure, retention of a
benefit wrongly gained, resorting to and encouraging multiplicity of proceedings,
circumventing the law by indirect means, instituting vexatious, obstructive or dilatory
actions, executing a decree manifestly at variance with its purpose and intent,
institution of a suit by a puppet plaintiff. From the foregoing, it is clear that abuse of
process is an important concept in the administration of justice, by both ensuring
justice while also ensuring the protection of the credibility of judicial institutions.
harm principle (public officers)
The legal rules for liability for government officials are shaped by the concern that the
government and public officials should be accountable for negligent or intentionally
harmful actions. The courts balance the value of the service against the potential harm
caused by improper actions. Even if the action exceeds the department's legal authority
or is based on negligent decision making, the public officer will be immune, unless the
plaintiff can show that the officer knew or should have known the action was illegal or
improper. Mistakes alone do not result in liability. It holds that the actions of
individuals should only be limited to prevent harm to other individuals. This principle is
based on John Stuart Mill’s thesis first articulated in On Liberty, where he argued that
"the only purpose for which power can be rightfully exercised over any member of a
civilized community, against his will, is to prevent or remedy harm done to others harm to
others (emphasis mine)."826
reasons should be given for decisions
Currently, the principles of natural justice do not include a general rule that reasons should
be given for decisions.827 In R. v. Northumberland Compensation Appeal Tribunal, ex
parte Shaw (1951),828 Denning L.J. stated: ‘I think the record must contain at least the
document which initiates the proceedings; the pleadings, if any; and the adjudication; but
not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. If the
tribunal does state its reasons, and those reasons are wrong in law, certiorari lies to quash
the decision.’829 It has been stated that ‘no single factor has inhibited the development of
English administrative law as seriously as the absence of any general obligation upon
public authorities to give reasons for their decisions’ 830
824
[AC 1254, 196]
825
(2000)
826
John Stuart Mill (1859). On Liberty. Oxford University. pp. 21–22.
827
Re Siah Mooi Guat [8] 2. S.L.R.(R.) 165 at 178–179, para. 34, H.C. (Singapore).; see also R. v. Secretary of
State for the Home Department, ex parte Doody [9] UKHL 8, [9] 1 A.C. 531 at 560, H.L. (United Kingdom).
828
R. v. Northumberland Compensation Appeal Tribunal, ex parte Shaw [5] 1 K.B. 338, C.A. (England & Wales).
829
Ex parte Shaw, p. 352.
pg. 391
patent unreasonableness test

See patently unreasonable test
patently unreasonable test
Patently unreasonable or the patent unreasonableness test was a standard of review used
by a court when performing judicial review of administrative decisions. It was the
highest of three standards of review: correctness, unreasonableness, and patent
unreasonableness. Although the term ‘patent unreasonableness’ lacked a precise
definition in the common law, it was somewhere above unreasonableness, and
consequently it was relatively difficult to show that a decision is patently unreasonable.
A simple example of a patently unreasonable decision may be one that does not accord
at all with the facts or law before it, or one that completely misstates a legal test.
polycentricity
Polycentricity is a concept in administrative law. According to the Supreme Court of Canada
in Pushpanathan v. Canada,831 ‘a polycentric issue is one which involves a large number of
interlocking and interacting interests and considerations.’ 832 According to the court,
academic commentators have suggested that polycentricity provides ‘the best rationale
for judicial deference to non-judicial agencies’.833 The court explained that:834
While judicial procedure is premised on a bipolar opposition of parties, interests, and factual
discovery, some problems require the consideration of numerous interests simultaneously,
and the promulgation of solutions which concurrently balance benefits and costs for many
different parties. Where an administrative structure more closely resembles this model,
courts will
prerogative writs
Prerogative writs are a class of writs which originate from English law. Originally they
were available only to the Crown, but later they were made available to the monarch's
subjects through the courts.835
The prerogative writs are:
‫و‬ certiorari
830
Keith Frank Goodfellow (1971), Administration under Law: A Report by JUSTICE, London: Stevens, p. 23,
ISBN 978-0-420-43710-5.; see also Endicott, p. 110.
831
[9] 1 S.C.R. 982, para. 36.
832
Pushpanathan v. Canada (Minister of Citizenship and Immigration), [9] 1 S.C.R. 982, para. 36.
833
Id
834
Id para. 36.
835
(C.J. Antieau, The Practice of Extraordinary Remedies: Habeas Corpus and the Other Common Law Writs,
Vol. II, at 802 (‘Once known as a prerogative writ, scire facias is now better described as one of the
extraordinary writs’) (1987)
pg. 392
‫و‬ habeas corpus

‫و‬ mandamus
‫و‬ prohibition
‫و‬ procedendo
‫و‬ quo warranto
‫و‬ scire facias
pg. 393
DISPUTE RESOLUTION IN PUBLIC INTERNATIONAL LAW
peaceful settlement of disputes

In accordance with the UN Charter (Clause 3, Article 2) Declaration on Principles of
International Law in 1970 formulated the principle as follows: ‘Every State shall settle
their international disputes with other States by peaceful means in such a way as not to
endanger international peace and security and justice. ‘ From this it follows that the
main framework of this principle is used only peaceful means of resolving disputes and
maintaining at this state of peace in the world community. With regard to the specific
means, then here in the States remains a wide choice.
Normative content of this principle has in recent years under the close scrutiny of experts
of the CSCE. Meeting in Valletta (Malta, 1991) recommended that the parameters of a
pan-European system of peaceful settlement of international disputes. Outcome, in
particular, provides for the establishment of a special body – the CSCE Dispute
Settlement ‘, which can be used at the request of either party to the dispute and acts as a
mediating body.
sovereign equality of nations
Sovereign equality is a fundamental axiomatic premise of the international legal order. It is
the source of other most important principles such as the ban on the use of force and
the prohibition of intervention.
These latter principles, although politically of the highest importance, may be logically
classified as pertaining to a secondary normative category since they are designed to
ensure and guarantee the effectiveness of sovereign equality, still the Grundnorm (basic
principle) of the present-day international legal order. 836
Sovereign equality as a formal legal concept does not guarantee political and economic
equality. Admittedly, the often emphasized distinction between the juridical equality of
States and their political and factual inequality is questionable. This is so particularly
because international law is based on practice where facts and power matter.
Nevertheless, sovereign equality is understood formally as equality of chances of all
States.
Westlake wrote, ‘the equality of sovereign States is merely their independence under a
different name’837.
westphalian sovereignty
Westphalian sovereignty is the concept of nation-state sovereignty based on two things:
territoriality and the absence of a role for external agents in domestic structures.
836
Tomuschat 161
837
Westlake's International Law, Vol. I, p. 321.
pg. 394
Scholars of international relations have identified the modern, Western originated,

international system of states, multinational corporations, and organizations, as having
begun at the Peace of Westphalia in 1648.838 Both the basis and the conclusion of this
view have been attacked by some revisionist academics and politicians, with
revisionists questioning the significance of the Peace, and some commentators and
politicians attacking the Westphalian system of sovereign nation-states.
The Peace of Westphalia is said to have ended attempts to impose supranational authority
on European states. The ‘Westphalian’ doctrine of states as independent agents was
bolstered by the rise in 19th Century thought of nationalism, under which legitimate
states were assumed to correspond to nations—groups of people united by language
and culture. Benedict Anderson refers to these putative nations as ‘imagined
communities.’
International relations theorists have identified several key principles of the Peace of
Westphalia, which explain the Peace's significance and its impact on the world today:
1) The principle of the sovereignty of states and the fundamental right of political self
determination
2) The principle of (legal) equality between states
3) The principle of non-intervention of one state in the internal affairs of another state
These principles are shared by the ‘realist’ international relations paradigm today, which
explains why the system of states is referred to as ‘The Westphalian System’.
Both the idea of Westphalian sovereignty and its applicability in practice have been
questioned from the mid-20th Century onwards from a variety of viewpoints. Much of
the debate has turned on the ideas of internationalism and globalization which, in
various interpretations, appear to conflict with Westphalian sovereignty.
states
sse states defintion listed Index.
international bodies
see international organistions listed in Index
International arbitration
International arbitration is a leading method for resolving disputes arising from
international commercial agreements and other international relationships. As with
arbitration generally, international arbitration is a creation of contract, i.e., the parties'
decision to submit disputes to binding resolution by one or more arbitrators selected by
or on behalf of the parties and applying adjudicatory procedures, usually by including a
838
Gabel, Medard; Henry Bruner (2003), Global Inc.: An Atlas of the Multinational Corporation, New York: The
New Press, p. 2, ISBN 1-56584-727-X
pg. 395
provision for the arbitration of future disputes in their contract. 839 The practice of
international arbitration has developed so as to allow parties from different legal and
cultural backgrounds to resolve their disputes, generally without the formalities of their
respective legal systems.
cooperation
This principle requires States to cooperate with each other regardless of differences in
their political, economic and social systems in the following areas: peace and security,
universal respect for human rights, implementation of international relations in the
economic, social, cultural, technical and trade fields in accordance with the principles of
sovereign equality and non-interference, cooperation with the UN and the adoption of
measures under its Charter, to promote economic development throughout the world,
especially in developing countries.
advisory judisriction or advisory proceedings (international law)
Since countries alone have capacity to appear before the ICJ, public (governmental)
international organizations cannot as such be parties to any case before it. A special
procedure, the advisory procedure, is, however, available to such organizations and to
them alone. Advisory proceedings begin with the filing of a written request for an
advisory opinion addressed to the Registrar by the United-Nations Secretary-General or
the director or secretary-general of the entity requesting the opinion. In urgent cases
the Court may do whatever is necessary to speed up the proceedings. In order that it
may be fully informed on the question submitted to it, the Court is empowered to hold
written and oral proceedings. A few days after the filing of the request, the Court draws
up a list of those States and international organizations likely to be able to furnish
information on the question before the Court. In general, the States listed are the
member States of the organization requesting the opinion, while sometimes the other
states to which the Court is open in contentious proceedings are also included. As a rule,
organizations and States authorized to participate in the proceedings may submit
written statements, followed, if the Court considers it necessary, by written comments
on these statements. These written statements are generally made available to the
public at the beginning of the oral proceedings, if the Court considers that such
proceedings should take place.
uti possidetis juris
Uti possidetis juris or uti possidetis iuris (Latin for "as you possess under law") is a principle
of international law that states that newly formed sovereign states should have the
same borders that their preceding dependent area had before their independence. Uti
possidetis juris is a modified form of uti possidetis; created for the purpose of avoiding
terra nullius, the original version of uti possidetis began as a Roman law governing the
rightful possession of property. During the medieval period it evolved into a law
839
Gary B. Born, International Commercial Arbitration, 187, 197, 217 (2009); Julian M. Lew, Loukas A. Mistelis & Stefan M. Kröll,
Comparative International Commercial Arbitration 1-10 to 1-11, 6-1 to 6-6 (2003)
pg. 396
governing international relations and has recently been modified for situations of newly
independent states. Uti possidetis juris has been applied to in modern history such
regions as South America, Africa, Yugoslavia, the Soviet Union, and numerous other
regions of where centralized governments were broken up, or where imperial rulers
were overthrown. It is often applied to prevent foreign intervention by eliminating any
contested terra nullius, or no man's land, that foreign powers could claim. 840
legal reciprocity ("comity")
In international relations and treaties, the principle of reciprocity states that favours,
benefits, or penalties that are granted by one state to the citizens or legal entities of
another, should be returned in kind. For example, reciprocity has been used in the
reduction of tariffs, the grant of copyrights to foreign authors, the mutual recognition
and enforcement of judgments, and the relaxation of travel restrictions and visa
requirements. The principle of reciprocity also governs agreements on extradition.
equality of states
Principle of equality of states informs the operation of the organisation vis-à -vis of the
member states. This principle implies that resolutions of the organisation must be
based on unanimity and also that member states are only bound by those decisions that
have been signed or ratified by them. Because of this therefore in most cases member
states will modify these principles based on the purpose and functions which they
intend their organisation to have. Application of the principle of equality of states
therefore means that all member states must have equal votes in the operation of the
organisation.
docrine of attribution (international law)
alleged to be in breach of its obligations.
principles of transnational state responsibility
responsible for a breach of an international obligation. The Draft Articles on the
Responsibility of States for Internationally Wrongful Acts (‘Draft Articles’) by the
International Law Commission (ILC) in August 2001. 841 They establish (1) the
conditions for an act to qualify as internationally wrongful, (2) the circumstances under
which actions of officials, private individuals and other entities may be attributed to the
state, (3) general defences to liability and (4) the consequences of liability.
840
Shaw, Malcolm N. (1997). "Peoples, Territorialism and Boundaries." European Journal of International Law 8
(3).
841
Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ILC on the Work
of its Fifty-third Session, UN GAOR, 56th Sess, Supp No 10, p 43, UN Doc A/56/10 (2001).
pg. 397
State responsibility is an age-old principle of international law that was developed to

protect the rights of aliens.842 It arises when a state commits an international wrong
against another state.843 This rule has now been elevated to the status of a general
principle of international law.844 In Chorzów Factory (Germany v Poland),845 the
Permanent Court of International Justice defined it not only as a principle of
international law but also as ‘a greater conception of law’ involving an obligation to
make reparation for any breach of an engagement. 846 According to the Court, ‘reparation
is therefore the indispensable complement of a failure to apply a convention and there
is no necessity for this to be stated in the convention itself’. 847 The principle of state
responsibility emanates from the nature of the international legal system, which relies
on states as a means of formulating and implementing its rules, and arises out of the
twin doctrines of state sovereignty and equality of states. 848 In The Chorzow Factory
Case 9 where the courts stated that:
‘…any breach of an engagement involves an obligation to make reparation.’ 849
Further, in British Claims in the Spanish Zone of Morocco (Spain v United Kingdom) 850 the
court highlighted the significance of the notion of state responsibility: ‘Responsibility is
the necessary corollary of a right. All rights of an international character involve
international responsibility. Responsibility results in the duty to make reparation if the
obligation in question is not met’.
clausula rebus sic stantibus
In public international law, clausula rebus sic stantibus (Latin for ‘things thus standing’) is
the legal doctrine allowing for treaties to become inapplicable because of a fundamental
change of circumstances. It is essentially an ‘escape clause’ that makes an exception to
the general rule of pacta sunt servanda (promises must be kept).
Because the doctrine poses a risk to the security of treaties as its scope is relatively
unconfined, it requires strict regulations as to the conditions in which it may be
invoked.
The doctrine is part of customary international law, but is also provided for in the 1969
Vienna Convention on the Law of Treaties under Article 62 (Fundamental Change of
Circumstance), although the doctrine is never mentioned by name.
Article 62 provides the only two justifications of the invocation of rebus sic stantibus:
842
Ian Brownlie, System of the Law of Nations: State Responsibility: Part 1 (1983) 9.
843
Ian Brownlie, Principles of Public International Law (5th ed, 1998) 435–6.
844
Ibid 436.
845
PCIJ (ser A) No 13.
846
Ibid 29. See also Corfu Channel (United Kingdom v Albania) (Merits) ICJ Rep 4, 23.
847
See Chorzów Factory (Germany v Poland) (Claim for Indemnity) PCIJ (ser A) No 8, 21.
848
Malcom Shaw, International Law (5th ed, 2003) 541.
849
P.C.I.J. Rep., Ser.A, No. 17 (1928) at 29; See also Draft Article 31.
850
(1923) 2 RIAA 615, 641
pg. 398
1. first, that the circumstances existing at the time of the conclusion of the treaty were
indeed objectively essential to the obligations of treaty (sub-paragraph A) and
2. second, the instance wherein the change of circumstances has had a radical effect on the
obligations of the treaty (sub-paragraph B).
If the parties to a treaty had contemplated for the occurrence of the changed circumstance
the doctrine does not apply and the provision remains in effect. Clausula rebus sic
stantibus only relates to changed circumstances that were never contemplated by the
parties. This principle is clarified in the Fisheries Jurisdiction Case (United Kingdom v.
Iceland, 1973)851.
Although it is clear that a fundamental change of circumstances might justify terminating or
modifying a treaty, unilateral denunciation of a treaty is prohibited; a party does not
have the right to denounce a treaty unilaterally. 852
reparation
The breach of an international obligation entails two types of legal consequences.
3) Firstly, it creates new obligations for the breaching state, principally, duties of cessation
and non-repetition (Article 30), and a duty to make full reparation (Article 31).
4) Second, the articles create new rights for injured states, principally, the right to invoke
responsibility (Articles 42 and 48) and a limited right to take countermeasures (Articles
49-53). These rights, however, are heavily state-centred and do not deal with how state
responsibility is to be implemented if the holder of the right is an individual or an
organisation. The principal element of progressive development in this area is Article 48,
which provides that certain violations of international obligations can affect the
international community as a whole such that state responsibility can be invoked by states
on behalf of the larger community.
This provision picks up on the ICJ's celebrated suggestion in Barcelona Traction that some
obligations are owed erga omnes, toward the international community as a whole. 853
Article 33(1) characterises these secondary obligations as being owed to other states or
to the international community as a whole.
851
[7] ICJ Rep 3, at 18
852
Hersch Lauterpacht, The function of law in the international community. Chapter XIII: The Judicial
Application of the Doctrine 'Rebus Sic Stantibus'.
853
Barcelona Traction, Light & Power Co. (Belgium v. Spain), New Application, 1970 ICJ Reports 4, 32.
854
Note 1, Art 30.
855
Hardman Reis, T., Compensation for Environmental Damages under International Law, Kluwer Law
International, The Hague, 2011, ISBN 978-90-411-3437-0
pg. 399
There is solid grounding in international law for the concept of state responsibility based
on the principle that one state has a duty not to cause harm in or to the territory of
another state.856 In the Trail Smelter857 case, Canada was found to be in violation of
international law when emissions from an industrial plant located in British Columbia
were causing environmental damage in the United States. The claims tribunal held that
under the principles of international law . . . no State has the right to use or permit the
use of its territory in such a manner as to cause injury by fumes in or to the territory of
another or the properties or persons therein, when the case is of serious consequence
and the injury is established by clear and convincing evidence. 858 Principle 22 of the
1972 Stockholm Declaration sets forth the current ‘standard’ governing liability for
transnational environmental damage: ‘States shall co-operate to develop further the
international law regarding liability and compensation for the victims of pollution and
other environmental damage caused by activities within the jurisdiction or control of such
States to areas beyond their jurisdiction.’859
advisory judisriction or advisory proceedings (international law)
Since countries alone have capacity to appear before the ICJ, public (governmental)
international organizations cannot as such be parties to any case before it. A special
procedure, the advisory procedure, is, however, available to such organizations and to
them alone. Advisory proceedings begin with the filing of a written request for an
advisory opinion addressed to the Registrar by the United-Nations Secretary-General or
the director or secretary-general of the entity requesting the opinion. In urgent cases
the Court may do whatever is necessary to speed up the proceedings. In order that it
may be fully informed on the question submitted to it, the Court is empowered to hold
written and oral proceedings. A few days after the filing of the request, the Court draws
up a list of those States and international organizations likely to be able to furnish
information on the question before the Court. In general, the States listed are the
member States of the organization requesting the opinion, while sometimes the other
states to which the Court is open in contentious proceedings are also included. As a rule,
organizations and States authorized to participate in the proceedings may submit
written statements, followed, if the Court considers it necessary, by written comments
on these statements. These written statements are generally made available to the
public at the beginning of the oral proceedings, if the Court considers that such
proceedings should take place.
856
See, e.g., Corfu Channel, (U.K. v. Alb.), 1949 I.C.J. Pleadings, (1 Corfu Channel) 4, 22 (Sept. 30, 1949).
857
Trail Smelter Case, (U.S. v. Can.), 3 R.I.A.A. 1905 (1941).
858
Id. at 1965.
859
Conference on the Human Environment, at 7, U.N. Doc. A/CONF.48/14 (1972), reprinted in 11 I.L.M. 1416,
1420 (1972). The recent Rio Declaration uses nearly the same language. Principle 13 encourages states to
‘develop further international law regarding liability and compensation . . . .’ Conference on Environment and
Development, at 4, U.N. Doc. A/CONF.151/5 (1992), reprinted in 31 I.L.M. 874, 878 (1992).
pg. 400
DISPUTE RESOLUTION (UNION LAW)
double effect
See effects doctrine
effects doctrine
Countries may allow for extraterritorial jurisdiction in competition cases based on so-
called effects doctrine According to this doctrine, domestic competition laws are
applicable to foreign firms - but also to domestic firms located outside the state’s
territory, when their behaviour or transactions produce an ‘effect’ within the domestic
territory. The ‘nationality’ of firms is irrelevant for the purposes of antitrust
enforcement and the effects doctrine covers all firms irrespective of their nationality.
The ‘effects doctrine’ was embraced by the Court of First Instance in Gencor when
stating that the application of the Merger Regulation to a merger between companies
located outside EU territory ‘is justified under public international law when it is
foreseeable that a proposed concentration will have an immediate and substantial
effect in the Community.’860
The doctrine (or principle) of double effect is often invoked to explain the permissibility of
an action that causes a serious harm, such as the death of a human being, as a side effect
of promoting some good end. It is claimed that sometimes it is permissible to cause
such a harm as a side effect (or ‘double effect’) of bringing about a good result even
though it would not be permissible to cause such a harm as a means to bringing about
the same good end. This reasoning is summarized with the claim that sometimes it is
permissible to bring about as a merely foreseen side effect a harmful event that it would
be impermissible to bring about intentionally.
enforcement of union law
Union law can be enforced by the courts of member states. Supplementary sources are laws
which are not provided for by the treaty, including case law by the Regional Court of
Justice, international law and general principles of Community law.
legitimate expectation doctrine (legal certainty)
The doctrine of legitimate expectation, which has its roots in the principles of legal certainty
and good faith, is also a central element of the general principle of legal certainty in
Union law.861 The legitimate expectation doctrine holds that ‘those who act in good faith
on the basis of law as it is, or seems to be, should not be frustrated in their expectations.’ 862
860
See: Judgment of the Court of First Instance of 25.3.1999 in case T-102/96, Gencor Ltd v Commission, (1999)
E.C.R., page II-0753, at paras. 89-92
861
Chalmers, Damian (2006). European Union law: text and materials. Cambridge University Press. pp.455. ISBN
9780521527415.
862
Kaczorowsky, Alina (2008). European Union law. Taylor & Francis. pp.232. ISBN 9780415447973.
pg. 401
This means that a Union institution, once it has induced a party to take a particular
course of action, must not renege on its earlier position if doing so would cause that
party to suffer loss. The European Court of Justice has considered the legitimate
expectation doctrine in cases where violation of the general principle of legal certainty
was alleged in numerous cases involving agricultural policy and European Council
regulations863, with the leading case being Mulder v Minister van Landbouw en Visserij864.
misuse of power test (legal certainty)
The misuse of power test is another significant element of the general principle of legal
certainty in Union law. It holds that a lawful power must not be exercised for any other
purpose than that for which it was conferred. According to the misuse of power test a
decision by a Union institution is only a misuse of power if ‘it appears, on the basis of
objective, relevant and consistent evidence, to have been adopted with the exclusive or
main purpose of achieving any end other than those stated.’ A rare instance where the
European Court of Justice has held that a European Union institution has misused its
powers, and therefore violated the general principle of legal uncertainty, is Giuffrida v
Commission865. The general principle of legal certainty is particularly stringently applied
when European Union law imposes financial burdens on private parties. 866
equality before the law or legal equality or non-discrimination principle
Formal equality, sometimes referred to as the non-discrimination principle, or equality
before the law, equality under the law or legal equality, is the principle under which all
people are subject to the same laws. It, is the principle under which all people are
subject to the same laws of justice (due process).867
Article 7 of the Universal Declaration of Human Rights states that "All are equal before the
law and are entitled without any discrimination to equal protection of the law."868
Thus, the law and the judges must treat everyone equally before the law regardless of their
race, gender, sexual orientation, gender identity, national origin, color, ethnicity,
religion, disability, or other characteristics, without privilege, discrimination, or bias.
Equality before the law is one of the basic principles of liberalism. 869 Classical liberalism
calls for equality before the law, not for equality of outcome. 870
863
9780521527415.
864
[8] ECR 2321 Case 120/86
865
[7] ECR 1395 Case 105/75; See also Chalmers, Damian (2006). European Union law: text and materials.
Cambridge University Press. pp.456. ISBN 9780521527415.
866
9780521527415.
867
the UN declaration article 7, the United Nations
868
869
Mark Evans, ed., Edinburgh Companion to Contemporary Liberalism: Evidence and Experience (London: Routledge, 2001),
55 (ISBN 1-57958-339-3).
870
Chandran Kukathas, "Ethical Pluralism from a Classical Liberal Perspective," in The Many and the One:
Religious and Secular Perspectives on Ethical Pluralism in the Modern World, ed. Richard Madsen and Tracy
pg. 402
In his famous funeral oration of 431 BC, the Athenian leader Pericles discussed this
concept. This may be the first known instance.
"If we look to the laws, they afford equal justice to all in their private differences; if no social
standing, advancement in public life falls to reputation for capacity, class considerations
not being allowed to interfere with merit; nor again does poverty bar the way" 871
According to the United Nations, this principle is particularly important to the minorities
and to the poor.872
formal equality principle
Also called fair equality of opportunity, or positive discrimination principle, deals with
indirect discrimination, by disparity of wealth, abilities and opportunities, through
providing for affirmative action. equalising measures are justified on grounds of justice
as well as social integration and harmony.
conferral
The principle of conferral is a fundamental principle of Union law. According to this
principle, the Union is a union of member states, and all its competences are voluntarily
conferred on it by its member states. The Union has no competences by right, and thus
any areas of policy not explicitly agreed in treaties by all member states remain the
domain of the member states.
margin of appreciation
Margin of Appreciation is a concept the European Court of Human Rights has developed
when considering whether a member state of the European Convention on Human
Rights has breached the convention. The margin of appreciation doctrine allows the
court to take into effect the fact that the Convention will be interpreted differently in
different member states. Judges are obliged to take into account the cultural, historic
and philosophical differences between Strasbourg and the nation in question. 873 Margin
of Appreciation is similar in concept to, but should not be confused with Subsidiarity.
The Doctrine was used for the first time in the case Handyside v. United Kingdom874 which
concerned the publication of a book aimed at school children, a chapter of which
discussed sexual behaviour in explicit terms. The ECHR were willing to allow a
limitation of freedom of expression in the interests of the protection of public morals. 875
For more controversial topics, such as cases involving bioethics or assisted reproduction,
the Court recognises that to make a definitive stance for all contracting States would
B. Strong, Ethikon Series in Comparative Ethics (Princeton, NJ: Princeton University Press, 2003), 61 (ISBN 0-
691-09993-6).
871
Thucydides, The History of the Peloponnesian War, Written 431 B.C.E, Translated by Richard Crawley (1874), retrieved via
Project Gutenberg.
872
Id
873
Infra
874
(1976) 1 EHRR 737
875
(5493/72) [7] ECHR 5 (7 December 1976)
pg. 403
mean ignoring the social and cultural values which lie behind the decisions of national
legislatures.
‘Where, however, there is no consensus within the Member States of the Council of Europe,
either as to the relative importance of the interest at stake or as to how best to protect it,
the margin will be wider. This is particularly so where the case raises complex issues and
choices of social strategy: the authorities' direct knowledge of their society and its needs
means that they are in principle better placed than the international judge to appreciate
what is in the public interest… There will also usually be a wide margin accorded if the
State is required to strike a balance between competing private and public interests or
Convention rights.’876
equality principle (union law)
The equality principle functions as a constitutional limitation on the exercise of broad
discretionary powers of Member States or undertakings, and thereby serves as a defence
for economic operators against arbitrariness (‘Willkürkontrolle’).
sovereign equality of states principle (union law)
vis-à -vis each other.879 An authoritative elaboration of the principle has been given in
the UN General Assembly’s 1970 ‘Friendly Relations’ Declaration. 880 One of the
important consequences of the principle is that States are only bound by legal rules that
they themselves agree to.89 Precisely this consensualist feature of international law
876
Dickson v. United Kingdom
877
See inter alia I. Brownlie, Principles of Public International Law (Oxford, Oxford University Press 1998, 5th
International Law (Leyden, Sijthoff 1964); R. Jennings and A. Watts, Oppenheim’s International Law, I.1
(London, Longman 1992, 9th ed.), 339-379; I.A. Shearer, Starke’s International Law (London, Butterworth,
1994, 11th ed.), 99-102; Verhoeven, supra n. 70, 125. As far as factual inequalities between States – especially
between industrialized and developing States – are concerned, see inter alia P. Daillier, A. Pellet and N. Quoc
Dinh, Droit international public (Parijs, L.G.D.J. 1999, 6th ed.), pp. 1014-1025, paras. 620-626. See more
particularly with regard to differential treatment in its more recent appearances in international law, Ph. Cullet,
‘Differential Treatment in International Law: Towards a New Paradigm of Inter-State Relations’, (1999) 10
managing factual inequalities, see B. Kingsbury, ‘Sovereignty and Inequality’, (1998) 9 European Journal of
878
879
See A. Bleckmann, ‘Article 2(1)’, in B. Simma (ed.), The Charter of the United Nations. A Commentary
(München, Beck 1995), p. 87, para. 44.
880
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States
in Accordance with the Charter of the United Nations, Annex to Resolution 2625(XXV) of the UN General
Assembly of 24 October 1970. Under ‘VI..
pg. 404
leads to what at first sight may seem a paradox: although States have to respect each
other’s sovereign equality, they do not have to treat each other equal in the sense that
they may at will enter into treaty relationships with certain States and refuse to enter
into such relationships with other States: except if explicitly committed – by treaty – to
‘multilateralize’ the granting of certain rights 881, benefits and advantages to other States,
they are free to choose their treaty partner(s) and can, in that sense, differentiate
between other States.882 As always, differentiation should not be equated with
discrimination. Although this matter may be in need of a closer examination, the least
one can say is that international law regards discrimination of other States as
undesirable.883 The International Law Commission has gone further and has regarded
non-discrimination as a ‘general rule inherent in the sovereign equality of States’. 884
The principle of sovereign equality of States’, point to, ‘sovereign equality’ is stated to
include ‘in particular’ the following elements:
a) ‘States are juridically equal;
b) Each State enjoys the right inherent in full sovereignty;
c) Each State has the duty to respect the personality of other States;
d) The territorial integrity and political independence of the State are inviolable;
e) Each State has the right freely to choose and develop its political, social, economic and
cultural systems;
f) Each State has the duty to comply fully and in good faith with its international obligations
and to live in peace with other States.’
In light of this inventory of rights, M.N. Shaw rightly states, ‘the doctrine of the legal
equality of states is an umbrella category’885.
supremacy principle (union law)
The legal doctrine of supremacy of union means that community labour law takes
precedence over domestic labour law. The creation of a new legal order of community
law and its supremacy means that community institutions may create rules affecting
employment and industrial relations, even where some Member States oppose such
881
A clear example thereof is the principle of most-favoured nation treatment as contained in various multilateral
WTO agreements.
882
As is stated by Jennings and Watts, supra note 85, p. 376, para. 114, ‘there is in customary international law no
clearly established general obligation on a state not to differentiate between other states in the treatment it
accords to them’.
883
Jennings and Watts, supra note 85, p. 377, para. 114.
884
Yearbook of the International Law Commission (1961), II, 128. See also ILC, Yearbook of the International
Law Commission (1958), II, 105. It is not the place here to dwell upon the ILC’s interesting works relating to
most-favoured-nation clauses, which in 1978 resulted in draft articles: see Yearbook of the International Law
Commission (1978), II, 16-73. According to Jackson, most scholars and practitioners do not seem to accept a
customary law status of the MFN principle: J.H. Jackson, The World Trading System. Law and Policy of
International Economic Relations (Cambridge, MIT 1997, 2nd ed.), 27.
885
International Law, Cambridge, Grotius 1997, 4th ed., 152
pg. 405
rules and vote against them in those community institutions, provided that a voting
procedure based on a majority rule applies to that specific field.
Probably the best known example of the impact of these rulings in labour law is G. Defrenne
v. Sabena,886 where the European Court decided that, ‘The principle that women and men
should receive equal pay, which is laid down by Article 119 EC [now Article 157 TFEU],
may be relied on before the national courts. These courts have a duty to ensure the
protection of the rights, which that provision vests in individuals, in particular in the case
of those forms of discrimination which have their origin in legislative provisions….’
The wider the range of EU competences in the field of employment and industrial relations,
the more the EU law they create will come to replace increasingly wide areas of national
labour law. An example is the decision of the European Court in Commission v. United
Kingdom887. There the Court required the United Kingdom to create a system of worker
representation where none existed. Designation of worker representatives was made
mandatory by the Court, due to the consequences for the rights of workers under two
directives ‘which require Member States to take all measures necessary to ensure that
workers are informed, consulted and in a position to intervene through their
representatives in the event of collective redundancies [or the transfer of an
undertaking]’888. In order to perform effectively the tasks of information and
consultation specified in the directives, Member State laws or practices must ensure the
designation of worker representatives.
Given that it may be applied in national courts, the doctrine of supremacy also applies to
rules on enforcement of labour law, including remedies and procedures. The ECJ has
developed special techniques and principles by which EU labour law may be enforced in
national courts. Where EU enforcement requirements come into conflict with national
procedures and remedies, again, they take precedence and must be applied by national
courts overriding domestic rules. Remarkable instances have included the Court’s
decision in Marshall v. Southampton and South West Area Health Authority 889, abolishing
the limits on compensation for sex discrimination in the UK legislation. Through the
doctrine of supremacy, EU law has promoted the Europeanisation of employment and
industrial relations by ensuring that EU law applies in many areas falling within the
competence of the EU, ranging from equality between women and men to workers’
representation.
direct effect principle (union law)
The provisions of a regional treaty are capable of having direct effect before the national
courts of member states. The result was to create an alternative manner of enforcing
the obligations undertook by member states in the treaties, to the more traditional
886
Case 43/75, (1976) ECR 455
887
Case C-382/92 and Case C-383/92, [9]
888
(Case C-383/92, paragraph 23; Case C-382/92, paragraph 26)
889
(No. 2), Case C-271/91, (1993)
pg. 406
method of state enforcement in the form of enforcement actions taken by the

Commission at a supranational level. Individuals could now use national courts to
invoke treaty provisions against member state governments. The pre-conditions for
direct effect are that the provisions on which an individual wishes to rely are
sufficiently clear and unconditional, and that there is no scope for member states to
exercise discretion in implementation. Thus, a regulation that allows member states to
privatise roads would not have direct effect and could not be enforced in the courts,
because it provides that states may privatise roads, not must privatise roads.
insurance fraud
Insurance fraud is any act committed with the intent to fraudulently obtain payment from
an insurer. Insurance fraud has existed ever since the beginning of insurance as a
commercial enterprise. Fraudulent claims account for a significant portion of all claims
received by insurers, and cost billions of dollars annually. Types of insurance fraud are
very diverse, and occur in all areas of insurance. Insurance crimes also range in
severity, from slightly exaggerating claims to deliberately causing accidents or damage.
Fraudulent activities also affect the lives of innocent people, both directly through
accidental or purposeful injury or damage, and indirectly as these crimes cause
insurance premiums to be higher. Insurance fraud poses a very significant problem, and
governments and other organizations are making efforts to deter such activities. Derry
v Peek (1889) LR 14 App CAS 337 is a case in English law on the tort of deceit. The
House of Lords determined there was no general duty to use ‘care and skill’ in the
context of issuing a prospectus to refrain from making misstatements. The tort of deceit
would have been established only if the misstatements had been fraudulently made.
Derry v Peek thus validated the perspective of the majority judges in the Court of
Appeal in Heaven v Pender. That is, for there to be deceit or fraud (which is the same) it
must be shown that a defendant knows a statement is untrue, or has no belief in its
truth, or is reckless as to whether it is true or false.
indirect effect principle (union law)
Indirect effect describes a situation where the courts in member states use Union law to
interpret national laws, as oppose to direct effect where Union law is applied directly.
Treaty articles, Regulations and Decisions can all have direct effect except where they
are unclear or conditional. In such cases they may have indirect effect, but are unlikely
to be of much use for interpreting national laws. Recommendations and Opinions
cannot have direct effect, but may have indirect effect, when interpreting the Union law
they supplement or national laws, as established in Grimaldi v Fonds des Maladies
Professionnelles890 established that Directives can have indirect effect in where an
individual takes action in a national court against another individual, where a Directive
can never have direct effect, or where the provision of the directive is not sufficiently
clear and unconditional to have direct effect.891
890
ECR 4407 Case C-322/88. Von Colson and Kamann v Land Nordrhein-Westfalen [8] ECR 1891 Case 14/83
pg. 407
proportionality principle (union law)

Proportionality is recognised one of the general principles of Union law. According to the
general principle of proportionality the lawfulness of an action depended on whether it
was appropriate and necessary in order to achieve the objectives legitimately pursued .
When there is a choice between several appropriate measures the least onerous must
be adopted, and any disadvantage caused must not be disproportionate to the aims
pursued.
legal certainty principle (union law)
The concept of legal certainty is recognised one of the general principles of Union law. It is
a important general principle of international law and public law, which predates Union
law. As a general principle in Union law it means that the law must be certain, in that it
is clear and precise, and its legal implications foreseeable, especially when applied to
financial obligations. The adoption of laws which will have legal effect in the Union must
have a proper legal basis. Legislation in member states which implements Union law
must be worded so that it is clearly understandable by those who are subject to the law.
The general principle of legal certainty prohibits Ex post facto laws, i.e. laws should not
take effect before they are published.
legitimate expectation, principle (union law)
Legitimate expectation doctrine holds that and that ‘those who act in good faith on the
basis of law as it is or seems to be should not be frustrated in their expectations’. 892The
doctrine of legitimate expectation, which has its roots in the principles of legal certainty
Union law. The legitimate expectation doctrine holds that and that ‘those who act in
good faith on the basis of law as it is or seems to be should not be frustrated in their
expectations’
asymmetry principle (union law)
The principle of asymmetry means the principle that addresses variances in the
implementation of measures in an economic integration process for Purposes of
achieving a common objective893; it recognizes that not all countries stand equal, able to
trade and exchange goods on equal terms to the mutual benefits of their populations.
The principle thus seeks to redress this by recognizing the need to defer or exempt
certain areas of the economy from the harsh discipline of a trade liberalization
commitment regime based on the capacity of each partner member in the particular
trade bloc. It is the cornerstone of the Community Customs Union as it recognises that
that the three east Afrikan countries are at a very different level of economic
development and if the parties are expected to liberalize their economies at the same
891
Berry, Elspeth; Hargreaves, Sylvia (2007). European Union law (2nd ed.). Oxford University Press. p. 66.
ISBN 978-0-19-928244-9.
892
Kaczorowsky, Alina (2008). European Union law. Taylor & Francis. p. 232. ISBN 978-0-415-44797-3.
893
The Preamble of the Treaty Establishing the East Afrikan Community.
pg. 408
rate then moves towards free trade areas can generate economic difficulties for the less
developed partner. It therefore proposes that where a free trade area is introduced
between countries of different levels of development, then this should occur on an
asymmetrical basis. Thus, for instance, under a customs union where countries are at a
very different level of development, the more developed partner will eliminate tariffs
more quickly and more extensively than the less developed countries.
There are two main aspects of the asymmetry principle relating to tariffs for purposes
creating an equitable and balanced free trade area in the Customs Union:
‫و‬ asymmetry in the timing of the reduction and of elimination of tariffs
‫و‬ asymmetry in the extent of total trade to be included in the tariff reduction and tariff
elimination undertaken.
Asymmetry in the timing of tariff reductions means that one partner will reduce and
eliminate its tariffs faster than the other partner. Asymmetry in the extent of tariff
reduction means that one partner will reduce and eliminate tariffs on a higher
percentage of its total trade than the other partner.
subsidiarity principle (union law)
The principle of subsidiarity means that what the lesser entity can do adequately should
not be done by the greater entity unless it can do it better. Taken over into community
policies, it is used as an instrument for determining when the Union is to act in areas
not coming under its exclusive competence.
variable geometry principle (union law)
The principle of Variable Geometry is that which allows states partners to participate in the
process of integration at different paces depending on the level of economic
advancement provided that the objective of the progression remains the same. The
principle therefore allows members to move at different paces depending on their
readiness for closer economic integration. Thus the Variable Geometry is sometimes
referred to as two speeds or multi speed894. This is because whereas there is the general
objective, some members take longer than others to reach the full stage of the full
participation.
The core question when establishing the Customs Union was whether progress in the
member states in the region towards desirable objective of economic integration will
best achieved by causing or seeking to cause all the three member states to progress in
unison towards it or by allowing the member states and encouraging those states that
have economic viability in terms of growth, sharing common purposes and demonstrate
the will and the ability to program more swiftly than others to do so, Community will
not be an end in itself. It will therefore only survive if it is able to advance the sensible
purpose of its more enlightened members.
894
Marcin Zaborowski: Germany and EU Enlargement: From Rapprochement to ‘Reaproachment’? In: Helene
Sjursen (Ed.), Enlargement in perspective, p. 46.
pg. 409
specialization principle
Specialization is related to another economic concept, division of labor, discussed at great
length by Adam Smith, the 18th-century Scottish economist and author of "The Wealth
of Nations." Smith famously illustrated the benefits of specialization and a division of
labor when describing a pin factory, in which each worker performs a single specialized
task. One worker measures wire, another cuts it, one points it, others make the head
and so on. Through this process, workers produced thousands more pins than if each
worker made whole pins independently. This principle requires specialization in one’s
best, by partner state without unnecessary competition for the purposes of the
Community benefit remains central. One of the most important and somewhat
unexpected features of this principle of specialization is that it applies even in cases in
which a particular country has an efficiency or cost advantage over other countries in
all the products they are both able to manufacture. Economists call this the theory of
comparative advantage. In a macroeconomic context, specialization means that nations
concentrate on producing the goods in which they have the most advantage while
engaging in trade with other countries to obtain other goods.
absorption
Absorption refers to the act or process of including a thing into something else. Under
federal law, the act of absorption is used in the application of rights guaranteed by the
federal government to actions by the states. Under International Law, the act of
absorption is used in the context of merging one nation into another, whether
voluntarily or by subjugation. Under Labor Law, the act of absorption is used in a post-
merger collective bargaining agreement where a provision allows seniority for union
members in the resulting entity. Under Commercial law, the act of absorption is used
wherein a manufacturer pays the seller’s freight costs, in which the manufacturer
accounts for before quoting the seller a price. It is also known as freight absorption.
primacy principle (union law)
The supremacy (sometimes referred to as primacy) of community law by which the laws of
Union member states that conflict with laws of the Union must be ignored by national
courts so that the Union law can take effect. The legal doctrine emerged from precedent.
sincere cooperation principle (union law)
Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in
full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure
fulfilment of the obligations arising out of the Treaties or resulting from the acts of the
institutions of the Union. The Member States shall facilitate the achievement of the
Union’s tasks and refrain from any measure which could jeopardise the attainment of
the Union’s objectives.’ This general principle of sincere cooperation is inspired by an
awareness that the Union legal order on its own is not able to fully achieve the
objectives pursued by the establishment of the Union. Unlike a national legal order, the
pg. 410
Union legal order is not a self-contained system but relies on the support of the national
systems for its operation. All three branches of government — legislature, executive
and judiciary — therefore need to acknowledge that the Union legal order is not a
‘foreign’ system and that the Member States and the Union institutions have established
indissoluble links between themselves so as to achieve their common objectives. The
Union is not just a community of interests; it is a community based on solidarity. It
follows that national authorities are required not only to observe the Union Treaties
and secondary legislation; they must also implement them and bring them to life. The
interaction between the two systems is so multifaceted that a few examples are called
for.
subsidiarity test
Subsidiarity is an organizing principle that matters ought to be handled by the smallest,
lowest or least centralized competent authority. The Oxford English Dictionary defines
subsidiarity as the idea that a central authority should have a subsidiary function,
performing only those tasks which cannot be performed effectively at a more
immediate or local level.895 The concept is applicable in the fields of government,
political science, cybernetics, management, military (Mission Command) and,
metaphorically, in the distribution of software module responsibilities in object-
oriented programming. Subsidiarity is, ideally or in principle, one of the features of
federalism, where it asserts the rights of the parts over the whole.
Subsidiarity is also a tenet of some forms of conservative or libertarian thought. For
example, conservative author Reid Buckley writes:
Will the American people never learn that, as a principle, to expect swift response and
efficiency from government is fatuous? Will we never heed the principle of subsidiarity (in
which our fathers were bred), namely that no public agency should do what a private
agency can do better, and that no higher-level public agency should attempt to do what a
lower-level agency can do better – that to the degree the principle of subsidiarity is
violated, first local government, the state government, and then federal government wax
in inefficiency? Moreover, the more powers that are invested in government, and the more
powers that are wielded by government, the less well does government discharge its
primary responsibilities, which are (1) defense of the commonwealth, (2) protection of the
rights of citizens, and (3) support of just order.896
Subsidiarity is perhaps presently best known as a general principle of Union law. According
to this principle, the union may only act (i.e. make laws) where action of individual
countries is insufficient. The principle was established in the 1992 Treaty of
Maastricht.897
895
Buckley, Reid, 2008, An American Family – The Buckleys, Threshold Editions, Simon & Schuster, New York,
459 p.
896
Buckley, 2008, p. 177.
897
Shelton, Dinah. The Boundaries of Human Rights Jurisdiction in Europe. Duke J. Comp. & Int'l L. 153. 2003.
pg. 411
enumerated powers
The enumerated powers are a list of items that set forth the authoritative capacity of the
union parliament.
reserved country powers doctrine
See also reserved powers doctrine
reserved powers doctrine
The reserved country powers, also called reserved powers, is a doctrine reserved exclusively
for the states (in a federation), which is used in the interpretation of the Constitution. It
adopted a restrictive approach to the interpretation of the specific powers of the
Federal Parliament in order to preserve the residual powers of the States.
inherent capacities
See the principle of inherent jurisdictions
inherent jurisdictions (union law)
If the constitution does not define the matters to which the organisation can deal then it
can deal with any matter and if the constitution does not preclude certain types of acts
or exhaustively enumerate the acts which the organisation may perform then it can
perform any act. This is the principle of inherent capacities or jurisdictions and reflects
adequately the position in practice. In a sense, according to this concept, the guiding
principle is the purposes for which an organisation is established so that so long as an
act that is precluded from the treaty is necessary for purposes of the organisation, it is
assumed to have the powers to undertake such acts to enable it fulfill the objectives of
the organisation.
partnership principle
A principle in which proposals for regional funding are developed on a partnership basis
between the differnet levels of government and with cross sector partnerships at the
appropriate regional level, and where the implementation of the regional programme is
largely undertaken at the regional level and monitored at both national and EU levels.
The same policy focus has applied to some other policy arenas – IT, urban and
innovation policy being cases in point, though all of these have had a link to regional
policy.
declaration of incompatibility
A declaration of incompatibility is a declaration issued by judges in the United Kingdom
that they consider that the terms of a statute to be incompatible with the UK's
obligations under the Human Rights Act 1998, which incorporated the European
Convention of Human Rights into the UK domestic law. Once the court has issued a
declaration of incompatibility, the law remains the same until Parliament removes the
incompatibility. Joint Committee On Human Rights Sixteenth Report The courts must
pg. 412
still apply the legislation as it is and the parties to the actual case are unaffected by the
declaration. Hence, the declaration has no actual legal effect and the parties neither gain
nor lose by it.
EU directives
EU directives lay down certain end results that must be achieved in every Member State.
National authorities have to adapt their laws to meet these goals, but are free to decide
how to do so. Directives may concern one or more Member States, or all of them. Each
directive specifies the date by which the national laws must be adapted - giving national
authorities the room for manoeuvre within the deadlines necessary to take account of
differing national situations. Directives are used to bring different national laws into
line with each other, and are particularly common in matters affecting the operation of
the single market (e.g. product safety standards).
direct applicability doctrine
A concept of European Union constitutional law that relates specifically to regulations.
Although often confused with the doctrine of direct effect, direct applicability refers to
the fact that regulations require no implementing legislation within individual member
states - they take effect as soon as they are published by the European Commission.
negative clearance
The procedure by which the European Commission determines that an agreement notified
to it under the competition rules of the Treaty of Rome does not infringe the rules.
When the Commission, on the basis of the facts presented to it, comes to the conclusion
that there are no grounds under Article 81(1) or 82 of the EC Treaty to take action in
respect of an agreement or practice, the Commission issues a negative clearance either
as a formal decision or informally by way of a see definition forcomfort letter. In Article
81 cases, companies usually combine their application for negative clearance with a see
definition fornotification for exemption.
van gend criteria
Direct effect is the principle of European Union law according to which provisions of Union
law may, if appropriately framed, confer rights on individuals which the courts of
European Union member states are bound to recognise and enforce. Not explicitly
stated in any of the EU Treaties, the principle of direct effect was first established in
relation to provisions of those treaties by the European Court of Justice in Van Gend en
Loos v. Nederlandse Administratie der Belastingen.898 Direct effect has subsequently been
loosened in its application to treaty articles and the ECJ has expanded the principle,
holding that it is capable of applying to virtually all of the possible forms of EU
legislation, the most important of which are regulations and in certain circumstances to
directives.
898
(Case 26/62); [6] ECR 1; CMLR 1
pg. 413
The ECJ laid down the criteria (commonly referred to as the ‘Van Gend criteria’) for
establishing direct effect. The provision must:
1. be clear,
2. negative,
3. unconditional,
4. containing no reservation on the part of the member state, and
5. not dependent on any national implementing measure. 899
legitimate expectation doctrine (legal certainty)

The doctrine of legitimate expectation, which has its roots in the principles of legal certainty
Union law.900 The legitimate expectation doctrine holds that ‘those who act in good faith
on the basis of law as it is, or seems to be, should not be frustrated in their expectations.’ 901
This means that a Union institution, once it has induced a party to take a particular
course of action, must not renege on its earlier position if doing so would cause that
party to suffer loss. The European Court of Justice has considered the legitimate
expectation doctrine in cases where violation of the general principle of legal certainty
was alleged in numerous cases involving agricultural policy and European Council
regulations902, with the leading case being Mulder v Minister van Landbouw en Visserij903.
misuse of power test (legal certainty)
The misuse of power test is another significant element of the general principle of legal
certainty in Union law. It holds that a lawful power must not be exercised for any other
purpose than that for which it was conferred. According to the misuse of power test a
decision by a Union institution is only a misuse of power if ‘it appears, on the basis of
objective, relevant and consistent evidence, to have been adopted with the exclusive or
main purpose of achieving any end other than those stated.’ A rare instance where the
European Court of Justice has held that a European Union institution has misused its
powers, and therefore violated the general principle of legal uncertainty, is Giuffrida v
Commission904. The general principle of legal certainty is particularly stringently applied
when European Union law imposes financial burdens on private parties. 905
899
Craig, Paul; de Burca, Grainne (2008). "8". EU Law, Texts, Cases and Materials (4th ed.). OUP. p. 275.
900
9780521527415.
901
Kaczorowsky, Alina (2008). European Union law. Taylor & Francis. pp.232. ISBN 9780415447973.
902
9780521527415.
903
[8] ECR 2321 Case 120/86
904
[7] ECR 1395 Case 105/75; See also Chalmers, Damian (2006). European Union law: text and materials.
Cambridge University Press. pp.456. ISBN 9780521527415.
905
9780521527415.
pg. 414
equality before the law or legal equality or non-discrimination principle

Formal equality, sometimes referred to as the non-discrimination principle, or equality
before the law, equality under the law or legal equality, is the principle under which all
people are subject to the same laws. It, is the principle under which all people are
subject to the same laws of justice (due process).906
Article 7 of the Universal Declaration of Human Rights states that "All are equal before the
law and are entitled without any discrimination to equal protection of the law."907
Thus, the law and the judges must treat everyone equally before the law regardless of their
race, gender, sexual orientation, gender identity, national origin, color, ethnicity,
religion, disability, or other characteristics, without privilege, discrimination, or bias.
Equality before the law is one of the basic principles of liberalism. 908 Classical liberalism
calls for equality before the law, not for equality of outcome. 909
In his famous funeral oration of 431 BC, the Athenian leader Pericles discussed this
concept. This may be the first known instance.
"If we look to the laws, they afford equal justice to all in their private differences; if no social
standing, advancement in public life falls to reputation for capacity, class considerations
not being allowed to interfere with merit; nor again does poverty bar the way" 910
According to the United Nations, this principle is particularly important to the minorities
and to the poor.911
formal equality principle
Also called fair equality of opportunity, or positive discrimination principle, deals with
indirect discrimination, by disparity of wealth, abilities and opportunities, through
providing for affirmative action. equalising measures are justified on grounds of justice
as well as social integration and harmony.
conferral
The principle of conferral is a fundamental principle of Union law. According to this
principle, the Union is a union of member states, and all its competences are voluntarily
conferred on it by its member states. The Union has no competences by right, and thus
any areas of policy not explicitly agreed in treaties by all member states remain the
domain of the member states.
906
907
908
Mark Evans, ed., Edinburgh Companion to Contemporary Liberalism: Evidence and Experience (London: Routledge, 2001),
55 (ISBN 1-57958-339-3).
909
Chandran Kukathas, "Ethical Pluralism from a Classical Liberal Perspective," in The Many and the One:
Religious and Secular Perspectives on Ethical Pluralism in the Modern World, ed. Richard Madsen and Tracy
B. Strong, Ethikon Series in Comparative Ethics (Princeton, NJ: Princeton University Press, 2003), 61 (ISBN 0-
691-09993-6).
910
Thucydides, The History of the Peloponnesian War, Written 431 B.C.E, Translated by Richard Crawley (1874), retrieved via
Project Gutenberg.
911
Id
pg. 415
margin of appreciation
Margin of Appreciation is a concept the European Court of Human Rights has developed
when considering whether a member state of the European Convention on Human
Rights has breached the convention. The margin of appreciation doctrine allows the
court to take into effect the fact that the Convention will be interpreted differently in
different member states. Judges are obliged to take into account the cultural, historic
and philosophical differences between Strasbourg and the nation in question. 912 Margin
of Appreciation is similar in concept to, but should not be confused with Subsidiarity.
The Doctrine was used for the first time in the case Handyside v. United Kingdom913 which
concerned the publication of a book aimed at school children, a chapter of which
discussed sexual behaviour in explicit terms. The ECHR were willing to allow a
limitation of freedom of expression in the interests of the protection of public morals. 914
For more controversial topics, such as cases involving bioethics or assisted reproduction,
the Court recognises that to make a definitive stance for all contracting States would
mean ignoring the social and cultural values which lie behind the decisions of national
legislatures.
‘Where, however, there is no consensus within the Member States of the Council of Europe,
either as to the relative importance of the interest at stake or as to how best to protect it,
the margin will be wider. This is particularly so where the case raises complex issues and
choices of social strategy: the authorities' direct knowledge of their society and its needs
means that they are in principle better placed than the international judge to appreciate
what is in the public interest… There will also usually be a wide margin accorded if the
State is required to strike a balance between competing private and public interests or
Convention rights.’915
equality principle (union law)
The equality principle functions as a constitutional limitation on the exercise of broad
discretionary powers of Member States or undertakings, and thereby serves as a defence
for economic operators against arbitrariness (‘Willkürkontrolle’).
912
Infra
913
(1976) 1 EHRR 737
914
(5493/72) [7] ECHR 5 (7 December 1976)
915
Dickson v. United Kingdom
pg. 416
sovereign equality of states principle (union law)

vis-à -vis each other.918 An authoritative elaboration of the principle has been given in
the UN General Assembly’s 1970 ‘Friendly Relations’ Declaration. 919 One of the
important consequences of the principle is that States are only bound by legal rules that
they themselves agree to.89 Precisely this consensualist feature of international law
leads to what at first sight may seem a paradox: although States have to respect each
other’s sovereign equality, they do not have to treat each other equal in the sense that
they may at will enter into treaty relationships with certain States and refuse to enter
into such relationships with other States: except if explicitly committed – by treaty – to
‘multilateralize’ the granting of certain rights 920, benefits and advantages to other States,
they are free to choose their treaty partner(s) and can, in that sense, differentiate
between other States.921 As always, differentiation should not be equated with
discrimination. Although this matter may be in need of a closer examination, the least
one can say is that international law regards discrimination of other States as
916
See inter alia I. Brownlie, Principles of Public International Law (Oxford, Oxford University Press 1998, 5th
International Law (Leyden, Sijthoff 1964); R. Jennings and A. Watts, Oppenheim’s International Law, I.1
(London, Longman 1992, 9th ed.), 339-379; I.A. Shearer, Starke’s International Law (London, Butterworth,
1994, 11th ed.), 99-102; Verhoeven, supra n. 70, 125. As far as factual inequalities between States – especially
between industrialized and developing States – are concerned, see inter alia P. Daillier, A. Pellet and N. Quoc
Dinh, Droit international public (Parijs, L.G.D.J. 1999, 6th ed.), pp. 1014-1025, paras. 620-626. See more
particularly with regard to differential treatment in its more recent appearances in international law, Ph. Cullet,
‘Differential Treatment in International Law: Towards a New Paradigm of Inter-State Relations’, (1999) 10
managing factual inequalities, see B. Kingsbury, ‘Sovereignty and Inequality’, (1998) 9 European Journal of
917
918
See A. Bleckmann, ‘Article 2(1)’, in B. Simma (ed.), The Charter of the United Nations. A Commentary
(München, Beck 1995), p. 87, para. 44.
919
Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States
in Accordance with the Charter of the United Nations, Annex to Resolution 2625(XXV) of the UN General
Assembly of 24 October 1970. Under ‘VI..
920
A clear example thereof is the principle of most-favoured nation treatment as contained in various multilateral
WTO agreements.
921
As is stated by Jennings and Watts, supra note 85, p. 376, para. 114, ‘there is in customary international law no
clearly established general obligation on a state not to differentiate between other states in the treatment it
accords to them’.
pg. 417
undesirable.922 The International Law Commission has gone further and has regarded
non-discrimination as a ‘general rule inherent in the sovereign equality of States’. 923
The principle of sovereign equality of States’, point to, ‘sovereign equality’ is stated to
include ‘in particular’ the following elements:
g) ‘States are juridically equal;
h) Each State enjoys the right inherent in full sovereignty;
i) Each State has the duty to respect the personality of other States;
j) The territorial integrity and political independence of the State are inviolable;
k) Each State has the right freely to choose and develop its political, social, economic and
cultural systems;
l) Each State has the duty to comply fully and in good faith with its international obligations
and to live in peace with other States.’
In light of this inventory of rights, M.N. Shaw rightly states, ‘the doctrine of the legal
equality of states is an umbrella category’924.
supremacy principle (union law)
The legal doctrine of supremacy of union means that community labour law takes
precedence over domestic labour law. The creation of a new legal order of community
law and its supremacy means that community institutions may create rules affecting
employment and industrial relations, even where some Member States oppose such
rules and vote against them in those community institutions, provided that a voting
procedure based on a majority rule applies to that specific field.
Probably the best known example of the impact of these rulings in labour law is G. Defrenne
v. Sabena,925 where the European Court decided that, ‘The principle that women and men
should receive equal pay, which is laid down by Article 119 EC [now Article 157 TFEU],
may be relied on before the national courts. These courts have a duty to ensure the
protection of the rights, which that provision vests in individuals, in particular in the case
of those forms of discrimination which have their origin in legislative provisions….’
The wider the range of EU competences in the field of employment and industrial relations,
the more the EU law they create will come to replace increasingly wide areas of national
labour law. An example is the decision of the European Court in Commission v. United
922
Jennings and Watts, supra note 85, p. 377, para. 114.
923
Yearbook of the International Law Commission (1961), II, 128. See also ILC, Yearbook of the International
Law Commission (1958), II, 105. It is not the place here to dwell upon the ILC’s interesting works relating to
most-favoured-nation clauses, which in 1978 resulted in draft articles: see Yearbook of the International Law
Commission (1978), II, 16-73. According to Jackson, most scholars and practitioners do not seem to accept a
customary law status of the MFN principle: J.H. Jackson, The World Trading System. Law and Policy of
International Economic Relations (Cambridge, MIT 1997, 2nd ed.), 27.
924
International Law, Cambridge, Grotius 1997, 4th ed., 152
925
Case 43/75, (1976) ECR 455
pg. 418
Kingdom926. There the Court required the United Kingdom to create a system of worker
representation where none existed. Designation of worker representatives was made
mandatory by the Court, due to the consequences for the rights of workers under two
directives ‘which require Member States to take all measures necessary to ensure that
workers are informed, consulted and in a position to intervene through their
representatives in the event of collective redundancies [or the transfer of an
undertaking]’927. In order to perform effectively the tasks of information and
consultation specified in the directives, Member State laws or practices must ensure the
designation of worker representatives.
Given that it may be applied in national courts, the doctrine of supremacy also applies to
rules on enforcement of labour law, including remedies and procedures. The ECJ has
developed special techniques and principles by which EU labour law may be enforced in
national courts. Where EU enforcement requirements come into conflict with national
procedures and remedies, again, they take precedence and must be applied by national
courts overriding domestic rules. Remarkable instances have included the Court’s
decision in Marshall v. Southampton and South West Area Health Authority 928, abolishing
the limits on compensation for sex discrimination in the UK legislation. Through the
doctrine of supremacy, EU law has promoted the Europeanisation of employment and
industrial relations by ensuring that EU law applies in many areas falling within the
competence of the EU, ranging from equality between women and men to workers’
representation.
direct effect principle (union law)
The provisions of a regional treaty are capable of having direct effect before the national
courts of member states. The result was to create an alternative manner of enforcing
the obligations undertook by member states in the treaties, to the more traditional
method of state enforcement in the form of enforcement actions taken by the
Commission at a supranational level. Individuals could now use national courts to
invoke treaty provisions against member state governments. The pre-conditions for
direct effect are that the provisions on which an individual wishes to rely are
sufficiently clear and unconditional, and that there is no scope for member states to
exercise discretion in implementation. Thus, a regulation that allows member states to
privatise roads would not have direct effect and could not be enforced in the courts,
because it provides that states may privatise roads, not must privatise roads.
indirect effect principle (union law)
Indirect effect describes a situation where the courts in member states use Union law to
interpret national laws, as oppose to direct effect where Union law is applied directly.
Treaty articles, Regulations and Decisions can all have direct effect except where they
926
Case C-382/92 and Case C-383/92, [9]
927
(Case C-383/92, paragraph 23; Case C-382/92, paragraph 26)
928
(No. 2), Case C-271/91, (1993)
pg. 419
are unclear or conditional. In such cases they may have indirect effect, but are unlikely
to be of much use for interpreting national laws. Recommendations and Opinions
cannot have direct effect, but may have indirect effect, when interpreting the Union law
they supplement or national laws, as established in Grimaldi v Fonds des Maladies
Professionnelles929 established that Directives can have indirect effect in where an
individual takes action in a national court against another individual, where a Directive
can never have direct effect, or where the provision of the directive is not sufficiently
clear and unconditional to have direct effect.930
proportionality principle (union law)
Proportionality is recognised one of the general principles of Union law. According to the
general principle of proportionality the lawfulness of an action depended on whether it
was appropriate and necessary in order to achieve the objectives legitimately pursued .
When there is a choice between several appropriate measures the least onerous must
be adopted, and any disadvantage caused must not be disproportionate to the aims
pursued.
legal certainty principle (union law)
The concept of legal certainty is recognised one of the general principles of Union law. It is
a important general principle of international law and public law, which predates Union
law. As a general principle in Union law it means that the law must be certain, in that it
is clear and precise, and its legal implications foreseeable, especially when applied to
financial obligations. The adoption of laws which will have legal effect in the Union must
have a proper legal basis. Legislation in member states which implements Union law
must be worded so that it is clearly understandable by those who are subject to the law.
The general principle of legal certainty prohibits Ex post facto laws, i.e. laws should not
take effect before they are published.
legitimate expectation, principle (union law)
Legitimate expectation doctrine holds that and that ‘those who act in good faith on the
basis of law as it is or seems to be should not be frustrated in their expectations’. 931The
doctrine of legitimate expectation, which has its roots in the principles of legal certainty
Union law. The legitimate expectation doctrine holds that and that ‘those who act in
good faith on the basis of law as it is or seems to be should not be frustrated in their
expectations’
929
ECR 4407 Case C-322/88. Von Colson and Kamann v Land Nordrhein-Westfalen [8] ECR 1891 Case 14/83
930
Berry, Elspeth; Hargreaves, Sylvia (2007). European Union law (2nd ed.). Oxford University Press. p. 66.
ISBN 978-0-19-928244-9.
931
Kaczorowsky, Alina (2008). European Union law. Taylor & Francis. p. 232. ISBN 978-0-415-44797-3.
pg. 420
asymmetry principle (union law)

The principle of asymmetry means the principle that addresses variances in the
implementation of measures in an economic integration process for Purposes of
achieving a common objective932; it recognizes that not all countries stand equal, able to
trade and exchange goods on equal terms to the mutual benefits of their populations.
The principle thus seeks to redress this by recognizing the need to defer or exempt
certain areas of the economy from the harsh discipline of a trade liberalization
commitment regime based on the capacity of each partner member in the particular
trade bloc. It is the cornerstone of the Community Customs Union as it recognises that
that the three east Afrikan countries are at a very different level of economic
development and if the parties are expected to liberalize their economies at the same
rate then moves towards free trade areas can generate economic difficulties for the less
developed partner. It therefore proposes that where a free trade area is introduced
between countries of different levels of development, then this should occur on an
asymmetrical basis. Thus, for instance, under a customs union where countries are at a
very different level of development, the more developed partner will eliminate tariffs
more quickly and more extensively than the less developed countries.
There are two main aspects of the asymmetry principle relating to tariffs for purposes
creating an equitable and balanced free trade area in the Customs Union:
‫و‬ asymmetry in the timing of the reduction and of elimination of tariffs
‫و‬ asymmetry in the extent of total trade to be included in the tariff reduction and tariff
elimination undertaken.
Asymmetry in the timing of tariff reductions means that one partner will reduce and
eliminate its tariffs faster than the other partner. Asymmetry in the extent of tariff
reduction means that one partner will reduce and eliminate tariffs on a higher
percentage of its total trade than the other partner.
subsidiarity principle (union law)
The principle of subsidiarity means that what the lesser entity can do adequately should
not be done by the greater entity unless it can do it better. Taken over into community
policies, it is used as an instrument for determining when the Union is to act in areas
not coming under its exclusive competence.
variable geometry principle (union law)
The principle of Variable Geometry is that which allows states partners to participate in the
process of integration at different paces depending on the level of economic
advancement provided that the objective of the progression remains the same. The
principle therefore allows members to move at different paces depending on their
readiness for closer economic integration. Thus the Variable Geometry is sometimes
932
The Preamble of the Treaty Establishing the East Afrikan Community.
pg. 421
referred to as two speeds or multi speed933. This is because whereas there is the general
objective, some members take longer than others to reach the full stage of the full
participation.
The core question when establishing the Customs Union was whether progress in the
member states in the region towards desirable objective of economic integration will
best achieved by causing or seeking to cause all the three member states to progress in
unison towards it or by allowing the member states and encouraging those states that
have economic viability in terms of growth, sharing common purposes and demonstrate
the will and the ability to program more swiftly than others to do so, Community will
not be an end in itself. It will therefore only survive if it is able to advance the sensible
purpose of its more enlightened members.
specialization principle
Specialization is related to another economic concept, division of labor, discussed at great
length by Adam Smith, the 18th-century Scottish economist and author of "The Wealth
of Nations." Smith famously illustrated the benefits of specialization and a division of
labor when describing a pin factory, in which each worker performs a single specialized
task. One worker measures wire, another cuts it, one points it, others make the head
and so on. Through this process, workers produced thousands more pins than if each
worker made whole pins independently. This principle requires specialization in one’s
best, by partner state without unnecessary competition for the purposes of the
Community benefit remains central. One of the most important and somewhat
unexpected features of this principle of specialization is that it applies even in cases in
which a particular country has an efficiency or cost advantage over other countries in
all the products they are both able to manufacture. Economists call this the theory of
comparative advantage. In a macroeconomic context, specialization means that nations
concentrate on producing the goods in which they have the most advantage while
engaging in trade with other countries to obtain other goods.
absorption
Absorption refers to the act or process of including a thing into something else. Under
federal law, the act of absorption is used in the application of rights guaranteed by the
federal government to actions by the states. Under International Law, the act of
absorption is used in the context of merging one nation into another, whether
voluntarily or by subjugation. Under Labor Law, the act of absorption is used in a post-
merger collective bargaining agreement where a provision allows seniority for union
members in the resulting entity. Under Commercial law, the act of absorption is used
wherein a manufacturer pays the seller’s freight costs, in which the manufacturer
accounts for before quoting the seller a price. It is also known as freight absorption.
933
Marcin Zaborowski: Germany and EU Enlargement: From Rapprochement to ‘Reaproachment’? In: Helene
Sjursen (Ed.), Enlargement in perspective, p. 46.
pg. 422
primacy principle (union law)

The supremacy (sometimes referred to as primacy) of community law by which the laws of
Union member states that conflict with laws of the Union must be ignored by national
courts so that the Union law can take effect. The legal doctrine emerged from precedent.
sincere cooperation principle (union law)
Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in
full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure
fulfilment of the obligations arising out of the Treaties or resulting from the acts of the
institutions of the Union. The Member States shall facilitate the achievement of the
Union’s tasks and refrain from any measure which could jeopardise the attainment of
the Union’s objectives.’ This general principle of sincere cooperation is inspired by an
awareness that the Union legal order on its own is not able to fully achieve the
objectives pursued by the establishment of the Union. Unlike a national legal order, the
Union legal order is not a self-contained system but relies on the support of the national
systems for its operation. All three branches of government — legislature, executive
and judiciary — therefore need to acknowledge that the Union legal order is not a
‘foreign’ system and that the Member States and the Union institutions have established
indissoluble links between themselves so as to achieve their common objectives. The
Union is not just a community of interests; it is a community based on solidarity. It
follows that national authorities are required not only to observe the Union Treaties
and secondary legislation; they must also implement them and bring them to life. The
interaction between the two systems is so multifaceted that a few examples are called
for.
subsidiarity test
Subsidiarity is an organizing principle that matters ought to be handled by the smallest,
lowest or least centralized competent authority. The Oxford English Dictionary defines
subsidiarity as the idea that a central authority should have a subsidiary function,
performing only those tasks which cannot be performed effectively at a more
immediate or local level.934 The concept is applicable in the fields of government,
political science, cybernetics, management, military (Mission Command) and,
metaphorically, in the distribution of software module responsibilities in object-
oriented programming. Subsidiarity is, ideally or in principle, one of the features of
federalism, where it asserts the rights of the parts over the whole.
Subsidiarity is also a tenet of some forms of conservative or libertarian thought. For
example, conservative author Reid Buckley writes:
Will the American people never learn that, as a principle, to expect swift response and
efficiency from government is fatuous? Will we never heed the principle of subsidiarity (in
934
Buckley, Reid, 2008, An American Family – The Buckleys, Threshold Editions, Simon & Schuster, New York,
459 p.
pg. 423
which our fathers were bred), namely that no public agency should do what a private
agency can do better, and that no higher-level public agency should attempt to do what a
lower-level agency can do better – that to the degree the principle of subsidiarity is
violated, first local government, the state government, and then federal government wax
in inefficiency? Moreover, the more powers that are invested in government, and the more
powers that are wielded by government, the less well does government discharge its
primary responsibilities, which are (1) defense of the commonwealth, (2) protection of the
rights of citizens, and (3) support of just order.935
Subsidiarity is perhaps presently best known as a general principle of Union law. According
to this principle, the union may only act (i.e. make laws) where action of individual
countries is insufficient. The principle was established in the 1992 Treaty of
Maastricht.936
reserved country powers doctrine
See also reserved powers doctrine
reserved powers doctrine
The reserved country powers, also called reserved powers, is a doctrine reserved exclusively
for the states (in a federation), which is used in the interpretation of the Constitution. It
adopted a restrictive approach to the interpretation of the specific powers of the
Federal Parliament in order to preserve the residual powers of the States.
inherent capacities
See the principle of inherent jurisdictions
inherent jurisdictions (union law)
If the constitution does not define the matters to which the organisation can deal then it
can deal with any matter and if the constitution does not preclude certain types of acts
or exhaustively enumerate the acts which the organisation may perform then it can
perform any act. This is the principle of inherent capacities or jurisdictions and reflects
adequately the position in practice. In a sense, according to this concept, the guiding
principle is the purposes for which an organisation is established so that so long as an
act that is precluded from the treaty is necessary for purposes of the organisation, it is
assumed to have the powers to undertake such acts to enable it fulfill the objectives of
the organisation.
partnership principle
A principle in which proposals for regional funding are developed on a partnership basis
between the differnet levels of government and with cross sector partnerships at the
appropriate regional level, and where the implementation of the regional programme is
largely undertaken at the regional level and monitored at both national and EU levels.
935
Buckley, 2008, p. 177.
936
Shelton, Dinah. The Boundaries of Human Rights Jurisdiction in Europe. Duke J. Comp. & Int'l L. 153. 2003.
pg. 424
The same policy focus has applied to some other policy arenas – IT, urban and
innovation policy being cases in point, though all of these have had a link to regional
policy.
pg. 425
pg. 426
DISPUTE RESOLUTION IN LOCAL GOVERNMENT LAW
local government conflicts

Conflicts can arise for a variety of reasons, including: unequal impacts, benefits or costs;
different expectations, assumptions or forecasts; different definitions of the issue;
different values; fragile relationships; different standards of behaviour; and
decisions/actions on unrelated issues.
Conflicts can arise on a variety of issues, including:
¯ land-use planning;
¯ service arrangements;
¯ economic development;
¯ environment or natural resource protection;
¯ community programs; and
¯ partner agreements.
mandatory arbitrarion
There are certain disputes, provided by local government statutes, which are subject to
mandatory arbitration.
dispute resolution officer or facilitator
Any party to an inter-governmental dispute may apply for process assistance to the
ministry. A dispute resolution officer or facilitator may then help the parties resolve the
matter by any process the officer or facilitator considers appropriate, including by
referring the matter to mediation and other non-binding resolution processes. For
those disputes not subject to mandatory arbitration under either the Local Government
Act or the Community Charter, if the parties agree, the officer must direct the dispute to
binding arbitration through a process of final proposal arbitration, or full arbitration.
ADR in local government
Alternative dispute resolution that emphasizes interest-based negotiation strives to
achieve solutions that are acceptable for everyone involved in a dispute. Widely used in
a variety of fields, alternative dispute resolution encourages open communication and
helps foster understanding between the parties and better long-term relationships.
Alternative dispute resolution that aims to resolve disputes collaboratively helps
parties to: identify their interests; explore options for resolution; develop and
implement solutions acceptable to all; and obtain the services of a neutral mediator, if
needed. Solving disputes as early as possible will also help parties avoid stressful and
costly arbitration or court action. To utilize one of the alternative dispute resolution
processes in the legislation one or more of the parties to a dispute may request process
advice and assistance from the line Ministry.
Litigation
pg. 427
Local Government entities operate in a complex commercial and administrative

environment. Legal disputes of varying complexity inevitably arise. Local Government
Litigation acts in disputes of all sizes and complexities covering contractual claims,
judicial review, property matters, environmental matters, building disputes and rate
recovery.
pg. 428
SUING THE STATE IN INTERNATIONAL LAW
rule of exhaustion of local remedies
Under the 'rule of exhaustion of local remedies', a State must be given the opportunity to
redress an alleged wrong within the framework of its own domestic legal system before
its international responsibility can be called into question at the level of regional
or international organs. International Law requires that a party who has been aggrieved
by actions or omissions of a state must adhere to the rule of exhaustion of local
remedies, as was held by the Afrikan Human Rights Commission in Sir Dawda k. Jawara
V Gambia937 that:
‘This rule is one of the most important conditions for admissibility of communications and no
doubt therefore the first requirement looked at by both the commission and the state
concerned.’
Also, in the Interhandel Case938, it was stated:
‘…the rule that local remedies must be exhausted before international proceedings may be
instituted is a well established rule of customary international law…’ 939
It is ‘an important principle of customary international law’ 940 . The principle is reiterated
in art. 44(b) of the International Law Commission's Draft Articles on State
Responsibility of 2001 ([0] II I.L.C. Yearbook 26), which provides that the responsibility
of a State may not be invoked if ‘the claim is one to which the rule of exhaustion of local
remedies applies and any available and effective remedy has not been exhausted’.
However, the rule has an exception: Ineffective remedies, i.e., those which hold out no
real prospects of obtaining the redress sought, need not be used. ‘There can be no need
to resort to the municipal courts if those courts have no jurisdiction to afford relief; nor is
it necessary again to resort to those courts if the result must be a repetition of a decision
already given’941.
937
Communication 147/95 and 149/96
938
I.C.J 1959 Rep., p. 627
939
See Decision of Afrikan Human Rights Commission Communication 155/96 (The Ogoniland Case)
940
ELSI Case 1989 I.C.J. Rep. 15 at 42
941
Panevezys-Saldutiskis Railway Case (1939) P.C.I.J., Ser. A/B, No. 76 at 18. See also art. 44(b) of the I.L.C.'s
Draft Articles on State Responsibility, which refers to the exhaustion of any ‘available and effective remedy’;
Mavrommatis Jerusalem Concessions Case (Jurisdiction) (1924) P.C.I.J., Ser. A. No. 2 at 12; Electricity
Company of Sofia Case (Preliminary Objection) (1939) P.C.I.J., Ser. A/B, No. 77 at 79; Brown, Robert E.,
Claim (1923) 6 R.I.A.A. 120; Spanish Zone of Morocco Claims (1925) 2 R.I.A.A. 731; Mexican Union
Railway Company Claim (1930) 5 R.I.A.A. 122; Finnish Ships Case (1934) 3 R.I.A.A. 1502; Ambatielos Case
(1956) 12 R.I.A.A. 118 and 122; German External Debts Case (1958) 25 I.L.R. 42.
pg. 429
non-state actors
Non-state actors are categorized as entities that (i) participating or acting in the sphere of
international relations; organizations with sufficient power to influence and cause
change in politics which are (ii) not belonging to or existing as a state-structure or
established institution of a state; are not holding the characteristics of this, these being
legal sovereignty and some measure of control over a countries people and
territories.942
The admission of non-state actors into international relations theory is inherently a rebuke
to the assumptions of realism and other black box theories of international relations,
which argue that interactions between states are the main relationships of interest in
studying international events.
three theories of diplomatic immunity
Diplomatic immunity is based on three theories:
1. the theory of extraterritoriality” states that the territory of the receiving state used by
the diplomatic mission or diplomat should be considered as a part of the territory of the
sending state instead;
2. the theory of representative character”, 943 states that the diplomatic mission, and thus
also diplomats, personify the sending state and therefore they should be granted the
same immunities and independence as those granted to the sending state; and thirdly,
3. the “theory of functional necessity”, according to which the justification for granting
immunities to diplomatic agents is based on the need to enable normal functioning of
diplomatic missions and diplomats.
exhaustion of local remedies doctrine
Diplomatic espousal of a national's claims will not be internationally acceptable unless the
national in question has given the host state the chance to correct the wrong done to
him through its own national remedies. Exhaustion of local remedies usually means
that the individual must first pursue his claims against the host state through its
national courts up to the highest level before he can ask the state of his nationality to
take up those claims and that state can validly do so.
In Barcelona Traction Case944(Belgium v. Spain), the government of Spain under Franco in
the 1960s placed restrictions on foreigners doing business in Spain. The Belgian
stockholders in Barcelona Traction lost money and wanted to sue in the International
Court of Justice, but in the court Judge Fornier ruled on the side of Spain, holding that
only the state in which the corporation was incorporated (Canada) can sue. The
942
See Rochester, Martin J. Between Two Epochs: What’s Ahead for America, the World, and Global Politics in
the Twenty-First Century. Upper Saddle River, NJ: Prentice Hall, 2002; see also Warkentin, Craig. Reshaping
World Politics: NGOs, the Internet, and Global Civil Society. New York: Rowman and Littlefield Publishers,
2001.
943
Article 3, Vienna Convention oin Law of Treaties.
944
International Court of Justice Reports, vol. 1970, p. 3(1970).
pg. 430
decision in is important in public international law because it demonstrates the

principle that unless a principle of law permits a country to espouse a national's claim
in the ICJ, there cannot be an espousal. Further, it demonstrates how the concept of
diplomatic protection under international law can apply equally to corporations as to
individuals. It also expanded the notion of obligations owed erga omnes (in relation to
everyone) in the international community.
effective and continuous nationality doctrine
The second important requirement is that the individual who has been wronged must
maintain the nationality of the espousing state from the moment of injury until at least
the presentation of the claim by way of diplomatic espousal. If the nationality of the
individual in question changes in the meantime, the state of his former nationality will
not be able validly to espouse his claims. The claim by a state on behalf of its national
may also be dismissed or declared inadmissible if there is no effective and genuine link
between the national concerned and the state that seeks to protect him (see the
International Court of Justice judgment in the Nottebohm case).
state liability doctrine
The ECJ developed a general principle of state responsibility for compliance with EU law.
This doctrine was created by a case in the field of employment rights: Andrea
Francovich and Others v. Italian Republic 945 and the resulting principle of state liability is
called the Francovich principle. The elements of liability, which comprise
the Francovich principle, that emerged from the decision of the ECJ include: (i) a breach
of EU law; (ii) attributable to the Member State; (iii), which causes damage to an
individual. If these elements are established, compensation may be claimed in a legal
action before a national court.
diplomatic protection doctrine
Diplomatic protection (or diplomatic espousal) is a means for a State to take diplomatic and
other action against another State on behalf of its national whose rights and interests
have been injured by the other State. It can include consular action, negotiations with
the other State, political and economic pressure, judicial or arbitral proceedings or
other forms of peaceful dispute settlement. In 2006, the International Law Commission
has adopted the Articles on Diplomatic Protection, regulating the entitlement and the
exercise of diplomatic protection.
The idea that a state has a right to protect its subjects who are abroad has been expressed
by Emmerich de Vattel in his opus ‘The Law of Nations’: ‘Whoever ill-treats a citizen
indirectly injures the State, which must protect that citizen.’ Since this protection could
take any form whatsoever, the doctrine has often been misused by Western powers as a
pretext to intervene in the affairs of less powerful nations. Customary international law
recognises the existence of certain requirements that must be met before a state can
945
Joined Cases C-6/90 and C-9/90, [9] ECR I-5357
pg. 431
validly espouse its national's interest. The two main requirements are exhaustion of
local remedies and continuous nationality.
pg. 432
Index
1st freedom, 254 Administrative decentralization, 124

2nd freedom, 254 administrative hearing, 335
3rd freedom, 254 administrative law, 9
4th freedom, 255 Administrative law, 9, 19
5th freedom, 255 administrative review boards, 326
6th freedom, 255 administrative subpoena, 334
7th freedom, 255 administrative summons, 334
8th freedom, 255 administrative trial, 335
9th freedom, 255 admiralty law, 226
a secular state, 130 adoption, 57
aboriginal, 364 ADR in local government, 421
abrogation doctrine, 367 advisory judisriction, 391, 395
absolute immunity, 375 Advisory opinion (ICJ), 100
absolute nullity, 384 advisory proceedings (international law), 391,
absolute sovereignty, 122 395
Absolute sovereignty, 230 African Union, 79
Absolute theory of sovereignty, 234 aggregation principle, 366
Absoluteness (sovereignty), 235 Agreements, 11, 41
absorption, 405, 417 air law, 261
abstention rule, 120 Air sovereignty, 241
abuse of discretion, 364 Airspace, 253
Abuse of discretion, 332, 333 alienable rights, 196
abuse of process doctrine, 385 Alternative dispute resolution, 309
academic freedom, 168 Alternative dispute resolution (ADR), 301,
accardi doctrine, 364 307
acceptability(of entitelement or rights), 189 alternative mandamus, 335
Accessibility (dispute resolution), 305 ambulance chasing, 357
accessibility(of entitelement or rights), 189 amending treaty, 35, 49
accession, 57 Amendments (treaty), 63
accountability (public administration),, 369 Anarchists(sovereignty), 258
Acquisition of sovereignty, 241 Annexation, 269
Act of Parliament, 46 anti-coercion principle, 207
actual and imputed bias, 343 apparent bias, 343
actual sovereignty, 123 Appeasement, 263
actus contrarius, 56 Appropriate dispute resolution, 309
ad hoc arbitration proceedings, 328 arbitral tribunal, 327
Ad Hoc Judges, 99 Arbitrary and capricious, 332, 333
adequate and independent state ground doctrine, arbitrary and capricious’ standard, 350
368 arbitration, 311
Adjudication, 242 Arbitration, 314
Adjudicative processes, 306 Arbitration Agreement, 319
administration, 106 Arbitration Conventions and Investment
administration of justice, 364 Treaties, 319
Administrative Boards, 313 Arbitration Procedural Rules, 322
pg. 433
arbitration tribunal, 327 Cession, 241

archipelagic state, 224 Characteristics of effective dispute
archipelagic waters, 225 mechanisms, 305
Articles (treaty), 58 charge (public), 163
as if enacted clause, 336 charter, 117
Aspirational rights, 137 Charter colony, 117
Associated States, 270 Charters (international law), 12, 42
asymmetry principle (union law), 403, 415 checks and balances, 130
attribution, 296 Children's Ombudsman, 325
autonomous administrative division, 241 chilling effects doctrine, 355
autonomous area, 241 circalittoral zone, 249
autonomous zone, 241 Citizen Advocate, 325
Availability (of entitelement or rights), 189 citizens, 110
balancing test in administrative law, 359 citizenship, 115
barrantry, 357 Citizenship, 110
Baseline, 250 citizenship based on religion, 111
Baseline (sea), 250 Citizenship by adoption, 111
Benefits of ADR, 310 Citizenship by holding an office, 112
Beyond rights, 255 Citizenship by investment, 112
bias rule, 365 citizenship by right of birth within the territory,
big stick diplomacy, 267 111
bilateral air service agreement, 256 citizenship by right of blood, 110
bilateral air transport agreement, 256 citizenship through birth, 111
Bilateral Investment Treaties, 322 citizenship through marriage, 114
bilateral treaty, 62 citizenship through parents, 110
Bilateral treaty, 58 Civil and Political Rights, 137
birth tourism, 112 civil case, 298
born alive rule, 181 civil dispute, 302
Born within a country, 111 civil procedure, 20
Boundary delimitation, 249 Civil rights law. See human rights law
breach of rules of natural justice, 335 Civil society, 106
bureaucracy, 105 civil society organisations (human rights), 162
By-law, 46 Classical Liberals(sovereignty), 258
by-laws, 16, 46 clausula rebus sic stantibus, 393
cabinet collective responsibility, 210 clearly established law test, 366
Canals, 246 closing protocol, 58
cannon shot' rule, 221 code, 16, 46
carltona principle, 366, 379 codification, 22
case and controversy, 119 Codification of common law, 22
case law, 10, 40 codification of customary international law, 36,
castañeda doctrine, 265 51
cease and desist order, 200 codification of international law, 22
cell based actors, 77 coercion(Ending treaty obligations), 67
censorship (internet), 211 collaborative divorce, 311
Center for Alternative Dispute Resolution, collaborative law, 311
327 collective responsibility, 297
certiorari, 365 commission, 106
pg. 434
Committee Against Torture, 149 Contiguous zone, 251

Committee on Economic, Social and continental shelf, 220, 225
Cultural Rights, 148 Continental shelf, 252
Committee on Migrant Workers, 149 continental union, 79
Committee on the Elimination of Continentalism, 79
Discrimination against Women monitors continuing mandamus, 336
the CEDAW, 149 contractarian theory, 230
Committee on the Elimination of Racial Contracting States, 320
Discrimination, 149 Contrary to peremptory norms(Ending treaty
Committee on the Rights of Persons with obligations), 67
Disabilities, 149 Controlled airspace, 253
Committee on the Rights of the Child, 149 controlling state, 276
common external tarrif, 284 convention, 57
Community law, 69 convention right, 190
Company vs. Company Disputes, 303 Conventions (international law), 12, 42
Company vs. State Disputes, 302 cooperation, 391
Compensation (human rights remedies), co-regulation, 47
140 corruption, 370
complementarity(community law), 284 corruption(Ending treaty obligations), 67
conclusive evidence clause, 336 Cotonou Agreement, 78
conduct of the hearing, 340 Counterinsurgency diplomacy, 263
confederation, 272 countermeasure, 294
conferral, 398, 410 country, 106, 272
Conflict management, 306 court, 326
Conflict resolution, 306 courts (human rights), 162
Congressional charter, 118 criminal case, 299
congruence and proportionality test, 367 criminal dispute, 302
Conquest, 242 Criminal law, 20
Consensual processes, 306 criminal procedure, 20
Consent of the governed theory Crown dependencies, 271
(sovereignty), 231 Cultural relativism, 156
Consequences of terminology, 65 customary international law, 10, 28, 40, 54
Conservatory Order (human rights Customary international law (human
remedies), 142 rights protection), 146
consistency, 338 Customs, 10, 40
consistency principle, 363 damages (judicial review), 352
constituetive theory, 277 de facto and de jure states, 275
constitution, 10, 40, 102 de facto federations, 271
constitutional law, 20 de facto sovereignty, 123, 235
Constitutional law, 19 De facto states, 281
constitutional supremacy, 205 de jure sovereignty, 123
constitutionalism, 103 De jure sovereignty, 235
constitutionality, 102 de jure states, 281
constitutive theory, 278 Decentralization, 124
consulate, 266 decision ultra vires, 379
Consumer law, 20 declaraiton (companies law), 59
contiguous zone, 225 declaration, 59, 352
pg. 435
declaration (civil procedure), 59 Discrimination Against Women., 134

declaration (creditor-debor relationship), 59 Dispute, 298
declaration (trust law), 59 Dispute mechanisms, 299
declaration against interest (evidence), 59 dispute resolution, 299
declaration dying or dying declaration Dispute resolution, 299
(evidence), 59 dispute resolution mechanisms, 299
declaration of incompatibility, 407 dispute resolution methods, 299
Declaration of invalidity of any law dispute resolution officer, 421
(human rights remedies), 142 Dispute Review Board, 313
Declaration of Rights (human rights distributive justice, 334
remedies), 142 Divestment, 125
declaration of war, 208 docrine of attribution (international law), 289,
Declarations, 13, 43 392
declarative theory, 278 doctrines of foreign sovereign immunity, 287
Deconcentration, 125 Dollar diplomacy, 263
decree, 208 domestic sovereignty, 229
decree (executive order), 209 Domiciled foreigners, 133
decrees, 18, 48 double effect, 396
definitive entry into force, 60 dual citizenship, 111
definitive signature (signature not subject to dualism, 37, 52
ratification), 62 due diligence test, 185
delegated legislation, 212, 213 duty to assist at sea, 219
delegates non potest delegare, 379 duty to give reasons, 337, 363
Delegation, 125 Early neutral evaluation, 312
delegatus non potest delegate, 23 Economic and Social Council, 90
delimitation, 249 economic rights, 134
démarche, 293 Economic, Social And Cultural Rights, 137
democracy, 205 edict, 18, 48, 209
Democracy, 257 effective and continuous nationality doctrine,
denaturalization, 115 425
dependant state, 276 effects doctrine, 396
dependent state,, 276 efficiency principle, 334, 370
detention, 210 election commission, 106
development as a human right, 176 elements of socio-economic rights, 189
devolution, 124 embassy, 265
Devolution, 125 emergency powers, 208
devolved government, 117 Empire, 270
Devolved state, 270 end of a treaty, 58
Diplomacy, 262 Energy Charter Treaty, 321
Diplomatic immunity, 268 enforcement of union law, 69, 396
diplomatic mission, 265 entry into force, 60
diplomatic protection doctrine, 425 entry into force for a state, 60
direct applicability doctrine, 408 enumerated powers, 406
direct effect principle (union law), 401, 414 environmental human rights, 155
discretionary duty, 376 Environmental law, 20
discretionary function, 375 equal access to rights within countries, 134
discretionary immunity, 375 equal protection clause, 199
pg. 436
equal protection standing, 119 facilitator, 421

Equality and Non-discrimination:, 183 Fact in Dispute, 299
equality as a fundamental human right, 167 fairness, 380
equality before the law, 397, 409 Family group conference, 312
equality of states, 289, 392 federacy, 271
equality principle (international law), 293 federal government, 270
Equality principle (union law), 399, 411 federal paramountcy, 204
equidistance principle, 217 federalism, 130, 204, 272
Equity(dispute resolution), 305 Federalism, 126
error of fact, 348, 380 federated state, 108
error of law, 348, 380 federation, 271
essential care, 133 Federation sovereignty, 240
estrada doctrine, 264 fettering discretion, 349
EU directives, 407 finality clause, 336
Eulittoral zone, 249 first amendment, 204
European Union, 80 first generational rights, 136
Evidence (International litigation), 317 flag state principle, 217
Evidence law, 20 flag-state, 217
Exchange of Notes, 13, 44 Food and Agriculture Organization, 91
Excluded categories., 114 foreign policy, 263
exclusionary rule, 201 foreign relations law, 30
exclusive economic zone, 251 formal equality principle, 398, 410
exclusive economic zones (eezs), 225 formal reciprocity, 293
exclusive mandate, 269 fourteenth amendment, 205
exclusivity rule, 346 fourth amendment, 205
Exclusivity theory of sovereignty, 235 Framework Treaty, 14, 45
executing a bond, 374 fraud(Ending treaty obligations), 67
Execution and implementation (treaties), 64 free association, 172
Executive Memoranda, 17, 47 Freedom from slavery, 151
executive privilege doctrine, 211 Freedom from torture, 151
exhaustion of local remedies doctrine, 424 freedom of association, 168
exhaustion of remedies doctrine (administrative Freedom of Conscience, 152
law), 365 freedom of expression, 170
Existing continental unions, 79 freedom of information, 171
expatriation, 132 freedom of movement, 134
Expert Determination, 313 Freedom of movement, 153
Express repeal, 25 Freedom of Movement, 134
expressive association, 169 freedom of navigation, 217
external dispute resolution, 307 Freedom of religion, 152
External sovereignty, 238 freedom of speech, 170
extra judicial powers, 208 Freedom of speech, 152
extra territoriality, 266 freedom of the high seas, 216
Extrajudicial dispute resolution, 301 freedom of the press doctrine, 200
Extraterrestrial real estate, 86 freedom of the seas, 226
extraterritorial jurisdiction, 287 Freedom of the Seas,, 243
Extraterritoriality (UN), 84 Freedom of thought, 152
Facilitation, 313 freedoms of the air, 254
pg. 437
full belly thesis, 182 immigration, 132

full national jurisdiction and sovereignty, Immigration law, 20
242 immigration rights, 134
full powers, 289 immunities, 137
full repeals, 24 immunity of public officers, 370
functus officio doctrine, 365 Imperialists (sovereignty), 258
fundamental rights, 202 implied repeal, 25
Funding (UN), 99 inclusivity of human rights, 189
General Assembly, 87 independent state, 276
Geneva Conventions, 146 independent statutory discretion principle, 373
government, 106 indirect effect principle (union law), 402, 414
government in exile, 267, 282 individual rights, 163
grievance mechanisms, 299 Individual vs. Company Disputes, 303
grounds for review, 346 individuals, 110
Group of 77, 99 Indivisibility:, 182
group rights, 163 Indivisible theory of sovereignty, 234
Group Rights, 137 informal diplomacy, 262
gunboat diplomacy, 267 Information Commissioner, 325
Gunboat diplomacy, 263 infralittoral zone, 249
hamburg rules, 267 inherent capacities, 407, 418
hard law, 55 inherent jurisdictions, 407, 419
harm principle, 207 inherent tendency’ test, 169
harm principle (public officers), 386 injunction, 352
hearing rule, 365 Injunctions (human rights remedies), 141
hearts and minds diplomacy, 263 Inspector General, 325
heightened scrutiny test, 361 institutional arbitration proceedings, 328
high seas, 214 insurance for public officers by government
high seas doctrine, 221 (bodies), 374
Home rule, 126 insurance fraud, 402
Honorary citizenship, 114 insurance’ fund, 374
Horizontal boundary, 253 integrity (public administration), 369
hot pursuit, 215 intelligible principle, 339
human rights, 136 Interdependence and Interrelatedness:, 182
human rights approach to development, 180 interdependence sovereignty, 229
Human rights are political, 194 intergovernmental organization, 71
human rights as entitlement, 190 Intergovernmental organizations, 107
Human Rights Committee, 148 Intergovernmentalism, 79
Human Rights Council (human rights intermediate scrutiny, 360
protection), 147 Internal sovereignty, 236
Human rights defender, 150 internal waters, 223, 244
human rights law, 20 Internal waters, 250, 251
Human rights obligations, 160 International arbitral tribunals, 329
Human rights promotion, 150 International arbitration, 390
human rights protection system, 160 International Arbitration, 319
IBA Rules, 315 International Atomic Energy Agency, 91
ICJ, 99 International Bank for Reconstruction and
illegality, 347, 379 Development (IBRD),, 97
pg. 438
international bodies, 107 International waterways, 245

International Centre for Settlement of international zone (UN), 85
Investment Disputes (ICSID),, 97 Internationalists (sovereignty), 258
International Civil Aviation Organization, internationally wrongful acts, 296
92 Interpretation, 64
international convention on salvage, 1989, interpretative declaration, 13, 43, 59
214 Intertidal zone, 249
international court of justice, 99 intimate association, 168
International Court of Justice, 89 Invalid treaties(Ending treaty obligations), 66
International courts, 329 invidious discrimination, 364
international criminal court, 100 Involuntary multiple citizenship, 112
International Development Association irrationality, 349, 380
(IDA),, 97 irrebutable presumption of parliamentary intent,
international dispute resolution 338
institutions, 330 irrebutable presumption of parliamentary intent
International Finance Corporation (IFC),, principle, 362
97 irrelevant considerations, 380
International Fund for Agricultural isolated peoples, 270
Development (IFAD), 92 Joint Declaration, 13, 43
international governmental organization; judex, 326
IGO, 71 judge-made law, 10, 40
International human rights law, 144, 158 Judicial dispute resolution, 300
International humanitarian law, 146 judicial immunity, 376
international judicial institutions, 329 judicial review, 345
international jurisdiction (territorial waters), 214 Judicial review, 21
international jurisdiction per common Judicial Review, 331
heritage of mankind, 242 Judicial Review (human rights
International Labour Organization, 93 remediation), 141
international law, 26 Judicial review of administrative acts, 331
international legal sovereignty, 229 Judicial review of primary legislation, 331
International legal theory, 27 judicial supremacy, 357
International litigation, 317 jure matrimonii, 114
International Maritime Organization, 93 jurisdiction, 326
International Media, 77 jurisdiction (human rights enforcement),
International Monetary Fund, 93 137
International nongovernmental organizations Jurisdiction (International litigation), 317
(INGOs), 107 jus cogens, 30, 33, 49
international organisations, 107 jus dicere, 326
International protection and promotion of jus gentium, 28
human rights, 144 jus inter gentes, 28
International Seabed Authority (ISA), 85, Jus legationis, 262
244 jus oficii, 112
International Telecommunication Union, jus sanguinis, 110
94 jus soli, 111
international territory, 87 Jus tractatuum, 50
International treaties, 145 justiciability, 353
international waters, 85, 244 Justification of sovereignty, 257
pg. 439
law of airspace, 260 locus standi (Redressability), 354

law of space, 259 Long arm jurisdiction, 317
law of supranational organizations, 28 lost tribes, 270
law of the flag principle, 215 lotus principle, 287
law of the sea, 227 maker acting ultra vires, 379
legal case, 298 mandamus, 335
legal certainty principle (union law), 403, 415 mandatory arbitrarion, 421
legal dispute, 298 mandatory arbitration, 311
legal equality, 397, 409 mandatory declaration, 60
Legal Framework for International mandatory order, 352
Arbitration, 319 mare liberum, 243
legal reciprocity ("comity"), 289, 392 mare liberum principle, 223
legal restrictions, 47 margin of appreciation, 398, 410
Legal rights, 193 maritime law, 226
legal security, 337 Marriage to a citizen, 114
legal sovereignty, 123 mediation, 310
Legal System, 160 member state, 108
legality of the authority,, 337 Member states of the United Nations, 98
legality principle in administrative law, 358 Memoranda of Understanding, 14, 44
Legislation, 11, 41 meridian principle, 217
Legislative history, 11, 41 micronation, 273
legislative immunity, 377 Military government, 269
legislative jurisdiction, 217 Military occupation, 268
legislative supremacy, 357 ministerial act, 23
legislative veto, 24 ministerial directives, 17, 47
Legitimacy (dispute resolution), 305 ministerial memoranda, 47
legitimate expectation, 337 ministerial orders, 47
legitimate expectation doctrine, 362 ministerial responsibility, 212
legitimate expectation doctrine (legal certainity), misunderstanding(Ending treaty obligations), 67
396, 409 misuse of power test (legal certainity), 397, 409
legitimate expectation, principle (union law), Modern internal sovereignty, 237
403, 415 Modus Vivendi, 14, 44
lex arbitri, 322 Monetary diplomacy, 263
lex posterior, 39 monism, 36, 51
lex posterior derogat legi priori, 286 mootness, 118
liability for corrupt conduct, 377 Moral relativism, 156
Litigation, 314, 421 Moral universalism, 156
littoral zone, 248 moratorium, 210
local government, 117 Multiculturalism, 272
local government conflicts, 421 Multilateral Air Transport Agreement, 257
Local Government Institutions, 161 Multilateral Investment Guarantee Agency
Local ordinance, 46 (MIGA),, 97
locum, 137 Multilateral Trade Agreements, 322
Locus Standi (human rights enforcement), multilateral treaty, 58, 63
138 multilateralism, 75
locus standi (Causation), 354 Multinational corporations (MNCs), 77
locus standi (Injury), 354 Multiple citizenship, 111
pg. 440
multiple nationality, 111 Non-governmental organizations (NGOs),

Municipal charter, 118 77
mutual recognition, 286 non-initiation of force, 207
NAP, 207 non-interference, 286
nation, 106, 273 non-interference in internal affairs, 264
nation state, 108, 272 non-state actors, 423
national airspace, 242, 253 Non-state actors (NSA), 77
national commissions, 162 Nuclear diplomacy, 263
National Courts, 323 null treaty, 35, 50
national delimitation, 250 oath, 364
national human right institutions, 160 oath of alegience, 212
National Laws, 323 objective legal reasonableness test, 366
National security and Anti-terrorism obligation to act reasonably, 380
legislation, 156 obligation to fulfil, 160
nationality, 114 obligation to protect, 160
nationality law. See imigration law obligation to respect, 160
Nationality law, 110 Occupation, 241
Nation-states sovereignty, 240 odious debt, 285
natural justice, 339 Ombud, 312
natural justice principle, 362 ombudsman, 162, 325
Natural law theory (sovereignty), 233 Ombudsman, 312
natural prolongation principle, 218 Online dispute resolution, 301
Natural rights, 190 open fields doctrine, 205
naturalisation, 115 Open skies, 256
naturalization, 115 Operations of nature, 242
Naturalization., 114 opinio juris (international law), 31
Nature of human Rights, 136 opinio juris sive necessitatis, 30
navicert system, 222 opportunity to be heard, 339
necessary in a democratic society, 203 optional declaration, 60
necessity (international law), 288 Optional Protocol, 14, 44
negative clearance, 408 or fettering discretion, 380
negative human rights, 163 orders in council, 213
negotiation, 312 ordinance, 16, 46
Neritic zone, 249 ouster clause, 336
Neutral fact-finding, 312 overeignty vis-a-vis social contract, 230
New York Convention, 319 Overseas territories, 271
no certiorari clause, 336 pacta sunt servanda, 34, 49
non-aggression axiom,, 207 para-constitutional powers, 208
non-aggression pact, 74 paramountcy doctrine, 118
non-aggression principle, 207 Parents are citizens, 110
non-delegation, 338 Parliamentary Commissioner, 325
nondelegation doctrine, 23 parliamentary sovereignty, 121
non-discrimination (human rights), 183 Parliamentary sovereignty, 240, 258
non-discrimination principle, 397, 409 partial repeal, 24
Non-governmental actors, 150 Partial" citizenship, 113
Non-governmental organization, 150 participation in risk pools, 374
partnership principle, 407, 419
pg. 441
patent unreasonableness test, 387 principles of human rights, 143

patently unreasonable test, 387 principles of human rights (Rule of Law),
peaceful settlement of disputes, 389 144
penumbral rights, 203 principles of human rights
peremptory mandamus, 336 (Accountability):, 144
Permanent Court of International Justice, 99 principles of human rights (Both Rights
permanent international court of justice, 101 and Obligations), 144
Permanent Observer state, 84 principles of human rights (Indivisibility),
Permanent tribunals, 328 143
Perpetual sovereignty, 230 principles of human rights (Non-
personal contract liability, 371 Discrimination), 143
personal criminal liability, 372 principles of human rights (Participation),
personal disputes, 304 143
personal jurisdiction, 137 principles of human rights
personal legal liability of public officers, 368 (Transparency), 143
personal liability for independent acts, 373 principles of human rights (Universality),
personal liability in administrative law, 373 143
Policies on Human Rights, 162 principles of legality, 366
Policing Agencies, 161 principles of public life (Accountability):, 383
Political decentralization, 124 principles of public life (Honesty), 383
polycentricity, 387 principles of public life (Integrity):, 383
Polycentricity, 23 principles of public life (Leadership), 383
pooled sovereignty, 240 principles of public life (Objectivity), 383
popular sovereignty, 230 principles of public life (Openness), 383
port state jurisdiction, 216 principles of public life (Selflessness), 383
positive human rights, 163 principles of sovereignty, 121
possessory action (admiralty practice ), 226 principles of transnational state responsibility,
preamble (treaty), 57 290, 392
Precedents, 10, 40 prior notice of hearing, 358
Predictability (dispute resolution), 305 prior restraint doctrine, 200
Preparatory works, 11, 41 Private international law,, 28
prerogative orders, 212 privative clause, 353
prerogative writs, 387 privatization, 125
Prescription, 242 Privileges and immunities, 72
Presidential directives, 17, 47 prize court, 223
presidential executive orders, 17, 48 procedural impropriety, 351, 381
presumption of constitutionality, 127 procedural justice, 334
Preventive diplomacy, 262 Proces-Verbal, 15, 45
primacy principle (union law), 405, 417 proclamation, 18, 48, 209
principle in anisminic, 347 professional liability insurance, 374
Principle of accountability and Rule of Law, 183 progressive rights, 137
principle of maximum effectiveness, 35, 50 prohibiting order, 351
Principle of participation and Inclusion, 183 prohibition of generalized grievances, 355
principle of party autonomy, 319 Prohibition of Third-party standing, 354
principle of the continuity of urgent and Promulgation, 23
essential care, 133 proportional representation, 205
principles of constitutionalism, 121 proportionality, 337
pg. 442
proportionality (administrative law), 351, 364 Recodification, 22

proportionality (community law), 284 Recognition and enforcement
proportionality principle (union law), 402, 414 (International litigation), 318
proportionality test (community law), 285 reconciliation, 306
prosecution between government departments, referendum, 204
inter se, 372 Regional Conventions, 319
protecting powers, 267 Regional Economic Communities (RECs), 83
protecting state, 276 Regional human rights regimes, 149
protocol, 61 Regional integration, 82
Protocol as a supplementary treaty, 15, 45 Regional law, 69
Protocol of Signature, 14, 44 Regional organizations (ROs), 82
Protocol to amend, 15, 45 Regional protection and institutions, 159
protocols, 266 registration (High seas), 243
Protocols, 14, 44, 64 regulation, 16, 46, 47
provisional entry into force, 60 Relationship Between State and Government,
public advocate, 325 281
Public diplomacy, 262 Religious Groups, 77
public duty, 384 Remediation (enforcement of human
public employees, 371 rights), 139
public interest principle, 332, 369 remedies (administrative law), 351
public international law, 26 Renunciation, 113
Public international law, 28 reparation, 291, 394
public law (definition), 19 reparations, 297
public law (scope), 19 repeal, 24
public officers, 371 Repeal with re-enactment, 25
public servants, 371 Repeal without re-enactment, 25
public trust doctrine, 369 Repeals with savings, 25
qualified immunities, 377 Repeals without savings, 25
qualified immunity, 375 representation-reinforcing review, 104
quality(of entitelement or rights), 189 representative democracy, 205
quashing order, 351 reproductive rights, 154
quasi in rem, 120 republic, 257
Quasi-judicial international institutions, reservation, 61
329 Reservations (treaty), 63
quo warranto, 384 reserved country powers doctrine, 406, 418
Ratification, 54 reserved powers doctrine, 407, 418
ratification, acceptance, approval, 61 respect for human rights, 188
rational basis review, 360 restrictions on national jurisdiction and
rational basis test, 360 sovereignty, 242
Rationalists (sovereignty), 258 retorsion, 294
real likelihood test, 343 reus, 326
real risk’ test, 169 reverse incorporation, 206
Realists (sovereignty), 258 reverse onus clause, 357
reasonable suspicion test, 344 right of access, 226
Reasons for participation:, 73 right of access to the courts, 356
reasons should be given for decisions, 386 right to a fair hearing, 339, 344, 363
reception clause, 39, 54 Right to a fair trial, 152
pg. 443
right to development, 174 Service of process (International

right to due process, 133 litigation), 317
right to fly national flag on ships, 132 seven principles of public life, 383
right to healthcare, 133 Sexual orientation and gender identity,
Right to Internet access and Digital rights, 153
155 shall not be questioned clause, 336
Right to keep and bear arms, 153 Shared sovereignty, 240
right to legal representation, 341 Signatories and Parties, 15, 45
Right to life, 150 signature, 62
Right to Life, 135 simple signature (signature subject to
right to own, and operate a business, 133 ratification), 62
right to participation in development, 174 sincere cooperation principle (union law), 405,
right to self-determination, 171 417
Right to use land, 133 social contract theory, 230
right to vote, 133 Social security law, 20
Right to water, 154 soft law, 55
right to work, 171 Soft power, 263
rights as freedoms, 190 sources of international law, 28
Rights of the Child, 134 Sources of law, 10, 40
Rights over the continental shelf, 252 sources of union law, 69
Rights-compatibility (dispute resolution), sovereign equality, 288
305 sovereign equality of nations, 389
ripeness, 119 sovereign equality of states, 293
Rivers, 247 sovereign equality of states principle (union
Royal charter, 118 law), 399, 411
rule against bias, 342, 363 sovereign immunity, 367, 376
rule by decree, 209 sovereign state, 106
rule of exhaustion of local remedies, 423 Sovereignty, 229
rule of law, 123 sovereignty (international law), 239
rule-making, 23 sovereignty (law of the sea), 227
rump state, 275 Sovereignty and independence, 236
Salient features of ADR, 307 sovereignty and rule of law, 258
schatocol, 58 Special designations of airspace., 253
Scope of administrative law, 9 special interest test, 366
scope of public international law, 28 Specialization principle, 404, 416
second generational rights, 136 Specialized agencies, 90
secondary legislation, 16, 46 specialized agencies of the United Nations, 90
Secretary-General of the United Nations, 89 standing, 353
Security Council, 88 standing to challenge statutes, 355
Selective enforcement, 332 state, 105, 106
self determination, 173 State Extinction, 282
self-determination, 182 state liability doctrine, 425
Self-Executing Treaties, 64 state of emergency, 129, 207
self-regulation, 47 state of exception, 209
separation of powers, 127 state officers, 371
separation of state and church doctrine, 129 state practice, 279
State practice, 281
pg. 444
state recognition, 277 test of subjective good faith, 377

state responsibility, 295 tests of good faith for qualified immunity, 377
state sovereignty, 238 thalweg rule, 292
State vs. State Disputes, 302 The Afrikan Charter of Human & People Rights,
state’s duty to protect human rights, 183 194
states, 390 the bar, 326
Statutory law, 20 the bench, 326
statutory procedures, 381 The Bill of Rights, 193
Straits, 245 The Claim of Right, 193
strategic lawsuit against public participation The Declaration of the Rights of Man and of the
(SLAPP) or slapp suit, 356 Citizen, 194
strengths and weaknesses of IGOs, 73 The European Convention on Human Rights,
strict scrutiny, 359 194
subjectum, 137 The International Covenant on Civil and
Sublittoral zone, 249 Political Rights, 194
subordinate legislation, 16, 46 The International Covenant on Economic,
Subsidiarity, 126 Social and Cultural Rights, 194
Subsidiarity principle (union law), 404, 416 The Magna Carta, 193
subsidiarity test, 406, 418 third generation rights, 137
subsidiary legislation, 16, 46 third generational rights, 136
Suffrage, 133 three generations of human rights, 164
sunshine doctrine, 366 three principles of administrative law, 337
supra national law, 69 three theories of diplomatic immunity, 424
Supralittoral zone, 248 tobar doctrine, 275
Supra-national citizenship, 113 track II diplomacy, 262
Supranational law, 28 Traffic rights, 255
supranational union, 74 trans-boundary waters, 85, 244
supremacy of the Constitution, 130 transference of sovereignty, 230
supremacy principle (union law), 400, 413 Transit rights, 255
Suspension and termination (Ending treaty Transnational diaspora communities, 77
obligations), 66 transnational litigation, 316, 317
Tacit consent theory (sovereignty), 232 transparency (public administration), 369
tax protester, 199 Transparent (dispute resolution), 305
tax resisters, 200 travaux prepatoires, 275
taxpayer standing, 355 Treaties, 15, 45
Termination, 113 Treaties and declarations as sources of law, 11,
terra nullius, 264 41
Territorial integrity of States, 273 treaty, 34, 62
territorial jurisdiction, 137 Treaty bodies(human rights protection),
territorial sea, 250 148
Territorial sea, 251 treaty execution, 35, 49
territorial sovereignty, 238 treaty implementation. See treaty execution, See
territorial waters, 224 treaty execution
Territorial waters, 250 treaty interpretation, 35, 50
test for absolute immunity, 375 treaty registration, 36, 51
test of good faith (qualified immunity), 384 Trial considerations (International
test of objective good faith, 377 litigation), 318
pg. 445
tribunal, 325 United Nations system (human rights

two types of dispute resolution processes, protection), 146
306 United States Declaration of Independence,
Two types of disputes, 302 194
typology of obligations, 165 Universal Declaration of Human Rights,
Ultra vires treaties(Ending treaty obligations), 145
67 universal jurisdiction, 287
ultra vires treaty, 35, 50 Universal jurisdiction, 159
UN Creation, 86 Universal Postal Union, 96
UN financing, 84 universality and inalienability:, 182
UN offices, 87 unlawful sub-delegation, 347
UN Offices, 84 unlawfully delegating power, 380
UN official languages, 87 urgent care, 133
UN organs, 86 uti possidetis juris, 289, 391
UN Resolution, 101 Van Gend criteria’, 408
UN Secretariat, 89 variable geometry principle (union law), 404,
unacceptable risk test, 170 416
unalienable rights, 196 Vertical boundary, 253
Unasur Constitutive Treaty, 81 Views on sovereignty, 258
Uncontacted peoples, 270 Violent non-state actors, 77
Uncontrolled airspace, 253 Virginia Declaration of Rights, 193
union law, 69 visit and search, 222
Union law, 69 Voluntarism theory (sovereignty), 232
union law (sources), 54 voluntary arbitration, 311
Union of South American Nations, 80 voluntary isolation, 270
unitary executive theory, 208 warranty of authority" rule, 371
unitary government, 272 Washington or ICSID Convention, 320
unitary state, 272 wednesbury unreasonableness, 349
United Nations (UN), 84 westminster doctrine, 127
United Nations Charter, 145 westphalian sovereignty, 389
United Nations Economic and Social Council, Westphalian sovereignty, 229, 238
90 why constitutionalism?, 104
United Nations Educational, Scientific and Withdrawal (Ending treaty obligations), 65
Cultural Organization, 94 World Bank, 97
United Nations General Assembly, 87 World Bank Group, 96
United Nations General Assembly (human World Bank Group or WBG, 97
rights protection), 147 World Bank Institute, 97
United Nations General Assembly World Court, 99
observers, 84 World Food Programme, 97
United Nations Human Rights Council, 147 World Health Organization, 98
United Nations Industrial Development World Intellectual Property Organization,
Organization, 95 98
United Nations Secretariat, 89 World Meteorological Organization, 98
United Nations Security Council, 88 World Tourism Organization, 95
United Nations Security Council(human writ of mandamus, 335
rights protection), 147 writ of prohibition, 384
United Nations System, 87 york-antwerp rules, 214
pg. 446
zero aggression principle, 207 zone of interest test, 355
pg. 447

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Administrative Law Handbook (By Ojijo)

The people's good is the highest law.

Corporate Social Responsibility (CSR)

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¯ Business Transactions & Contracts Law

¯ Lawfirm Management Softwares (Saas and on-premise)

LawPronto (U) LLP

Other Training Manuals

(ISBN 978-9966-123-50-3) Business Transactions & Contracts Law Handbook

LawPronto (U) LLP

FINANCIAL L ITERACY B OOKS

PERSONAL BRANDING B OOKS

POLITICS AND RELIGION

Dispute Resolution in Local Government Law..................................................................................................421

ICDR Guidelines for Arbitrators Concerning Exchanges of Information...............................323

Definitions & Scope of Administrative law

SCOPE & SOURCES OF ADMINISTRATIVE LAW

definition of administrative law

LOCAL GOVERNMENT LAW

Sources of law local government law

the term "agreement" to bilateral or restricted multilateral treaties. It is employed

(c) A Protocol based on a Framework Treaty is an instrument with specific substantive

regulation, self-regulation, co-regulation, legal restrictions

presidential executive orders

PUBLIC LAW (DEFINITION AND CREATION)

public law (definition

While judicial procedure is premised on a bipolar opposition of parties, interests, and

PUBLIC INTERNATIONAL LAW

opinio juris et necessitatis.23 Treaties, also known as an (international) agreement,

scope of public international law

SOURCES OF INTERNATIONAL LAW

Sources of law definition

creating a "two-tier system". The Optional Protocol to the International Covenant on

treaty has to be domesticated through a municipal legislation, or statute, to make it

declaration (creditor-debor relationship)

provisional entry into force

or approval. Since a reservation purports to modify the legal obligations of a State, it

definitive signature (signature not subject to ratification)

No international rules exist as to when an international instrument should be entitled a

Contrary to peremptory norms(Ending treaty obligations)

REGIONAL INTERNATIONAL LAW OR COMMUNITY LAW OR UNION LAW

definition of union law

Public International Organisations /Intergovernmental Organisations

intergovernmental organization (or international governmental organization; IGO)

Immunities of the International Criminal Court), which are normally supplemented by

They hold state authority.

NON STATE ACTORS

Non-state actors (NSA)

1. Civil society in all its diversity, according to national characteristics;

Regional integration initiatives should fulfil at least eight important functions:

Regional Economic Communities (RECs)

¯ Arab Maghreb Union (UMA)

THE UNITED NATIONS

The International Seabed Authority (ISA) is an intergovernmental body based in Kingston,

Specialized agencies, specialized agencies of the United Nations

¯ International Maritime Organization

Food and Agriculture Organization

poverty in developing countries. It was established as an international financial

impacts, and is committed to promoting tourism as an instrument in achieving the

Nations Development Group. The current Secretary-General is Michel Jarraud. The

Programme, are financed by voluntary contributions from member governments,

international criminal court

Law of Government Institutions (Constitutional Law)

PUBLIC INSTITUTIONS, BUREAUCRACY