PUBLIC INTERNATIONAL LAW - L3112

Caroline Adoch, Godber Tumushabe, Dr. Bagenda.

Introductory Lecture – 8th February, 2022. (C. Adoch.)
Public international law will focus on the role of law that governs the relationship between states,
foreign policy and diplomacy. We will cover the major subjects of the law: the entities to whom the
law is addressed. We will consider the concept of statehood: recognition and succession. We will also
consider international relations and treaties.
Topic 1: Nature and the role of international law
Questions and themes to be explored:
a. What is international law?
Law can be defined as a system of rules which a community recognizes as regulating conduct of
members and may be enforced by imposition of penalties.
International law is the set of rules, norms and standards generally recognized as binding between
states. It provides a range of normative guidelines and standards across different spheres including
trade, war, navigation etc. It is a body of law that governs legal relations between sovereign states.
Jeremy Bentham first used the term “international law” in the 19 th Century – and has replaced the
terminology of “the law of nations.”
b. A brief history of the evolution of international law.
This explores the development of international law in four stages. Note that the development
of international law is very Eurocentric – growing largely from the development of western
political developments.
c. Is international law really law?
- Consider Skeptical Internationalism and visit the arguments: does international law meet
the constitutive elements of law according to legal positivism? Is it a code backed by
legal sanctions?
Readings:
 “Undeveloped nations and the development of international law” (1961) 15 International
Organization.
 D’Amato, A - “Is international law really law?”
 Sinhah - “The attitude of Afro-Asian States to the binding quality of international law” (1965)
14 ICLQ 121.
 Kleinfeld, J - “Skeptical Internationalism: a study of whether international law is really
law”**
Premise of the article: the author begins with the somewhat widespread idea (what he calls “the
intuition”) that international law is not actually law, but a manifestation of politics, moral
exhortation, lofty aspirations or sheer pretense.
“At the very heart of the Barrier case—of the Israeli/Palestinian conflict, in fact—is the clash
between the Palestinian claim to territory and the Israeli claim to security.”
This article’s approach to the question is twofold. First, it examines “the Barrier case”, one
involving balancing the principle of non-annexation during armed conflict and the inherent,
sovereign right to self-defense – in regard to Israel’s establishment of the Israeli/West Bank
barrier to the detriment of the Palestinian people. This case was decided both by the ICJ and the
High Court of Justice of Israel (our equivalent of the Supreme Court) – both tribunals applying
the same body of international law to the same arguments.
The situation being of an international character, there is authority in Article 49(6) of the Fourth
Geneva Convention – which prohibits the transfer of an occupying power’s own civilian
population into the territory it occupies – a rule implicit in the principle of non-annexation.
However, the Palestinian violence in the Second Intifada triggers Israel’s right of self-defense
under Article 51 of the UN Charter.
The case is concerned with two illegalities of settlement and terrorism.
The author attempts to determine whether it could have been decided in conformity with “the
minimal principles of legality” (and he argues that it was not – especially before the ICJ – even
though it could have been). The second limb of the approach weighs international law against four
attributes – which the author refers to as the “constitutive elements of the experience of law as
law”. Each of these elements is a cluster of ideas – an abstraction, each of which contribute to the
eventual conclusion whether international law is really law.
The idea under investigation is whether under the lens of these four components, international law
measures up to the standard of law as law. These are:
- Efficacy: the law’s capacity to give rise to events in the world – to make its imperatives
actual. It relates to the enforceability of law and its special relationship to consequences
in the world. It has two components, power and actuality, in that order. Usually, the
source of law’s power is a government – which binds the citizen through the power of
sanction.
There is a view that international law is not law for because there is no power in the
world which can consistently make states obey – and a form of law without power to
make its imperatives actual is not really law – Austin.
The Barrier case, however, negates this view in the sense that while the ICJ’s ruling
was denounced and ignored, the High Court of Israel’s application of the same law
was complied with by the Israeli government – at great expense and risk in the middle
of the war. The author, after a discussion of human rights compliance records of
democratic and non-democratic states, to come to the conclusion that “International
obligations are effectively enforced when domestic courts regard them as law in a
rule of law state.”
Consequently, international law can and does have the power to make its
imperatives actual “in the right circumstances”.
Note that the sense of law as law does not end with enforcement or the threat of
sanction – or this would make any thug’s or tyrant’s orders law in the fullest sense.
There is a second aspect to it and I discuss it below.
- Normativity: this is a sense of obligation – the quality that makes law such to be
deserving of being followed; something that subjects ought to adhere to as apart from one
that they have to adhere to.
a. Legitimate authority: the quality that enables law to obligate (an aspect of
normativity)
The author makes the point that the legal principles in the Barrier case: non-
annexation, national self-defense and discrimination between combatants and non-
combatants are principles of customary international law.
He recounts a series of positivist authorities that question the origins of this particular
system of law as in fact mere practice followed from a sense of legal obligation: it is a
“transcendental body of law outside of any particular state”, “unattached to any
particular sovereign authority” and applied “in the absence of statutory or
constitutional authority”, inter alia.
In rebuttal, he uses the principle of non-annexation – an example of customary
international law – which is neither ungrounded nor uncodified. “It is rather
 polycodified and multiply grounded -and hence difficult to derive from any one
definitive source of authority…” The same applies to the right to national self-
defense and the humanitarian law principle of discrimination.
In short, none of the major principles in the Barrier case are grounded in such a way
as would satisfy a strict positivist, but none of them seem to lack legal authority or
legitimacy.
Regarding the institutional setting, the author admits to limitations affecting the
current structures of international tribunals, such as the highly politicized process of
selecting judges for the ICJ; but the fact remains that the international system has
institutions that can serve as trustworthy caretakers of the law.
b. Moral rationality: another quality that enables law to obligate (another aspect of
normativity)
The morality of law is hardly directly mentioned. International law’s good sense in
some instances may be ambiguous – but it is not too idealistic or demanding of its
subjects as to render it a mere collection of lofty ideals without meaningful practical
application.
In some instances, the “moral” thing to do may result into catastrophic consequences:
for instance, in 1999, if the NATO had refrained from carrying out a series of
admittedly illegal bombings in Serbia and Kosovo – there was a looming genocide.
Legal experts consider this to have been the right thing to do in the circumstances.
“International law…is not a suicide pact. Though its project is a moral one,
sovereignty, in the final analysis, is a moral project too—not when exploited as the
claim to be free from all duty, but as the right of a people to do what it must to live,
and the duty of its leaders to do what they must for their people.”
- Objectivity: the law’s capacity to maintain a character that is distinct from politics or
partisanship.
Justice Richard Posner of the United States explains the difference between being
political and partisan: the latter is to be “emotionally and intellectually tied to a
particular political party,” such that one’s factional loyalties determine the outcome
of cases; the former is merely to be engaged (perhaps inevitably) in the business of
resolving cases according to as open-ended and discretionary a mix of considerations,
moral, prudential, and otherwise, as also determines legislative choices.”
A non-political court must be objective – and this does not mean it must be blind or
strictly mathematical: “…the objectivity of a non-political court is the soft objectivity
of a legal claim that any reasonable lawyer would think best, and of a judicial
impersonality that aspires to make judges ‘just the medium through which law
speaks…the oracles of the law, in Blackstone’s phrase.’
After an assessment of the faults of the courts in the Barrier case, the author
completes his analysis:
“The conclusion, then, is that the courts that contended with the Barrier case were
political, but that international law itself need not be. The problem is not in the
doctrine but in the application function. In a word, it is a problem of personnel. And
on a personal note, that has been the conclusion of my experience of domestic law as
well—a conclusion I never anticipated, never dreamed could be true. It is the judges
that fail us.”
The author makes finally makes the case that there is “nothing intrinsic to international law,
which has deprived it of the character of law”, but the courts and other institutions of the
international legal system have fallen short of the law’s promise. “…but the failure is with the
courts charged with interpreting and applying the law, not with the law itself.”
He then makes the case for acknowledging the goals and doctrines of international law, while
being “rebuttably skeptical” of the courts and other institutions with the mandate to interpret the
content of international law and implementing it.
Analysis of the Barrier case:
He then proceeds to use the “Barrier case” as a case study to rebut the general argument that
international law lacks sufficient specificity – to demonstrate that it nuance is possible, as is
building reflections of a general nature out of facts and events.
Facts: During the Second Intifada (Palestinian uprising against Israel), the latter’s government
built a wall within the Palestinian territory of the West Bank – to separate the two – which placed
portions of the West Bank on the Israeli side of the line.
Palestinian villages in the area sued Israel in the Israeli High Court of Justice and at the same
time, Palestinian representatives and allies brought a case before the ICJ. A fundamental
claim therein was that building the barrier past the diplomatically established “Green Line” –
an armistice line – constituted an illegal annexation of Palestinian land. Furthermore, they
argued that the Barrier infringed various rights enshrined in international humanitarian and
human rights law.
Israel contended that the barrier was a security measure – a legal and defensive measure to
Palestinian terrorism.
Decisions: both courts decided the matter in 2004.
The ICJ ruling (Advisory Opinion, 2004, ICJ 136 [July 9]) held that Israel had annexed
Palestinian land by building the Barrier past the green line and it violated Palestinian human and
humanitarian lines.
The author criticizes the decision as one that “violated basic principles of legality” and was
not enforceable, obligatory nor objective. Regional bloc politics within the UN,
ideological/developmental rifts as well as diplomatic alliances placed a heavy hand on the
scales of justice: Israel had been effectively indicted within the Security Council and the
General Assembly – which may have had dire consequences but for the United States’ veto
power and the non-binding, advisory nature of the ICJ’s decision. The decision itself, argues
the author, was vitiated by patent bias and a willful disregard/abuse of the fact-finding process
and Israel’s pleadings – as well as selective application of the law to the case, in order to
support a (presumably) predetermined outcome. In this case, the facts were not a subject of
deliberation – the ICJ simply adopted the assertions of Palestinian representatives regarding
their compatriots’ suffering, without an evidentiary hearing or a documentary process to test
the facts. It omitted to mention of Palestinian violence which rendered the building of the
barrier necessary. There was an obvious minimization of Israel’s factual claims – their
minimization and concealment was obvious. Consequently, these were not legal facts –
unadjudicated but nonetheless delivered.
Note: it is not a question of whether partisan forces influence litigation in international law: it
is rather a question of whether those entrusted with the law yield to them.
Non-annexation:
Notwithstanding the ICJ’s failure, the manner in which it handled the question of non-
annexation (while erroneous) conformed to the principle of legality and ought to qualify as
law properly called so. Non-annexation refers to the customary rule of inadmissibility of
acquisition of territory by war: it is illegal to annex territory (taking territory in perpetuity or
under a claim of right, to take sovereignty); taking territory by force in and of itself is not
prohibited. While fighting a legal war e.g., in self-defense, taking the enemy’s territory and to
hold it until the aggressor yields is “very legal and a very important military goal”. Court held
that the Israeli settlements in the Occupied Palestinian Territory were in breach of
international law and the barrier was an illegal annexation. This particular finding was
reasoned and the sources of law legitimate – the court’s work does not have to be perfect, but
must have an authentically legal character: error and bad judgment do not cost a court’s
opinion the character of law.
 The Human Rights question:
In this respect, the flaw of the decision primarily rested on the fact that the ICJ did not pay
attention to how security considerations might counterbalance the Palestinian human rights
injured in the course of building the Barrier. It held that it was “not convinced” that the
destructions carried out were necessary for military operations – but did not give reasons why.
The author points out Article 51 of the UN Charter, which preserves the inherent right to self-
defence in case an armed attack occurs against a Member of the UN – which was Israel’s
position from a doctrinal standpoint. The ICJ reasoned that the right is limited to the case of
an armed attack by one State against another State , which Israel did not claim – which
rendered Article 51 of “…no relevance in this case.” This is problematic because the
provision does not speak of the “armed attack of a state” and the concept advanced by the ICJ
would strip a state of its integrity were it attacked either by a large private army or a non-state
military actor such as a terrorist group. To assert that Palestine fell short of a State implicitly
negates the assertion that Palestine was occupied and annexed by Israel, since a State can
neither occupy nor annex itself. Furthermore, if Palestine is a State for purposes of
annexation, then it is a state for purposes of armed attack. There is more evidence in bilateral
commitment to a “two state solution” and the difference in national identity between the two
sides.
The working assumption is that Palestine is a quasi-state. This lends credence to the position
of the author is that the Israeli/Palestinian situation is international in nature – if it was not,
international law would not apply, save for aspects of it such as human rights law.
Furthermore, Security Council Resolutions 1368 and 1373 – binding law upon the ICJ
pursuant to Chapter 7 of the UN Charter – were passed by the Council in its legislative
capacity, recognize that the actions of nonstate terrorist organizations trigger the inherent
right of individual or collective self-defence as recognized by the Charter under Article 51.
The ICJ held to the contrary.
The author urges: “International law no less than domestic law must outgrow the kind of
wilful formalism that leads a court to insist that the right of self-defence just is state-to-state,
forever, no matter what the world is doing in the meantime.”
The Israeli High Court of Justice, on the other hand, held that the Barrier could be legally built past
the Green line as it was intended to protect Israeli security rather than to annex Palestinian land:
however, the particular route chosen burdened Palestinians to an unjustified degree – violating the
principle of proportionality. It ordered the Israeli military to re-route the barrier so that it did not
heavily affect Palestinian life.
This decision (Beit Sourik, IsrSC 58(5)) was enforceable and obligatory although the
reasoning behind it was judicially subjective – so much as to render its legal character
questionable.
The most contentious point in this case was that Israel held the area in belligerent occupation.
Israel’s Chief Justice forwarded the Proportionality Test to balance the considerations of
humanitarian law: security and liberty. He held that the Barrier was a rational means for
realizing Israel’s security objective, but it was disproportionate – and the marginal cost of
moving the Barrier away from Palestinian settlements was fairly small while the benefit of
doing so was great.
The author makes the case that the tests applied were insufficient for identifying an annexation: and
proposed the test of military necessity – to harmonize the application of non-annexation with the
general law of combat. This test is criticized in the sense that the necessities of war override and
render inoperative the ordinary laws and customs of war – and military expediency may be a “trump
card and general permission.” The author defends it, arguing that there are standards in place to
ensure achievement of legitimate military goals without cruelty – and on the facts of the case, it could
have authorized the barrier without authorizing the settlements.
“The rule, then, should be that where a state is lawfully engaged in international armed conflict and
has seized or made use of enemy territory while making no claim of sovereign right to that territory,
the seizure or use is non-annexationist to the extent objectively reasonable as a matter of military
necessity. Or, to restate that rule with regard to the case at hand, building the Barrier was no
annexation to the extent the Barrier was amenable at all points along its route to an objectively
reasonable military justification.”
The rule is self-limiting: territorial incursions based on military necessity become illegal when the
necessity fades.
In conclusion, the gap in international law governing annexation does not undermine the legal
character of the Barrier case – it does not cause legal anarchy, but calls for doctrinal
development.
 Beaulac, S - “A concept of international law in the jurisprudence of HLA Hart.”
Cases – illustrating dispute resolution and the different forms of enforcement of international
law
- The Corfu Channel case (Great Britain v Albania) [1949] ICJ Rep. 6 – court decision
- The Naullila Incident (Portugal v Germany) (1928) RIAA – a report of the International
Arbitral Awards - arbitration
This started in 1914 during the world war. Portugal was a neutral state while Germany was an
aggressor. There was a mistranslation, which resulted into a shooting incident between the armed
forces of Germany and Portugal. Germany sought reprisal.
Issue: Whether Portugal had a right to seek compensation for direct effects and indirect effects of
the incident.
Law applicable: Article 38 of the ICJ statute.
This case establishes the requirements for a lawful (forceful) reprisal:
1. A prior act contrary to international law.
2. An unsatisfied demand for reparation to the wrongdoer.
3. The proportionality of the reprisal.
4.
- The Caroline Incident (1837) (US v Britain) – diplomatic resolution

Next Lectures: Tuesday 7:30 – 9:30 and Thursday 3:00 – 5:00.

Lecture 2, Feb 10, 2022.
Defining international law:
International law presumes to apply to states – it is the notion that independent, sovereign states are
the primary subjects of this system of law. At its most basic, it presumes that international actors, and
the legal framework at an international level is comprised of states, although this is not a
comprehensive view.
International law now increasingly applies to non-state actors and individuals in some instances. It
comprises of norms – and these are different from state practice. Norms are general principles that are
generally accepted by states.
(Research about Jeremy Bentham)
Area of focus: A brief history of the development of the emergence of international law
International law evolved basing on historical events over about five periods:
i. The era of ancient philosophers
It was mapped during the renaissance, although it is dates to periods far back as 2100 BC – where
there were treaties between ancient kingdoms and empires. It further evolved basing on Greek
political philosophers – who wrote about the affairs of states. The Romans adopted the concept of
natural law and international law at that time was heavily influenced by religion.
Eventually, a group of nations-states emerged and with them, different systems of law that
governed their affairs. The Spanish Golden age brought new developments and writings in
international law, such as the writings of Suarez – regarding the treatment of indigenous people as
sovereign states etc. Hugo Grotius influenced the development of the field extensively and his
book, the law of war and peace extensively emphasizes the freedom of … which facilitated
exploration and colonization across the world.
Before the concept of nation-states, there used to be fiefdoms, with a Lord ruling over them.
The first principles that emerged related with trade and the sea: communities that self-
identified formed rules of engagement…and these rules extended to the conduct of war.
The writings after Grotius focus on the law of peace and conduct of interstate relations. Positivism
later became a dominant school of thought, overshadowing natural law
ii. The peace of Westphalia (1648)
This was a series of peace treaties. There was a flourishing of diplomatic relations, and this ended
a 30-year religious war between the Netherlands and Spain…and there was a new balance of
power. The framework for modern international law begins with this peace at this moment in
history: the principles of diplomacy and state sovereignty.
What is state sovereignty? It is the ultimate authority over decision making over individual living
in a given territory. Essentially, it removed the aspect of religion out of international relations.
Until this moment, the papacy had a lot of power regarding relations between nations. Prior to
that, when kingdoms fought with religious undertones. It was assumed that an adversary was
fighting a holy war and the other side fought on the side of evil – the war could not be ended until
a party won or another lost. This was the beginning of the concept of diplomacy in which parties
compromise, rather than fight until there is a victor taking all the spoils of war.
A number of European territories were under the Holy Roman Empire, and a number of Princes
owed allegiance thereto. After 1648, the powers of the Emperor were greatly reduced and the
territories formerly under his control became sovereign.
The beginnings of colonialism, the birth of the United States, the centralization of power and the
industrial revolutions are important developments between this period and the next significant one
– each bearing some significance to global events: the Hague Regulations of War were drafted
too.
iii. The Post – WW1 Era (1918 – )
There was European superiority, where dominant nations in the world dominated the world
throughout the world through colonialism and the domination of Christianity. The interwar period
brought with it the Russian revolution – which overthrew the Czarist monarchy. American
influence grew, as the Soviet Union emerged, shifting the balance of European dominance in
global affairs.
The establishment of the League of Nations in 1920 – and its Covenant, judicial body (Permanent
Court of International Justice) – was important in the sense that the prevention of war became a
global narrative. It set up the first framework of international dispute resolution before an
impartial tribunal whose decisions were enforceable.
There was a general consensus that diplomatic means should prevail over use of force – and there
was a paradigm shift from the classical bilateralism to multilateralism.
This order of things ended with the outbreak of WW2 in 1939 – owing to a number of loopholes
in the organization of the League of Nations. This seems to be a failure of diplomacy, and left
millions of people dead in the wake of an industrial war – fought at such a large scale owing to
the ability to draw forces from colonies of world powers.
iv. The Post – WW2 era (1945 – )
The United Nations was formed in 1945 in San Francisco with the aim of replacing the League of
Nations: an intergovernmental organization formed with the clear consensus that the use of force
ought to be prohibited. It has now 193 states and 2 observer states. It has the ICJ as a judicial
body, set up under Article 92 of the UN Charter – which is based on the statute of the PCIJ
formerly set up for the League of Nations.
The Preamble of the UN Charter gives one the background for the development of the United
Nations. There was a political divide between “big” nations and “small” nations – which
necessitated an affirmation of principles of equality, human rights, respect of treaties,
maintenance of international peace and security and other ideals which create a context within
which international law should operate.
Article 1 of the UN Charter sets out the purpose of the United Nations: one of the purposes under
Article 1(1) reiterates the maintenance of international law: to peacefully resolve issues in
conformity with principles of justice and international law.
The UN Charter sets up a series of mechanisms for the resolution and settlement of disputes-
Chapter 6 of the UN Charter.
Reading assignment: The UN Charter.
v. The Post-Cold War Era (1947 – )
The cold war was a period of strong geopolitical tension between the United States and the USSR.
The ideological rift between capitalism and communism polarized states into ideological camps,
left at a stalemate with the looming (reciprocal) threat of nuclear war. With the decolonization
movement, the number of member states to the UN increased. It is important to note that there
was a bloc of non-aligned states, while the US and the USSR were courting the third world for
allies to further their interests at an international level. There were many new international
organizations emerging from the Western world such as the Council of Europe, the European
Coal and Steel Community (predecessor of the EU) etc. In the late 1980s, there was political
instability in Central and Eastern Europe, following the breakup of the Soviet Union – which
ended the cold war (official in 1990). The US being a lone superpower for a while flouted the
principles of international law in many different regions.
The United Nations as established has seen the growth of our present-day international law in
terms of its spheres of regulation.
Currently, international law includes many actors including states, international organizations,
multinational corporations and individuals. There is debate among scholars as to which of the
subjects of international law merit a voice on the international level.
Currently, there is a trend of regionalization: finding regional solutions to regional problems and
the growing specialization of international law to address issues such as human rights,
environmental degradation, cybersecurity issues, etc.
Lecture 3 – February 15th, 2022.
 Is international really law?
Reading assignment: Law is the command of the Sovereign: Hart Reconsidered.
States regulate their conduct in accordance with international law.
Characterizing a law (in relation to whether international law is really law)
There are four constituent elements of law
1. Efficacy: this means that a law must be enforceable.
2. It should have the capacity to obligate on grounds of legitimate authority
3. It should also have the capacity to obligate on grounds of moral rationality (the moral
imperative of law). That law is obeyed because we believe that we are bound to obey it.
4. Objectivity: the law should be objective, impersonal and devoid of politics. Article 2 of the
UN Charter embodies the principle of equality.
Next Lecture: Sourcees of Intermational Law
- Article 38 of the ICJ statute
- VCLT
Lecture 4: SOURCES OF INTERNATIONAL LAW
The process of creation of international law.
Article 38(1) of the ICJ statute spells out the sources of international law: “The Court, whose function
is to decide in accordance with international law such disputes as are submitted to it, shall apply: a.
international conventions, whether general or particular, establishing rules expressly recognized by
the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the
general principles of law recognized by civilized nations; d. subject to the provisions of Article 59,
judicial decisions and the teachings of the most highly qualified publicists of the various nations, as
subsidiary means for the determination of rules of law.”
Next lecture: dissecting the sources of international law.
Lecture 5 – 22nd February, 2022.
Addressing the nature of a treaty (as distinguished from other contractual agreements); elements of
custom (state practice and opinio juris); relationship between treaty rules and customary rules; jus
cogens norms and erga omnes obligations; and the hierarchy between sources (e.g. treaties and UN
Charter).
International Conventions/Treaties
International Customary Law
These are obligations that states have that arise from state practices. General principles arise from
consistent practice of states over a period of time, believing that they are legally bound to do so.
The components are state practice and opinion juris
The test is the extent to which a custom is accepted is practiced or
A practice may arise out of general practice or bilateral practice; we consider the number of adherent
states, the extent of its acceptance and domestic judicial decisions. There is need for the belief that
states are bound by practice – opinion juris
Case law
 - North Sea Continental Shelf cases (Denmark/Netherlands v. Federal Republic of
Germany)** [1969] ICJ Rep. 3: this case lays out the three tests for customary law: i)
generality ii) the time element and iii) opinio juris (an opinion of law or necessity – a
subjective obligation)
- Case concerning Gabcikovo-Nagymaros Project (Hungary v Slovakia) [1998] ICJ Rep
The Gabcikovo-Nagymaros project1 concerned a Treaty signed on 16 September, 1977
between the Republic of Hungary and Czechoslovakia, where the contracting parties agreed
to construct and operate a system of locks as a “joint investment” for production of
hydroelectricity. This was ‘an integrated joint project with the two contracting parties on an
equal footing in respect of the financing, construction and operation of the works.’ The
Republic of Hungary (owing to internal political pressure) suspended and subsequently
abandoned its obligations under this treaty. In response to this, the Czechoslovak Federal
Republic (unilaterally) dammed up the Danube River as a ‘provisional solution’, resulting
into ‘consequences on water and navigation course – in 1992.’ In 1993, Slovakia became an
independent state.
Hungary denied that the treaty of 1977 was ever in force between the two parties and
contended that the Slovak Republic was internationally responsible for the damage and loss
suffered by its nationals as a result of the ‘provisional solution’ and claimed reparations. It
also submitted that the Slovak Republic was under an obligation to return the Danube River to
its course, to restore it to its prior situation and provide appropriate guarantees against the
repetition of the damage and loss suffered by the Republic of Hungary and its nationals.
Slovakia contended that the treaty of 1977 concerning the construction and operation of the
Gabcikovo/Nagymaros System of Locks was a treaty in force – to which it was a successor –
and was so from the date of its conclusion; and the notification of termination by Hungary in
1992 was without legal effect. The State further contended that Hungary was not entitled to
suspend and abandon the works on the project; that the ‘provisional solution’ was lawful and
Hungary was to cease all conduct impeding full and bona fide implementation of the 1977
treaty and fulfill its obligations as well as pay full compensation for loss and damage caused
to the Slovak Republic.
In deciding the matter, the ICJ observed that: “A determination of whether a convention is or
is not in force, and whether it has or has not been properly suspended or denounced, is to be
made pursuant to the law of treaties. On the other hand, an evaluation of the extent to which
the suspension or denunciation of a convention, seen as incompatible with the law of treaties,
involves the responsibility of the State which proceeded to it, is to be made under the law of
State responsibility.”2
The VCLT, the ICJ held, confines itself to defining – in a limitative manner – the conditions
in which a treaty may lawfully be denounced or suspended; while the effects of such
denunciation or suspension seen as not meeting those conditions are expressly excluded from
the scope of the Convention by operation of Article 73. When a state has committed an
internationally wrongful act, its international responsibility is likely to be involved whatever
the nature of the obligation it has failed to respect.3
The ICJ goes ahead to analyze the concept of State Necessity (under Article 33 of the Draft
Articles on the International Responsibility of States 4) – which Hungary invoked to justify its
1
Case concerning Gabcikovo-Nagymaros Project (Hungary v Slovakia) [1998] ICJ Rep.
2
Para 47
3
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, Advisory Opinion, 1. C. J.
Reports 1950, p. 228;
4
Yearbook of the International Law Commission, 1980, Vol. II, Part 2, p. 34.)
 conduct. It is a ground recognized by customary international law for precluding the
wrongfulness of an act not in conformity with an international obligation. Such ground
for precluding wrongfulness can only be accepted on an exceptional basis.5
By invoking such this doctrine, a party places itself outside the law of State
responsibility – implying that in absence of such a circumstance/state of necessity 6 – its
conduct would have been unlawful. The doctrine only permits the affirmation that the
party invoking it does not incur international responsibility by acting as it did. The state
of necessity can only be invoked under certain strictly defined conditions which must be
cumulatively satisfied; and the State concerned is not the sole judge of whether those
conditions have been met.7
The basic conditions are:
- The act must have been occasioned by an "essential interest" of the State which
is the author of the act conflicting with one of its international obligations;
- that interest must have been threatened by a "grave and imminent peril";
- the act being challenged must have been the "only means" of safeguarding that
interest;
- that act must not have "seriously impair[ed] an essential interest" of the State
towards which the obligation existed;
- and the State which is the author of that act must not have "contributed to the
occurrence of the state of necessity".
“Those conditions reflect customary international law”
Court noted that an essential interest cannot be reduced to mean a matter of the “existence of
the State” – the question is to he judged in light of the particular case. Safeguarding
ecological balance has come to be considered an ‘essential interest’ of all States. 8 In the
instant case, whereas there were uncertainties claimed by Hungary about the ecological
impact of the project – they were not enough to establish the objective existence of a “peril”
in the sense of a component element of a state of necessity. “Peril” evokes the idea of “risk”;
a mere apprehension of possible peril could not suffice in that respect. Such peril has to be
“grave” and “imminent” – and imminence goes beyond the concept of possibility.
The obligations of Hungary under the 1977 Treaty would not have resulted into a situation
“summum jus summa injuria”9 Even if there was a state of necessity, Hungary would not
have been permitted to rely upon it to justify its failure to comply with its treaty obligations –
as it had helped to bring it about.

5
"in order to show, by this formal means also, that the case of invocation of a state of necessity as a
justification must be considered as really constituting an exception - and one even more rarely admissible than
is the case with the
6
"the situation of a State whose sole means of safeguarding an essential interest threatened by a grave and
imminent peril is to adopt conduct not in conformity with what is required of it by an international obligation
to another State.
7
Para 52
8
Yearbook of the International Law Commission, 1980, Vol. II, Part 2, p. 39, para 14); "the environment is not
an abstraction but represents the living space, the quality of life and the very health of human beings,
including generations unborn. The existence of the general obligation of States to ensure that activities within
their jurisdiction and control respect the environment of other States or of areas beyond national control is
now part of the corpus of international law relating to the environment." (Legality of the Threat or Use of
Nuclear Weapons, Advisory Opinion, I. C. J. Reports 1996, pp. 241 -242, para. 29.)
9
(Yearbook of the International Law Commission, 1980, Vol. II, Part 2, p. 49, para. 31).
 Regarding the legality of the ‘provisional solution’, Slovakia relied on what it called “the
principle of proximate application” enunciated by Sir Hersch Lauterpacht in Admissibility of
Hearings of Petitioners by the Committee on South West Africa:10 “"lt is a sound principle of
law that whenever a legal instrument of continuing validity cannot be applied literally owing
to the conduct of one of the parties, it must, without allowing that party to take advantage of
its own conduct, be applied in a way approximating most closely to its primary object. To do
that is to interpret and to give effect to the instrument - not to change it."
Court held that the provisional solution could not be carried out by unilateral action and the
‘solution’ did not effect the 1977 treaty, but violated certain of its express provisions and in so
doing, Slovakia committed an internationally wrongful act.
This case also explored Article 61 & 62 of the VCLT – in determining the legal effects of the
suspension and abandonment by Hungary of its obligations under the 1977 Treaty: it had also
relied on the principle of impossibility of performance in Article 61 – which requires the
"permanent disappearance or destruction of an object indispensable for the execution" of the
treaty to justify the termination of a treaty on grounds of impossibility of performance.” Court
held that Article 61(2) of the VCLT expressly provides that impossibility of performance may
not be invoked for the termination of a treaty by a party to that treaty when it results from that
party's own breach of an obligation flowing from that treaty.
"Article 62 of the Vienna Convention on the Law of Treaties, . . . may in many respects be
considered as a codification of existing customary law on the subject of the termination of a
treaty relationship on account of change of circumstances"11
The ICJ held that new developments in the circumstances were not unforeseen, and a
fundamental change of circumstances must have been unforeseen; the existence of the
circumstances at the time of the Treaty's conclusion must have constituted an essential basis
of the consent of the parties to be bound by the Treaty. The negative and conditional wording
of Article 62 of the Vienna Convention on the Law of Treaties is a clear indication moreover
that the stability of treaty relations requires that the plea of fundamental change of
circumstances be applied only in exceptional cases.
The notice of termination by Hungary did not have the legal effect of terminating the 1977
Treaty.
Hungary had contended that “there is no rule of international law which provides for
automatic succession to bilateral treaties on the disappearance of a party” and such a treaty
will not survive unless another State succeeds to it by express agreement between that State
and the remaining party. It had never agreed to accept Slovakia as successor to the 1977
Treaty. It did not recognize the validity of Article 34 of the VCLT – which provides for a rule
of automatic succession based on the principle of continuity; the concept of automatic
succession contained in that Article was not and is not a statement of general international
law.
Slovakia contended, relying on the general rule of continuity, which applies in the case of
“dissolution” – relying on Article 34; and secondly, that the treaty attaches to the territory,
within the meaning of Article 12 of the VCLT containing provisions relating to a boundary –
the principle of ipso jure continuity of treaties of a territorial or localized character. Slovakia
maintained that State practice in cases of dissolution tends to support continuity as the rule to
be followed with regard to bilateral treaties.

10
I.C.J. Reports 1956
11
Fislzrries Jurisdiction case, I. C. J. Reports 1973, p. 63, para. 36
 “Court considers that Article 12 reflects a rule of customary international law.” The ILC
identified in the Draft Articles on Succession of States in respect of Treaties that “treaties of a
territorial character” as having been regarded both in traditional doctrine and in modern
opinion as unaffected by a succession of States. 12 Moreover, the Commission indicated that
"treaties concerning water rights or navigation on rivers are commonly regarded as candidates
for inclusion in the category of territorial treaties" (ibid., p. 33, para. 26). This formulation
was devised to take account of the fact that in many cases, treaties which had established
boundaries or territorial regimes were no longer in force, and those that remained in force
would nonetheless bind a successor State – and for that matter the Treaty became binding on
Slovakia on attaining independence in 1993.
- Anglo-Norwegian Fisheries case (United Kingdom v. Norway) [1951] ICJ Rep.
Considering that international law recognizes state sovereignty, it is possible for a state to object and
not recognize the validity or existence of a custom and refuse to be bound by a custom. Consent to
custom may be tacit or express. When consent is tacit, a state – by its conduct – becomes bound by a
practice over a period of time.
A state may become a persistent objector or a subsequent objector (the latter is a rare occasion, almost
theoretical).
Case law demonstrating when a state objects to be bound by a certain customary law:
- see the Anglo-Norwegian fisheries case: Norway attempted to establish itself as a
persistent objector to the 10-mile rule;
- also see the Asylum case [Colombia v Peru] [1950] ICJ Rep 266).
- North Sea Continental Shelf cases (Denmark/Netherlands v. Federal Republic of
Germany) [1969] ICJ Rep. 3
Reading: Akehurst, M., ‘Custom as a Source of International Law’ (1974-5) 47 BYIL 1**
Presentation by B. Ankunda.
DEFINITION: WHAT IS A CUSTOM?
• Article 38 of the International Court of Justice statute refers to ‘international custom, as
evidence of a general practice accepted as law’.
• Although the terms are sometimes used interchangeably, ‘custom’ and ‘usage’ have different
meanings. A usage is a general practice which does not reflect a legal obligation: ceremonial salutes at
sea and the practice of granting certain parking privileges to diplomatic vehicles.
• According to the ICJ in the Nicaragua case (The Republic Of Nicaragua v The United States
Of America), a custom is constituted by two elements, the objective one of ‘a general practice’, and
the subjective one ‘accepted as law’, the so-called opinio iuris. This definition is repeated in the
Continental Shelf (Libya v. Malta) case, where the Court stated that the substance of customary
international law must be ‘looked for primarily in the actual practice and opinio juris of States’.
• So, a custom is a general practice that has been accepted by law.
ELEMENTS: WHAT MAKES A CUSTOM?
(i) Generality of practice
Complete uniformity of practice is not required, but substantial uniformity is, and for this reason in
Anglo-Norwegian Fisheries the Court refused to accept the existence of a 10-mile rule for the closing
line of bays.
12
Official Records of the United Nations Conference on the Succession of States in respect of Treaties, Vol. III,
doc. A/CONF.80/16/Add.2, p. 27, para. 2
It was noted in North Sea Continental Shelf that it is of paramount importance that the states whose
interests are affected should have practised the custom.
(ii) Duration
Provided the consistency and generality of a practice are established, the formation of a customary
rule requires no particular duration. A long practice is not necessary, an immemorial one even less so.
In the North Sea Continental Shelf Case, the court stated that a rule can become a custom, no matter
the duration in which it has been practised. However, it added that
“an indispensable requirement would be that within the period in question, short though it might be,
State practice…should have been both extensive and virtually uniform in the sense of the provision
invoked.”
(iii) Accepted as Law
The general practice must be accepted as law. This is a subjective element for which court has a high
standard.
According to Brownlie’s Principles of International Law, the International Court will often infer the
existence of opinio iuris of a general practice from scholarly consensus or from its own or other
tribunals’ previous determinations.
In Nicaragua, the Court expressly referred to North Sea Continental Shelf:
“In considering the instances of the conduct…the Court has to emphasize that, as was observed in the
North Sea Continental Shelf cases, for a new customary rule to be formed, not only must the acts
concerned ‘amount to a settled practice’, but they must be accompanied by the opinio juris sive
necessitatis. Either the States taking such action or other States in a position to react to it, must have
behaved so that their conduct is ‘evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it.”
RELATIVITY: DO CUSTOMS REALLY APPLY UNIVERSALLY?
• Because international law is based on the underlying principles of consent and state
sovereignty, there are instances where a custom has been rejected by a few states or where a custom is
only observed by a few states. This lack of total universality does not take away from the rule being a
custom.
(i) The persistent objector
A state may exempt itself from the application of a new customary rule by persistent objection during
the norm’s formation.
There is a rebuttable presumption of acceptance and so, evidence of objection must be clear.
(ii) The subsequent objector
In the Anglo-Norwegian Fisheries case, part of the Norwegian argument was that even if the 10nm
closing line for bays and certain rules were part of general international law, they did not bind
Norway which had ‘consistently and unequivocally manifested a refusal to accept them’. The court in
that case agreed that Norway had departed from the alleged rules, if they existed, and that other states
had acquiesced in this practice.
(iii) Regional and bilateral customs.
Some customary norms may be practised only within a particular region, creating a ‘local’ customary
law. In the Right of Passage case, Portugal relied on such a custom to establish a right of access to
Portuguese enclaves in Indian territory inland from the port of Daman.
It was held: “It is difficult to see why the number of States between which a local custom may be
established on the basis of long practice must necessarily be larger than two. The Court sees no reason
why long continued practice between two States accepted by them as regulating their relations should
not form the basis of mutual rights and obligations between two States.”
TWINS: WHAT IF A CUSTOM ALSO EXISTS AS A TREATY RULE?
• In Nicaragua v USA, there was a preliminary objection by the US that because the
international customs claimed to be violated by them were already codified in statutes and treaties
(which Nicaragua was also relying upon), the customs were superseded in hierarchy and therefore
could not be considered by the ICJ in determination of the case.
• The ICJ had this to say
“There are no grounds for holding that when customary international law is comprised of rules
identical to those of treaty law, the latter "supervenes" the former, so that the customary international
law has no further existence of its own.”
• The existence of identical rules in international treaty law and customary law was also
considered by the Court in the North Sea Continental Shelf cases. The Court found that the existence
of identical content does not automatically kill the custom. That in fact, the treaty rule may be seen as
reflecting, or crystallizing, especially the emergent rules of customary international law.
WHY MUST THEY CO-EXIST?
• Customary international law continues to exist and to apply, separately from international
treaty law, even where the two categories of law have identical content. This is because treaty laws
and customs have different methods of interpretation and applicability.
• For instance, if two states are in dispute, one state may suspend operation of a treaty rule on
grounds that the other state already violated a rule of the same treaty (this is allowed under Article 60
of the Vienna Convention on the Law of Treaties). But if the two rules in question also exist as rules
of customary international law, the failure of the one State to apply the one rule does not justify the
other State in declining to apply the other rule.
CASES
Norwegian Fisheries Case
Asylum Case
Nagymaros Case 1997
The North Sea Continental Shelf Case
JUS COGENS
These are obligations erga omnes – these are owed to the entire community of states.
Reading: Reservations to the Genocide Convention on the Prevention and Punishment of the Crime of
Genocide, adv. op. [1951] ICJ Rep. 15: “In regard to the genocide convention, any reservation made
by a state by virtue of its sovereignty is illegal because genocide is contrary to moral law and the spirit
of the United Nations…”
Obligations with jus cogens status include
- The prohibition on the use of force
- Enlistment of child soldiers – see Prosecutor v Thomas Lubanga-Dyilo
- The prohibition of torture
- The prohibition of piracy
States cannot out-contract jus cogens obligations. States will normally try to redefine their conduct to
fall outside the ambit of the prohibited act.
Presentation by X. Mukwaya
JUS COGENS
Jus cogens, also known as the peremptory norm, is a fundamental and overriding principle of
international law. It is a Latin phrase that translates to ‘compelling law’. It is absolute in nature which
means that there can be no defense for the commission of any act that is prohibited by jus cogens.
These norms, though limited, are not cataloged. They are derived from changing social, political
attitudes and major case laws and are not defined by any authoritative body.
This principle aims to seal the slightest suppression of any law in any form and manner.
IDEA OF DEVELOPMENT
The idea of universal jurisdiction and individual responsibility for violations of international law
developed largely with the laws of war. A major step in the development of universal jurisdiction for
jus cogens violations is the War Crimes Convention which requires states to provide for universal
jurisdiction. The War Crimes Convention enumerates war crimes and expands the definition of crimes
against humanity as set out in the Nuremberg Charter during World war II.
WHAT IS JUS COGENS?
Jus cogens or peremptory norm means a body of fundamental principles of international law which
binds all states and does not allow any exceptions. It is basically a compilation of norms that lays
down the international obligations which are essential for the protection of the fundamental interest of
the international community and any violation of these norms is thereby recognized as a crime against
the community as a whole.
It is binding upon all the members of the international community in all circumstances. Jus cogens
imply absolute restrictions on genocide, slavery or slave trade, torture or other inhuman treatment,
prolonged arbitrary detention, and racial discrimination. Any activity or treaty carried out by the states
or international organizations that contradict human dignity and rights will offend the concept of jus
cogens and thus, be void. It can be said that jus cogens exist to protect and uphold human dignity and
rights.
ORIGIN OF THE DOCTRINE
It stemmed from the idea of a binding law which would be in alignment with natural law and would
render contrary customs and treaties invalid. This idea led to the existence of hierarchical superior
norms that would invalidate the treaties and customs. The doctrine of Jus cogens was initially defined
in Article 53 of the Vienna Convention on the law of treaties 1969. It was later stated as a customary
principle but Article 53 of the Vienna Convention, however, contains no reference to any element of
practice.
Article 2(6) and Article 53 of the Vienna Convention
Article 2(6) of the Vienna convention deals with the definition of a ‘contracting state’. It mentions
that ‘contracting state’ means that a state has consented tobe bound by the treaty, whether or not the
treaty has entered into force. It is in regard to the non-parties of the UN and states that they shall act in
accordance with the principles so far as may be necessary for the maintenance of international peace
and security. It is a mandatory provision and has set a limit, determined by the general interest of the
international community.
Article 53 of the Vienna convention is the origin of the principle of jus cogens. It states that a treaty is
void if, at the time of its conclusion, it conflicts with the peremptory norm of general international
law. The norm should be accepted and recognized by the international community of states as a norm
from which no derogation is permitted and which can be modified only by a subsequent norm of
international law having the same character.
Article 64 of the Vienna Convention
Article 64 of the Vienna convention deals with the emergence of a new peremptory norm of
international law. It states that if a new peremptory norm of the international law emerges, any
existing treaty which is in conflict with that norm becomes void and is terminated.
JUS POSITIVISM
Jus positivism, when translated from Latin, is legal positivism which refers to the human-made laws
that define the establishment of specific rights for an individual or group. It is basically the laws made
by the state for the swift, efficient and proper functioning of the state itself.
Jus Cogens and jus positivism stay at debate since their applicability is contradicting each other. Jus
Cogens are mandatory, constant and binding on all states irrespective of their consent while jus
positivism is not binding and can be changed from time to time. An aspect of universal jurisdiction is
personal jurisdiction by all states over the alleged violator of such crimes, hereby keeping the norm of
Jus Cogens at a higher pedestal than jus positivism.
CRITICISM OF JUS COGENS
This principle has been mainly criticized for its superiority, practical implementation and the
obligation upon the states to follow it:
The doctrine of international jus cogens developed from the principles of natural justice. These norms
are actually a set of rules where no derogation is allowed under any circumstances and they cannot be
abrogated. They are argued to be hierarchically superior because the power of a state to make treaties
is subdued when it confronts a super customary norm of jus cogens. The point of criticism being that
these norms are putting limitations on the ability of states to change or introduce an international law.
The second point of criticism being about the consent and obligation of states to follow the norm. The
states which are a part of the international community have to mandatorily comply with the norms,
regardless of their consent and their individual opinion to be bound.
They are not provided with an option to choose since these rules are too fundamental for states to
escape responsibility. States consider these rules to be so important to the international society of
states and to how the society defines itself that they cannot conceive an exception and cannot,
therefore, escape liability.
As known, international laws and decisions only have an advisory role and none of their provisions
are enforceable as the law of any state.
Hence, when it comes to the enforceability of jus cogens, the states under an obligation have not
initiated any noticeable provisions for the implementation of the same which raises numerous queries
on the existence and requirement of the widely recognized norms.
Problems also remain as to the application of the norm, in terms of which rules must necessarily be
covered under the said norms. There were serious doubts concerning the fact that the norm could be
misused in interpreting the rules to be covered under jus cogens.
Oppenheim’s view
Professor Oppenheim of Cambridge University has republished treatise in his name for nine editions.
His treatise begins with major definitions and works towards all aspects of international law at a time
when not much was certain and progressive about international law.
In his book, he mentioned that a number of other universally recognized principles of international
law existed in the jus cogens with the capability to render any conflicting treaty void and therefore,
the norm of jus cogens was unanimously recognized as a customary rule of international
law.Therefore, obligations which are at variance with universally recognized principles of
International Law cannot be the object of a treaty.
BOSNIAN CASE: View of Justice Lauterpacht
In the case of Bosnia and Herzegovina v Serbia and Montenegro [2007], Serbia was alleged to have
attempted extermination of the Muslim population of Bosnia and Herzegovina which led to violations
of the Convention on the Prevention and Punishment of the Crime of Genocide, thereby invoking an
article of the genocide convention. It was unanimously held in this case that Serbia was neither
directly involved nor was complicit in it but it rather committed a breach of genocide convention by
failing to prevent it from occurring, he genocide convention being a part of jus cogens.
In this case, Justice Lauterpacht was in favour of the decision and defined jus cogens as a concept
which is superior to both customary law and treaty as it stands on the very fundamentals of natural
law and humanity. He also associated jus cogens with the general principles of law and said that
irrespective of its origin, jus cogens encircles all the fundamentals of a necessary law at the
international level and hence, is the superior-most in hierarchy.
Views of Prof. Michel Byers and David Kennedy:
Professor Michel Byers quoted a somewhat similar definition as that of Professor Oppenheim. He
focused on conceptualizing the relation between jus cogens and erga omnes rules. Erga omnes
obligations are those in which all states have a legal interest because the subject matter is of
importance to the states and the international community as a whole. In case of a breach in these
obligations, every state is considered justified in invoking responsibility upon the guilty state that
committed the internationally wrongful act.
According to David Kennedy, jus cogens was termed as the super-customary norm. In fact, there are
two views which dominate the foundation of the concept of jus cogens. The first view is that jus
cogens originated directly from international law and the second view is that it is based on one of the
existing sources of international law.
Customary international law is an aspect of international law involving the principle of customs. It
basically means that the principles and reasonable ideologies which the society has been practising
since time immemorial should be given the status of international law and should remain operational
at all times and circumstances.
Hence, terming jus cogens as a super-customary norm justifies both the concepts of the foundation of
jus cogens.
NICARAGUA CASE
In the case of the Republic of Nicaragua v. the United States of America, the U.S. decided to plan and
undertake activities against Nicaragua. Armed interventions were led by the U.S. in Nicaragua and
they also undertook the military and paramilitary forces in and against Nicaragua.
It was held by the International Court of Justice that the U.S. could not rely on collective self-defense
to justify its use of force against Nicaragua. The United States violated its customary international law
obligation of not to use force against another State when it directly attacked Nicaragua. The Court has
also noted that while it may be aware that political aspects may be present in any legal dispute
brought before it, the purpose of recourse to the Court is the peaceful settlement of legal disputes. The
Court of Justice upheld the essential justiciability of even those disputes raising issues of the use of
force and collective self-defense.
This case introduced the principle of opinio juris in international law, which states that it is an opinion
of law or necessity. It is a necessary element within customary laws and acts as a defense as if the acts
have done were of necessary or lawful opinion. In this case, it was noticed that the actions of the U.S.
were not in alignment with this principle.
PABLO NAJERA CASE
An early decision referring to the concept of jus cogens is the Pablo Najera case where the issue was
an arbitral award named Pablo Najera between France and Mexico. The question of the concerned
case was the registration of treaties and sanctioning of invalidity in the event of non-registration.
Mexico had raised the issue of non-registration by France in the Franco-Mexico compromise as a
preliminary objection. The President of the Arbitration Commission characterized the obligation as
non-derogatory and used the principle of jus cogens to justify it.
CONCLUSIVELY
The jus cogens norm has retained its strong position since 1969. The principle of jus cogens has
generated hope that developing standards of law would result in a higher realization of justice in
domestic actions and in an enhanced outlook for justice, peace, and cooperation among nations. A
major result of that hope has been the increasing vitality of the principle of jus cogens and its
developing dominance in international law. The use of jus cogens in human rights actions should
overcome the court invoked barriers to redress the grievances and should act as a compelling factor in
the progressive enforcement of human rights.
General principles of law recognized by civilized nations
Presentation by P. Ejang
The statute of the international court of Justice places general Principles recognized by civilized
nations under the primary sources of law as per article 38(1)(c). Thus these Principles have long been
recognized and applied in disputes settlement between states.
There are essentially two specific terms used to describe this source of international law which is
Civilized nations and General Principles.
Civilized nations, with regards to this requirement, it appears to be the presumption that all member
states of the UN are civilized.
The term General Principles is the one that presents more difficulty.
Writings of scholars and opinions of international tribunals tend to suggest that these are first,
expressions of national legal systems and second, expressions of other unperfected sources of
international law enumerated in the statute under section 38.
Further still, Principles may also emerge from manifestations of international consensus expressed on
general assembly and Security Council resolutions.
The effect of GP, inter alia, is that when a solution is approved by universal public opinion, the judge
is justified in applying it.
NB; As the world's interdependence increases, there has doubtless been greater reliance on
international law as a means to resolve a variety of issues which neither conventional nor customary
international law is ready to meet. With the advancement of pressing issues like human rights, the
environment, economic development and international criminality, General Principles offers to meet
the existing needs and conflicts that will require satisfaction and resolution, which conventional and
customary law might be prepared to meet.
1. DEFINITION
Scholarly definition:
Prof Hersch Lauterpacht defines them as Principles of law that, much like maxims of jurisprudence of
a general fundamental character, a comparison, generalization and synthesis of rules of law in its
various branches, common to various systems of national law.
Bin Cheng: they are cardinal principles of the legal system, in the light of which international law is
interpreted and applied. (The Meaning and Scope of Article 38(1) c of the statute of the ICJ)
Professor Gordon Christenson refers to GP as foundational ordering norms on a global,
interdependent community, thus it is inherently part of the structure of international law, which can
best regulate the conduct of those states.
IDENTIFICATION
The identification of these principles is based on the fact that they are principles of justice and
fairness. A paper by Marcelo Kohen lists some of these principles;
1. Good Faith
2. Impartiality of judges
3. Equitable performance
4. The principle of reparation for damages caused
5. The principle of interpretation of rules
6. Res judicata

FUNCTION
Generally these principles are used in the interpretation and application of conventional law and
customary law. However, some scholars suggest that it is more of a means of assistance while others
argue that it is actually a primary source, embodying an equal or even higher order of norms.
Various scholars have written several functions of these principles, but Bin Cheng narrows them
down to just three solid functions.
1. That they are the source of the various rules which are merely an expression of these principles.
2. That they constitute the guidelines or framework for the judiciary with respect to the
interpretative and applicative functions of positive rules of law.
3. That they may be applied as norms governing a given question.
Conclusively, they exist to modify, supplement and provide room for growth in as far as other sources
of international law is concerned.
General principles are a contested source of international law. The principles are of Justice and
Equity.
Readings:
- International Law Commission report on general principles of law
- Special Rapporteur on general principles of law
Next class
Teachings and writings of the most qualified scholars and publicists
Hierarchies of international law
Next Topic: Treaties as contractual relations between states
Lecture 6 – March 1st, 2022 – Soft Law
[Discussion by Edwin Sabiiti]
The treaty-making process is the closest system we have to lawmaking in International Law. Soft law
is used to describe agreements, principles and declarations that are not legally binding e.g., General
Assembly declarations etc.
Most treaty-making processes are very long and drawn out involving a lot of resources. Soft law is
usually adopted when: i) when there is need for states to come to a consensus quickly ii) where parties
are polarized.
The adoption of the UDHR illustrates this point: the difference in ideology in states during the cold
war meant that the General Assembly adopted a non-binding human rights instrument. Soft law is
thus a starting point for international law.
International Environmental Law represents the largest field of soft law in terms of state obligations.
Parties are not agreed as to what duties and obligations they incur in this respect. Other soft law
includes the UN Guiding Principles on Business and Human Rights – countries can use such guiding
principles because they represent the international understanding on what businesses and companies
ought to do in their operations and they have been domesticated as law in different states.
Case law: North Sea Continental Shelf Case
Teachings and writings of the most qualified scholars and publicists
Currently, we have a large body of international law; teachings of scholars aren’t as relied upon as
they were in earlier ICJ jurisprudence when the body of international law hadn’t grown as much as it
had before.
Judicial Decisions
When international courts refer to judicial decisions by domestic courts and international tribunals as
evidence of international law, they have a tendency to be consistent.
Read the decisions of the ICTR and the ICTY: both statutes established these courts and gave them
jurisdiction over certain crimes, even when some technical terms therein were not defined. For
instance, in the ICTR, rape as an international crime was not defined. The ICTR acknowledged this
state of affairs and made reference to criminal law practice of different countries, both in common law
and civil law systems.
Read: Prosecutor v Akayesu
When the Rome Statue was adopted, it defined international crimes and established their limits. The
elements of crime were considered as articulated by the ICTR and the ICTY (read the preparatory
documents) and codified them.
Hierarchy of Sources of International Law
[Presentation by E. Ahumuza]
Where different sources are applicable to a matter before a tribunal, what takes precedence?
Strictly speaking, there are no defined hierarchies: article 38 seems to imply one. Generally, treaties
and customs seem to be primary sources. Where there is a conflict between a custom and a treaty?
The treaty will take precedence because it is assumed that the countries understood the custom to be
insufficient to dispose of the matter, so they adopted the agreement to resolve the matter.
A letter rule will overrule an earlier rule.
Specific treaties (lex specialis) will override general treaties (lex generalis).
Read the Nicaragua case in relation to application of treaties in international law.
Next Topic: Treaties as a source of law
Lecture 7- 24th February, 2022: TREATIES AS CONTRACTUAL RELATIONS BETWEEN
STATES – G. Tumushabe
A. THE CLASSICAL SOURCES OF INTERNATIONAL LAW
The Classical Sources of International Law are stated in Article 38 of the Statute of the International
Court of Justice. It is also important to recognize that Article 38 is not considered an exhaustive
listing. So, we have to look at the other sources which we normally call subsidiary sources.
The hierarchy in Article 38 of the ICJ Statute should be read in line with Article 103 of the UN
Charter. Article 103 of the UN Charter imposes the supremacy of obligations stemming from the
Charter of the UN for all UN member states in case of conflict with obligations deriving from any
other international agreement.
The third form of hierarchy is jus cogens. Jus cogens is a superior norm from which derogation is not
permitted but can only be modified by another norm of similar character. The understanding is that
entering into a treaty that can absolve a state of its obligations under jus cogens is not permitted. In
case of conflict with any other norm, jus cogens has an absolute priority. You will find this principle
stated in Article 53 and Article 54 of the Vienna Convention on the Law of Treaties.
B. TREATIES
Today, treaties are the most common forms of international norms. The basic definition of a treaty is
contained in Article 2(1) of the Vienna Convention on the Law of Treaties.
It is also important to note that the definition of treaty in Article 2(1) is only for the purposes of the
treaty itself although it is usually suggested to be a broad definition.
For a document to qualify as a treaty in international law;
1. It must have the character of an international agreement.
2. It must be concluded between states.
3. It has to be in a written form. If it is a rule that is applicable in international law that is not
written, most likely it is going to be a rule of customary international law.
4. A treaty must be applicable in international law.
5. A treaty may be embodied in a single instrument or two or more instruments.
6. The designation does not matter. In international law, a treaty can be called by many names. It
may be called a convention, agreement, protocol, pact or a Charter.
Besides the nomenclature used to describe the different designations of treaties, treaties concluded
between states have three different categorizations;
 Bi-lateral treaties. These are treaties concluded between two states. This is definitive.
 Multi-lateral treaties. These are treaties that are concluded between more than two
states. For example, the EAC Treaty and the Convention on Biodiversity are multi-lateral
treaties.
 Universal treaties. These are treaties that are considered to be binding on almost all
states. For example, the UN Charter and the Convention on International Trade in
Endangered Species of Fauna and Flora (CITES).

C. CUSTOMARY INTERNATIONAL LAW

At a general level, customary norms of international law arise in two specific situations. The first is
where there is a practice among states to act in a particular way. The second is where states act
because they believe that they are obliged to do so by the law (opinio juris).
Many important areas of international law are based on customary rules. In some cases, they have
been codified into multi-lateral conventions. A good example is Article 26 of the Vienna Convention
on the Law of Treaties on pacta sunt servanda.
One of the important points to note, highlighted in the North Sea Continental Shelf cases, is that it is
difficult to establish which state practice meets the general requirements for creating such a rule.
However, in these cases, they basically highlighted about three tests of such rules and these are;
1. Generality
2. Consistency
3. Relevance of participating parties
NB: The North Sea Continental Shelf cases are a must-read
D. CUSTOMARY LAW AND TREATY RULES
In principle, the inter-connection between customary law and treaty rules can be described in the
following way;
1. Codification
This implies that in some instances treaties codify pre-existing international law norms.
2. Crystallization
Crystallization implies that in a number of cases, treaties help identify incipient rules of customary
international law. This means that rules may be emerging and they are not codified, in other words,
there is no acceptance or evidence that certain rules have been accepted. So, where there is
negotiation, there is no evidence that they are rules of customary international law but they become so
when codified.
3. Formation
This implies that treaties are at the basis of the formation of new rules or new customary international
law rules. Sometimes, some of the provisions that are negotiated and adopted as treaty provisions can
get implemented and recognized through state practice and opinio juris and then become rules of
customary international law.
NB: The International Court of Justice made general observations in several cases as to this
relationship. The most important of these cases are the 1969 North Sea Continental Shelf cases and
the 1986 Nicaragua case.
QUESTION
Describe the relationship between customary international law and the law of treaties.
Lecture 8 – March 3, 2022: The Relationship between Treaty Law and general principles of
international law – G. Tumushabe.
The general provision is Article 138 of the ICJ Statute: it makes reference to the general principles of
law recognized by “civilized nations”. The theoretical basis of this statement is up for debate,
especially due to their differing origins. However, there are certain general principles that are
common to all systems of law. For instance:
The Principle of Good Faith: this principle is common to all systems of municipal and international
law: the expectation that parties are going to act in good faith and it is of fundamental in the law of
treaties (codified under article 26 of the VCLT) – it is referred to in a number of cases:
- Nuclear Tests cases (Australia/New Zealand v. France) [1974] ICJ Rep. 253: “One of the
basic principles governing the creation and performance of legal obligations, whatever
their source is the principle of good faith.”
- Case concerning Gabcikovo-Nagymaros Project (Hungary v Slovakia) [1998] ICJ Rep
The Principle of Equity: Brownley (Principles of Public International Law) states: “Equity is used in
the sense of consideration of fairness, reasonableness, and policy often necessary for the sensible
application of more settled rules of law.” Strictly, it cannot be a source of law and yet it may be an
important factor in the process of decision. Equity may play a role in supplementing the law or appear
unobtrusively as a part of judicial reasoning. It is applied extensively in treaties concerning the
environment [missing notes]
Jus Cogens norms/peremptory norms of international law: these are recognized under Article 53 of
the VCLT, which essentially says that for its purposes, a peremptory norm of general international
law that has three qualifications:
i. It is accepted and recognized by the international community of states as a whole
ii. It is a norm from which no derogation is permitted
iii. It is also a norm which can be modified only by a subsequent norm of general
international law having the same character
Article 53 sets out that a treaty is void if at the time of its conclusion, it conflicts with such a norm. in
consequence, the rules of jus cogens are rules of a fundamental character of customary international
law that cannot be modified by a treaty. Article 64 of the VCLT specifically states that any provision
of a treaty that conflicts with a peremptory norm is void, whether it predates or postdates the norm.
the most common of these norms are the prohibition on the use of force, genocide, slavery.
Case law: Nuclear Tests cases (Australia/New Zealand v. France) [1974] ICJ Rep. 253
THE VIENNA CONVENTION ON THE LAW OF TREATIES
This was negotiated in 1968-1969 in Vienna. The law of treaties is a body of rules which provides a
definition of treaty and deals with matters relating to the conclusion, entry into force, application,
validity, amendment, modification, suspension and termination of a treaty.
This instrument is the set of rules that governs how treaties are supposed to be applied. It is the
instrument of recourse where a given treaty has been concluded between a number of states, leaving
certain provisions ambiguous.
Fundamental principles of the law of treaties
a. The principle of free consent: This is codified in Article 11 of the VCLT. This essentially
means that a state cannot be bound by a treaty to which it has not consented. Such consent can
be expressed in a variety of forms.
b. The principle of pacta sunt servanda: this principle means that agreements must be kept.
According to Article 26, which embodies this principle, every treaty in force is binding upon
the parties to it and must be performed by them in good faith.
- Case concerning Gabcikovo-Nagymaros Project (Hungary v Slovakia) [1998] ICJ Rep
c. The principle [regarding changed circumstances] – permitting states to be released from their
obligations
The definition of a treaty under the VCLT
Article 2(1)(a) defines a treaty as an international agreement concluded between states in written form
and governed by international law, whether embodies in a single instrument or in two or more related
instruments and whatever its particular designation.
A treaty may be described in a multitude of ways, as previously stated by the International Law
Commission. **
A number of elements can be inferred from the definition of a treaty in Article 2(1)(a) – there are
criteria for determining whether an instrument is an international treaty:
i. It must be written
ii. The parties must be states (with exceptions regarding international organizations)
iii. It must be governed by international law
iv. It must be intended to create legal obligations
A treaty, in effect, is a binding legal instrument under international law, by which contracting parties
assume legal obligations to conclude or negotiate future agreements.
Next lecture: Formulation of Treaties
Lecture 9 – March 10th, 2022.
[missing notes]
Negotiation of treaties
Negotiation of treaties must be carried out by accredited representatives of states: these are called
delegates – who are accredited by the State through a formal process. Normally, it is the Ministry of
Foreign Affairs which represents the State in international negotiations.
Article 7(1) of the VCLT provides that it is someone equipped with an instrument of full powers or a
person who, from normal practice, appears to have such powers.
Article 7(2) indicates three categories of person who are deemed to have full powers:
(1) The Head of State; The Head of Government; Ministers of Foreign Affairs
(2) Heads of Diplomatic Missions
(3) Representatives accredited by States to International Organizations, International Conferences
or any of the organs thereof
Incidentally, negotiating a treaty can take a short time but can also take a long time. The United
Nations Convention on the Law of the Sea took 20 years to negotiate. Even after negotiation, the entry
into force of a treaty can take a long time.
Adoption
Once a treaty is negotiated, the next procedure is the adoption of the text of the treaty. That procedure
is provided for under Article 9 of the VCLT. It provides:
Adoption of the text
1. The adoption of the text of a treaty takes place by the consent of all the States participating
in its drawing up except as provided in paragraph 2.
2. The adoption of the text of a treaty at an international conference takes place by the vote of
two thirds of the States present and voting, unless by the same majority they shall decide to
apply a different rule.
In the absence of any adoption procedure being provided in the treaty, Article 9 of the VCLT applies:
under paragraph 9(1) – the negotiating parties consent; under paragraph 9(2) – there is provision for a
vote.
Authentication (of the agreed text)
By authentication, the parties agree that the definitive text of the treaty is correct and authentic and
not subject to alteration. The text is established as authentic and definitive by:
 Signature
 By initialing the representative of the negotiating states
 By incorporating the final act in the Report of the Conference e.g., the Convention on
Biological Diversity; the Paris Climate Agreement etc.
Consent to be bound
Once a text to a treaty has been authenticated, there is the question of consent to be bound. It is an
expression of free will. In this regard, Article 11 of the VCLT provides thus:
Means of expressing consent to be bound by a treaty
The consent of a State to be bound by a treaty may be expressed by signature, exchange of
instruments constituting a treaty, ratification, acceptance, approval or accession, or by any
other means if so agreed.
Reading: [on the differences (regarding legal effects) of ratification, acceptance, approval and
accession]
Entry into force
The conditions for entry into force are normally specified within the treaty itself – usually, by a
specified number of ratifications. It is only in exceptional circumstances that this is not provided for,
in which case Article 24 of the VCLT applies:
Entry into force
1. A treaty enters into force in such manner and upon such date as it may provide or as the
negotiating States may agree.
2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be
bound by the treaty has been established for all the negotiating States.
3. When the consent of a State to be bound by a treaty is established on a date after the treaty
has come into force, the treaty enters into force for that State on that date, unless the treaty
otherwise provides.
4. The provisions of a treaty regulating the authentication of its text, the establishment of the
consent of States to be bound by the treaty, the manner or date of its entry into force,
reservations, the functions of the depositary and other matters arising necessarily before the
entry into force of the treaty apply from the time of the adoption of its text.
The Depositary
A depository is designated by the contracting parties to a treaty. When a depository is designated, it
acts as the custodian of the treaty and performs all the attendant administrative tasks relating to the
treaty.
Who can be a depositary?
This question is answered in Articles 76-80 of the VCLT.
Registration:
The reason for registration and … of a treaty is to ensure transparency in the conduct of international
relations. Article 102 of the UN Charter provides thus:
 1. Every treaty and every international agreement entered into by any Member of the United
Nations after the present Charter comes into force shall as soon as possible be registered with
the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been registered in
accordance with the provisions of paragraph 1 of this Article may invoke that treaty or
agreement before any organ of the United Nations.
The failure to register a treaty in accordance with the secretariat does not affect its validity.
Article 102 was intended to prevent States from entering into secret agreements without the
knowledge of their nationals and other States, whose interests might be affected/prejudiced by such
agreements. It is also important to observe that within the international community, there was general
consensus that secret diplomacy that produced secret agreements were one of the causes of World
War I.
Application of Treaties
- Territorial application
- Conflict of treaties
- Application of treaties to a third party
Territorial application
Under Article 29 of the VCLT the principle is that in the absence of a territorial clause or any
provision to the contrary on the part of contracting parties, a treaty is presumed to apply to all
territories for which the contracting parties are internationally responsible.
Territorial scope of treaties
Unless a different intention appears from the treaty or is otherwise established, a treaty is
binding upon each party in respect of its entire territory.
Conflict between treaties
If a treaty is in conflict with Article 103 of the UN Charter, its provisions – which are incompatible
with the UN charter are void. Article 103 essentially deals between conflict between member states of
the UN and any other obligations/treaties by which they are bound. This provision overrides any other
agreement entered into by states.
If a treaty contains a conflict clause, it will indicate which treaty will be applied – Article 30(2) of the
VCLT. If treaties contradict each other, and neither contains a conflict clause, Article 30(3) and (4)
apply:
Application of successive treaties relating to the same subject matter:
3. When all the parties to the earlier treaty are parties also to the later treaty but the earlier
treaty is not terminated or suspended in operation under article 59, the earlier treaty applies
only to the extent that its provisions are compatible with those of the latter treaty.
4. When the parties to the later treaty do not include all the parties to the earlier one:
a. As between States parties to both treaties the same rule applies as in paragraph 3;
b. As between a State party to both treaties and a State party to only one of the treaties, the
treaty to which both States are parties governs their mutual rights and obligations.
In effect, Article 30 embodies the maxim lex posteriori – a latter treaty supersedes an earlier treaty;
also lex specialis – a specific treaty supersedes a general treaty.
29th March 2020 – Lecture 10: LEGAL PERSONALITY AND SUBJECTS OF
INTERNATIONAL LAW – C. Adoch
The subject of the law is a person that is bound by the law, to whom the law applies. A subject of
international law is an entity capable of possessing international rights and able to undertake action on
the international stage to claim these rights.
Considering the origins of international law, it emerged after the nation-states and governed
relationships among states – governing conduct in war and trade. The initial subjects of international
law were states. In the past, states were considered to be the only subjects of international law and
they are the only entities that possess the totality of rights and obligations and duties under
international law.
There is no prohibition in international law of other entities than States having legal personality – to
this end there have been other entities with international legal personality. At a minimum, for an
entity to be considered as having legal personalty, it must be able to bring a claim, to satisfy its
obligations and bear responsibility for its breaches of the same.
- States
- International Organizations
- Specialized Agencies
- Regional Governmental Organizations
- Individuals
States
These are primary subjects of international law; they are repositories on the international stage.
Readings:
- Reparations for Injuries suffered in the Service of the UN, adv. op. [1949] ICJ Rep. 174
International Status of South West Africa, adv. op. [1950] ICJ Rep. 128
- International Status of South West Africa adv. op. [1950] ICJ Rep. 128

31st March – SUBJECTS OF INTERNATIONAL LAW

States are the primary subjects of international law: once a State is recognized, its subjection to
international law is beyond question: it has the capacity to have rights and duties under international
law. There are some jurists who have argued that a State must be fully independent and be recognized
as such by other States.
The international legal system as we know it is horizontal – largely dominated by States, which are in
principle considered sovereign and equal.
Most international law requires States to be visible actors in the creation of international law i.e.,
consistently compliant with jus cogens.
We are to consider what makes a State a State.
Note that any States can have sovereignty over territory and although they could be some movements,
they don’t amount to States.
The four standard criteria in the Montevideo Convention:
- A permanent population
- Defined territory
- Government
- Capacity to enter into relations with other States
Permanent Population
A permanent population is an essential requirement for statehood. In principle, there are no criteria
relating to the size of the population – consider the State of Andorra, which as about 68 inhabitants.
Neither does international law set any requirements about the nature of the population. The
requirement of a permanent population does not relate to the nationality of the population, because the
law only requires that States have a permanent population.
Brownley basically suggests that the idea of a permanent population connotes a stable community
with a physical basis.
A defined territory
Generally, the development of the State is closely linked to the ability to exercise effective control
over a defined territory; the control over the territory must be effective. The existence of a border
dispute, for instance, is not an obstacle to attaining statehood in international law. In short, in
International Law, there is no rule requiring boundaries of States to be undisputed or unambiguously
established.
Consider the State of Israel, admitted to the UN on May 11, 1949 even when it had ongoing disputes
with the Arab States. The size of territory may not matter much either e.g., Lichtenstein, San Marino.
Government
International requires that there must be in existence, within the territory, or outside it, a government
capable of exercising independent and effective authority over the population and the territory. The
importance attached to the independence or the criteria of independence and effectiveness is
understood considering the predominantly decentralized nature of international law.
The existence of effective government with centralized administrative and legislative organs able to
exercise control and authority is evidence of this requirement.
Capacity to enter into relations with other States
Generally, capacity to enter into a full range of international relations is a valuable measure of
statehood. However, the capacity and competence to enter into such relations depends, in part, on the
power of the Government without which a State cannot carry out its international obligations.
It is important to note that the ability of the Government to independently carry out its obligations and
accept responsibility for them in turn greatly depends on the previously discussed requirements of
effective government and independence. This also effectively means that a State cannot enter into
relations with other States if it is not recognized.
Rights and Duties of States
Generally, a State is by definition endowed with the capability of bearing rights and duties under
international law. The Montevideo Convention of 1933 constitutes one of the first examples of
inserting the concept of rights and duties of States in a multilateral, legally binding instrument.
The Charter of the Organization of American States (OAS), adopted in 1948, contained a full chapter
devoted to ‘fundamental rights and duties of States.’
In 1949, as part of the report covering the work of its first session, the ILC submitted to the General
Assembly the text of a Draft Declaration on Rights and Duties of States. The declaration comprised of
14 Articles, detailing the following four rights:
a. Independence
b. Jurisdiction
c. Equality
d. Self-defense
On the other hand, the declaration outlined 10 duties that a recognized State bears. These include:
i. Peaceful settlement of disputes with other States
ii. To refrain from resorting to war as an instrument of national policy
iii. Refrain from giving assistance to any State action in violation of the duty not
to resort to war
iv. To carry out international obligations in good faith
v. To conduct relations with other States in accordance with international law
and with the principle that sovereignty of each State is subject to the
supremacy of international law
Next lecture: RECOGNITION

7th April - 2022

[Missing notes]
All recognized States bear equal rights and duties regardless of their size and population.
The Right to Self-Preservation
Under international law, there is widespread recognition that the right of every state to self-
preservation and the corresponding duty not to threaten that of other States is one of the fundamental
rights of States in the international community.
12th April – 2022

19th April 2022 – Dr. Bagenda – Territory and its acquisition; Sovereignty and Jurisdiction;
Consular Relations and Immunities
There are three primary subjects of international law: states, international organizations and
individuals. States are the primary subjects of international law – it is thus impossible to understand
IL without grasping the concept of Statehood.
Where there is a conflict of sovereignty and other international law aspects, sovereignty will almost
always prevail.
[missing notes]
An entity cannot claim to be a State without having territory of its own. There are principally 4 ways
in which a State may acquire territory, but in practice it is one.
a. Accretion (acquisition of territory through natural geographical factors): Accretion
refers to the physical expansion of an existing territory through geographical process.
Examples of such a process are the creation of islands in a river mouth, the drying up
or the change in the course of a boundary river, or the emerging of island after the
eruption of an under-sea volcano. When the new land comes into being within the
territory of a State, it forms part of its territory, and this causes no problem. However,
in case of a drying or shifting of a boundary river, the general rule of International
Law is that if the change is gradual and slight, the boundary may be shifted, but if the
change is violent and excessive, the boundary stays at the same point along the
original riverbed. If over time, through purely natural factors a boundary river
changes its course; if it is gradual over several years and it is slight in the sense that it
does not take a significant proportion of the land, a State is deemed to have taken the
concerned territory from another. This also happens in the case of coastal States – the
rules of IL dictate that if islands are in territorial waters of a State, they are deemed to
be part of that State.
Accretion is, in practice, a theoretical process, it almost never happens.

b. Cession: this occurs where one State gives part of its territory to another State –
usually by treaty. (e.g., France cession of Louisiana to U.S in 1803; cession of
Alaska. Purchases of Alaska by U.S (from Russia in 1867).
c. Occupation: this means the establishment of sovereignty over a territory not under the
authority of any other State (terra nullius) whether newly discovered or abandoned by
the State formerly in control (uncommon). In the (STATE WHICH), The PCIJ held
that the occupation to be effective must consist of the following two elements:
(i) intention to occupy (animus occupandi). Such intention must be formally
expressed and it must be permanent.
(ii) (ii) occupation should be peaceful, continuous.
There mere act of discovery by one state is not enough to confer a title by occupation.
There are two requirements (i) the territory subject to claim must not be under the
sovereignty of nay state (terra nullius) (ii) the state must have effectively occupied the
territory.
For the title acquired through occupation to be final and valid under international law,
the presence and control of a State over the concerned territory must be effective.
Effectiveness requires on the part of the Claimant State two elements: an intention or
will to act as sovereign, and the adequate exercise of sovereignty e.g., defence,
taxation and maintaining law and order. Intention may be inferred from all the facts,
although sometimes it may be formally expressed in official notifications to other
States. Adequate exercise of sovereignty must be peaceful, real, and continuous. This
element of physical assumption may be manifested by an explicit or symbolic act by
legislative or administrative measures affecting the claimed territory, or by treaties
with other States recognizing the sovereignty of the Claimant State over the particular
territory or demarcating boundaries.
 Occupation was often preceded by discovery that is the realization of the existence of
a particular piece of land. In the early period of European discovery, in the Fifteenth
and Sixteenth Centuries, the mere realization or sighting was sufficient to constitute
title to territory. As time passed, something more was required and this took the form
of symbolic act of taking possession, whether by raising of flags or by formal
declarations. By the Eighteenth Century, the effective control came to be required
together with discovery to constitute title to territory.
d. Prescription: this is a mode of establishing title to territory which is subject to the
sovereignty of another State (not terra nullius) through peaceful exercise of de facto
sovereignty over a long period of time. It is the legitimization of a doubtful title by
the passage of time and the presumed acquiescence of the former sovereignty. It
differs from occupation. It relates to territory which has previously been under the
sovereignty of another State whereas occupation is acquisition of terra nullius.
However, both modes are similar since they require evidence of sovereignty acts by a
State over a period of time. International law does not, however, prescribe any fixed
period for prescription.
Prescription means continued occupation over a long period of time by one state of
territory actually and originally belonging to another state. Requirements of
prescription
(i) the possession must be peaceful (Article 2(4) of the UN Charter prohibits the
use of force by a State against another State)
(ii) the possession must be public
(iii) the possession must be for a long period of time.
A title by prescription to be valid under International Law, it is required that the
length of time must be adequate, and the public and peaceful exercise of de facto
sovereignty must be continuous. The Possession of Claimant State must be public, in
the sense that all interested States can be made aware of it. It must be peaceful and
uninterrupted in the sense that the former sovereign must consent to the new
sovereign. Such consent may be express or implied from all the relevant
circumstances. This means that protests of whatever means by the former sovereign
may completely block any claim of prescription.
As the requirement of adequate length of time for possession is concerned, there is no
consensus on this regard. Thus, the adequacy of the length of period would be
decided on a case-by-case basis. All the circumstances of the case, including the
nature of the territory and the absence or presence of any competing claims will be
taken into consideration.

Next Lecture: Sovereignty

[Missing Lecture Notes]

21st April 2022 – the Vienna Convention on Diplomatic Relation

Article 3 of the VCDR spells out diplomatic relations.
Article 4 means one cannot assign a person a diplomatic agent without the consent of the receiving
State.
Article 29 – The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of
arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate
steps to prevent any attack on his person, freedom or dignity.
The sending State can only waive immunity. Where they do not, a State can declare them a persona
non grata or forfeit the matter.
Article 31 – Exceptions to diplomatic civil immunity
1. A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He
shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
(a) A real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of the
mission;
(b) An action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;
(c) An action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a witness.
3. No measures of execution may be taken in respect of a diplomatic agent except in the cases coming
under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures
concerned can be taken without infringing the inviolability of his person or of his residence.
4. The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt
him from the jurisdiction of the sending State.
Article 32(1) permits a sending State to waive diplomatic immunity under Article 37.
This immunity waiver must always be express – Article 32(2).
It is advisable that in requesting waiver, ask for such regarding institution and execution of the suit
against a diplomatic agent.
Under Article 30 of the VCDR, the private residence and correspondence (exception in art. 31(3)) are
inviolable.
Under Article 27(3) – diplomatic bags must not be opened or detained.
Article 37 – The members of the family of a diplomatic agent forming part of his household shall, if
they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles
29 to 36.
If one wants to enjoy immunity, they have to change nationality or acquire dual citizenship.
Article 6 – Two or more States may accredit the same person as head of mission to another State,
unless objection is offered by the receiving State.
Article 8:
1. Members of the diplomatic staff of the mission should in principle be of the nationality of the
sending State.
2.Members of the diplomatic staff of the mission may not be appointed from among persons having
the nationality of the receiving State, except with the consent of that State which may be withdrawn at
any time.
Appointing a national of the receiving State as a diplomatic staff cannot confer upon them full
diplomatic immunity.
Diplomats are generally exempted from paying taxes, except for indirect taxation, taxation on private
immovable property and others prescribed under Article 34.
Article 39:
1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the
territory of the receiving State on proceeding to take up his post or, if already in its territory, from the
moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as
may be agreed.
3. In case of the death of a member of the mission, the members of his family shall continue to enjoy
the privileges and immunities to which they are entitled until the expiry of a reasonable period in
which to leave the country.
Article 44: The receiving State must, even in case of armed conflict, grant facilities in order to enable
persons enjoying privileges and immunities, other than nationals of the receiving State, and members
of the families of such persons irrespective of their nationality, to leave at the earliest possible
moment. It must, in particular, in case of need, place at their disposal the necessary means of transport
for themselves and their property.

Consular immunity
Provisions on immunity and inviolability
Vienna Convention on Consular Relations, Article 33 – the La Grande case
Articles 40 – 43, 45