Public international law class lecture by

Yonas B.

In municipal legal systems, the primary subjects of domestic law are natural and juridical
persons. Domestic law implies that laws which are operating in a given legal system. Whereas in
the case of international law, the principal subjects are states. But nowadays it is qualified.
Because it is difficult to believe that states are the only primary subjects which is a traditional
definition of international law.

The traditional view to the definition of international law defines it as a body of rules governing
relationships existing between the states exclusively. But according to the contemporary
understanding, international law covers relationships between states and regulating the operation
of international organizations. It departs from the traditional view that the traditional law
definition focuses on states as a sole primary subjects of international law which is not
acceptable today. There are subjects other than states included in the contemporary
understanding these are called non-state actors (it includes multinational corporations, NGOs and
individuals).

In the traditional view, individuals are not considered as the subject of international law. This
implies that they do not have rights and obligations under international law. But in reality there
are international laws which confer rights and duties for individuals. One example is
international human rights even if it became common parlance after the Second World War due
to human rights movement. International human rights became everyday language because of its
link with traditional law. To elaborate this, international was viewed to be a body of rules
governing the relations of states exclusively. The manner how a state treats its own nationals
within its jurisdiction is its own domestic affair. Other states cannot intervene in the manner how
a state treats its nationals within its territory. This is what we call the doctrine of exclusive
domestic jurisdiction.

Depending upon this, there is a corollary principle which is called the principle of non-
intervention. This is the commonly invoked principle that no state can interfere in the internal
affairs of another state. There is also the notion of absolute sovereignty related to this issue.
Absolute sovereignty is the outcome of West Fallia treaty of 1648. This treaty brought the 30
year religious war to an end.

It came up with important changes like the entrenchment of absolute sovereignty of the state and
separation of state from religion (secularism). The church had more power in Europe
before the conclusion of this treaty. But after this treaty had been concluded, the power the
church commanded in Europe had been eroded and began give rise more power to the state
machinery. The treaty of west fallia played vital role for the emergence of the notion of absolute
sovereignty and territorial integrity.
However, the concept of absolute sovereignty declined because of the advent of new recent
developments. The main point here is that the traditional understanding of international law is
outmoded though it has some exceptions. One of these exceptions is the doctrine of
international humanitarian intervention which was developed by Hugo Grocious (the father
of international law). In his book (law of peace and war) of 1650, he contended that a state has
the right to use of force against another state in the situations where a given state engages in
massive violation of human rights over its nationals.

The state can resort to use of force to curb the massive violation of human rights directed to its
nationals by another state. This is the conception of humanitarian intervention. One thing that
makes the concept of humanitarian intervention peculiar is its time of emergence. It was
developed as early as 1650. But this doctrine has occasionally abused as a cover up for states
who want to invade another states under the guise of humanitarian intervention. Another
exception from the principles of nonintervention and absolute sovereignty is state responsibility
for injury to alliance. As the name itself indicates, if a state meets out injury to alliance that
happen to be within the territory of a given state, it would take responsibility of the state to make
the damage good.

A good example for this issue is the case of Mr. Chattin. Mr. Chattin was US citizen who had
been living in Mexico. He was arrested by Mexican authorities, put in trial and sentenced to jail.
While he was in jail, he escaped from the prison and returned back to his homeland, US. After he
reached US, US espoused and brought the case before the attention of Mexican authorities. US
argued that the detention, the trial and the imprisonment of Mr. Chattin was against the law. It
also claimed compensation for arbitrary treatment of its citizen. This led to the establishment of a
commission comprised of both states which finally led to award of compensation for US.

In this particular case, the right Mr. Chattin has got is derivative right. Because it was
impossible under those circumstances for Mr. Chattin to bring the case against the Mexican
authorities personally. This is the case of espousal of cause of action brought by his state
nationality. Had it not been to this espousal, he would have not been able to bring the case.
Another thing that we have to realize is that compensation was awarded to the US not to
Mr. Chattin. Because the principle is that injury to alliance amounts to injury to the state.
In general, the doctrine of state responsibility constitutes an important exception to the principle
of nonintervention even if it has some limitations such as lack of effective protection for
individuals.

Having looked at these issues, we can conclude that the primary concern of traditional view is
the relationships of states exclusively. The contemporary understanding of international law
marks a paradigm shift compared to the traditional one. Today the subjects of international law
are not only states but also international organizations, non state actors, insurgents and to a
certain extent individuals. For instance, individuals have obligations under international criminal
law. One thing makes international criminal law different from other branches of public
international law. This is that it is possible to hold the same individual who is responsible for the
violation of his deeds by virtue of individual criminal responsibility. This manifests that
individuals are in a position to be accountable under international law. They are not objects
today. In the past, individuals were considered as pounds of chase. In playing chase, if someone
thinks that sacrificing some soldiers will make him score a better point, he will do so. Likewise,
in the traditional view of international law, the state would sacrifice individuals when it felt like
it. But this never happens today. The new developments and changes show us the extent the
international community has progressed.

Sources of international law:

Sources of international law are multifold. Article 38 of the statute of the international court of
justice is a very important provision which is said to be authoritative and complete statement
of sources of international law. It is a base for sources of any branch of international law.

According to this provision, international conventions, custom, general principles of law,

judicial decisions and academic writings are sources of international law. Sometimes distinction
is made between these sources. The first three sources are law making agencies while the
remaining two are considered as law determining agencies. If we look at the formulation of the
above provision, it considers judicial decisions and academic writings of highly celebrated
publicists as secondary sources. Regarding to treaties as law creating agencies, states come
together and conclude treaties. By so doing, they develop norms of international law and regulate
new issues to address new challenges. Custom and general principles of law are also law creating
agencies.

In the case of judicial decisions, the judges should do delege latta not delege ferenda. That
means, judges should try to find what the law is not what the law ought to be. Similarly, in
academic writings, a scholar dealing with in a given situation should try to find what the law is.
The Packet Habana case can clarify this issue. Packet Habbana is the name of the vessel which
was captured by American soldiers around 1900. Americans were in armed conflict with
Spanish. In course of this armed conflict, American soldiers captured the Packet Habbana vessel
as a war prize. This vessel was belonging to spain. The American soldiers proceeded to share
whatever they have captured on the vessel. Then, the case was brought to the US supreme court.
The issue was whether it was appropriate to capture Packet Habbana as a war prize. The Spanish
argued that the vessel was a fishing vessel which was engaged in peaceful activities and was in
no way related with the war effort. Therefore, this vessel should not be captured as a war prize.
As a court of law, the US supreme court first has to figure out what the law is on the given
matter. So, to determine what the law is, the court consulted custom as a source of law by trying
to figure out the origin of the rule, which requires fishing vesels not to be mased up with when
they are engaged in their peaceful activities. The court established this as a customary law by
indicating different antecedents and background to the origin of the rule of leaving fishing vesels
alone not to be thumpered with. it is a custom that even if there may be armed conflict, they
cannot capture vesels which are not related with the war. In the same case, the court also
referred to academic writings, books and treatises written by international scholars like Calvo.
Calvo is the name of a scholar who has written a treatise on international law many years ago. In
this particular instance of referring to the book written by Calvo, the US court did not try to
figure out what Calvo thinks about the issue at hand. Instead, it tried to establish what the law is
or delege lata based on the evidence presented by Calvo in his treatise. To sum up, judicial
decisions and academic writings are different from the above three sources of international
law. In the following subsections, each source of international law will be discussed in detail.

Custom:

Custom is comprised of two elements; usus and opiniojuris. Article 38(1)(b) of the statute of the
ICJ puts these elements as general practice and accepted by law. There has to be convergence of
state practice and opiniojuris for us to talk about custom. Opiniojuris is a psychological or
subjective element of custom whereas state practice or usus is a material or objective
element. The mere existence of state practice is not enough. There must be believed on the part
of the state as doing so is legally mandated and required. For instance, a state protects the
immunity of diplomats of another state for the reason that it believes that doing so is legally
obligated and required. A state also refrains from using force on another state for the same
reason. It is not for the mere reasons of charity, convenience and expediency. There has to be
covert action plus conviction. The lotus case is an important case to explain this.

In connection with usus, state practice has to be there. It has many aspects. The first is duration.
There is no required rigid time limit. For that matter there is a possibility for the existence of
instant customary international law. For example, space law was developed to customary
international law in a very short span of time. The other element is continuity. To what extent
does need continuity? For instance, in the diplomatic asylum of hayya Delatoray case, the court
decided that there is no international custom in the regard of asylum. In this particular case, a
Colombian citizen by the name Haya Dellattorae who was living in Peru was accused of having
committed of crime. The Peruvian authorities wanted to hold this individual. He however
succeeded to escape to Colombian embassy in Peru. Once he went to Colombian embassy, The
Colombian authorities claimed that they have granted asylum to this individual and they have the
right to safe conduct. Safe conduct means safe passage of bringing the individual from the
embassy to the port of embankment where by they can take him to their country. The case of
Juliana Assange is a good example to elaborate what safe conduct means. On their part, Peruvian
authorities argued that he committed common law crimes as opposed to political crimes.
However, The Colombian authorities argued that they have the right of unilateral qualification
to determine whether the crime he was suspected of was political or common law crime. So
the issue the court entangled with was whether Colombia had unilateral qualification on
determining the nature of the crime as common law or political. If the crime in question is
political, the issue of diplomatic asylum comes in to picture. Of course, asylum is related to
refugee law. Asylum is granted for persons who are politically persecuted. There is no need of
asylum for the person who committed common law crime. Instead, it is granted to a person who
is persecuted as a result of his political opinion, social origin, religion, and other grounds listed
under the 1951 refugee convention.

A very important case relating to asylum is the case of Juliana Assange happened in London.
Juliana assange went to equador embassy in London while British authorities sought to arrest
him. This circumstance gave rise a lot of issues revolving around international law. One of those
issues was the concept of diplomatic asylum. The concept of diplomatic asylum is a popular
concept in Latin America. Whereas Britain and USA do not recognize this concept. In the given
case, equador claims that it has granted asylum to this individual and has entitled the right to take
him from London to equador. However, british authorities did not accept its claim. This
individual is unable to move out of the equador embassy and still hold up there. Because, if he
moves out of there, the british authorities automatically grab and arrest him. He may possibly
travel by an embassy car which is protected by international law. but the chances of being
arrested still remain wide. So the concept of diplomatic asylum is popular in some parts of the
world, whereas it is not recognized in other parts of the world. In this case, we have the concept
of regional custom. For instance, when Colombia failed to establish the existence of customary
international law, it invoked the notion of regional custom. When states invoke regional
custom, the burden of proof becomes harder on them. They are required to be able to
discharge the higher threshold of burden of proof which becomes very difficult. There are some
instances involving regional custom like the right of passage case between Portugal vs india.
The case was that the Portuguese have freely used the passage in question for centuries without
any interference. But at one juncture, india started to block them from doing so. Due to this, the
Portuguese brought the case before the court and claimed to have the right to pass through
inclives nearby the Indian sub continent. They argued that there is a regional custom which
stayed for a long period of time. In this particular case, the portuguese were successful in
establishing the regional custom.

Coming back to the Haya Delatore case, Colombian authorities failed to establish the existence
of customary international law. Because of this, they invoked regional or local custom regarding
unilateral qualification. But the burden of proof of this local custom becomes harder. In its final
review, the court did not accept the argument of Colombia and decided that the state
practice in this regard is not uniform and continuous among the parties. Rather it is
contradictory and fragmentary state practice regarding unilateral qualification. Therefore, there is
no custom concerning unilateral qualification. Making their basis of argument on regional or
local custom for diplomatic asylum and unilateral qualification was also not acceptable.

The main point here is that custom has to be uniform, constant usage and virtually extensive.
However, there could be deviation and occasional violation from long established practice. But
this is not ground enough to say that there is no custom. To what extent that there has to be
rigorous conformity? In military and paramilitary activities in Nicaragua case, the ICJ
decided that there is no such requirement of regorious conformity in state practices.

So far as state practice is concerned, there has to be converting general state practice. However,
the generality of a given practice is a bit controversial. Should every state be involved so as to
speak about general state practice? Actually, we cannot even have all states in some practices
like maritime powers. Maritime powers are those states which appear to be having costal
areas. If a given state is landlocked, the chance this state is going to be maritime power is very
limited. So landlocked countries are not much involved in the development of the maritime
law of the sea. The point here is that there has to be generality of state practice. But there is no
need of universality i.e. we don’t require all states to be involved in a state practice in
question. It might be a limited number of states that could give rise to general state
practice.

These all requirements have to be there for the emergence of custom. We can establish what state
do or act by different resources including administrative acts, legislation, decisions of court of
law, treaties, official publications, historical records and manuals. The positivists appear to
approach international law from the perspective of state consent. To positivists, the best
manifestation of the consent of state is state practice. But when we consider the origin of
international law, many writers tended to be from natural law perspective. Because at one
juncture, international law was intertwined with theology. It took a long time to disjoin theology
from international law. However, during 19th century, the influence of theologists started to
decline and the positivists have taken over the naturalists which initially greatly contributed for
the development of international law. In north continental shelf cases, the dispute involved
Germany on one side and Belgium and Holland on other side. The issue pertained to the
delimitation of continental shelf. It is part of a territory adjacent to the cost. There has been
disputes between germany and holand on the issue of delimitation. To resolve this dispute, they
agreed on a treaty which is called geneva convention on continental shelf in 1956. in this
particular treaty, they inserted a principle called equidistance as the basis for delimitation.
Germany signed the treaty but did not ratify. After a while, the germany realized that if they
proceed the delimitation of continental shelf based on the principle of equidistance, they will
loose the case. AS A result, they refused to ratify the treaty. The matter was brought to the
ICJ and the court decided that there is no virtually extensive, uniform and constant
principle regarding the delimitation of continental shelf. Holand argued that the principle of
equidistance which is included in the geneva convention has already attained the status of
customary international law Because of its inclusion inside the treaty. However, the court did
not accept the argument because it has been a few years since the treaty was adopted, time
element is very limited. In general, the principle of equidistance has not attained the status
of customary international law because it has not been applied continuously and lacks
uniformity and virtual extensively. This case shows us that how the nature of virtually
extensive, constant and uniformity are necessary in the usus or material part of custom.
The other element of a custom is opinio juris sibbenecesitattus. State ingages in those state
practices when It believes that it is legally required or obligated to do so. This is what we mean
opiniojuris. To illustrate this idea, the lotus case can be taken as a good example. In lotus case of
1927, a vessel of france by the name lotus collided with another vessel by the name bossport
belonging to turkey. This collision led to the death of 9 persons all of whom happened to be
Turkish citizens. This incedent took place in the highseas far away from turkey. When the Lotus
reached Istanbul, the Turkish authorities immediately proceeded to arrest the officer of the wach
who is said to be responsible. Because he could have avoided the incedent if he had been
deligent and careful. If his negligence brought this incident, the question is who has the
jurisdiction to try the officer of watch. Is it the flag state of the accused or the national state of
the victim? The Turkish authorities arrested the officer and brought him the court of law. The
French however protested the arrest that Turkish has no jurisdiction to try the case. They
invoked that at no time in the past there has been instances of national state of victims
excercising matters of this kind. Stated otherwise, there is no state practice that at any time that
the national state of the victim claimed to have jurisdiction to try this kind of case. Having made
these observations, there is no law which supports the Turkish to claim having jurisdiction on the
matter. The PCIJ of 1927 was confronted with this issue. The fact that there was no any such
practice where national state of the victim claimed to have jurisdiction to try this case, does that
mean the state cannot do so? The answer is no. because, why national state of the victim did not
claim to have jurisdiction over such matters? Is it they thought that it is obligatory? Is it the
subjective conviction that they do not have the right to claim? Or is it out of convenience,
expediency and other considerations? Having raised all these issues, the court came to
conclusion that there is no evidence to claim on the part of French authorities that national
states of victims refrained from claiming to have jurisdiction on such matters because of
they believe that there is no legal basis. Due to this, the court dismissed the arguments of
French government. PCIJ decided in favor of Turkish authorities to have jurisdiction on the
matter for the reason that the elements of usus and opiniojuris are fulfilled. Similarly, the Yunis
V. US case is also important to elaborate the concept of opiniojuris. In this case, US citizens died
due to the explosion of airplane by the act of terrorists in Lebanon. Despite the fact that the
venue where the incedent took place far away from America, US claimed to have jurisdiction on
the case. Because the victims were its citizens. This is called passive personality jurisdiction
which means even if the event occurred in the territory of Lebanon, US may have jurisdiction on
the matter since the victims are its nationals.

Treaties:

the other source of international law is treaties. They are the most important and preferred
source. The term treaty can be described as a written agreement where by the states participating
bind themselves legally to act in a particular way or to set up particular relations between
themselves. This definition is similar with the one which is found in the Vienna convention on
the law of treaties of 1969. There are two Vienna conventions on law of treaties 1969 and 1986.
But only the 1969 has come in to force. Treaties can be concluded between the states. The
1986 Vienna convention talks about treaties concluded between the state and international
organizations. Treaties have obligatory nature.(pacta sunt servanda). This is the first rule of
international law which means promises made must be kept. This rule can be traced as far
back as the faros of Egypt. This principle is also included in the treaty of west falia of 1648.
There are different types of treaties. The major types are law making treaties and treaty contracts.
Law making treaties are also known as normative. Most of the time,They tend to be multilateral
as opposed to treaty contracts which are bilateral and regional in nature. Lawmaking of treaties
lead to establishment of norms and creation of laws. The effect of lawmaking of treaties is more
general i.e. they are not confined to few states. They are intended to effect generally not
restrictively. In the case of treaty contracts, their effect is more confined to a few states as such.
Lawmaking treaties were not common before the 2nd world war. However, there were treaty
contracts which were concluded by European countries in some issues even before the 2nd world
war. For instance, international human rights were not domestic issue before second world war.
However,after this period, it became domestic issue and there is also veritable code of human
rights. Human right is about a standard setting. Lawmaking treaties are standard settings creating
law which have effect generally not restrictively. When we consider the situations previous to
the second world war, there are some instances of treaties like treaties banning slavery. There
was also covenant of league of nations which included the system of mandate where by the
victors were in a position to administer the previous colonies of the defeated powers like
Namibia. There is a provision of international labour standard in this covenant which observed
the need for the rights of workers. However, there was no any systematized human right treaties
as such before the second world war. There are some features of treaties which make it different
from other sources of international law. Treaty is expressed agreement as opposed to custom
which is not. Treaties resemble contracts. Many principles of contracts are also applicable to
treaties. Of course, there are some deviations. For instance, someone can invoke duress for
invalidation of a contract in domestic laws of contract. It is however very unlikely to happen for
a state to invoke duress to invalidate a given treaty. But it is usual that the defeated states sign
treaties of settlement and secession of hostilities following aftermath of the war. There is a bit of
duress involved in this kind of contract. However, states would not find easy to invoke duress for
invalidation such contracts. Treaties are superior and preferred to custom as source of
international law. It is also modern than custom because it is difficult to establish custom in
some situations. Treaties usually bind the parties those who are in privy. But there are instances
where treaties may have effect on non parties. For instance, there were only 56 member states
when UN charter was adopted in 1945. Despite this, the principles of this charter are applicable
on the present 193 member states. Article 2 sub articles 6 also calls upon non parties to adhere to
the principles of UN charter like peaceful coexistence, maintenance of international peace and
order. Because of these principles require the collaboration of non-parties. Custom has some
advantages over treaties. Custom binds all states. There is very theoretical possibility for a
state to not be bound by a given developing customary practice. This is what we call
persistent objector theory. This theory advocates that if a given state has been persistently
objecting a given state practice uninterruptedly for a long duration, there is a possibility to
that state to not be bound by that given customary state practice. But this is very theoretical and
very difficult for a given state to establish the facts that it has been persistently objection a given
customary practice without interruption.

In particular, norms which have attained the status of international customary law cannot be
deviated from to which juscogens is the best example. In the case of juscogens, no deviation is
allowed from peremptory norms of international law according to article 53 of the Vienna
convention on law of treaties. Prohibition of slavery, genocide and use of force to settle
disputes are some of the norms which have attained the status of customary international
law. In general custom binds all states. Unlike custom, in principle, treaties bind the parties
who are in privy save the exceptions. Another advantage of custom is that it may touch upon
some areas which are not addressed by treaty laws. When treaty law is silent, it is possible
to have recourse to custom as possible source of international law. Treaties would not
become binding upon states immediately. There are legal requirements such as signing,
ratification etc for the purpose of its domestication. In case of custom, there is no such
requirement of domestication. It is also impossible to make reservation on custom. For
instance, while concluding a treaty, a state party may agree on many provisions of the treaty.
There could however be some provisions which are not its interests. To avoid this, there are the
mechanisms i.e. reservations which are unilateral statements where by state party may nullify or
modify the effects of some provisions of the given treaty. Custom is not subject to reservation.
Many of treaties allow reservation. But there are some exceptions.

General principles of law:

The other source of international law is general principles of law. Article 38 of the statute of ICJ
provides that general principles recognized by civilized states. It is however impossible to make
use of the language of civilized or barbarian states today. It is the language reminiscent of the
past. When considering the anticedints of international law, one thing which can be realized is
that international law appears to be more Eurocentric. Because many concepts of
international law are more influenced by European powers. The states which have initially
pioneered appear to be from Europe. This eurocentricism appear to be one of the major
problems today. Some criticize eurocentricism of international law as failing to accommodate
the interests of other parts of the world. Dispite this, the fact remains that the concepts of
international law are more Eurocentric.

We have mentioned custom and treaties as sources of international law. But there are instances
where it is impossible to come across any guidance to address a given issue at hand. In that case,
the doctrine of nonleaquoe comes in to picture. Nonleaquoe means no law that judges decline
from disposing the case saying that there is no law on the matter. But it is not possible to say
that we cannot decide the case because there is no law. Judges must be able to address the
problem at hand through any mechanism. It is at this point that general principles of law come in
to play. The meaning of general principles of law is vague and unclear. It is unclear whether it
talks about the general principles of international law or municipal law. It is also ambiguous
whether it talks about the natural concepts of equity and justice. Therefore, the concept of
general principles of law is not much settled. Despite these ambiguities, many agree that general
principles of law constitute themes which are common to developed legal systems. For instance,
the afro-asian legal system borrowed many principles from anglo-american and civil law legal
system. This shows that the chance to find principles which are common to developed legal
systems is high. As a result, general principles of law can be used to be able to address issues
instead of raising the doctrine of nonlequoe.

The principles such as period of limitation, pacta sunt servanda, compensation and good
faith are some examples of general principles of law. Article 2 sub article 2 of the UN charter
says that states have to perform their obligations in good faith. Article 1731 of our civil code also
deals with the principle of good faith. It states that parties of the contract should discharge their
obligations and interpret their contracts in good faith. Because there is no better judge than the
parties themselves who well know what their agreements is all about. Reparation is another
general principle which means that any violation of an engagement entails the duty to make the
damage good. This principle is laid down in the Chorzo factory case which is well celebrated.
This case was between germany vs holand regarding the seizure of the nitrate factory by holand.
Germany brought the case to the international court of justice. The contention in the chorzo
factory case is that the holand seizure of the nitrate factory was against the provisions of the
geneva conventions. Although the direct victim of that illegal act was an individual, germany
argued that it also suffered injury because of that violation. The court investigated the case and
finally decided that the seizure was actually illegal and violated the provisions of the geneva
conventions. It also ordered reparation for germany. This order put a great remark for the
application of the principle of reparation in international law. the court further elucidated the
principle of reparation that any violation of an engagement entails obligation to make good the
damage. Two issues can be raised here. First, every violation intails obligation to make the
damage good. Second, the reparation to be made must wipe out all consequences of the wrongful
act. Article 1815 of Ethiopian civil code similarly states that during invalidation of the contract,
parties must be reinstated to the position where they would have been had the contract not been
made. The admissibility of indirect or circumstancial evidence which is commonly used in many
developed legal systems is also another example of general principle. The corfu Channel case
between UK v. Albania is the best instance of this principle. This case revolved around the
explosives which were placed inside the ocean nearby territorial waters of Albania. If there
are explosives which are planted with in the territorial waters of Albania, it is supposed to inform
others about the presence of the explosives so as to enable them to protect from harm. Failure to
do this entails consequences. In this case, while UK submarines were going along the territorial
waters of Albania, they came to contact with the explosives planted there. This led to the
explosion of UK submarines. UK brought the case before a court alleging that this is attributable
to Albania. Albania argued that they did not know the fact that there were explosives nearby the
territorial waters. However, the court decided that this is the territorial water adjacent to your
costal areas. As a state, Albania is duty bound to know exactly what is happening within its
jurisdiction. Because of this, the argument of Albania was not acceptable by the court. The main
point here is that the admissibility of circumstantial evidence was used in disposing the case by
the court as a general principle of law. The principle of estopel which is related to aquiscence is
also used as a general principle of law. Suppose that a given state has not been persistently
objecting to the given state practice. It only kept silent wit out persistent objection. Even if it is
not outwardly supporting that state practice, the mere keeping silence amounts to aquiscence
or tacit approval or conformation. If a state has not been vigoriously opposed towards a given
state practice in the past for long period of time, it is considered as it tacitly approved and
accepted that practice. The temple case between tyland and Cambodia can be taken as example
for this principle. This temple is still a matter of controversy between the two countries on the
question of who has jurisdiction over this temple. Because it happened to be nearby the border of
these countries. in this particular case, the Cyamis the present day Tyland authorities asked the
French to draw a political map related to Indochina the present day Cambodia and Cyamis.
France was the previous colonial master of Indochina. When the French came up with this
political map, Cyamis authorities thanked the French for having prepared so. This political map
which was drawn by colonial master of Indochina included the temple within the boundary of
Indochina, Cambodia. Despite this, Cyamis authorities were greatful for French for having
prepared the map. However, some years later, they started protesting by saying that the temple
belongs to them and falls within their territorial jurisdiction. Finally, the court came to
conclusion that Cyamis or the present day tyland is not in a position to protest or claim the
temple because of aquiscence. They did not protest at the right time when the temple was
included within the boundary of Cambodia. This failure to protest at the right time amounts
to tacit approval. Keeping silent while someone is supposed to protest is said to be construed as
acceptance. because of their aquiscence of failure to protest, they are to be estoped from claiming
as the temple belongs to them. This is what we call the principle of estopel.

Ex injuria jus non orito which means right does not arise from wrong is also recognized as a
general principle by many developed legal systems. This is refered as Steamson doctrine named
after the then secretary of state of the US. When Japan invaded Manchuria, US was appealing the
states of the world not to recognize Manchuria as being part of japan. Because, illegality cannot
be the source of rights for the wrong doer and law doesn’t arise from injustice. This is common
principle applicable in many legal systems. Resjudicata and equity are another examples of
general principles of law. Even if it is controversial, equity remains to be one source of
international law. The principle of equity is gaining ground. For instance, the are many principles
of equity incorporated in the united nations convention on the law of the seas [UNCLOS]. In this
convention, there are many provisions which give the court the mandate to resolve disputes by
having recourse to equitable principles. In north continental shelf cases, the court made use of
equitable principles to resolve disputes. in principle, equity means equality saving exceptional
circumstances. There was a case between burkinafaso and mali on the lake Soom. in this case,
both claimed to have right over the lake soom. In resolving this dispute, when the court made use
of the principle of equity as being close to mean equality, the lake was divided equally between
the two contending states. generally, equity may perform 3 functions in its application in
international law. the first application of equity is referred as equity infra legem. This occurs
where several different interpretations of law are possible and these equitable principles permit a
court to choose among them according to the requirements of justice. For instance, ICJ decided
the Tunisia vs. Libya continental shelf case by applying equity infra legem. The second
application of equity is known as equity praetor legem. This is applied to fill lacunae which exist
among positive rules of international law. the third function of equity is contra legem which is
not acceptable except to the extent that all the parties concerned agree to the application of
equity. This is also known as ex aequo et bono. Equity is a bit different from ex aequo et bono.
Equity is considered as part of an applicable legal system. Whereas ex aequo et bono is deemd as
extra legal realm. This means that the notions of equality associated with ex aequo et bono are
deemed to reside in a moral, social and political realm which is external to the law. ex aequo et
bono is laid down under article 38 (2) of the statute of the ICJ. Literally, ex aequo et bono means
what is just and fair or according to right and good. It can be applied by the court provided that
only if the parties concerned are consented to it. Judges, in deciding ex aequo et bono, may even
disregard and brushing aside the existing law and they may create new relations. This makes it
quite different from equity. Equity is grouped under the general principles of law laid down in
article 38 (1)©. Because equity is fairness, reasonableness and justice in application of existing
substantive laws.

Judicial decisions:

Judicial decision is the very important source of international law. It is a bit different from other
sources. As we have said before, judicial decisions and academic writings are said to be
subsidiary or law determining agencies as opposed to law making agencies which include
treaties, custom and general principles of law. Judicial decisions and academic writings do not
create laws rather they determine what the law is [delege latta]. In common law legal
systems, judges make laws and it is possible to talk about case law or judge made laws in that
municipal legal systems such as Britain. However, it is impossible to talk about judge made laws
in international law. Because judges do not make laws in international law tribunals. But this
assessment is subject to criticism. Because when judges in international law try to resolve cases,
the refer to the decisions of courts in the past. Moreover, when lawyers plead their cases before
international tribunals, they make point to invoke cases disposed in the past by the same or
another courts. This invocation of cases by the courts of law and attorneys shows us the
prominence given to the past decisions. There is urge and tendency of following the previous
judicial decisions. Though it remains something questionable whether there is precedent in
international law, the fact remains that judicial decisions continued to be a very important source
of international law. Pursuant to article 59 of the statute of ICJ, the decisions rendered by the
international court of justice do not have binding force upon others except as between the
parties to the dispute.

Academic writings:

The other source of international law is academic writings. The importance attached to academic
writings as source of international law appears to be fading. But at one juncture, they had been
very prominent source of international law. The best example for application of academic
writings is the Packet Habbana case which involved the issue whether fishing vessels which
engaged in the peaceful activities can be taken as war prize or not. With a view to be able to
address this issue, the US supreme court in 1900 delved in to the articulation of what customary
law on the matter is by referring to different sources. Among the sources consulted by US
supreme court, the writings of highly qualified publicists such as Calvo were influential. The
reading of that case can illustrate as to how a court of law may refer to treatises not as source of
law delege ferenda but as source of law delege latta.

Juscogens:

Juscogens are peremptory norms of international law. They are laid down under article 53 of
the Vienna convention on the law of treaties. One has to be cognizant of the concept of juscogens
because of its importance. These norms are norms which cannot be deviate d from. Some
examples of these norms are prohibition of slavery, prohibition of torture and prohibition of use
of force. These norms illustrate to a certain extent the hierarchy existed between the sources of
international law. for instance, we said that treaties are the most preferred forms of source of
international law. if two states came together and concluded treaty allowing the practice of
slavery, this would not be valid by the international community for the mere reason that the
practice of slavery is a norm which is against juscogens. the prohibition of use of force is also
provided under article 2 sub article 4 of the UN charter.

Ergaomnus norms: are norms which are applicable to the international community as a whole.
The case of dumdum bullet can be example. Dumdum bullet is explosives which expand in the
human body and lead to inevitable death of the target. These explosives were prohibited as far
back as 1868 in saint pittersberg declaration. These were initially produced to attack enemy
material. Later on, these were used against human beings. Therefore, in 1968 of the city of saint
petersbergconference, European countries came together and decided not to make use of
dumdum bullet in war explosive projectiles. The same assertion made in 1899 in the first heague
peace conference. Most of the parties involved in these two agreements were European
countries. After the prohibition of dumdum bullet, british was accused for the use of this
prohibited explosive in india against Indians. The british argued that the prohibition of dumdum
bullet is applicable only among the contracting parties in Europe. Therefore, they can make use
of this explosive against india which was not participant in those two agreements. However, that
argument was not acceptable. Because the prohibition of dumdum bullet was not an obligation
owed to few countries rather it is an obligation owed to the international community as a whole.

Siomnus on the other hand, is the opposite of erga omnus. It refers to obligations owed only to a
few states.

Historical overview of international law:

The contemporary international law as understood today traced as far back as 400 years ago. The
advent or emergence of international law concides with rise of the modern nation states which
are sovereign, independent and separate states. In other words, international law by large
emerged with the notion of sovereignty. When sovereign and independent states became distinct,
the need of rules of international law comes in to view because of the need to regulate the
increased contracts and higher degree of interaction between these sovereign states. Does it mean
that there were no early origins of international law? The answer is clearly in the negative. For
instance, there were the conclusion of treaties as far back as 2100 BC. There was also a treaty
concluded between Egypt and heatiles the present day Turkish 1000 years later. The were also
conclusion of treaties inscribed on stone block between Lagash and Uma in Mesopotamia the
present day Iraq.

In the case of ancient Greece, there were city-states in Greece. Those who are outside these city
states were considered as barbarians. Despite the fact that there was no conception of
international community, the contribution of Helenic Greece from 6th century up to 4th century
BC is very important. If someone is a member of one city state, he were still free to move around
all city states with in Greece despite the fact that he had not citizenship of those city states. This
arrangement makes it peculiar. the relationship existed between city states make Helinic Greece
important. The concept of natural law which was developed by Stoics which hasprominent role
in the evolution of international law also traced to this time. So far as the romans are concerned,
they developed and nurtured the concepts the Greeks came up with further. For instance, even if
the concept of natural law is a concept ascribed by stoics of Greece, it was developed more by
the romans. Jus civile is the law which applicable when there is a dispute among the roman
citizens. Jus gentium on the other hand is the law which is applicable in cases of dispute between
the roman citizens and noncitizens or among noncitizens. Jus gentium sought to be quite
influential as it was supposed to be universal. The application of jus civile was increasingly
getting narrow. for this reason, it became impossible to address issues and problems by applying
jus civile. The importance of jus gentium is becoming more evident and took over the position of
jus civile. Jus gentium is much related to universality in a sense that it is applicable even to non
citizens. It was influenced by canon laws. There was no conception of international community
in ancient civilizations of china, Hindu and islam. They only focused on the harmonius
relationships existed between their entities. During middle age, there was the rise of church.
Then there was the age of renaissance which came up with a new phenomenon the rise of the
state. There was a treaty called treaty of west Fallia concluded to bring the 30 year religious war
to an end. This treaty is related to religious freedom. It says that Catholicism can live side by side
with Protestantism. It is also related to the separation of state from religion. The treaty of West
Fallia is landmarch for the emergence of the notion of sovereignty and territorial integrity.
During this era, there was the rise of the state and the decline of pappacy. These emerged
independent and sovereign states started considering one another separate from each other.
France, Britain, spain and later on Sweden were becoming more territorially consolidated,
independent and separate states. They considered each other increasingly different. Previously,
the contact between the nation states was only limited to welfare and diplomatic relations. But
now there started to become higher degree of interaction between these states. As a result, it
arises the need of the rules of international law to regulate their interaction. The subject matters
that can be regulated by international law are becoming more extended. The development of
international law is a manifestation of changes in the configuration of international community.
For instance, law merchant and rules of maritime law were applicable even for foreign traders in
middle ages. They are said to be the seeds of international law because they had universal
application. All these elements of universality latter matured to the rules of international law.
The rise of continental system based upon the supremacy of the state marched the beginning of
international law. That is why we said international law is more Eurocentric. even if it is
international in its application, it is more influenced by western European traditions and values in
terms of content.

The nature of law:

International law is defined as a body of rules regulating the behavior of states and other entities
and their relations. This contemporary definition of international law differs from the traditional
one that the later focuses on the relationships existed between the states exclusively. The
traditional one is not accommodating other entities. The contemporary international law is open
ended and it has universal application. It means that it applies to all states. The primary subject
of international is states though there are other entities. In the case of domestic law however the
primary subject of domestic law is individuals.

Differences between domestic and international law:

There is decentralization of functions in international law whereas there is centralization of

functions in domestic laws. Law making, law determination (interpretation) and law
enforcement functions in international law are decentralized. There is no a single body which is
responsible for making of laws, interpretation of laws and enforcement of laws in international
law. Is it possible to consider the general assembly of UN as law making body of international
law? The answer would be no because many of the resolutions of the general assembly of
UN are not binding. There are only binding resolutions pertaining to internal matters of the
assembly. In the case of domestic law, the law is the command of the sovereign. The relation
existing in municipal legal systems is vertically structured. Nobody is above the law. There is
horizontal relationship in international community i.e. the law applies as between the states and
there is the principle of equality of states in terms of the law. No state is above another state
though there may be practical deviations. In domestic law, the law making body has to create
the law and individuals must comply with the laws. In case of international law, there has to
be state consent in the creation of the law. For instance, treaty becomes binding only when the
states consent to it and in the case of custom, custom emerges out of state practice. These are the
indicatives for the existence of the requirement of state consent in the formulation of
international rules. State consent plays a vital role in the creation of the international law.

Concerning law enforcement, there are bundle of rights including self help. Can we consider the
security council of the UN as a law enforcement body of international community? No because
the existence of veto power given to 5 permanent member states of Security Council namely
UK, USA Russian federation, Republic of china and France. There is no coordinated
system of sanctions in international law. That means there is no recognized, comprehensive
and coherent system of enforcement in international law as opposed to municipal legal systems
which have executive bodies that are in a position to enforce laws. in the case of security council,
it is not easy always to agree due to veto power and related reasons. Most of the time permanent
member states of the Security Council may not agree if the matter in question affects their vital
interests. Article 27 of the charter of the UN states that

1. Each member of the security shall have one vote.

2. Decisions of the Security Council on procedural matters shall be made by affirmative
vote of nine members.
3. Decisions of the Security Council on all other matters shall be made by affirmative vote
nine members including the concurring votes of permanent members. Provided that
decisions under chapter six and paragraph 3 of article 52, a party to the dispute has the
option of abstention. It is problematic to secure the consent of the concerned permanent
member states. As a result, there is decentralization of functions regarding enforcement
of law in international community. As a principle, individuals are not permited to use
force in the context of the domestic law. However, individuals may resort to use force in
some exceptional circumstances such as legitimate defence. in international community,
according to article 51 of the charter of the UN, states are permited to use force for the
reason of legitimate defense. It reads as nothing in the present charter shall impair the
inherent right of individuals or collective defense. If an armed attack offends against the
member of the united nations, until the security council has taken measures necessary to
maintain international peace and order, such state has inherent right to use force as
legitimate defence. this shows that states are in a position to enforce their rights and
interests including self help and counter measures. Therefore, there is no centralization of
functions of law enforcement in international law so long as there is no coherent,
recognized and comprehensive system of sanctions. International community lacks
executive body unlike the municipal legal systems.
When we come to law determination, is it possible to consider the international court of justice
as judiciary organ of international community? The answer for this question would also be in the
negative. The ICJ can consider and decide upon a given matter only when states in question
consent. This means that ICJ in principle does not have compulsory jurisdiction save the
exceptional circumstances provided under article 36 of the ICJ. But in the domestic law,
individuals have no say not to go to the court in which courts of law have compulsory
jurisdiction. Article 59 of the ICJ reads as the decision of court has no binding force except
between the parties and in the respect of that particular case. This shows that there is no
precedent stario decisis or effect of decisions in international law. Because of these reasons,
it is not possible to consider the ICJ as judiciary organ of international community. This
strengthens the statement that there is discentralization of functions concerning law
determination in international community as opposed to domestic law.

Does lack of central organs in international community makes international law not to be
considered as law? Some consider international law as soft laws which refer to a designation in
its own rights. Legislations like declarations can be taken as example of soft law. But can we
consider the entirety of international law as soft law? Con necting these issues the most problem
lies with the comparison of international law with domestic law. Our understanding of
international law stems out of the comprehension of domestic law. From the very outset, when
we are trying to define whether international law is law, we are looking at it from the vantage
point of domestic law. The problem is also without reason how we are trying to intimate this
issue. So it seems to be incorrect trying to understand international law by having recourse
to the nature of domestic law. There has to be another vantage point to understand international
law. Because the only reason that the absence of central organs i.e. law making, law
determination and law enforcement bodies will not lead us to the conclusion that international
law is not law. Positivists defines international law as international comity or positive morality.
They say that it is not law as it is not binding. International commity means doing something out
of courtesy not just because of it is obligatory or legally required. Positivists have been
criticized in two reasons. First, they tried to intimate the international law from the vantage
point of domestic law. Second, their understanding of international law is fluid because of too
much emphasis they put on the role force and coercion. It is absolutely impossible to appreciate
the nature of international law by intimating it from the point of view of force, coercion or
sanction. Off course, the question whether international law is law or not remains to be
contentious. Does international community obey comply with the rules of international law? The
popular belief is no. however, contrary to the popular belief, the rules of international law are
practically obeyed and complied with much of the time. If so, why do we still consider the
popular belief which talks contrary? It is because, dramatic violations of international law are
highly disseminated, circulated and publicized by means of international media. The reality on
the ground however is that many of the rules of international law such as telecommunications;
transportation, diplomatic relations and trade are actually complied with in different parts of the
world. The bulk of international community obeys the rules of international law without
any international police for the reason of the existence of reciprocity between states of the
world. Protection of immunity of foreign diplomats is one of the manifestations for the existence
of reciprocity. State A protects the immunity of diplomats of state B because of that it may
similarly dispatch its diplomats to state B. if state A protects the immunity of state B’s diplomats
with in its jurisdiction, the assumption is that state B would have reciprocal obligation to protect
the immunity of diplomats of state A. apart from reciprocity, rewards, advantages and support
from others could be another reasons for states to comply with the rules of international
law. The theory of consent is also another example. As we have said before, treaties cannot be
binding unless states consent thereof without some exceptions like jus cogens. In case of custom,
by its very definition, it is comprised of state practice and opinio juris which is state consent.
Another reason for states to obey rules of international law is self limitation or auto limitation.
Self limitation refers to what is to be viewed as internal subject matter of a state becomes
internationalized. The best example is the concept of human rights. The term human right
became everyday language since the second world war. Previous to that, there was a tendency
that treatment of nationals is a matter which falls with in the domestic jurisdiction of the given
state. Slavery was also previously considerd as a matter falling under the exclusive jurisdiction
of the state. Once two states came together and concluded a treaty to ban slavery, prohibition of
slavery has now become internationalized. This is what we call autolimitation. A state is limiting
itself by its own motion by making internal subject matter of a state internationalized. All these
reasons explain that irrespective of lack of coherent and coordinated system of sanction,
cohersion and force, the bulk of rules of international law are complied with the international
community contrary to the popular belief that rules of international law are not obeyed.

The idea of law plays central role in any society including international community. Therefore,
as members of one group, we have to combine with a view to be able to achieve commonly
accepted goals. We also need rules regulating behavior for insuring just and stable existence. In a
way there is some similarity between international community and primitive society. In case of
primitive society, if they feel that their rights and interests have been violated, individuals resort
to use of force. Everyone stands for himself because of the absence of central organs i.e. law
making, law enforcement and law interpretation organs. In international community, states
possess the use of self help measures to enforce their rights occasionally.

Subjects of international law:

States have the totality of rights and obligations of personality under international law.
Possession of rights and duties and procedural capacity to redress the alleged violations are
criteria to get international personality. Persons under international law will be held accountable
for non fulfillment of their obligations by virtue of their personality. There is a case in which the
court of international justice dealt with the issue of international personality. This case is named
as reparation for injury suffered in the service of the United Nations. In this particular case, an
individual was killed in 1947 with in the territory held by Israel while he was serving as agent of
United Nations. In this incident, there were suspicious circumstances likely to engage the
responsibility of the state of Israel. UN brought the case before the ICJ for reparation for UN and
the individual. The issues raised on this case were to what extent is UN in a position to bring the
case before the ICJ? And does it have international personality as it is an international
organization? The ICJ made these remarks in its judgment. Here is an excerpt taken from the
judgment of this case about international personality. (The subject of law in any given system are
not necessarily identical in their nature or in their extent of rights. Their depends upon the needs
of the community. Throughout its history, the development of international law and the
progressive activities of the state have already given rise to instances of action upon the
international plain by certain entities which are not states). The last phrase (certain entities which
are not states) shows the recognition of certain entities apart from states an organization as
persons under international law. This judgment highlights that international personality is
preserved not only for the states but also it is given to international organization such as
United Nations. This case explicates the ramifications of being person under international law.
The ICJ argued in that particular judgment that many functions has been given to united
nation. So how would this international organization be able to discharge its functions without
having international personality? The contention is that because of the powers and obligations
vested upon the UN, international personality is incidental thereof. The main point which is
transpired from the above case remains that entities other than states may have international
personality. International organizations, regional organizations such as European union,
nongovernmental organizations like international committee of red cross, insurgents and
belurgents, public and private companies and to limited extent individuals are subjects of
international law other than states. Article 4 of the charter of the UN reads as follows:
membership in the united nations is open to all peace loving states which accept obligations
contained in the present chapter and in the judgment of organization able and willing to carry out
these obligations. At the time of UN adoption, there were only 56 member states. The charter
provided that all peace loving states are welcome to join the organization membership. It shows
that community acceptance is very relevant factor for the purpose of international personality.
Existing member states appear to be instrumental for conferring personality for newly applying
states. We said that states are the principal subjects of international law.

Requirements of statehood:

There are four requirements of statehood. These are population, territory, government and
capacity to enter in to relations with other states and entities. The legal basis for this is the
1933 montovidio convention which reads as follows.

State as a person of international law should possess the following qualifications.

A. Permanent population
B. A defined territory
C. Government and
D. Capacity to enter in to relations with other states. This convention is widely accepted in
the formulation of the requirements of statehood. But this is not the only legal instrument
that we rely on. Arbitration conference of Yugoslavia is another legal instrument in
 articulating the requirements along with the montovidio convention. Opinion number 1
defines state in the following manner. State is defined as a community which consists of a
territory and a population subject to an organized political authority and that such state is
characterized by sovereignty. In this definition, population and territory are clearly
mentioned as requirements of statehood. The phrase (organized political authority)
represents government and sovereignty on the other hand stands for capacity to enter in to
relations. The later two i.e. effective government and capacity to enter in to relations
imply independence. Let us consider each requirements separately.

Permanent population: in the absence of core of permanent population, it is difficult to speak

about state. That is why Antarctica and arctic cannot be treated as state. These two areas are
devoid of core of inhabitants for the reason that they are inhospitable for humans. But this does
not mean that there is no territorial claim over these areas. A number of countries are claiming
valid title and begin scrambling to take hold off the areas adjacent to Antarctica and arctic
because of the presence of proven potential natural resources specially crude oil. When we come
to the need of permanent population, there is a problem relating to microstates. Microstates are
states which have a very small population size. Is it required to fulfill a fixed number of
population to be state? This issue arises in relation to states like Tuvalu, Nauru, Legitenstain and
focklan islands. During their admission to the united nations, Tuvalu, Nauru and Legitenstain
had ten, twelve and thirty one thousands of population respectively. There was also controversy
regarding the required number of population in focklan islands for excercising the right of self
determination. Is there any fixed number of population requirement? There is no such
requirement of fixed number of population. The only requirement is the existence of core of
inhabitants. There may be nomadic population who move from place to place. This creates
problem because of the permanency requirement. But the presence of nomadic population does
not negate the fulfillment of permanent population requirement so long as there are core of
inhabitants. This problem happens in Monaco which a recreational state. Because the
majority of the population in Monaco are non-residents who are going for the purpose of
entertainment or recreation. In the past, there were attempts to figure out the number of
the population. These attempts were not successful.

Territory: the other requirement of statehood is territory. A problem relating to territory is the
question of defined territory. A territory should be defined. But should the territorial borders of a
given entity need to be fully demarcated and delimited to be considered as state? No, there is no
such requirement of delimitation and demarcation of territorial borders. For such matter a
number of states have raised border disputes. Despite the fact that states are involved in border
disputes, we consider them states. We don’t insist on full delimitation of territorial borders.
Geographical size also does not matter for an entity to be state. What is needed is that the
existence of stable community in a given area. An entity needs to have territorial base from
which this stable community can operate from. For instance, Israel has been considered as
having statehood from 1948 onwards despite the fact that it has border dispute with palistine.
Because it has territorial base from which it is possible to operate. However, in the case of
Palestine, this is lacking. It is not only the fact that its territory is not defined properly but also it
lacks effectively principle. In other words, there is no any effective government that can exercise
effective control over much of the area palastine claims to be its own. For these reasons,
palastine cannot be considered as state. There is no requirement that borders need to be fully
delimited. This rule is established in the north sea continental shelf cases which involved
disputes concerning the delimitation of continental shelf. the point we understand from this case
is that though the territory of a given entity is not fully delimited, that does not necessarily mean
it is devoid of its statehood.

Effective government: is another requirement of statehood. As we have read opinion no. 1 of the
arbitration commission, the phrase (organized political authority) reflects effective government
as the requirement of statehood. Effective government implies independence from outside
authority. As a state, it may conclude a variety of agreements with other alliances. But there are
some agreements which put statehood in jeopardy. For instance, it is difficult to consider an
entity which conferred its domestic issues, defense and foreign policy upon another states as a
state. Because agreements on these matters puts its statehood in risk or jeopardy. Therefore,
effective government remains to be one of the most important requirements of statehood. This is
well illustrated by the report on the status of Finland from 1920 by International Commitee of
jurists. This committee was established to study in to the question when Finland became a state.
The committee came up with the document named report on the status of Finland. At the end of
the investigation, the committee came to the conclusion that it is extremely difficult to say that
Finland became state as of this date. As we know, Finland declared its independence from
Russian federation following the russian revolution of 1917. But after a few years from its
independence, there were anarchic, violent and chaotic circumstances in Finland. Because of the
prevalence of these situations, it is impossible to talk about a government with effective control.
The then government of Finland lacked effective control to exempt those chaotic circumstances
prevailed there. At one time, the committee said this on its report in the relation to the question it
was meant to address. This is excerpt taken from report of the committee. (Until stable political
organization had been created and until the public authorities had been strong enough to
assert themselves throughout the territories of the state without the assistance of foreign force
state may not be created. This is what it means effective government. And Finland would not
become state until these requirements are fulfilled. But once an entity has been established as
a state, the collapse of governance in that state does not negate its statehood. The best example
is the case of Somalia. The collapse of governance in Somalia does not destroy its statehood.
Because it has already fulfilled the requirements needed to establish itself as state. Based on this,
some argue that the term (failed states) does not apply in international law so long as the
collapse of governance in one state doesn’t deprive its statehood. In the case of Somaliland, there
was contentious issue that it became state only for about four days. Then it argued that it fulfilled
all requirements of statehood. But it was not acceptable for it lacked the recognition of other
states. The issue of submerging islands is the recent problem in relation to territory. There are
situations where some islands are on the verge of submergence like solmon islands in connection
with climate change and environmental problems. However, it seems that this issue is a grey area
in international law in a sense that it does not provide adequate answer for this kind of scenario.
Having all said this; let us make some observations on new developments which have led to
reexamination of the criteria of effective government. In recent times, some developments have
taken place which has led the international community to engage in revision of the requirement
of effective government. Let us take the case of Kosovo as an example. There were Serb
inhabited areas with in Kosovo. These Serb inhabitants did not recognize Kosovo as an
independent state and opposed its disintegration from Serbia. As a result, the Kosovo did not
exercise control over the areas which are Serb inhabited. It is unlikely possible to say that the
Kosovo government exercised effective control throughout its state. Similarly, when guinea
bisawo was recognized as a state, some parts of it were under the control of Portuguese. This
cannot assert the effective territorial control throughout guinea bisawo. In case of Belgian
Congo, when it declared its independence, there was a meeting in the UN. In this meeting, two
delegations arrived one led by the minister and the other led by the president claiming to be legal
authority representing Belgian Congo the present day DRC. So if there two delegations claiming
to represent the same country does this project the image of stable political organization? The
answer is obviously no. because during the time Belgian Congo was recognized by the
international community as a state, there were haphazard circumstances in it. In this effect, the
point is that the lack of effective control over a state is remedied by significant international
recognition. Significant international recognition mitigates the problem of lack of effective
control. For instance, there was a great deal of support by international community for guinea
bisawo and Belgian Congo to be considered as state. Because at that time African countries were
becoming independent from their colonial masters and became members of the UN. This helped
them find significant international recognition. This is what we call reexamination or revision of
the criterion of effective government. Self determination is related with this issue. The advent of
self-determination as an entitlement appears to have impacted the previous conception of the
requirements of statehood. States which were fighting for their self-determination have got a lot
of support from other countries despite the fact that they may not fulfill the requirement of
effectivity. Because they had a legitimate claim of self-determination. Therefore, self-
determination is one of the reasons for the reexamination of the requirement of effective
government. The notion of self-determination is enshrined under article 1(2) of the UN charter.
When this article elucidates the purposes of the UN, it makes reference to the notion of self-
determination to develop the friendly relations among nations based on in respect for the
principle of equal rights and self-determination of peoples and to take appropriate measures to
strengthen international peace. Article 55 of the same charter also makes reference to the idea of
this notion. It reads as with a view to the creation of conditions of stability and wellbeing which
are necessary for peaceful and friendly relations among nations based on respect for the principle
of equal rights and self determination of peoples to the states.. What makes specific reference to
self-determination unique is that the charter mentions it as human rights and fundamental
freedoms. There are no human rights provisions throughout the charter except the two
namely, self-determination and nondiscrimination. This shows the prominence given to self-
determination. This uniqueness and prominence attached to it was first brought by the insistence
of Soviet Union. The insistence of the Soviet Union for the inclusion of self-determination was
for the reason of undermining the colonial empires. The inclusion of self-determination was
not supported by the colonial powers like UK which itself turned out to be colonial master. It is
also unlikely to expect US to the champion of inclusion of non-discrimination which itself had
dejure discrimination policy against black community. Self-determination is the result of
compromise between the Soviet Union on one side and colonial powers on the other side. The
idea of self determination was also included under article 1 of both covenants namely, ICCPR
and ICESCR which shows the influence of USSR. The main point that is transpired from this
is that the notion of self-determination has led to reexamination of the requirement of effective
government. The newly independent states are not required to be in a position to exercise
effective government control throughout the territory. The absence of this stringent requirement
should not deprive their statehood. Significant international recognition remedies this problem of
lack of effective government. But when the idea of self determination was raised at that time,
the meaning ascribed to this notion was decolonization. But at a later stage, the meaning of
self-determination became developing because of resurgence of politics of identity throughout
different parts of the world. There were so many intrastate conflicts especially in the second half
of 20th century because resurgence of politics of identity. As a result of this, self determination is
also related with the issue of the right to secession. Do we have the right to secession under
international law? In Quebec case, the Canadian Supreme Court has dealt with the extent of
possibility of to talk about the right to secession in international law. It came to the conclusion
that it is impossible because of different reasons. One of these reasons is the doctrine of
utepossidettis. Utepossidettis refers to the sanctity of colonial boundaries. The term
Utepossidettis derives from latin. When Spanish used to be the colonial master of latin America,
they had administrative divisions so as to enable them make easier the system of administration.
It is these administrative divisions later came to be the present political boundaries of latin
America. The concept of utepossidettis was embodied in the constitutive act of African union.
Through time African countries give more prominence to this doctrine than any other part of the
world. Because it was serious issue that civil conflicts had been raging in many African
countries. But many of these conflicts had failed to give rise to new states like Biafra in Nigeria.
Biafra wanted to secede from Nigeria but it failed. There are however two recent examples of
civil conflicts leading to the creation newly independent states. These are Eritrea and south
sudan.

So according to the doctrine of utepossidetis juris, state formation must not involve changes
to the existing frontiers. Existing colonial boundaries must remain intact during the creation
of new state.
Capacity to enter in to relations with other states:

This requirement is related to approval by other states. Though an entity fulfills the three
requirements of statehood i.e. permanent population, defined territory and effective government,
it will not be considered as state unless it gets the approval on the part of other states. A very
good example is the case of Rhodesia present day Zimbabwe. Yansmith was leader of Rhodesia
at the time when imperial British authorities relinquished their colonial control over and declared
the independence of Rhodesia. But yansmith, the then leader refused to accept its independence
and continued to lead state of republic of Rhodessia for many years. However, Rhodesia had no
capacity to enter in to relations with other states even if all the remaining requirements had been
fulfilled. Though he succeeded to lead for a number of years, he was not able to maintain that
after some time because of lack of approval of other states. At that time, if Rhodesia wanted to
engage treaties with other states, other states would not likely to accept except one country
namely South Africa. Rhodesia and South Africa had common understanding on minority rule
and white domination. The case of Taiwan is another example. Taiwan lacked capacity to enter
in to relations with other states because of its linkage with china. Therefore, it will be difficult
for other states to consider Taiwan as sovereign and independent state. In another case, in 1960s,
South Africa declared some parts of its territory to be independent. Transkei was an entity which
was declared to be independent by the South African government. But UN condemned this and
urged the member states of the UN not to recognize these newly established entities like
Transkei. There is not country called Transkei exactly it is because of the failure on the part of
South Africa to accord sovereignty to this entity. It is also because of lack of recognition of other
states.

In general, the requirement of capacity to enter in to relations with other states is a very
important element of statehood in spite of fulfilling all other requirements.

Recognition of state and government:

In this section, we will talk about recognition of state and government separately. As we have
seen before, the requirement of capacity to enter in to relations with other states demonstrates the
need for approval on the part of other members of international community which enables
entities to obtain recognition to be considered as state. The term recognition of state is defined
as a formal acknowledgement by an existing state that the recognized entity possesses the
requirement of statehood. And recognition of government can be defined as the formal
acknowledgment by an existing state that the recognized government is effective government.
The concept of recognition can also be defined as a statement made by an international legal
person as to the status ihn international law of another alleged international legal person or of the
validity of factual situation. There are two leading theories based on this definition on conferring
recognition upon other states. These are constitutive theory and declaratory theory. According to
constitutive theory, an entity becomes state by virtue of the consent of other states. In other
words, the act of recognition creates states and this act of recognition endows the states with the
international personality. The constitutive theory dictates that no possibility of formation of
statehood without the consent of existing states. This implies that it is existing states which
confer personality upon those new entities aspiring to become state. In the absence of such
recognition on the part of other states, an entity is devoid of international personality and cannot
be a subject of rights and duties under international law. To the contrary, the declaratory theory
believes that an entity becomes state not because of the consent of other states. rather, an
entity becomes state by the factual situations existed within it. For instance, if a given entity
complies with the requirements of permanent population, defined territory and effective
government, that entity becomes state by virtue of these factual situations. According to
declaratory theory, recognition is just an acknowledgment of already existing factual situations
of statehood. Therefore, an entity can develop the status of statehood by its own efforts without
the need of the consent of other states.

Constitutive theory has some problems and is subject to criticisms. One of those problems is that
even if an entity fulfills all requirements of statehood, that entity is not considered as state until it
gets the will and consent of other states. When we consider an entity not state, it has multifold
implications. One of these implications is that if an entity is not state, it is not entitled the rights
and obligations under international law. An entity is not bound by obligations which
emanated from international law. For instance, the prohibition of aggression is a typical
obligation imposed on the states under international law. It is impossible to invoke an entity
which is not state to refrain from engaging in acts of aggression which only applies to states.
Therefore, the issue of legal recognition for a given status is very crucial. For example, when we
consider non-state actors like insurgencies, they fight about status. It is a huge victory for non-
state actors if they can obtain quasi-legal status. But states are not willing to give this quasi-legal
status for non-state actors. States want not to recognize these non-state actors as states, but at the
same time demand obligations to be complied on the part of those entities which are
contradictory. Not recognizing an entity as a state but at the same time conferring obligations on
it which is pertained to statehood is unsound and unacceptable. Common article three of the four
Geneva conventions is a good example for this situation. This is the only provision which is
applicable to no international armed conflicts. The gist of the common article 3 is that in any
situation of armed conflict, there is suffering and serious problem. Therefore, we try to minimize
the effects of armed conflicts on noncombatants and those who are not taken part in hostilities
and no longer taken part in hostilities. Common article 3 tries to achieve this objective of
insuring mitigating the effects of the armed conflicts by highlighting the minimum essential
considerations of humanity. One of these minimum considerations of humanity is to respect
those who are not taken part in hostilities and those who are no longer taken part in hostilities or
hordekumba. Respect means the negative duty of refraining from attacking, mutilating, torturing,
killing etc. the other minimum consideration of humanity is to protect. Protect is positive or
affirmative obligation which requires care like health care, provision of food, sanitation etc. in a
situation of no international armed conflict, warring parties must live up to this minimum
considerations of humanity. But when states agreed to these provisions, they included a
safeguard clause in the same provision which reads as follows; the application of the preceding
provisions shall not affect the legal status of the parties to the conflict. When we talk about
noninternational armed conflict, there are two parties involved state on the one hand, and
nonstate actor or insurgency on the other hand. But applying the provision of common article 3
to nonstate actors should not be considered tantamount to confer quasi-legal status to nonstate
actors. Because these nonstate actors are considered as criminals. The problem is that we cannot
impose obligations without conferring some kind of legal status to that entity.

In general, the constitutive theory claims that if an entity is not state, it cannot be a subject of
rights and obligations flowing from international law which sometimes proves to be a bit
problematic. Another problem of the constitutive theory is that there may be situations where a
given entity is recognized by some states but not by others. Then, the question would be
whether there is partial personality or not.

When we come to declaratory theory, it does not agree with the assertion that states confer
personality upon entities which demand to emerge as states. It believes that entities become
states when they fulfill the criteria of the statehood by their own efforts. The idea of Declaratory
theory has wide acceptance today. Because this theory has more dominant position in the
conformity with the practical realities.

Recognition is not purely a legal act that is a political act. There is no uniform application on
recognition. Recognition is a political act i.e. sometimes states afford recognition to entities
even if those entities do not fulfill all legal requirements of statehood because of their political
interests so demanded.

According to the guidelines on the recognition of new states in Eastern Europe and Soviet Union,
there are other factors that need to be considered in recognition of statehood. As you remember,
in 1990s, a number of entities emerged as states for the reason of dismemberment such as
socialist republic of Yugoslavia which led to redrawing of the political map of Europe. As a
result, The European community came up with the guidelines called guidelines on recognition
of new states in Eastern Europe and Soviet Union which was adopted in 6th December 1991.
In addition to the criteria that have been dealt with for recognition of statehood, this guideline
has added some other factors to the list including respect for rule of law, respect for protection
of national minorities, respect for democracy, human rights, commitment to obligations of
disarmament and amicable settlement of dispute. When we consider the European community
practice, apart from the factual situations, the above listed additional factors must be taken in to
account in granting recognition. The other aspect of recognition is collective recognition. The
importance of collective recognition lies in that if there is collective recognition on the part of
international institutions like African union, such collective recognition has the impact of
remedying imperfect situations. Imperfect in a sense that some of the criteria may not have been
fulfilled and this imperfection can be remedied through collective recognition on the part of
international institutions. Once an entity is recognized as a state, the implication is that it will be
entitled to enjoy the totality of rights and obligations arising from international law. this being
the general remark, some of these rights and obligations include; prohibition of aggression, the
right to self defense, immunities of the state and its officials, treaty making capacity,
jurisdiction over its territory, access to international court of justice and protection from the
use of force by other states.

Recognition of government:

Regarding to recognition of government, the leading doctrine is the doctrine of effective control.
To start with, the issue of recognition of government arises in cases of extra-constitutional
change of governments such as Coup d’eta. If there is smooth transition of government, no
need of talking about recognition of government. The doctrine of effective control refers to the
government in question which can assert itself throughout the territory and exercises effective
control. This is the test which has been explained in the Tinoco administration case. In this
specific case, the Tinoco administration in Costa Rica was ousted from power through
coupd’eta. The subsequent authority which threw over the tinoco administration engaged in
repudiation of all the invest ment trade agreements which the former administration concluded
with British nationals. This repudiation measure taken by subsequent authority led to
establishment of arbitration commission. This arbitration commission was led by judge Taft who
elucidated the issue whether the tinoco administration was effective government of Costa Rica or
not. The judge came to the conclusion that the tinoco administration is the government
because it is in effective control over much of the territory of Costa Rica. This is one of the
cases which highlighted the doctrine of effective control as one requirement for recognition of
government. Though effective control is the most reliable criterion for the recognition of
government, it is not the only one. There is another doctrine called tobar or legitimacy
doctrine. Legitimacy doctrine refers to acceptance on the part of the people which is an
important requirement to recognize a given government as effective. This doctrine was
developed at the time when USA wanted to ensure stability in the panama canal which is part of
Latin America. If there is a government which does not enjoy the acceptance of its people, the
likelihood that government can assert effective control and stability is minimal. As a result, this
led to establishment of the toolbar or legitimacy doctrine that a government which is recognized
as effective government provided it enjoys the acceptance of its people. But this doctrine is not
reliable as compared to the effective control doctrine. The other doctrine is that of Estrada
doctrine named after the then foreign minister of Mexico. It is also called automatic
recognition. Automatic recognition refers to the government leads to be recognized
automatically without attaching stringent conditions. According to this doctrine, we need to be
able to accord recognition to governments automatically without any condition.

Recognition may be of two types. These are dejure and defacto recognitions. For example,
Britain recognized the Italian administration in Ethiopia in 1936 defacto and changed to dejure
recognition two years later. In 1940, Britain withdrew its recognition. Dejure recognition is
explicit and formal acknowledgment of government whereas defacto is waiting and see which
is informal and implicit. When a state has doubt about the permanence of the government in
question, it doesn’t prefer to grant formal acknowledgment or dejure recognition. Rather, it gives
to that government wait and see or defacto recognition. states dispensable practice of express and
formal recognition of government was becoming less frequent. But now situations are being
changed and express or formal recognition appears to be on the agenda because of the dramatic
events in Arab spring. For instance, Britain and france explicitly recognized the sirian council
one month ago. This kind of express recognition was mute few years back. However, recent
events related with arab spring brought policy change in the practice of countries like Britain
which led them back to formal recognition. Express recognition by great powers such as
Britain and France plays political role and conveys message to international community to
urge them to follow the suit in the same way. In the case of implied recognition, for instance, a
state may simply establish diplomatic relations with that government without official or formal
acknowledgment. This mere establishment of diplomatic relations manifests the implied
recognition accorded to that government. In general, the manner of recognition could be different
depending on the circumstances. Recognition is different from cognition. Cognition refers to
possession of knowledge of a government which is passive. Recognition on the other hand is the
active one in that a state not only possesses knowledge of that government, but also it
demonstrates its willingness to engage in doing business with that government. In some
situations, there may be the issue of premature recognition. For instance in case of Biafra in
Nigeria, some states accorded recognition to Biafra but it failed shortly afterwards. Thus, one has
to be careful in the act of recognition in particular not to make hest in so doing. Otherwise, the
mere fact of recognizing a state which is likely to weather away in a very short time appears to
be misguided approach. It would be therefore in comment upon recognizing states to see that the
recognized entity is likely to stay permanent. Sometimes, there is the concept of conditional
recognition. Conditional recognition depends upon the existence of some reciprocity. For
instance, a state extends recognit ion to a government provided that the recognized government
gives it the most favor nation treatment. Another example of conditional recognition is in the
situation where there are national minorities in the territory of a government. A state may extend
recognition conditionally to a new government if that government respects the rights of national
minorities living within its territory and provides them special treatment without any
discrimination.

State Succession:

Before we discuss this section, we have to understand the distinction between state succession
and succession of government. Succession of government refers to a situation where a new
government takes over from the previous government. Succession of government does not bring
about any change in the legal personality of the state. Most of time the issue of successions of
governments arises in the case of revolutionary changes of government. When we talk about
the state, it is not static and immutable. States are subject to changes. There are susceptible for
different types of changes in their existence. One of the changes is succession of government.
But succession of government doesn’t have any effect on the identity and legal personality of the
state in question. The rule in this regard is well established by the Tinocco administration case.
As we have been dealt with the facts of this case, the Tinocco came to power and took the
administration in Costa Rica in 1917. Two years later, there was upheaval which led to the
collapse of the Tinocco administration. Afterwards, the new authority which took over power
from the Tinocco proceeded with the repudiation of contracts and treaties which the Tinocco
administration concluded with British nationals and companies. This act of the new authority led
to a dispute between Great Britain and Costa Rica. Then the issue at hand was whether the new
administration is in a position to repudiate the contracts, concessions and treaties which the
Tinocco authority made with British nationals. To this effect, there was a sole arbitrator who is
called Judge Taft. And he came to the conclusion that during the time Tinnocco administration
was in power, it was in actual and effective control of Costa Rica. He also concluded that
treaties and contracts which were concluded by the previous government are binding upon the
new government. The main point which transpires from the Tinnocco administration case is
that succession of government does not impact upon the identity and legal personality of the
state. And the new government will still be bound by the engagements of the previous authority.
Governments may come and go; but the states are intact and in continuity. Whatever properties
have been nationalized by the Derg regime, the effects of that nationalization would still impact
the new government. So the new government is not in a position to say I’m not going to be
bound by the expropriation and nationalization measures taken by the previous government.
because there is the continuity of the state. States are bound by international acts performed by
the previous governments. In other words, the new government inherits all rights and obligations
from the previous government. once we have distinguished state succession from that of
succession of government, what causes lead to the issue of state succession? A number of
changes could bring out the issue of state succession. One of these changes is merger. For
instance, Yemen used to be south Yemen and north Yemen. in 1990, they merged together to
form a new state, Yemen. Merger is different from absorption. Another cause for the existence of
the issue of succession is absorption. A good example of absorption is germany. In 1991, The
federal republic of germany[west germany] absorbed the east germany [GDR]. In this case, there
is no newly emerged state. Rather the identity and legal personality of GDR ceased to exist and it
was absorbed by west germany. Merger is different from absorption. The distinction between
the two is that merger gives rise to a new state whereas absorption does not give rise to a
new state. In the case of absorption, the legal personality of one of the states comes to an end
and the other state continues in a bigger position. Incorporation is another factor. There are
different forms of incorporation including annexation. For instance, Soviet Union annexed the
Baltic states of Latvia Estonia and Lithuania in 1940. So in the case of incorporation, the
annexed states cease to exist as independent entity. When soviet union broke in to different states
in 1991, those Baltic states did not have to declare their independence. Because they were
already independent entities. It is only because of the annexation of the 1940 that they lost
their independence. So they simply declare the restoration of their independence. The other
situation is secession. Secession happens when part of the territory of the former state breaks
away as to form a new state. Secession is however self explanatory. Cession is another sition
leading to the problem of the state succession. Cession means transfer and it happens when part
of the territory of the state ceded to another state. All these situations bring out different issues of
state succession. What is the impact when part of a territory of the given state breaks away so as
to form a new state by way of secession? What is the impact of secession on the former state?
Does it mean that the `former state ceases to exist? For instance, Pakistan seceded from british
india in 1947. Does the secession of Pakistan imply the end of the legal personality of india? The
answer would be in the negative. India still remains intact in smaller size in terms of teritory.
There are also the issue of dismemberment and dissolution. The best instance of dismemberment
is the case of Yugoslavia. Socialist Federal Republic of Yugoslavia used to be state which is now
dismembered and no longer exists. No other state replaced SFRY. Contrarily, in the case of
dissolution, there would be one state which replaces the former. We can take USSR as a good
example of dissolution. Russian Federation replaced the USSR and there is continuation by
means of russian federation. One of the manifestations for the existence of continuation is that
the membership of permanent seat the USSR had in the security council has been given to
Russia. When there is a break up between the territories, it arises the issue of state succession
who is going to replace the membership in international organization. What happened in the case
of USSR is that the permanent seat of USSR in the security council was handed over to Russian
Federation. Because Russia was believed to be the continuation of the predecessor state,USSR.
So when we deal with the question of membership in international organization, we have first to
address whether there is continuation or discontinuation. The Russian Federation presents a very
good illustration of continuation of USSR whereas the Federal Republic of Yugoslavia is to the
contrary. When SFRY was dismembered, Serbia and Montenegro came together to establish
federal republic of Yugoslavia and claimed that they represent the continuation of the former
SFRY. However, they did not succeed. Because this is not the case of continuation rather
dismemberment. No state can claim to be the continuation of the former state in case of
dismemberment. In terms of territory and population, they do not have the bulk of the territory
and the majority of the population. There were many successors states of the former SFRY
including Bosnia Herzegovinia, Serbia and Montenegro and Macedonia. If that is the case, who
among all these successor states is in a better position to claim to be the continuation of the
former state was the question. The Security Council refused the request of the Serbia and
Montenegro which claimed to stand for SFRY. Moreover, the other successor states like
Croatia, Macedonia, bosnia Herzegovina and Kosovo refused the application on the part of FRY
to be the continuation of the predecessor state. That means Serbia and Montenegro in the shape
of federal republic of yugoslavia did not enjoy the support of the other successor states.
However, when the Russian Federation claimed to be the continuation of the USSR, the other
states did not contest Russia. support of the other territorial units which have now evolved in to
successor states is also important to decide whether there is continuity or not. Therefore,
membership in international organization is one of the issues which is occasioned by the problem
of state succession. After the second world war, close to 100 dependent territories emerged as
states. many of these were newly independent states. the reason is that they were not considered
as states since there were under colonization. And a given territory cannot claim to be state so far
as it is devoid of its independence.

State succession is defined as the factual situation which arises when one state is replaced
by another in sovereignty over a given territory in international relations. There are a
number of questions which arise as a result of state succession. Some of these issues are issues
relating to treaties, state property, state or public debts, archives and membership in international
organizations. There are two treaties which deal with these issues namely; the Vienna convention
on the succession states in respect of treaties and the Vienna convention on the succession of
states in respect of state property, archives and debts. The Vienna convention on succession of
states in respect of treaties was concluded in 1978. It has 17 state parties including Ethiopia and
has now interred in to force. whereas the Vienna convention on succession of states in respect of
state property, archives and debts which was concluded in 1983 has not yet interred in to force.
According to article 2(1)(B) of the 1978 of the Vienna convention on succession of states in
respect of treaties, the definition of the term state succession reads as follows. Succession of state
means the replacement of one state by another in the responsibility for the international relations
of territory. So the main issue which arises as a result of state succession is to what extent the
rights and obligations of the former state devolve upon the new state. To this effect, there are
four approaches which address the legal consequences of state succession. These approaches are:

1. Theory of continuity
2. Theory of discontinuity also known as cleanslate doctrine [Tabularasa]
3. Theory of causistic distinction and
4. Devolution agreements also known as case by case.

From the very outset, we have to understand that problems of state succession are the most
complicated area of international law. There are not well established rules in this area. As a
result, it is not easy to find the cut and dried solutions for the problems of state succession.
Having said this, let us discuss the above four approaches one by one.

Theory of continuity:

Theory of continuity arises from the theory of universal succession. Universal succession is the
roman law concept which refers to the aggregate of the rights and obligations of the deceased
devolve upon the heir. There have been attempts to apply universal succession of the transfer of
aggregate rights and obligations of the previous entity to the new one. But this theory has been
found unsatisfactory to address the legal consequences of state succession. in domestic laws, it
may be possible to transfer aggregate of rights and obligations of the deceased to the heirs except
nontransferable rights and obligations. In reality, it is not easy to apply the domestic law of
succession to the issue of state succession. because of this reason theory of continuity has been
discredited.

Theory of discontinuity:

Theory of discontinuity is the actual opposite of continuity theory. This theory asserts that the
rights and obligations of the predecessor state do not devolve upon the successor state.
Discontinuity theory suggests that the sovereignty of the successor state should be free from
encumbrances. The new successor state starts dennovo meaning from zero or from scratch. No
encumbrances arising the former state would transfer to the new one. The new successor state
begins with the clean slate that is why this theory is called cleanslate doctrine or tabularasa. The
theory of discontinuity is much related with the school of positivism. The clean slate doctrine
became popular during the 19th century. The 19th century also marks the triumph of positivism
over natural law school of thought. With the rise of the school of positivism, the cleanslate
doctrine began to expand and increase its popularity.

Theory of Causistic distinction:

Causistic distinction theory first asks and identifies the cause of a type of state succession. Then,
it tries to address the legal consequences of such state succession based on the cause of the
identified type of state succession. this theory suggests that it is impossible to come up with
sound solutions for legal consequences arising from state succession with out diagnosing the
causality analysis of the type of state succession in question.

Devolution agreements:

This is the most preferred way of addressing legal problems arising from state succession.
because it makes the problem easier when the parties resolve the differences through their own
agreements. In contract law, there is a concept of freedom of contract in that parties can freely
determine the content of the contract in order to address the problems. Similarly, the states in
question are given freedom to join hands and iron out the problems of state succession by their
own agreements. Otherwise, some of the questions arising from state succession could be
complicated and vexing issues. We need to address the problems of state succession case by case
based on the agreement of the parties. This is what we mean devolution agreements. One
particular designation ascribed to the term devolution agreements is evident in case of
decolonization process. In decolonization process, when the colonial masters ceased their actual
control of the dependent territories, they concluded treaties with the newly independent
territories. Based on those treaties, all the rights, obligations, privileges and servitudes of the
colonial masters devolve upon the newly independent states. these devolution agreements prove
to be unpopular particularly in African context. Because the total blanket approval of all rights
and obligations of the treaties concluded by the colonial masters is unfair. In other words, it
would not be possible for newly independent states to accept all the rights and obligations which
emanated from the treaties concluded by colonizers with other states in the past. The newly
independent states have concluded those devolution agreements only for the sake of securing
their independence. But shortly afterwards, many states argued that they need breathing space to
be able to identify which treaties devolve upon them, and which treaties would no longer apply
and be binding on them. Generally, so as to address problems arising from state succession based
on the devolution agreements of the parties, the agreements should be fair and equitable which is
usually not the case.

Having dealt with the general background of state succession, now we will be concerned how the
above four approaches apply in specific instances of issues relating to state succession.

State succession in respect to treaties:

To what extent the treaties concluded by the former state are binding upon the new state? To
respond this question, we first have to look in to the catagories of treaties. Because it depends on
the nature of the treaties in question. It may serve as a guide in dealing issues of state succession.
For instance, multilateral treaties are largely presumed to be continuing or binding upon the new
state, whereas there is the presumption of noncontinuity or nonapplicability in the case of
bilateral treaties. This is simply a presumption and it could be rebuttable. We can only make
presumption concerning this issue. Because In the absence of any well established principles
dealing this issue, the only thing that we can do is just trying to garner the general state practice
in this regard and come up with the guide. When we come to multilateral treaties in particular,
there is the issue of human rights treaties. There is the presumption that human rights treaties are
binding upon the territory inspite of the changes in state and in government. This is justified by
virtue of general comment number 26. Of course, general comments are soft laws which are not
technically binding. But they give us the direction how the norms are evolving. This has been
one of the issues discussed in the genocide convention cases. This issue is related with the case
of federal republic of Yugoslavia. As we have been concerned with, FRY claimed to be the
continuation of the socialist federal republic of Yugoslavia from 1992 to 2000. It demanded not
to be considered as newly emerging state, rather as the former state of SFRY. However, they
were not accepted and failed in their attempts. Despite their failure and opposition on the part of
security council, they still maintained their claim to be the continuation of the former of SFRY
rather than applying as a new state for the membership of the united nations. Some states like
Croatia and Bosnia Herzegovina were also admitted Serbia and Montenegro in the shape of
FRY. Due to these facts, the status of federal republic of Yugoslavia was not clear during this
time.(1992 up to 2000). Then, the question is that if FRY is not a member of UN and not
admitted as the continuation of the former state of SFRY, what is the status of treaties concluded
under the auspices of the united nations such as the genocide convention. And the contention is
that because the status of FRY was not resolved matter during the conclusion of genocide
convention, it has no binding effect upon the FRY. This contention however was not accepted by
the ICJ for the reason that lately concluded human rights treaties and obligations arising from
those treaties are binding. There was also an issue as to whether FRY can present its case before
the international court of justice. Because, to be in a position to bring a case before the ICJ, it
needs to be a member state of the united nations.

Regarding to bilateral treaties, they involve specially political treaties. Political treaties are
treaties which are concluded by the governments of similar orientations. For instance, a state
with a socialist orientation concludes treaties with the government of the same orientation.
Treaties of alliance and friendship are also included as political treaties. What is fate of political
treaties in case of state succession? Are these treaties binding upon the successor state?
Obviously no. because when a government concludes alliance or friendship agreements with
another government, it is much related with the orientation of the government in question.
Therefore, when state succession issues arise, changes of government will occur and their
orientations are also likely to change. Thus, in case of political treaties, the clean slate doctrine
applies. Which means that alliance or friendship agreements of political treaties will not be
binding upon the successor state i.e. it starts with clean slate or dinavo.

Territorially grounded treaties are also one of the different forms of treaties. These treaties are
treaties dealing with the definition of boundaries. Localized treaties also known as dispositive or
real treaties are included here. So far as territorially grounded treaties in dealing with the
definition of boundaries is concerned, the rule is oti posidetis juris i.e. the territory devolves upon
the successor state. This means that even if the treaty in question is defunct or no longer existing,
the boundaries established by that treaty will still remain intact and devolve upon the successor
state. The successor state must simply take what is already determined by the treaties. Thus, in
connection with territorially grounded treaties, there cannot be any variation unless there is
agreement to the contrary concerning the delimitation and definition of boundaries. In default of
suppletary agreements, oti posidetis juris remains the rule. This rule was first originated in
relation to the issue of boundaries in Latin America. When Spanish conquerors gave up their
colonization over latin America, the administrative divisions they had were declared to be the
boundaries of the new states. The administrative divisions of the Spanish colonizers were
transferred to international boundaries from which the above rule was originated. This rule is
also very much intertwined with the constitutive act of African Union. This constitutive act
clearly establishes oti posidetis juris that the sanctity of colonial territories are not subject to
changes in the absence of contrary agreements. Localized treaties also called dispositive or real
treaties are treaties related to servitudes, or right of transit and demilitarized zones. As the name
itself indicates, it is treaty dealing with a particular localized territory or servitudes. It could be
for instance treaty dealing with ports or treaty dealing with rights of navigation over water way
or trans-boundary rivers. In this case, the rule remains the same. Despite changes in state
succession, localized treaties would not be affected and would remain intact. They would be
binding upon the successor state.
As we have said, there is the presumption of succession in the case of multilaterall treaties and
presumption of nonsuccession in bilateral treaties. The reason behind the tendency to promote
the succession of multilateral treaties is international stability. In most situations of state
succession, there is potential disruptions of the relationship of states. Therefore, we can mitigate
the effect of state succession upon international stability by ensuring the maintainance of the
system of multilateral treaties. The need for international stability has not to be disrupted
unnecessarily that we need to ensure the stability of relationships to the extent possible. That is
why international law for instance does not promote secession. If there is promotion of secession,
this is likely to cause problems for the international stability. In the case of secession claim of
Quebec in Canada supreme court, the court declared that the right to secession does not exist
expressly in international laws. This is the clear indicative of that this kind of endeavours are not
promoted du to their adverse impact on international stability. Another clear manifestation of
the need for ensuring international stability is uti posidetis juris (as you posess). An entity
becomes state based on what it possesses the day it becomes independent. By demanding newly
independent states to respect the existing colonial borders, we maintain international stability.
Article four of the constitutive act of the African Union clearly stipulates the need for newly
independent states to respect colonial borders. Generally speaking, many of rules of state
succession appear to be highly impacted by the thinking of ensuring the system of multilateral
treaties. For example in Europe, when the guidelines concerning recognition of states was
adopted in December 1991, it makes clear reference to the need for successor states to ensure
treaties relating to disarmament, nuclear non proliferation, regional stability and the like.
Successor states are required to express their commitments to be bound by these treaties. The
lesson we can draw from this is that existing European states recognize entities as newly
independent sovereign states if those entities ensure to live up to the aspirations, commitments or
obligations enshrined in previously existing treaties.

The best way of understanding the implications of state succession on treaties is by categorizing
the nature of treaties. To this effect, we have looked the distinction of treaties as multilateral and
bilateral. Apart from this distinction, there are another different forms of treaties. One of them is
territorially grounded treaties. By territorially grounded treaties, we mean that all rights or
obligations are directly imposed upon identifiable territorial units. One example of these treaties
is treaties dealing with territorial definition. The rules of state succession in respect to territorial
grounded treaties are relatively clear. And the rule is that treaties established in definition of
boundaries remain untouched by state succession. Simply put, the territory survives the treaty.
This means that if a treaty is dealing with territorial definition, the territory it established remains
unchanged despite the fact that the life of treaty becomes defunct. This rule is laid down under
article 11 of the Vienna convention on state succession in respect to treaties of 1978. It reads:

a succession of state does not as such affect

a. A boundary established by a treaty or

b. Obligations and rights established by a treaty in relating to the regime of a boundary. This
article makes it abundantly clear that state succession does not affect territorial definition.
This is however subject to contrary agreement between the parties involved. As you
remember, article 1711 of Ethiopian civil code puts the principle of freedom of contract.
According to this principle, the parties to the contract are free to determine the contents
of their contract. Likewise, many of the rules of state succession can be subject to
variations as susceptible to changes by otherwise agreement between the states involved.
No matter how some of the rules are stringent, they are subject to variations by the
consent of the parties. One thing which recurs in our discussion of many rules of
international law is state consent. Many of the rules of international law are the product
and reflection of state practice and state consent. This is the reason why the triumph of
positivism occurred in 19th century. In addition to article 11 of the Vienna convention on
state succession in respect to treaties, burkinifaso vs mali case supports the uti posidetis
approach or territorial definition. The ICJ clearly articulated the uti posidetis principle in
that case. apart from treaties of territorial definition, localized, dispositive or real treaties
fall with in the ambit of territorially grounded treaties. These are treaties which give rise
to rights or obligations in relation to servitudes such as demilitarized zones, port
facilities, navigation of waterways and the like. In event of state succession, these treaties
would remain intact. Due to this effect, they are more or less compared and assimilated
with that of territorially grounded treaties. Article 12 of the Vienna convention on state
succession in respect to treaties elucidates this rule concerning localized treaties. It reads
as follows.

Article 12. other territorial regimes

a succession of state does not as such affect

a. Obligations relating to the use of any territory, or to restrictions upon its use established
by a treaty for the benefit of any territory of a foreign state and considered as attaching to
the territories in question.
b. Rights established by a treaty for the benefit of any territory, and relating to the use or to
the restrictions upon the use of any territory of a foreign state and considered as attaching
to the territories in question. As it can be understood,Localized or dispositive treaties fall
with in the ambit of the kind of treaties envisaged under article12. These treaties would
not be affected by state succession. Slovakia vs hungary case is a case law which
supports the rule provided under article 12 of the Vienna convention on state succession
in respect to treaties. This case is famously known as Gabbachikovo naghimmarros case.
this case revolves upon the Danu river. As you know Slovakia used to be part and parcel
of chikoslovakia. Presently we don’t have chikoslovakia because of dissolution of states.
During the time chikoslovakia used to be one polity, it concluded an agreement with
hungary to construct a dam on Danu river nearby the border of hungary. The purpose of
construction of this dam was to generate energy for both countries. This initial agreement
 was concluded in 1977. Later, in 1988-89, hungary refused to implement the treaty
arguing that the treaty is no longer applicable. A number of reasons were invoked by
Hungary. These are:
1. Material breach on the part of Slovakia,
2. Supervening impossibility and
3. Fundamental change of circumstances.

These are grounds for invalidity of a treaty. In case of material breach, one party refrains from
discharging its obligation because another party failed to perform its obligation. Whereas in case
of supervening impossibility, one has been prevented from performing because of force majeure
or related things which make the performance of obligation imposssible. Regarding to
fundamental changes of circumstances, this concept tmay not come across any corollary in
domestic contract law as a ground of invalidity. It is a unique contribution of international law
and a bit controvertial ground of invalidity. When Hungary invoked the grounds of supervening
impossibility and fundamental changes of circumstances, their line of argument was as their
treaty was a political treaty and was extinguished as a result of state succession. They argued that
by the time chikoslovakia concluded the agreement with hungary, both were in the same regime
of socialist political orientation. However, things have changed dramatically. They are also no
longer living with in the regime of socialist orientation. For this reasons, hungary asked the court
that the treaty they concluded was political treaty, and it would have no effect as it has been
extinguished by state succession. But the court found their agreement unacceptable. The relevant
provision of the Vienna convention on law of treaties which deals with impossibility does not
support this line of argument. According to its provision, the ground of impossibility applies in
cases of object disappearing. The court examined that the treaty in question is localized treaty
relating to a particular territory. It revolves around the servitude of dam structures. Having made
this observation, the court concluded that to all intents and purposes, the treaty in question can be
assimilated to territorially grounded treaties. As a result, if this is a treaty which is assimilated to
treaties relating with territorial definition, this treaty remains intact despite changes in state
succession. The purposes of 1977 treaty between chikoslovakia and hungary were improving
navigation and generating energy. These are semblances of treaties related with servitude. So far
as treaties dealing with establishment of boundaries are concerned, the rules are clear. State
succession does not bring about any change on treaties relating to territorial definition. This rule
is enshrined under article 11 of the Vienna convention on state succession in respect to treaties.
We also find a provision of the same import in the Vienna convention on law of treaties. Article
62 of the 1969 Vienna convention on law of treaties precludes the invocation of the ground of
fundamental change of circumstances as a ground to invalidate a treaty which is related with
territorial definition or establishment of boundaries. It reads:

Article 62. fundamental change of circumstances

 1. A fundamental change of circumstances which has occurred with regard to those existing
at the time of the conclusion of a treaty, and which was not foreseen by the parties may
not be invoked as a ground of terminating or withdrawing from the treaty unless
a. The existence of those circumstances constituted an issential basis of the consent of the
parties to be bound by the treaty; and
b. The effect of the change is radically to transform the extent of obligations still to be
performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for terminating
or withdrawing from a treaty
a. If the treaty establishes a boundary……

In the case of Slovakia vs hungary, this was one of the provisions the court relied upon when it
reverted the argument of hungary.

So far as political treaties concerned, they are treaties relating to alliance, friendship or
neutrality. Clean slate is the dominant applicable approach for political treaties in the situations
of state succession. A good example of political treaties is the case of newly independent states
or decolonized territories. Article 16 of the Vienna convention on state succession in respect to
treaties makes it very clear that a decolonized teritory is not going to be bound by the political
treaties which the colonial empire concluded with the other states. Political treaties are subject to
clean slate because of the change of political orientations of the government. Article 16 of the
above convention reads:

Article 16. position in respect of treaties of the predecessor state

A newly independent state is not bound to maintain in force, or to become a party to any treaty
by reason only of the fact that at the date of the succession of state, the treaty was in force in
respect of the territory to which the succession of state relates. The main point we transpire from
this article is that the clean slate or the discontinuity approach is the dominant approach in case
of newly independent states. This provision applies not only in case of treaties but also in respect
to other issues. For that matter, it is a bit controvertial provision. Many of the rules incorporated
in the Vienna convention on state succession in respect to treaties are customary laws. However,
rules concerning newly independent states are not custom. Rather, different new rules are
included for the purpose of accommodating the demand of decolonized territories. This can also
be a reason for it to be controvertial provision. Clean slate is a very important approach to newly
independent states which allows them to start from zero. Obviously, there will be difficulties on
the part of colonial masters to accept this provision. It is because of this that we have devolution
agreements. Devolution agreements are agreements concluded by the colonial masters with
newly independent states. Upon granting independence to the state, the colonial master
stipulates that all the rights and obligations generated from the previous treaties transfer or
devolve upon the newly independent state. The newly independent states may agree on this kind
of treaties to be applicable provisionally. However, as time changes, they may review and select
important treaties which will be applicable upon them as they so interest.

Concerning international human rights treaties, the principle of automatic succession comes in to
picture. However, this principle is controvertial and is not yet settled. The principle of automatic
succession was one of the issues which have been raised in the Slovakia vs hungary case. one of
the issues presented to the ICJ was whether principle of automatic succession is a rule or not. As
a result of dissolution, checkoslovakia dismembered in to two independent states namely, check
and Slovakia. Therefore, one line of argument was that Slovakia and check would automatically
succeed those treaties previously concluded by checkoslovakia. The same issue of automatic
succession was also evolved in the case of the dissolution of the former socialist federal republic
of Yugoslavia. Once SFRY was dissolved, newly independent states have been emerged
including Croatia, Macedonia, Bosnia Herzegovina, Serbia and Montenegro. In 1992, Croatia
notified the succession of the previous treaties like human rights treaties concluded by SFRY.
Notification means the procedural requirement expected from a state to announce its accession
of a treaty to the custodian or depositary of the treaty in question. For instance, if it is the treaty
concluded under the auspices of the united nations, a state has to communicate to the secretary
general of the UN through notification that it has acceded the treaty in question. Only Croatia did
notification of its succession while other states remained silent. The question therefore was what
happens to the population? Are they to benefit from the protection accorded by the international
human right treaties concluded under the auspices of the UN which SFRY agreed to? As the
territorially grounded treaties are at time to the treaty, can we say that international human rights
are at time to the population inhabitants? Some argue that despite changes in state succession,
international human rights treaties remain in force on the population. in the above two cases, the
ICJ however did not rule on the principle of automatic succession. Another case, that of Bosnia
and Herzegovina vs Yugoslavia was presented vbefore the ICJ in 1996. In that case, Yugoslavia
raised the preliminary objection saying that bosnia cannot invoke the application of article 9 and
10 of the genocide convention since the later did not accede the convention. Article 9 of the
genocide convention reads as:

disputes between the contracting parties relating to the interpretation, application or fulfillment
of the present convention including those relating to the responsibility of the state for genocide,
or for any of the other acts enumerated in article 3 shall be submitted to the ICJ at the request of
any of the parties to the dispute.

As you remember, Bosnia Herzegovina became independent in 1992. And it has not yet notified
to united nations about its succession of the previous treaties. Relying on this fact, Yugoslavia
argued that since the convention says parties to the dispute, bosnia is not a party and cannot
invoke this convention. On its part, Bosnia Herzegovina made the basis of its argument on the
principle of automatic succession. The court finally decided that both are bound by the genocide
convention. The court however did not clearly rule on that preliminary objection. Another
contentious issue in that case was that why federal republic Yugoslavia was admitted before the
ICJ. Because, its status was in limbo and was not a member of the united nations. Sometime
later, the ICJ however declared that Yugoslavia cannot bring the case before it for the reason that
it was not a member to the UN. By virtue of article 93 of the UN charter, all members of the
united nations are ipso facto parties to the statute of the ICJ. Therefore, being a member of the
united nations is a precondition to be a member of the statute of the ICJ.

When we come back to the issue of international human rights treaties, they are considered as
special catagory of treaties. Because, they are not reciprocal in nature i.e. they do not have give
and take effect. For instance, in bilateral or multilateral treaties, states may engage in
agreements for reciprocity. But international human rights treaties are more about
accomplishment of high purposes of the united nations. This made international human right
treaties unique and peculiar as compared to other treaties. In the 1917barcelona traction case, the
court said that international human rights are obligations erga ominous which are applicable to
the international community as a whole. In addition to this, they are still applicable even if there
is no any procedural requirement of notification or succession complied with. According to
article 28 of the ICCPR, the UN Human Rights Committee entertains its own functions. It is
responsible for entertaining

-Individual complaints: If individuals allege that their rights have been violated, they can
petition to the human rights committee after having exhausted local remedies.

-Examination of state reports: Every state presents report about the implementation of the
covenant to the committee and the human rights committee examines those reports based on
article 40 of the ICCPR.

-Issuance of general comments: the UN human rights committee clarifies how to interpret the
covenant by issuing the general comments. Now, our focus is on general comment number 26
which talks about the issue of applicability of international human rights treaties in the situations
like dissolution of states. It says, international human right treaties are applicable in the entirety
of the territory of the predecessor state irrespective of state succession. Having raised all these
issues, there is still no definitive answer whether international human rights treaties are
automatically succeeded to the successor states. Because, this is the matter which is still under
consideration.

State succession in respect to state property, archives and debts:

According to article 8 of the Vienna convention on state succession in respect to state property,
archives and debts, state property is defined as any property right of the former state which is
transferred to the successor state. State property may be movable or immovable. A number of
factors have to be taken to determine the issue of state property in the event of state succession.
we first have to identify whether the property is movable or immovable. If it is movable, we also
have to identify whether it is located within the territory of the predecessor state or outside its
territory. The same is true to immovable state property. The applicable rules may also depend on
the nature of the type of state succession. For instance, when Alsace and Lorene which belonged
to germany ceded to france, all immovable state properties located within Alsace and Lorene had
been transferred to france based on the territorial approach. In case of secession like the case of
south sudan, whatever property located within south sudan at the time of separation would be
transferred to it. Again the territorial approach applies. Territorial approach is the dominant
approach both to the issue of state property and archives. According to the territorial approach,
the state property located within the territory of the succeeding state will be transferred to the
successor state. One thing that we have to realize is that when we deal with the issues of state
succession, we first give priority to devolution agreements between the parties concerning the
state property, archives or other issues. But in the absence of such kind of agreements, the main
principle remains the territorial approach. In relation to state archives, if it is manuscripts, it is
possible to make copies and distribute to other successor states though the original one remains
to the predecessor. In case of dissolution like USSR, it is the successor state which is said to have
actual possession of that state archives has also the right to claim ownershipbecause of territorial
approach. In the event of dismemberment, if there is movable state property, it will be divided
equitably to the successor states based on the principle of equitable division. Accessory intrinsic
principle is another principle to determine the issue of movable state properties located outside
the territory of the former state. Though the movable state property is located outside the
territory of the former state, it would be the property of the former state if it is very important for
performing its economic activities. This is based on the principle of accessory intrinsic.

In relation to debts, there are three types of debts namely, national debt, local debt, and localized
debt. national debt is debt which is owned by the predecessor state. Local debt is debt which is
related to a part of the territory of a country. for instance, in countries which follow the federal
arrangement, a federal component may borrow money from other states. if that federal
component becomes independent state because of secession, what would be the fate of local debt
borrowed by that federal unit? Would it remain the debt of that component? The answer would
be certainly yes. The local debt would remain the debt of the successor state. Localized debts are
mostly associated with projects for the sole benefit of a particular territory. . Suppose that there is
a project of road construction for a part of the territory of a given state. The loan is secured for
the purpose of undertaking a project which primarily benefits that part of the territory of the
given state. If the beneficiary part of the territory becomes independent, what would be the fate
of the localized debt? it devolves upon the newly independent successor state. That localized
debt would continue as it is the debt of the successor state.

Regarding to national debts, there is no definitive answer what to happen during state succession.
It depends on the nature of the type of state succession that is case by case or causistic distinction
approach. For instance, in case of merger, national debt is not a big issue. The new state would
be liable for national debts of both predecessor states. national debt is also not a vexing issue in
case of absorption. When eastern germany absorbed western germany, the national debt of
western germany would be transferred to eastern germany which is the absorber state. In
secession, the applicable rule is cleanslate approach. The new successor state will not be
responsible for the national debts of the predecessor state. But if a successor state is considering
to have creditworthiness in the future in its relation with international monitary organizations, it
should not refuse to be responsible for payment of a portion of the debt even though it is not
legally obliged. This however depends on the goodwill of the successor state.

Theories of continuity to the state succession:

Continuity theories are one of the ways which help us answer different questions of state
succession. As opposed to cleanslate, theories of continuity dictates that the successor state is to
some degree responsible for the obligations of the predecessor state. There are four theories of
continuity of state succession.

1. The theory of popular continuity: dictates that the obligations of economic or

patrimonical in nature will be binding upon the successor state.
2. The theory of organic substitution: dictates that all the duties of the predecessor state
except those of political nature will be transferred to the successor state.
3. The theory of self abnegation: dictates that the successor state is at liberty to take or reject
the obligations of the predecessor state.
4. The theory of universal succession: dictates that all the rights and obligations of the
predecessor state are transferred to the successor state. Universal succession theory
describes the process of state succession as the transmission of sovereignty. It argues that
the supreme power of the predecessor state is transferred to the successor state like the
ownership of property is transferred from the deceased to the heirs. In ancient roman
succession law, the heirs were responsible for continued personality and obligations of
the deceased. Likewise, the universal theory of state succession argues that the successor
state will be responsible for the obligations of the predecessor state. According to the
proponents of this theory, the rights and duties are attached to its territory. So, when the
territory is transferred to the successor state, those rights and duties which are attached to
that territory will also be transferred to the successor state. This theory however has been
criticized and is no longer in use. One of the major criticisms of this theory is that it
compares the rights and obligations of human beings who are natural persons to the rights
and obligations of the states which are juridical persons. Secondly, universal theory of
state succession disregards the consent of the successor states. it also proposes that a
territory can retain juridical relationships.
To the contrary, the cleanslate theory of state succession dictates that the successor state
starts from zero. It argues that the successor state will not be responsible for the
obligations of the predecessor state.

State succession in respect to membership in international organization:

Regarding the issue of membership in international organizations, there is an authoritative
statement made by the six legal committee of the general assembly. It reads as follows.

That as a general rule, it is in comformity with the legal principles to presume that a state which
is a member of the organization of the united nations does not cease to be a member simply
because its constitution or frontier has been subject to changes, and the extinction of the state as
legal personality recognized in the international order must be shown before its rights and
obligations can be considered thereby to have ceased to exist. That when a new state is created,
whatever may be the territory in the populations which it comprises, and whether or not the
former part of a state member of the united nations, it cannot under the system of the charter of
the united nations claim the status of a member of the united nations unless it has been formally
admitted in case of a new state…… as we see here, changes in the frontiers of the existing state
does not necessarily bring about impact upon its membership in international organizations.
Many of the issues of membership in international organization during state succession are
resolved by the above statement of the six legal committee.

Other subjects of international law:

Till now, we have looked at one original primary subject of international law, namely states. But
states are not the only subject of international law. in addition to it, they are other subjects of
international law such as international organizations, nonstate actors, belligerents, insurgents or
rebel groups, multinational corporations, individuals etc. nowadays, multinational corporations
are becoming bigger than states. They are exercising extensive power in terms of resources
which is beyond the power of the states. Even if they are not considered as a subject of
international law, we have multinational corporations which actually commands and masters
more strongly than that of the states. The case of multinational corporations is becoming
emergeng issue. Because, if they are entities which are driven by profit and if they at the same
time are not subject to regulations by international law, it affects international community. As a
result, we talk about corporate social responsibility (CSR). For instance, one NGO which was
used to be organization for social justice recently renamed as organization for social
development. This organization is now focusing on corporate social responsibility. So
multinational corporations must subscribe to social accountability. Even if it is still not settled,
the issue of international personality of multinational corporations is developing issue. Since
multicorporations master some relations than that of states, it is difficult to say they do not have
any responsibility in international arena. Regarding individuals as a subject of international law,
the protection of individuals is more likely ad hoc basis in the situation prevailing before second
world war. There was no permanent protection as such though there are some bright spots like
treaties banning slavery, treaties for the protection of minorities, state responsibility for injury to
alliance, humanitarian law, etc. humanitarian law is not the same thing as human rights law.
humanitarian law applies in the cases of international or noninternational armed conflicts. The
application of international humanitarian law is therefore triggered in the cases of armed conflict.
Their application is temporary in the sense that they would not be applied in the absence of the
situations of armed conflicts. On the other hand, human rights law are applicable irrespective of
the time in question. That means, they would be applicable be it peace time or war time.
Occasionally, in case of human rights law, there is a possibility of derogation ihn situations of
state of emergency. Derogation is suspension of the exercise of the certain rights in the event of
public emergencies. In state of emergency, individuals may not be able to exercise the full extent
of their rights. Most of the time, the rights of demonstration, assembly and association are the
rights which are not exercised in the situation of derogation. But state of emergency cannot be
declared for trivial reasons. To this effect, article four of the ICCPR provides that

Article 4

1 . In time of public emergency which threatens the life of the nation and the existence of which
is officially proclaimed, the States Parties to the present Covenant may take measures derogating
from their obligations under the present Covenant to the extent strictly required by the exigencies
of the situation, provided that such measures are not inconsistent with their other obligations
under international law and do not involve discrimination solely on the ground of race, colour,
sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made
under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall
immediately inform the other States Parties to the present Covenant, through the intermediary of
the Secretary-General of the United Nations, of the provisions from which it has derogated and
of the reasons by which it was actuated. A further communication shall be made, through the
same intermediary, on the date on which it terminates such derogation. therefore, there has to be
sufficient reason to declare public emergency. For instance, riot which can easily be controlled
by police is not a good reason to declare state emergency. As you remember, before the demise
of the Mubarak government, Egypt was under state of emergency for three decades. Similarly,
state of emergency was declared in Syria for more than ten years. Imagine how many rights of
individuals were restricted for a long period of indefinite time! When we consider it from the
perspective of human rights, declaring public or state emergency for indefinite time is illegal.
this being stated, it suffices to say that human rights are applicable both during peace time and
war time. Whereas in case of international humanitarian law, it is applicable only in the
situations of armed conflicts. Armed conflict may be international or noninternational. The
application of IHL however depends on the armed conflict in question. The full extent of the
provisions of IHL are triggered in international armed conflict. But in case of noninternational
armed conflict, the application of IHL provisions is limited. IHL is mainly comprised of the four
geneva conventions of 1949 and the two additional protocols of 1977. The entirety of the IHL is
applicable to cases of international armed conflict. However, in case of noninternational armed
conflict, only the provisions of common article 3 and additional protocol 2 are applicable. In
terms of number, the entire extent of IHL has about 600 provisions. But common article3 and
additional protocol2 comprise of only 29 provisions. therefore, we can conclude from this that
only 29 provisions of IHL are applicable for noninternational armed conflict while the entire 600
provisions are applicable to international armed conflict. But nowadays, classifying armed
conflicts in to international and noninternational becomes debatable issue. Some argue that
instead of categorizing armed conflicts, it is better to have a full-fledged definition of armed
conflict in order to bring the application of the entire IHL provisions in all cases. This enables to
resolve the problems which arise because of a limited number of IHL provisions which are
applicable for noninternational armed conflict. There is a study which was conducted for ten
years by international committee of red cross. The main purpose of that study was to identify the
rules and provisions which are attained the status of customary international humanitarian law.
because, if there are rules which attained the status of customary IHL, they would be applicable
in all cases of armed conflicts without any category. With that objective in view, this study came
up with about 163 rules which are said to have the status of customary international humanitarian
law. among these rules, 147 were said to be rules which are applicable both in cases of
international and noninternational armed conflicts. Close to 12 rules are applicable only to
international armed conflict, and the remaining four rules are applicable only to cases of
noninternational armed conflict. Consequently, the argument is that the point of categorizing
armed conflicts is irrelevant so long as the bulk of the rules are applicable in all cases by virtue
of the fact that they are attained the status of customary IHL.

After the second world war however, things have been changed and we have more protection of
individuals because of the adoption of veritable codes of human rights. There were atrocities and
extermination of genocide during the course of the second world war. Upon culmination of the
war, the question arose why these atrocities and extermination took place? The given answer was
that the reason behind those atrocities is a vicious philosophy based on disregarding the dignity
of human beings. If this is the reason, then it follows that there has to be proclamations of
standard settings on the respect of human dignity. The adoption of UDHR in 1948 is one of the
implications of the need of standard settings on the respect of human dignity. The provisions of
UDHR must be cherished by all members of the united nations in their domestic legal orders.
Nowadays, the protection of individuals is no longer ad hoc as it has been in the past. Previous
to the world war 2nd, there is no any full-fledged coherent system for the protection of human
rights except piecemeal treaties including treaties on the protection of minorities, banning
slavery, and state responsibility for injury to alliance. But after the culmination of the war, the
situation differs. Because of these reasons, individuals are subject of international law.
individuals are not only beneficiaries of rights but also the bearers of duties of international law.
individual criminal responsibility is a good example to this. By virtue of the rome statute of the
international criminal court, there are about 50 international crimes which entail individual
criminal responsibility. Some of these crimes are war crimes, crimes against humanity, genocide,
rape, sexual violence in the situations of armed conflicts etc. we can conclude that individuals
have limited international personality under international law.

When we discuss nonstate actors as being subject of international law, it takes us to the issue of
armed conflict again. International armed conflict is armed conflict existing between two states.
can we consider national liberation movement under the colonies as international armed conflict?
Since national liberation movement is occurred with in a state, it is noninternational armed
conflict. During the national liberation movements of 1960s, the only applicable provision of
IHL was common article3. Because, the two additional protocols were adopted in 1977. Due to
this, the protection accorded to national liberation movements was very limited. As a result, after
their independence, a number of African countries called for the considerations of national
liberation movement as international armed conflict. They finally succeeded for the
reexamination of the definition of international armed conflict. National liberation movement is
now considered as international armed conflict despite the armed conflict takes place within the
frontiers of the same state. Therefore, one thing that we can realize is that National liberation
movement as non state actors is subject of international law. nonstate actors may be in defacto
control of a part of the territory of a given country. in doing so, nonstate actors bear
responsibilities for the inhabitants of the territory which is under their defacto control. In turn,
they have duties under international law. in some instances, nonstate actors or rebel groups
concluded treaties with other states, as we know, treaties are instruments which are typically
concluded by the states. now, by concluding treaties, nonstate actors or insurgents are doing a
kind of activity which has juridical effect. In Abiye arbitration case, the final decision of the
permanent arbitration court clearly demonstrates how these rebel groups are subject of
international law in defacto control of a territory. If the government of a given state is no longer
in control of a territory, there are many activities which are to be carried out by the rebel groups
or nonstate actors which controlled it. For instance, these rebel groups are likely to carry out
tasks of administration of justice, provision of social services, protection of human rights and
security of the inhabitants of that teritory. For this reason, nonstate actors and insurgents are
considered as subject of international law for a limited purposes. another reason for non state
actors to be considered as subject of international law is the principle of humanity provided
under common article 3. Warring parties of noninternational armed conflict must respect the
minimum considerations of humanity of common article. Nonstate actors are also obliged to
respect the provision of common article 3 regarding minimum considerations of humanity. This
is one manifestation of imposing obligations of international law upon the nonstate actors or
insurgents. This indicates that nonstate actors are subject of international law to a certain extent.

The definition of noninternational armed conflict in common article 3 is broader than that of the
additional protocol 2. According to common article 3, noninternational armed conflict is any
conflict occurred within a state. It does not require effective control of the rebelling group. For
additional protocol 2, an armed conflict is said to be noninternational armed conflict when the
nonstate or rebel groups are in effective control of part of that territory. A good example is the
situation which took place recently in Syria. Initially, it was some kind of popular uprising there.
But later, the decedent organized armed groups were in actual effective control of some parts of
Syria. Then ICRC declared the situation of armed conflict as civil war. Civil war is not a legal
terminology. It is the common parlance or ordinary language used for noninternational armed
conflict. the situation in the ground are to be qualified to identify noninternational armed
conflict. For instance, internal disturbance is not noninternational armed conflict and IHL
provisions will not be applicable. Therefore, qualifications have to be taken to the situations of
the ground to determine whether IHL is applicable or not. Otherwise, it is impossible to
determine which ambit of the law would apply.

International organizations as a subject of international law:

International organizations are also known as intergovernmental organizations. They are entities
created by agreements between states as constituent members. There are two types of
personalities, original and derivative. States have original personality for the reason that
personality is the inherent attribute of statehood. Whereas international organizations pertains to
derivative personality for the reason that they are not original. Rather, they are after all created
by states which are principal persons. International organizations are ancillary or subsidiary
subject of international law. this presupposes the existence of other primary or principal
subjects. In domestic contract law of suretyship, suretyship is considered as ancillary.

This is because, suretyship cannot stand on its own presupposes principal obligations. Likewise,
international organizations are subsidiary which presuppose the existence of original personality.
Therefore, international organizations are instruments at the disposal of the states. they operate
within the principle of specialty, i.e. they only perform activities designated to them by the
constituent member states. the emergence of international organizations is the result of the need
for international cooperation. Because of the rise of independent and territorial consolidated
states, there is likely to be higher degree of interaction between these states. in turn, with the
higher degree of interaction, it is natural to have matters of mutual interest arising from their
interaction. Therefore, international organizations are necessary to create international
cooperation and regulate the matters which have mutual interests for all the states involved.
Generally, the emergence of international organizations is a natural consequence of the
development of matters of international concern, international community and international law.
before the advent of international organizations, there were different mechanisms whereby
members of international community came together to regulate matters of international concern.
The first organized international attempt to regulate matters of international concern was the
treaty of West Fallia in 1648. There were also regular international conferences and congress
system which have been used for achieving the same purpose. Though they played important
roles during that time, they had their own deficiencies. The first deficiency of regular
international conferences and congress system is that they were not preventative, adequate and
reactive. Reactive in the sense that they were organized only in relation to international crisis.
The other deficiency is that the participants of the regular conferences were only those who were
invited. The active participants of those conferences were the major European countries. That is
why we say international law is Eurocentric. The regular conferences were not inclusive. For
instance, Africa was not considered as entity deserving a seat during the 19th century. The same
is true in Americas. Therefore, the inadequacy of regular conferences and congress system led to
the need for permanent mechanisms dealing with matters of international concern. Previous to
the international organizations, entities which came to being were private international unions
like international committee of the red cross. ICRC is sugenerous subject of international law.
sugenerous refers to one of a kind which cannot be categorized in any class. Apart from private
unions, there were also rudimental or subject specific public international unions during 19th and
early 20th century. instead of dealing with wide range of subject matters, they were subject
specific which deal with technical matters. Some examples of these public international unions
include the 1875 universal postal union, unions for the protection of industrial property, trans-
boundary river commissions etc. These public international unions finally paved the way for
contemporary public international organizations. They have made some important conceptual
contributions to the present day international organizations. For instance, they had permanent
secretariat, majority voting, periodic conference and proportional financial contributions. These
are also the typical features of the present day international organizations. In particular, majority
voting is an important feature. Because, the autonomy of international organizations is necessary
for us to consider as a personality. All international organizations may not necessarily have
personality. So the major determinant of personality is their autonomy. Autonomy is manifested
for instance, when the united nations takes its own position which is not to the liking of some of
the members of that organization. This reflects its autonomy which in turn reflects its
personality. Guadoch! Gilts new? Previously, most international organizations operate based on
unanimity. If there is the requirement of unanimity, it is one indicative of the absence of
international personality. If all the constituent members of an international organization must
first agree, we cannot consider that organization as having personality. So the indicia of
personality is a majority vote. It enables a given organization to demonstrate its autonomy
thereby its personality.

After the second world war, the proliferation of international organizations takes place. Today,
we have about 400 international organizations. One of these organizations is united nations.
Does UN have international personality? There is one case by the name reparation for injuries
suffered in the service of the UN case which addressed the question of international personality
of an international organization. In this particular case, an individual named Count Bernard Dote
died while he was serving as agent of the UN in Israel. This individual was sent as a negotiator
on the part of the UN to reach consensus and bring about peace between Israel and palistine.
However, he was killed there. UN brout the case before the court of law claiming reparation for
injuries suffered in the service of the united nations. The defendant argued that UN cannot bring
the case to the court of law and claim compensation since it does not have personality. Finally,
the court decided that the united nations as an international organization cannot carry out its
functions vested upon it without having international personality. Personality may be express or
implied. Express personality is personality which is explicitly stated under the constitutive act of
the given international organization. So, to determine the personality of an international
organization, we first have to look at its constitutive act. For example, the rome statute of the
ICC clearly stipulates that international criminal court is an international person. By implied
personality, we mean that the personality of an international organization is presupposed from
the powers and functions it performs. In most cases, the personality of international
organizations is implied. For instance, article 1 (4) and (5) of the charter of the UN confer
powers and functions to the united nations. And these powers and functions can be carried out
only through international personality. As opposed to express personality, implied personality
has wider application.

United nations:

One of the international organizations is united nations. The crucial purpose for the
establishment of the united nations is maintainance of international peace and security.
According to article of the UN charter, Promotion of friendly relations social cooperation,
fostering economic cooperation, adjustment of peaceful settlement of dispute, promotion of
respect for human rights, promotion of disarmament and enhancing the development and
codification of international law are some of the purposes of the united nations. To achieve the
purpose of maintainance of international peace and security, the security council of the UN has
to protect the fundamental principles of international relations. Some of the Fundamental
principles of international relations are the prohibition of the use of force, sovereign equality of
states, pacific settlement of dispute, self determination, pacta sunt servanda, respect for human
rights, friendly relations and cooperations and noninterference in internal matters. In particular,
the prohibition of the use of force and peaceful settlement of dispute are much linked with the
UN goal of maintainance of international peace and security. This is indicated under chapter six
of the charter of the united nations. the prohibition of the use of force as a fundamental principle
of international relations is laid down under article 2 (4) of the UN charter. Noninterference in
internal matters also known as exclusive domestic jurisdiction is another fundamental principle
of international relations which is provided under article 2 (7) of the same charter. Before the
adoption of the covenant of league of nations and kellon brine pact of 1928, the use of force was
deemed to be as a lawful tool at the disposal of the state. Use of force was a lawful means for the
resolution of disputes. With the coming in to force of the UN charter, it is however no longer
possible to view use of force as a legitimate means for the resolution of dispute. Now, there is the
centralization or monopoly of power by the security council which consists of the 5 powerful
countries. But as an exception, a state can resort to use of force only in the situations of self
defense. According to article 51 of the UN charter, states can use the measure of self defense
only in cases of armed attack. still this measure of self defense is provisional i.e. states can only
use the measures of self defense until the centralized security system starts operating. There is
also the required procedural condition in using self defense. States shall inform immediately the
security council of the UN upon measures of taking self defense. When is it possible to take
measures of self defense? The Carolina incident case answers this. A state cannot simply claim
to take measures of self defense. It has to be able to establish that the situations really amounts to
armed attack and that of self defense. What are those situations? States can claim self defense
only if the situations of the armed attack is instant, overwhelming, living no choice of means,
and no moment of deliberation. These situations show that the measures of self defense are very
strict. The only exceptions for general prohibition of use of force are self defense by the states,
and collective self defense by the security council and collective security operations authorized
by the UN. The recent example of collective security operation is the act of NATO against Livia.
After the security council resolution was adopted which authorized nato, NATO took forceful
measures against livia under the auspices of the united nations. Collective self defense is
performed by the security council as it is provided under chapter 7 of the UN charter. These are
the only circumstances use of force is allowed. But this day, there are a number of different
things which are emerging under the guise of self defense like anticipatory self defense,
preemptive self defense and protection of nationals abroad. Anticipatory self defense is not
accepted under international law. rather, it is more of debatable issue. Use of force for the
protection of national abroad is also another controvertial issue. For example, in intabae case, an
airplane which started its flying from Paris was hijacked and landed in intabae, Uganda. Many of
the people on the flight were Israelis. Therefore, Israel immediately sent its forces to Intabae to
protect its nationals from being attacked by those who were hijacking the plane. Wars of national
liberation is another contentious matter in relation to self defense. If people are under
colonization, there is significant support to these people to wage war against colonization.
Despite this, there is no legal backing for the reason that national liberation movement is a
situation existing within the territory. The four geneva conventions of 1949 considered national
liberation movement as noninternational armed conflict for it is occurred within the state. The
1949 conventions were inadequate to address the questions of noninternational armed conflicts.
Because, during the time of its adoption,the only known armed conflict was interstate armed
conflict. however in 1960s and 1970s,after they gained their independence, a number of African
countries asked for wars national liberation being considered as international armed conflict. Due
to this, the definition of international armed conflict was modified by the 1977 additional
protocols. As article 1 (4) of the Additional protocol2 provides, wars of national liberation are
considered as international armed conflict if there are situations in which peoples are fighting
against colonial domination and alien occupation, and against racist regimes in the exercise of
self determination. From this, we can conclude that it is the effort of the previously colonized
African countries which led for this modification. So far as the charter of the united nations is
concerned, it does not recognize national liberation movement as legitimate use of force. That is
why we say national liberation movement has no legal basis. The general prohibition of use of
force in international relations is also known as jus adbellum. Jus adbellum is the illegality of use
of force. On the other hand, Jus imbellu refers to the necessity of mitigating suffering and
minimizing the effects of use of force irrespective of the use of force is legal or ellegal. For
instance, in the course of naval warfare, we may have shipwrecked soldiers who are trying to
save themselves from drowning. In this kind of situations, we have to minimize the effects of
armed conflicts by protecting those who are not taken part in hostilities (sivilians), or those who
are no longer taken part in hostilities (hordecomba). If there is an armed conflict, there is a
corresponding effect of suffering. But, as much as possible, there has to be mitigation of
suffering according to Jus embellu. There are also other rules which support Jus embellu. some
of these rules are the principles of humanity, principle of necessaty, principle of distinction,
principle of proportionality, precautionary measures and martens clause. we have talked much
about the principle of humanity in previous discussions. To understand the principle of necessity,
we first have to know the purpose of any military operation. Any party engages in military
activities for the main purpose of weakening or overcoming the adversary or rival. This in turn
implies that total war is prohibited. If the objective of a military operation is to weaken the
enemy, then the force used needs to be necessary and should not go beyond achieving that
objective. The force used has not to cause unwanted distruction. Another principle is that of the
principle of distinction. There has to be distinguished the military objectives from nonmilitary
objectives, and civilians from combatants. The attack should be towards the military objectives.
The principle of proportionality is another important principle which helps mitigate the effects of
violence. an attack should be collateral i.e. it should not bring about disproportionate damage. An
armed conflict has to be suspended or canceled when the collateral damage becomes excessive.
Therefore, according to the principle of proportionality, a military body which is in use of force
has to compare its military advantage it gaines and the actual damage it causes. an armed group
has also to take some precautionary measures to mitigate sufferings. For instance, it has to give
effective advance warnings and inform civilians to make the damage collateral. It has to choose
the means which is likely to bring about least damage to the civilians. Martens clause is another
means to minimize the impacts of an armed conflict. Martens clause was originated by a Russian
individual who was called martens. Treaty may not prohibit everything. Is something not
expressly prohibited be considered as admitted? Is there any treaty law which expressly prohibit
the use of neuclar weapon? No, there is no any treaty law which specifically prohibits the use of
neuclar weapon. However, this does not mean that states are at liberty to use of this weaponary.
So, martens clause means that matters which are not covered by treaty law would be determined
based on custom, usage, dictates of public conscience and principle of humanity. Generally
speaking, jus imbello is the restriction of the conducts of hostilities. From all these remarks, one
thing that we can understand is that jus adbellum and jus imbello are distinct branches of law.

Amicable settlement of dispute:

The principle of pacific settlement of dispute is another fundamental principle of international

relations laid under article 33 of the united nations charter. It imposes the general obligation on
states to settle disputes peacefully. In ethio-Eritrea dispute, the ethio-eritrea claims commission
decided the flash point in favour of Eritrea. Despite this, Eritrea was found to be in violation of
the prohibition of use of force which is jus cogens. This shows that even if the allegation of
Eritrea for that territory was right, eritreea was expected to settle the dispute amicably. Despite
the fact that the claim of Eritrea was legitimate, it is not allowed to recourse to use of force.
Because, it has the general obligation of settling any dispute peacefully. This rule is laid down
under article 2 (3) of the UN charter. It reads, all members shall settle their international disputes
by peaceful means in such a manner that international peace and security and justice are not
endangered. Therefore, all member states have general obligation to settle disputes peacefully so
that international peace and security and justice are not in jeopardy. More over, article 33 of the
same charter lists the modalities of peaceful settlement of disputes. It reads as follows.

Sub1. The parties to Any dispute, the continuance of which is likely to endanger the
maintainance of international peace and security, shall seek a solution by negotiation, good
offices, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional
agencies or arrangements or other peaceful means of their own choice.

Sub2. The security council shall, when it deems necessary, call upon the parties to settle their
disputes by such means. These modalities of dispute settlement can be classified as binding and
nonbinding. Arbitration and judicial settlement are the binding dispute settlement modes. The
findings both on facts and laws in these modes are binding. All the remaining modalities of
peaceful settlement of dispute are nonbinding. Negotiation is the most preferred mode of dispute
settlement in which third parties are not involved. This implies that there is minimum room for
undue pressure by third parties. The shortcoming of negotiation is that there is no deep
assessment of facts and applicable laws. The stronger party may also influence the weaker party.
As opposed to negotiation, modes of inquiry, good offices, mediation and conciliation involve
third parties. Inquiry is resorted in the situations where the parties involved are not in agreement
concerning the facts which are the basis of the dispute. To this effect, inquiry commissions are
established which have the powers of hearing the witnesses, gathering information and
suggesting the framework of settlement. There is one internationally established fact finding
commission called international humanitarian commission to find the facts in the situations of
the conduct of hostilities, violation of international humanitarian law and the cause and the
extent of the violation. however, this commission still never engaged in any fact finding process.
The distinction between good offices and mediation lies on the extent of involvement of third
parties. Though they may facilitate and encourage for settlement, the involvement of third parties
in good offices is very limited and informal. In most cases, secretary general of the united
nations serves as a good office. In mediation, the involvement of third parties is relatively more
active as compared to good offices. But their involvement is still informal in terms of promoting
of the framework of settlement. Mediation is usually effective when the third party involved is a
great power or dignitary. In the case of conciliation, the third party studies the dispute and
proposes the terms of settlement in a formal manner though not legally binding. Regarding the
binding ones, arbitration is applied based upon the principles of international law. arbitration
rules create on the parties more flexibility. The parties to the dispute are given the power to
select their arbitrators and to determine the basis of arbitration. Arbitration makes it possible for
the parties to resolve the dispute in a efficient manner. It is more formal and quasi-judicial
modality. Nowadays, it is favoured in international relations. Arbitration can be categorized as
ad hoc arbitration and permanent arbitration. By Ad hoc arbitration, we mean parties can agree to
form arbitration tribunal to resolve a particular dispute in question. Whereas in the case of
permanent arbitration, there are permanent institutions which are established for the purpose of
resolving disputes permanently. For instance, Permanent arbitration court was established in the
Hague conference of 1897 with a view to entertain disputes involving states.

So far as the mode of judicial settlement is concerned, we have the international court of justice.
Previous to the ICJ, there was permanent international court of justice which was established in
1920. It started functioning in 1922 and ceased to operate in 1946. Though it was very closely
associated, it was not the organ of the league of nations. presently, the international court of
justice is the principal judicial organ of the united nations as stated under article 92 of the UN
charter. It is located at Hague. The members of the united nations are ipso facto parties to the
statute of the ICJ as it is stated under article 93 of the UN charter. it has 15 judges who are
elected by joint session of the general assembly and the security council for the term of 9 years.
There are some legal and political considerations taken in to account in the appointment of
judges. The elected judges serve in their personal capacity as experts, not as representative of the
government where they came. This makes the ICJ judicial body rather than political organ.
During the term of serving as the judge of the ICJ, they are not allowed to participate in political
or administrative functions and engage in other professional activities. They cannot also act as
advocate, agent or counsel for their states and for others. The major functions of the ICJ are
hearing contentious cases, delivering advisory opinion and excercising incidental jurisdiction
including hearing preliminary objections, applications to intervene, indications to entry
measures etc. article 36 (1) and (2) of the statute of the ICJ are relevant provisions concerning
contentious jurisdiction of the ICJ. The well established rule is that ICJ can exercise its judicial
functions only in respect of states which have consented to it. Sub article 1 of the above article
reads as cases which states in a dispute, may agree to refer to it, and all matters specially
provided for in the charter of the united nations or in the treaties and conventions enforce. This
shows that the consent of the parties to the dispute is a requirement to be the court in a position
to exercise its judicial function. There is no impleader or third party proceeding where by it
would be forcibly involved in the dispute without its consent. The cases of the parties may be
refered to the ICJ by using three mechanisms found in article 36 (1). These are:

1. Compromy or special agreement: refers to agreement by the parties to the dispute, stating
that this is the dispute and we want the ICJ to dispose the case. stated otherwise, the
parties outline the dispute and submit it for the disposition on the part of the ICJ.
Therefore, in this case, the consent of the parties is the basis of the jurisdiction of the ICJ.
2. Compromisory clause: is a statement of any treaty which allows to dispose the disputes
arising out of that treaty by the ICJ. When two or more states conclude a treaty, they may
 agree that disputes arising from the treaty would be adjudicated by the ICJ. For example,
The Convention on the prevention and punishment of the crime of genocide deals with
this clause. Article 9 of this convention reads,

Disputes between the contracting parties relating to the interpretation, application or fulfillment
of the present convention including those relating to the responsibility of a state for genocide, or
for any of the other acts enumerated in article 3, shall be submitted to the ICJ as the request of
any party to the dispute.

3. Forum prorogatum: refers to acceptance of a given state the contentious jurisdiction of

the ICJ impliedly through its conduct. The best instance for this issue is the korfou
channel case between UK vs albania. In this case, UK first brought the case to the ICJ.
but, there was neither special agreement nor compromisory clause between the two states
to bring their case to the ICJ. Despite this, the court intertained the case. this is because,
the contents of the letter sent by Albania to the court indicated that Albania has accepted
the contentious jurisdiction of the ICJ. Albania did not clearly protest the jurisdiction of
the court. Therefore, forum prorogatum is a situation where the court may establish
jurisdiction over a given case through the conduct of the states like not protesting. Article
36 (2) of the statute of the ICJ provides another optional clause to the compulsory
jurisdiction of the ICJ over states. states can accept the compulsory jurisdiction of the ICJ
by submitting unilateral declaration to the ICJ. When a state makes unilateral declaration,
it is also possible for the same state to make reservations. reciprocity jurisdiction is one
example of reservation which can be included in states’ unilateral declarations. . For
instance, a state can make reservation in its unilateral declaration by saying that I accept
the compulsory jurisdiction if only X state accepts the same jurisdiction. Therefore,
according to article 36 (2), triggering the compulsory jurisdiction of the ICJ over a party
would be applicable only in case where the parties involved in dispute have all made
unilateral declaration of accepting that jurisdiction. States can also make reservation by
limiting or specifying the matters upon which the ICJ may exercise its jurisdiction. This
is called rationae matteris jurisdiction. States may also possibly put reservations by
limiting the period of time they will be bound. This is called rationae temporis or
temporal jurisdiction. We said that compulsory jurisdiction is optional in a sense that it
will be compulsory if only the states accept it by making unilateral declaration.
Nevertheless, it is impossible for the state to withdraw once it has accepted the
compulsory jurisdiction of the ICJ. Apart from contentious jurisdiction, ICJ has also
advisory jurisdiction. Since its establishment, the ICJ has been given more than 20
advisory opinions. Advisory opinion concerning the legality of the use or trait of neuclar
weapon, advisory opinion concerning the legality of separation of wall between Israel
and palastine and advisory opinion on reparation for injuries suffered in the service of the
united nations are some examples of advisory opinions.

Friendly relations and cooperations:

Another fundamental principle governing international relations is friendly rlations and
cooperations among the states. a state has to nurture and develop friendly relations with other
states. a state is supposed to refrain from engaging in subversive activities against other states.
this is related with the principle of noninterference in the domestic affairs. One typical
manifestation of subversive activity is giving territorial base for decedent organized armed
groups operating against the neighbor state. Thus, giving territorial base for armed groups which
operate against other states is contrary to the principle of friendly relations and cooperations.
That is why the acts of decedent armed groups can sometimes be attributable or imputable to the
state sponsoring them. Not only the acts of state agents but also the acts of parastals is
attributable to the state. The best example of parastals is private military companies. When a
private military company moves to the remote parts of a country for the purpose of oil
exploration, it may need security to carry out its activities. Even if they are profit organizations,
they may also be given governmental power. For instance, in Iraq, a private military company
named black water killed a number of innocent civilians living there. Airlines can also be another
example. Even if airlines are profit organizations which work on transportation of peoples, they
also engage in immigration issues which is an issue preserved to the state. So the point here is, if
the parastals engage in activities by taking the position of the government, any wrongful act
performed by parastals is imputable to the responsibility of the state. Likewise, the acts of rebel
groups may sometimes engage the responsibility of the state supporting them. There are two
conflicting tests to determine whether the act of reber groups is imputable to the state. These are
effective control and over control. The international criminal tribunal for Ruwanda “ICTR” and
international criminal tribunal for Yugoslavia “ICTY” used the over control test to determine
imputability. Whereas the ICJ used the effective control test to address the issue of imputability.
If any state violates for example the prohibition of use of force, this problem would be resolved
by the security councilof the UN which has monopoly of force. However, there are failures on
the part of the security council. The initial expectation at the establishment of the united nations
was that, there is a centralized security system which has monopoly of force to effectively solve
the problems. But it did not seem to have worked to the extent expected for variety of reasons.
The assumption was that there is a continued agreement between the five permanent members.
The reality is beyond this. There are a lot of discrepancies among these big powers. The Cold
war between the two blocks is one manifestation for this. This failure of continuing agreement
returned the system to the previous regionalization such as warso pact, NATO and the like.
Remember, the charter of the united nations was adopted to avoid this regionalization. One
argument was raised following the failure of the security council to take effective measures to
avert problems. This arguement was that if the security council cannot take effective collective
operations when problems arise, humanitarian intervention should be allowed. Even if the
concept of humanitarian intervention has not yet attained the status of customary international
law, it is widely accepted. According to the principle of humanitarian intervention, powerful
states should be permitted to intervene outside the purview of the security council in the
situations where there are human rights violations.
The two principal organs of the united nations are the general assembly and the security council.
The instrumentality of these organs is the secretariat general . there are also other important
organs which perform special functions. These include, economic and social agencies,
international court of justice and trusteeship council. Trusteeship council however is not
operational today. Trusteeship council was established for the purpose of administering the
mandates and facilitating dependent territories to gain their independence. Guys! I advise you to
read more about the functions of the organs of the UN for I cannot write due to lack of time.

State jurisdiction:

Jurisdiction can be defined as the power of state under international law, to regulate or otherwise
impact upon people, property and circumstances. simply put, it is the extent which state exercises
its power upon persons, property and other situations within its teritory. There are different types
of jurisdiction.

Prescriptive or legislative jurisdiction: is the power of the state to make laws. A state can impose
its own laws on its subjects (persons, property and situations). There may be state laws which
have effect even beyond the territory. The best example is double taxation in tax laws. Ethiopia
has the power to collect tax from an English man so long as he is working and earning income
from Ethiopia. UK has also the power to levy tax from the very same individual since he is its
national. As a result, this individual is being subject to taxation for two states. that is why states
conclude anti-double taxation treaties to eliminate double taxation.

Enforcement jurisdiction: is the power of state to implement its laws by its executive bodies.

Jurisdiction to adjudicate: is the power of state to bring persons, things and situations found
within its territory before court of law. in other words, it is the extent how the state is in a
position to subject persons, property and situations to its domestic laws. Here are some examples
concerning enforcement jurisdiction. A person who lived in UK murdered another individual.
After having committed the crime, he fled to Netherlands. Would it be possible for UK to send
its police officers to the Netherlands and eefect the arrest of the individual in Netherlands? No.
because, even if british authorities do have jurisdiction to consider the matter in question, they
lack enforcement jurisdiction. They cannot enforce their own laws in the territory of another
country. in another case, there was a person named Ayuman who was a natzi official living in
argentina. He was accused of having participated in the extermination of jewish people which is
crime against humanity. So the jewish state, Israel wanted to arrest this individual and asked
Argentina to hand over him. But argentina refused to do so. Then, Israeli officers went all the
way to argentina and effected the arrest of this individual. After he was brought to Israel, he was
sentenced to death and executed in 1962. In this case, the Israeli authorities lacked enforcement
jurisdiction to go to argentina and arrest the individual. There was an organization called PKK
operating particularly in turkey. Its plan was to form an independent curdistan state. With this
objective in view, the PKK has been waging its conflict for a long time. Once upon a day,
Turkish authorities arrested the leader of the PKK organization in the territory of another
country, that is Italy. here also, Turkish authorities did not have enforcement jurisdiction to
effect the arrest of Ochala, the leader of PKK.

Basis of jurisdiction:

There are 5 principles of basis of jurisdiction. These are; nationality principle, territorial
principle, passive personality principle, protective principle, and universality principle. In the
following sub sections, we will look at each principle briefly.

1. Nationality principle:
Nationality principle refers to a situation where the state excercises its jurisdiction over
its citizens irrespective of the fact that a particular citizen is within its territory or not.
Most of the time, it is civil law countries which invoke the principle of nationality to
claim jurisdiction. This principle is sometimes called active nationality principle. If a
national of state A commits a crime while he is in state B, state A claims to have
jurisdiction to try the individual despite the fact that the crime committed is somewhere
outside its territory. Because, the offender is the national of state A.

passive personality or victim jurisdiction is different from that of active nationality principle. In
case of passive personality principle, state claims jurisdiction because not the offender but the
victim is being its national.

One implication of nationality principle is extradition. In the situations where the citizens of
civil law countries commit crimes in a different country, they claim to have jurisdiction to try the
case. they also request extradition i.e. handing over those individuals to be able to look in to the
case at hand. Taxation is also a good example to illustrate nationality principle. For instance,
Eritrea claims that its citizens should pay 2% tax despite the fact that they may not be living in
their country. unless they pay the levied tax, they may not be allowed to renew their passport and
other documents they need from their country. this caused many problems in a number of
countries. As one instance, Canada informed Eritrea to stop collecting this 2% tax. The same
problem was happened in oklan state of America.

2. Territorial principle:

This is the primary and the most common basis of jurisdiction. Territorial principle is a principle
under which state can exercise its jurisdiction over the crimes committed within the borders of its
territory. But state cannot exercise itsjurisdiction over the crimes committed outside its territory.
Every state claims jurisdiction over a crime commited within its border. But sometimes, an act of
a crime may begin in one state and may culminate in another state. For instance, a man may
shoot across the frontier of a state and may kill a person who happened to be living in another
state. In this situation, both states may claim jurisdiction over a single crime. On the one hand,
the state where the crime was commenced has jurisdiction based on subjective territorial
principle. On the other hand, the state where the crime was culminated has jurisdiction based on
the objective territorial principle. To elucidate the above point, Subjective territorial principle is
a place where the crime was initiated; and objective territorial principle is a place where the
crime was completed. So in the given case, the state where the crime initiated and the state where
the crime completed are claiming jurisdiction over a crime based on the above principles of
subjective and objective territorial principles respectively. How do we resolve the dispute
between these two countries on the same issue? Most of the time, this kind of dispute is resolved
through practical factors. One such practical factor is that the state which has the custody of the
offender has better chance to exercise its jurisdiction. Crimes commited relating to internet and
immigrations are another examples of crimes which begin in one state and end elsewhere.

N.B. territory in territorial principle includes not only land territory but also territorial waters.
Territorial waters is part of costal area of a state. A state can only exercise jurisdiction over
crimes commited up to 12 nautical miles from its costal area. Beyond 12 nautical miles, there are
exclusive economic zones, high seas and the rest which are not the territorial waters of any state.,
But territorial jurisdiction of a state may be extended when there are hot persuit and other
exceptional situations. For instance, someone may evade law and justice and flee to the highseas.
In this kind of situations, the state in question can catch the individual even if it has no territorial
jurisdiction in the highseas so long as the crime is hot persuit.

3. Passive personality principle:

This principle is also called victim jurisdiction. A state claims to have jurisdiction if the victim of
a crime is its national. It had very limited application in the past. However, its application is
widening recently because of the recent crimes like terrorist acts. Terrorist acts are mostly taken
place outside the territory of the target state. Example, if a terrorist act seeks to attack US for
various reasons, it makes its target on US citizens living in different parts of the world,outside
US. The main point here is that despite the fact that the acts of terrorism are taken place outside
the territory, states claim to have jurisdiction since the victims of the acts are their nationals. In
lotus case for example, since the victims of the incident were its nationals, turkey claimed to
have jurisdiction over the matter though it was happened outside its territory. Similarly, in the
case of hijacking of airplane between Yunis and US, US claimed jurisdiction on the case despite
the fact that hijacking took place in Lebanon. This is because, the victims of the crime were US
nationals.

4, Protective principle:

Protective principle is a basis of jurisdiction which state claims to have jurisdiction based on
crimes committed against its security interests. Even though the crime in question has not been
within a state, a state may claim jurisdiction if the crime committed outside the territory affects
its security interests. This principle can be illustrated by Joys vs director of Public prosecutions
case. joys was also famously called Lord Howhow. he had british citizenship during the second
world war. But sometime later, he went to germany and changed his citizenship. While he was in
germany, he started disseminating propaganda to Britain. As a result, Britain claimed to have
jurisdiction to try Lord Howhow for treason saying that it affects its securities. US vs Biladden
case is also another example for protective principle. This case was revolving around the crime
of bombing of US embassies in Kenya and Tanzania. In this case, irrespective of the territory
where the crime was committed, US still claimed to have protective jurisdiction since the crime
committed affects its security interests.

5,Universality principle:

This principle is much related with universal or international crimes such as genocide, torture,
piracy, corruption and the like. In case of a crime in question is being that of universal, states are
in a position to claim universal jurisdiction. In Israel vs Ayuman case, Israel exercised universal
jurisdiction for the reason that the crime in question was of universal or international. Belgium is
a known country in invoking the principle of universal jurisdiction.

When we talked about territorial jurisdiction, we said that state can exercise jurisdiction on
persons, property and circumstances taken place within its territory. However, there is an
exception in which state cannot exercise jurisdiction despite the fact that the person, property or
any circumstance is within its territory. This is known as immunity from jurisdiction. In case of
immunity, a state cannot bring foreign officials to its courts. Stated otherwise, a state cannot
subject foreign officials to its domestic laws. Because, there was this argument; a Latin
expression, “parrum imparrum nonhabet imperium”. This means, one cannot exercise authority
over an equal, an equal has no power over an equal or equals have no jurisdiction over one
another. Looking at this argument, we can conclude that Immunity from jurisdiction flows from
the principle of sovereign equality of states which is a fundamental principle governing
international relations. Now, let us consider the arrest warrant case To illustrate what immunity
from jurisdiction means. In arrest warrant case, there was an individual by the name jerodia who
was a Congolese foreign minister during that time. The Belgium court issued arrest warrant
against jerodia, the then acting foreign minister of DRC. . then, DRC brought the case before the
ICJ contesting that Belgium cannot issue this kind of arrest warrant against its foreign minister.
Belgians, on their side, invoked universality principle as the basis of argument. They argued that
this individual has bbeen accused of having committed the crimes of genocide, torture and the
rest of it which have international character. Since the committed crimes have of international
character, Belgians said that they can still demand jerodia to come before their court by issuing
arrest warrant. When the case was handed down to the ICJ, the majority decision denied the
claim on the part of Belgium. The majority decision in that case states that it is impossible to
issue arrest warrant against the foreign minister of a sovereign state like DRC. The reason for
this statement is that a foreign minister has immunity from jurisdiction. The court says that
Belgium does not have jurisdictional immunity. But jurisdictional immunity does not mean
immunity from liability. The court states that since he is a foreign minister of a sovereign state,
he has full functional immunity in particular while he is still in office. The court also made one
important observation stating that immunity is not for individual on account of his personal
qualities. Instead, it is because of the performance of official functions of the sovereign state.
State agents are granted diplomatic immunity so that they are in a position to exercise effective
performance of the work of the state. Therefore, it is impossible to demand a foreign minister
arrest while he is in office. This qualification of the court implies that he can be held accountable
after he has finalized his term of office. This indicates that immunity does not mean immunity
from liability or lack of answerability. Rather, immunity is granted only for the sake of effective
performance of the work of the state. But four judges of the ICJ did not agree with the decision
and they put their dissenting opinion. They argued that even if this individual is in office, he
should be arrested since he has committed international crimes like torture and genocide. The
schuner exchange vs mackfadoun case is also another important case in relation to immunity. In
this case, there is one assertion which says that territorial jurisdiction of state is absolute and
exclusive, but it does not include foreign sovereigners. A number of implications arise as a result
of this assertion. One of these implications is that a state may not interfere with or coerce a
foreign official. If a foreign armed force has been given military base, A state who gave that
military base cannot also interfere with the foreign armed forces despite the fact that it is within
the territory. It is also impossible to perform coercive acts on board to a military or public ship or
airport. It is also impossible to submit to domestic jurisdictions of courts sovereign states for acts
performed on their sovereign capacity. For instance, it is not possible to sue or bring a legal
action against US in Ethiopian courts. It is not possible for a state to submit to the jurisdiction of
its courts foreign state agents like ambassadors and diplomats (diplomatic immunity). The same
is true for international organizations who enjoyed immunity for their performance of activities.
Immunity may be personal immunity or rationae personem and functional immunity or rationae
mattrae. Personal immunity refers to immunities enjoyed by certain officials by virtue of their
office. Personal immunity lapses when the individual resigns or leaves the office. Whereas
functional immunity refers to immunities which attach to the official acts of state officials. If the
act in question is official, immunity attaches to that official act of the state. So, if the person who
has performed these official acts is sued, he can invoke immunity saying that the acts are official
and performed while he is in office. But the nature of the act determines whether it is official or
not. In Pinochet case, Pinochet argued that the acts of torture and extermination which took place
in Chili while he was a leader are official acts. but the contention relating to his argument is that
the acts of torture and other acts involving violation of human rights cannot be considered as
official acts. There are two doctrines of immunity relating to this issue. These are, absolute
immunity and restrictive immunity. The doctrine of absolute immunity says that a foreign
sovereign state cannot, without its consent, be made a respondent in the courts of another
sovereign state. But according to the recent doctrine of restrictive immunity, the immunity of a
sovereign sstate is recognized only with regard to public acts or acts jure imperii of a state, but
not with regard to private acts or acts jure jestionis. The accepted doctrine today is restrictive
immunity. A state can engage in commercial trading activities. In this regard, we have to make
distinction between jure imperii and jure jestionnis. Jure imperii means government acts or acts
performed by a foreign state in his capacity as a sovereign. Whereas jure jestionis means trading
commercial acts. It is also known as acts jure prevatourum. Jure jestionis happens when state
and private person are involved in commercial and trading activities. Immunity does not apply in
case of jure jestionis. When state involves in commercial activities with a private person, it
cannot invoke immunity. Therefore, due to the fact that states are increasingly involved in
commercial activities, the general accepted doctrine today is restrictive immunity. We have to
identify sovereign and nonsovereign acts of states. Public acts of state or jure imperii enjoys
immunity. private acts of state or jure jestionis or acts jure prevatourum cannot enjoy immunity.

Here is the Pinochet case briefly. Pinochet was a leader of Chili. During the time he was a leader,
he was said to have committed crimes of torture and others. Spain wanted the extradition of
Pinochet to spain for the reason that some of the victims happened to be its citizens. All these
took place while he was in England. The house of lords of England decided that Pinochet is
subject to extradition for the reason that he cannot be granted immunity for the act of torture.
More over, during that time, England is a party to the convention against torture (CAT). Any
state party to the convention against torture can deal with the crime of torture despite the fact that
the crime was committed in its territory. Because, the crime of torture, by its nature, has of
international character. This is related with the universality principle. in international crimes, one
cannot invoke immunity. The main point here is that there are crimes which have international
character like torture, corruption, genocide, piracy and so on. Due to the fact that these crimes
have of international character, they trigger the application of universality principle. States
therefore are in a position to exercise universal jurisdiction over international crimes. A number
of countries prescribe that they claim to have universal jurisdiction on international crimes.
Article four of the criminal code of Ethiopia also provides the principle of universal jurisdiction
to international crimes. Question, Is hijacking of aircraft considered as international crime? In
US vs Yunis case, one of the crimes Yunis was accused of was hijacking of aircraft. One
controversy that was involved in that case was whether hijacking of aircraft is an international
crime or not. The crime of hijacking of aircraft has not attained the status of international crime.

Extradition is another important issue relating to universality principle. Extradition is an official

process by which a state requests and obtains from another state the surrender of the suspected
offender. Extradition is mostly conducted by bilateral treaties. There are two concepts in
connection with extradition. There are outdedderrie and out judicarie. Outdedderrie means a state
has to either extradite the person where he is said to have commited the crime, or try itself if it
does not to extradite the person for some reasons. There must not be impunity or lack of
liability, i.e. one has to be responsible for the crime he has committed. This is the principle.

State responsibility for international wrongful acts:

To talk about state responsibility, there has to be international obligation and the violation of that
obligation on the part of the state. As we know, states operate through individuals. Acts of the agents of
state are imputable to the state. If an act is carried out by an agent of the state, it is equated as of an act
of the state itself. Draft articles on responsibility of the state for internationally wrongful acts is the
bases of state responsibility. International law commission (ILC) took 45 years to prepare this legal
document. It was adopted on august 2001. Article 2 of this draft document reads

There is an internationally wrongful act of a state, when conduct consisting of an act or omission

a. Is attributable to the state under international law

b. Constitutes a breach of an international obligation of the state. The phrase provided under A is
subjective element, whereas the phrase under B is objective element. So far as imputability
which is subjective element is concerned, a given act is said to be an act of the state when it is
carried out by agents of the state such as police officers, public prosecutors, judges and the like.
State is comprised of three different branches namely, legislative, executive and judiciary. thus,
the acts of these different branches of a state are considered as the acts of the state.
Concerning this issue, article 4 of the draft articles on state responsibility for internationally
wrongful acts provides,

Article 4. conduct of organs of state

1. The conduct of any state organ shall be considered an act of that state under international law
whether the organ exercises legislative, executive, judicial or any other functions, whatever
function it holds in the organization, whatever its charter as an organ of the central government
of territorial unit of state……. So the acts of legislative, executive and judicial or gans of state
engage responsibility of the state. However, the acts of these organs of government may
sometimes be ultra virus. Relating with issue, there is an important case called Yumans. In this
case, there were American citizens living in mexico. While there were in mexico, There was mob
which tried to attack them. The Mexican police officers were dispatched to quell the mob. But
later, though they were dispatched to put down the mob, those police officers themselves
joined the mob and killed the Americans. This act of the police officers is ultra virus i.e. it was in
excess of power given to them. Despite the fact that this is act carried out beyond their power,
mexico was held to be responsible for their act. This is the rule provided under article 7 of the
draft articles on state responsibility for internationally wrongful acts. Even if the act in question
is said to be in excess of the power given to the agent of the state, the state cannot invoke
ultravirus act of its agent and will still be held responsible. the act of agents is obviously
attributable or imputable to the state. But there are also other actors who could engage the
responsibility of the state apart from agents. One of those actors who engage the responsibility
of the state is parastals. These entities may take responsibility of the state by virtue of article 5
of the draft articles. It provides that the conduct of a person or entity which is not an organ of
the state under article 4, but which is empowered by the law of that state to exercise elements
of the governmental authority, shall be considered an act of the state under international law.
Thus, if entities like parastals commit a wrongful act while they perform in the capacity of the
state, their act is attributable to that state. Please! refer the previous discussion on parastals.
Another issue in connection with state responsibility is the level of control. There is no settled
test to determine the level of control that must be exercised by the state. For example, the
responsibility of the state for nonstate actors. In Nicaragua vs USA case, the international court
of justice used the effective control test, whereas international criminal tribunal for Yugoslavia
(ICTY) determined the case by using the over control test. Here is the Nicaragua vs USA case to
examine how the ICJ decided the case using effective control test. the new communist party
took power in Nicaragua and started engaging in support of communist rebellions to establish
similar socialist orientation in elsalvador. This infuriated US and began providing support to the
rebel group called contras who were trying to overthrow the communist government of
Nicaragua. USA also launched mining the harbours of Nicaragua secretly. Being distressed by the
act of USA, Nicaragua brought the case before the ICJ alleging that US was using illegal force
against them. On their part, US authorities argued that the ICJ has no jurisdiction to intertain the
case. but the ICJ found that they did and intertained the case. in this particular case, when the
contras rebel group were trying to depose the government in power, they have been engaged in
armed attack. Some of the acts that they carried out also appear to be violations of international
humanitarian law. then, the question at hand was that can the US government be responsible
for the violations of international humanitarian law carried out by the contras? The ICJ
answered no. because, the US government lacked effective control over the contras in those
particular instances of violations of humanitarian law. though US equipped and to a certain
degree organized the contras, it did not have effective control over the contras in the specific
violations of international humanitarian law performed by the contras. Therefore, it is not
possible for US government to be held responsible for the violations of international
humanitarian law carried out by the contras. The requirement for the existence of effective
control is specific instructions. Thus, there is no clear evidence which shows that US gave
specific instructions for contras to act specific violations of IHL in nicaragua. On the other hand,
in taddis case, the international criminal tribunal for Yugoslavia used over control test rather
than effective control test. According to the ICTY, there is no need of effective control for state
responsibility purposes. Rather, over control is sufficient enough to be, for a given state held
responsible. In over control test, if a given state equip, coordinate and organized rebelians, that
state will be held responsibility for their acts even if there is no clear evidence of specific
instructions. State’s taking part in planning of the actors makes it responsible.
Another point concerning state responsibility is the acts of mob. The acts of mob or insurrection
can sometimes engage responsibility of the state. In US diplomatic and consular staff case, Aya
Tola Hominy took power from the previous shia government of Iran in 1979. In this particular
case, it was first popular uprising. But later, that uprising became government. according to
article 10 of the draft articles on state responsibility for internationally wrongful acts, if the mob
became government, then it will be held responsible for its wrongful acts performed while it
was a mob. In the above case, the Aya Tola Hominy government gave statements applauding
the acts of the mob who tried to invade US embassy in Tehran. Diplomatic and consular staff of
US were held in detention for 400 days. This was accepted by Aya Tola Hominy government who
 was in power at that time. The act of the mob has been endorsed by the government. As a
result, Iran was held to be responsible for the acts of the mob and the insurrection.
Domestic violence can also engage state responsibility. In Valesquez Rodriguez case, there was
the issue of domesticviolence of a husband beating his wife. In this case, repeated requests on
the part of the victim was presented for state authorities to investigate and proceed it. But the
state authorities kept silent. Finally, the court decided that this engages state responsibility for
the reason that, state authorities did not investigate the victim’s claim even if she repeatedly
requested them to investigate.

Treaties:

Article 2 (1)(a) of the Vienna convention on the law of treaties of 1969 defines treaty as an international
agreement concluded between states in written form, and governed by international law whether
embodied in a single instrument or in two or more related instruments and whatever its particular
designation. The last phrase “whatever its particular designation” indicates that there are designations
of treaty including convention, protocol, pact, charter, covenant, exchange of note, act, and so forth.

Nature of treaties:

There are different natures of treaty.

Oral statement: Does oral stipulation of agreement have any binding legal effect? There is one case
relating to this nature of treaty called the case of the legal status of Greenland between Denmark vs
Norway. The gist of the matter is that the Norwegian foreign minister made an oral statement saying
that Norway would not get in the way of Danish plans of claiming sovereignty in regard to Greenland.
He stated that Norway would not interfere with denmark’s exercise of control over the entirety of
Greenland. This is called Eallen declaration named after the foreign minister who made that statement.
This statement was made orally. Contrary to this oral statement, later Norwegian authorities started
claiming to have access to fishery in the eastern cost of Greenland. Denmark has been repeatedly asking
for a written conformation of the previous foreign minister oral statement. Norwegian refused to do so.
They continued claiming part of the eastern cost Greenland arguing that the oral statement made by the
previous foreign minister does not produce any legal effect. They tried to retract from the oral
statement of foreign minister. The matter was presented before the ICJ. And the court made a decision
that oral statement made by the foreign minister would have legal effect. Even if eallen declaration may
not amount to a recognition of the Danish sovereignty over the entire Greenland, this statement made
the foreign minister tantamount to that Norway has no claims over any part of Greenland. The court
confirmed the position that oral statements would produce legal effect since they are made by persons
who have full power. In this case, the foreign minister is presumed to have full power so that any
statement made by him would have repercussions. The concept of full power is defined under article 7
of the above mentioned convention. It reads
Sub article 1. A person is considered as representing a state for the purpose of adopting and
authenticating the text of a treaty, for the purpose of expressing the consent of a state to be bound by a
treaty; If

a. he produces appropriate full powers

b. it appears from the practice of the states concerned, or from other circumstances that their
intention was to consider that person as representing astate for such purpose and to dispense
with full powers. In virtue of their functions and without having to produce full powers, the
following are considered as representing the state. A. heads of state b. heads of government
and c. ministers of foreign affairs.

Unilateral treaties: Another issue which is related with the nature of treaties is unilateral treaties. Is it
possible to conclude unilateral treaty? Let us consider two cases which are similar in nature in regard to
unilateral treaties. These are cases of Australia vs france and newzland vs france which are also known
as neuclar test cases. In that case, france was threatening to conduct neuclar tests in south pacific area.
But both newzland and Australia demanded that france desist from doing so. Then, the case was
brought before the ICJ. While the case was being intertained by the ICJ, the French authorities came up
with a declaration stating that they will not be going to conduct any further neuclar test in south pacific.
This declaration is what we call unilateral treaty. Therefore, the issue on the case at hand was whether
unilateral declaration would produce any legal obligation on the state which made that declaration. The
court finally decided that unilateral acts have binding effect on the state which made those declarations.
The court also further explained that there is no specific requirement to make unilateral treaty i.e. it
may be oral or written.

Reservations: is another nature of treaties. It is impossible to make reservations in bilateral treaties.

Unlike bilateral treaties, reservations can be made in multilateral treaties. For instance, a given state,
from ten provisions of a treaty, may accept 9 of them and may not agree with the remaining 1 provision.
At this time, it may prevent the application of such particular provision from the entire provisions of a
treaty. In general term, Reservation means a unilateral statement, however placed or named, made by a
state when signing, ratifying, accepting, approving or acceding to a treaty whereby it purports to exclude
or to modify the legal effect of sertain provisions. from this general definition, we can understand that
Reservation could be made either to prevent the application of a given provision in ones domestic legal
order, or to modify the legal effects of that provision.

Do you think that all reservations are always acceptable? States may make reservations which are
serious one. For instance, Bangladesh made a reservation to the CEDAW. CEDAW is a peculiar treaty
which has been subject to sweeping reservations by many countries. Article two of CEDAW for instance,
calls upon states to modify cultural patterns which perpetuate discriminatory attitudes towards women
such as cultural beliefs and harmful traditional practices. Despite this being a very important provision,
some states made reservation to this article. Some argue that those states which made reservation to
that provision have to be considered as nonparties. Because, they made reservation to the provision
which is central to the fulfillment of the object and purpose of the convention. As a result, the mere
acceptance of a given treaty may not suffice i.e. a state can be nonparty despite the fact it has accepted
the treaty. In general, reservations may not be acceptable in the following some circumstances.

1. where the treaties expressly prohibit making reservations and

2. where the reservation is against the objective and purpose of the treaty.

In connection with this, article 19 of the Vienna convention on the law of treaties reads as follows.

Article 19. formulation of reservations

A state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate reservation
unless

a. the reservation is prohibited by the treaty

b. the treaty provides that only specified reservations, which do not include the reservation in
question, may be made
c. in case not falling under the previous paragraphs, the reservation is incompatible with the
object and purpose of the treaty. In addition to these circumstances, For stronger reason, it is
also impossible for states to make reservations which are incompatible with jus cogens.
Reservations made by a state may not be accepted by another states. in that situation, a given
state which made that reservation may not be considered as a party to the treaty. For example,
Bangladesh is non party to the CEDAW for some countries. Because, they do not accept the
reservation which Bangladesh made. Reservations can also be withdrawn at any time. Article 28
of CEDAW talks about the possibility of withdrawal of reservations. It reads

sub article 1. The secretary general of the united nations shall receive and circulate all state the text of
reservations made by states at the time of ratification and accession.

Sub article 2. a reservation incompatible with the object and purpose of the present convention shall
not permitted.

Sub article 3. Reservations may be withdrawn at any time by notification to this effect address to the
secretary general of the united nations, who shall then inform all states thereof. Such notifications shall
take effect on the date on which it is received.

When does a treaty come in to force. Making treaty has a lot of procedures including negotiation,
adoption, accession or signing and ratification respectively. The mere fact that a given treaty signs to a
treaty does not suffice. It also has to be ratified by required number of states. to enter in to force, the
required minimum number of states must have ratified that treaty. For instance, African human rights
court protocol requires the ratification of 14 countries to become effective. By the very moment that
the 14th state came along and made ratification, that protocol now has entered in to force. Another
treaties may also put another required number of countries to make it effective.

Interpretation of treaties:
As per article 31 of the Vienna convention on the law of treaties: there are 3 approaches of
interpretation of treaties. These are

1. intention approach
2. contextual or text approach and
3. purposive or teleological approach. According to article 31 of the Vienna convention on the law
of treaties, the dominant approach of interpretation of treaty is contextual approach. The first
sentence of the same article reads; a treaty shall be interpreted in good faith in accordance with
ordinary meaning……. The phrase ordinary meaning indicates that we have to interpret a given
treaty confined ourselves to the four corners of the document of the treaty. We should give
effect to the plain terms of the treaty so long as it is clear. We go to the interpretation if only the
terms of the treaty are ambiguious. Therefore, the priority should be given to the contextual
meaning among possible interpretations of treaty. Then, the purposive or teleological approach
follows. Finally, intention of the parties comes. According to article 32 of the same convention,
to establish the intention of the parties, we are given the opportunity to consult even extrinsic
evidence like supplementary works (trava propatua). In relation to interpretation of treaty,
there was a case between Erod Jensen vs Jamaica. In this case, erod Jensen was sentenced to
death. Though death penalty was imposed upon him, he was not executed for a long period of
time. This kind of situation is called death no phenomenon. It is a situation where the execution
of death penalty is delayed for several reasons. In the above given case, Erod Jensen argued
before the human rights committee that since he has been in prison for a long time awaiting for
the execution of death penalty imposed upon him, this is tantamount to torture. He explained
that if someone knows that he is going to die, and if he has no idea whether his name will be
called upon tomorrow or the day after, this mental torment is equivalent to torture. As a result,
this is a violation of article 7 of ICCPR which prohibits torture. However, the human rights
committee disagreed with his argument saying that if he says death no phenomenon per se is
torture, he is sending a bad signal. because, his argument encourages death penalty which is
contradictory to the object and purpose of the ICCPR. More over, the very fact that he stayed
for a long time before execution may be to his advantage. There is a possibility of commutation
i.e. the death penalty imposed upon him may be reduced to life imprisonment. ICCPR does not
abolish death penalty. But, it discourages death penalty by putting some restrictions. For
instance, according to article 6, death penalty is imposed only if the committed offence is
serious. Minors and pregnant women should not be sentenced to death. These all show that the
object and purpose of ICCPR is discouraging death penalty. Therefore, this case is a good
example of purposive or teleological approach of interpretation.