Class Slides

01-07-2021
INTERNATIONAL LAW
Faculty : Ms Harsha Rajwanshi, Assistant Professor of Law
Gujarat National Law University
Course: Public International Law

Batch: 2019 - 2024
Semester: IV
Course: Public International Law; Semester IV; Batch 2019-2024
What we have learnt so far:

• Class 1: International Law and its’ subject
• Class 2: International Law is horizontal v National Law is Vertical
• Class 3: Permissive nature of International Law/ S.S. Lotus principle
• “International law governs relations between independent States. The rules of law binding upon States
therefore emanate from their own free will as expressed in conventions or by usages generally accepted as
expressing principles of law and established in order to regulate the relations between these co-existing
independent communities or with a view to the achievement of common aims. Restrictions upon the
independence of States cannot therefore be presumed”
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Answer this?
• In the Island example that we discussed,
• The members of the group on the Island agreed to a rule prohibiting physical
attacks:
• Identify the similar rule in Article 2 of UN Charter
Article 2, UN Charter
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Answer this?
• Under which Article of UN Charter, UNGA is mandated to ‘initiate studies and
make recommendations for the purpose of encouraging the progressive
development of international law and its codification.
https://undocs.org/en/A/RES/174(II)
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Key points to remember:

• International Law (IL) comprises a system of rules and principles that
govern the international relations between sovereign states and other
institutional subjects.
• IL is the rules of international law that are created primarily by states, either
for their own purposes or as a means of facilitating and controlling the
activates of other actors on the international plane.
• Rules of International Law cover almost every facet of inter-state and
international activity
• Use of the Sea/Outer space/ Antarctica/ international telecommunications/ postal services/
goods and passenger by air and transfer of money/ extradition/ use of armed force/ human
rights/ protection of environment/ individuals/ security of nations/international trade/IPR
• Int'l Law: 100 Ways it Shapes Our Lives: https://www.asil.org/resources/100Ways
• Modern international law seeks to control states by inhibiting or directing their

conduct both in their relations with other states and in relations to individuals.
• IL has evolved from a system that was concerned primarily with facilitation
international cooperation amongst its subjects (states ) to a system that is now
much more engaged in the control of its subject.
• IL is intrinsically bound up with diplomacy, politics and conduct of foreign
relations
Article -2 principle
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DEFINTION OF INTERNATIONAL LAW

• Two types of definition
• Traditional definition
• Oppenheim, Hall, Fenwick, J L Brierley, Lawrence and C C Hyde
• Modern definition
• J G Starke, Schwarzenberger Friedman
Oppenheim
(1905, Intl Law)
• Law of nations or International Law (Driot des gens) is the name
for the body of customary and treaty rules which are considered
legally binding by the civilized states in their intercourse with each
other.
• Criticism: Only two sources. Body of rules- International law is
static and not a dynamic concept?. Only states are subject of Intl
Law. Who are civilized states? Whether this distinction in modern
world exists?
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• J L Brierley: The body of rules and principles of action which are

binding upon the civilized states in their relation with one another
(1928, Law of the Nations)
• Fenwick: International Law- as a body of general principles and
specific rules which are binding upon the members states of
international community in their mutual relations (1962,
International Law)
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• https://archive.org/deta
ils/in.ernet.dli.2015.54
244/page/n13/mode/2
up
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• https://repository.law.umich.edu/cgi/viewcontent.cgi?article=5019&context=mlr
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Oppenheim (1992, International Law ed Jennings R and

modern definition
Watts A)
• Intl Law is a body of rules which are legally binding on

states in their intercourse with each other. These rules are
primarily those which govern the relation of states,
• But,
• states are not only subjects of Intl Law.
• Intl Organizations and to some extent all individuals may
be subjects of rights conferred and duties imposed by Intl
Law
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J G Starke (1947, Introduction to Intl Law)

• Body of law which is composed for its greater part of the
principles and rules of conduct which states feel themselves
bound to observe and therefore commonly observe in their
relations with each other and which also includes
• The rules of law relation to the functioning of international
institutions or organizations their relations with each other and
their relations with States and individuals; and
• Certain rules of law relating to individual and non state entities
so far as the rights or duties of such individuals and on state
entities are the concern of international community
enforce power the international law
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• Schwarzenberger (1976, A Manual of Intl Law)

• Intl Law is body of legal rules which apply between
sovereign states and such other entities as have been
granted international personality
• Friedman (1959, Law in a changing society)
• Intl Law, like Municipal law is increasingly concerned with
development and regulation of international collaboration
in spheres formerly outside the field of international law
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UN Millennium Report 2001

• Intl law consists of a body of treaties, customary laws judicial
decisions and other relevant sources that play a central role in
promoting economic and social development as well as
international peace and security among the nations of the world.
The treaties negotiated under UN auspices have formed the basis
for laws governing relations among nations
there is no perfect definition that deplovment over the
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Some Facts? Answer this

• The UNTS is by far the largest collection of treaties, running to some 2500
volumes containing 158,000 treaties from 1946.
• Which Article of UN Charter provides for registration of treaties?

• With Whom?
• Where is it published?
• What if it is not registered?
2nd page in class notes

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sectries
untd
not able to enforce in the UN orgrna
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https://treaties.un.org/Pages/Home.aspx?clang=_en
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What is this?
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coined the tern international law
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Questioning International Law? Theoretical rejection on

prescriptive quality of IL
• Whether there exists set of
rules governing inter-state
relations?
• Whether it can be called as
LAW?
• Whether they are effective in
controlling states and other
international actors in real life
situation?
23 basic of the enforcement ability of the international or law but weak law
Existence of International Law Rules as System of law

• Law habit?
• Practice of IL
• Majority of IL is obeyed
• Legal justifications in unlawful
acts by Actors
• Not a choice but an obligation
• Binding quality is different from
enforcement quality
binding & enforcement is different
it is decentralized system
breach is different non-existence
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Operation Desert Storm/Sabre
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NATURE OF INTERNATIONAL
LAW
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• INTL LAW IS NOT A LAW

• Austin, Hobbes, Holland, Bentham, Pfunderof
• INTL LAW IS A TRUE LAW
• Prof Oppenheim, J L Brierly, Hart, Starke
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John Austin (1954, Province of Jurisprudence

Determined)
• Law is body of rules for human conduct set and enforced by a
sovereign political authority
• ‘Law proper’ called and ‘Law improper’
• Intl Law is not law proper as it lacks:
• Sovereign legislative authority to enact law
• Enforcement agency
• An adequate sanction behind it
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International Law- “Positive international law

morality”(rules binding club and society)
• Opinions or sentiments current among nations general having
moral force only
• Three elements in Law Definition
• Command of sovereign
• Duty of inferiors (legal obligation)
• Sanctions (Intl Law- Moral Sanctions; general hostility)
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Who criticizes Austin?

• Fredrick and Pollock:
• Morality? Whether framer of state papers concerning foreign policy
rely on moral argument?
• Precedents, treaties, opinions of specialists
• Henry Maine: primitive societies when there was not sovereign

political authorities. Even then law
• What about common law?
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Rules of Int Law not morality

• Prof Hart (1961, the concept of law):
• If states don’t abide Intl Law that doesn’t mean Intl Law is
morality
• State conduct in terms of morality is different from formulation of
claims demand and acknowledgment of rights and obligations
under rules of international law
• Disputes between states are solved: Precedent, treaties, and
juristic writing. Not on basis of mutual right or wrong
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• Rule is different. A Rule is not a rule because there is moral

importance attached to it
• Rules impose obligations amongst states. Claims are formulated
on their reference. Breaches. Justify claims for compensation or
retaliation
• Recognizes primitive legal form of legal order rather than
collection of social rules. Precedent and treaties, degree of
ethical neutrality . Capable of change by treaty
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Kelsen- pure theory of Law

Austin era: Only customary law. No treaty law
• Hierarchical system of law
• Norms are created.
• Customary law- law creating fact- rule based on principle that –
duty to behave as per the custom- will of the community to prevails
• Norms- created by custom- constitute behavior of state-individuals
who act as government according to national legal orders
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• Hobbes:
• Man by nature is nasty brutish and violent and fear of sanction
which is inherent in law is essential to maintain order in society
• Intl Law is not a law in true sense having legal force is not binding
by the command of superior
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Intl Law a vanishing point of Jurisprudence- Holland

• Intl Law begins from the point where jurisprudence ends and hence
not covered within the purview of jurisprudence
• Intl Law and Jurisprudence are distinct and separate, though it
appears that they are one and same, and meet at vanishing point
• It lacks any arbiter of disputed questions, save public opinion, beyond and above the
disputant parties themselves and since in proportion as it tends to become assimilated to
true law by the aggregation of states into a large society it ceases to be itself and is
transmuted into the public law of a federal government
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• Intl Law which is voluntary and habitually observed by every state

in its dealing with other states can be called law only by courtesy,
since the rights with which it is concerned cannot properly be
described as legal
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Oppenheim
• Law: Body of rules for human conduct within a community shall be
enforced by external power.
• There must be community
• Body of rules for human conduct with in that community, so that
community may be orderly governed
• Common consent of that community that these rules shall be
enforced by external powers
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For Oppenheim, why Intl Law is true law?

• Intl Law is Law in practice. Govt feel that they are legally and
morally bound to follow and observe international law
• A Complete legal System: While breaking Intl Law, States are not
denying legal existence rather they recognize, it but try to interpret
international law justifying their conduct
• Maturity in international legal order: Emerging system of sanctions
for enforcement, recourse to law making treaties and certain
aspects of Intl Organizations indicates emergence of legislative
process, jus cogens etc
today sanction not only state but against Individual
target sanction - sanction against particular person/individual & organization.
you can't challenge ICJ as the Individual mostly these challenge in the regional Human Right
Court- Human Right Crisis
state sanction affect people so today feel that target is more better
38 soft Instrument - maturity of the IL
SO IL is true law
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Brierley
• Distortion of fact to fit in definition- Austinian concept of law. What

about common law
• Only essential condition for the existence of law are existence of a
political community and the recognition by its members of settled
rules binding upon them in that capacity internal law seem on the
whole to satisfy these conditions
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Keeton and Schwarzenberger

• Intl Law a formal law applying between states
• This system of law is based on certain assumptions:
• No interference in internal affairs of state except
necessary to protect some fundamental interest of their
own
• States have legal equality. Intl Law applies to political
units which exercise control over a considerable number
of individuals who preserve their existence in
international relations by devices of power politics
• Common outlook: responsibility before law, impartially of
judicial organization
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Starke
• System of law exists in community where there was no sovereign
• Customary law is diminishing as against law making treaties and
now there is a rule in multilateral conventions
• Authorative machinery is responsible for maintenance of
international intercourse between states. They do not consider it to
be moral code
• United nation is based on true legality of international law
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Criticism to IntL Law as law

• Lack of institution
• Command Theory
• Effectiveness
• mutual respect and cooperation. Intl Law – a system primarily to
regulate R/d of state. Private in many aspects of transaction
unlike domestic law. Quasi norms. Gentlemen agreement.
• Intl Law – object to provide ordered system rather than just
system. Just treatment to human beings
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• Self interest of states

• Foreign Policy
• Similar instances in municipal law
• Ubi societas, ubi jus

• Law a social fact and a social necessity
• Its beneficial
• Intl Law as territorial limitation on sovereignty
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HISTORY OF INTERNATIONAL
LAW
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The 5 Most Important Treaties in World History

• https://www.youtube.com/watch?v=XgBMOgX89eI&feature=youtu.be
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• Impossible to fix a precise date or

period in history which marks the
beginning of International Law
• Early piece of evidence of

international law,
• A solemn treaty signed around
2500 BC between the rulers of
Lagash and Umma (small cities in
Mesopotamia) which defined
boundaries between them. Treaty The fight between Umma and Lagash is
records the oath taken by both one of the oldest known wars in human
sides to powerful Sumerian gods history and led to what may be the world’s
who were guarantors of the first peace treaty and one of the oldest
treaty. legal documents, the Treaty of Mesilim,
signed around 2550 B.C
boundary treaty
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• 1400 BCE, Egyptian Pharaoh Rameses II concluded a Treaty of Peace,

Alliance and Extradition with King of Cheta: Territorial sovereignty,
extradition of refugees, exchange of ambassadors today VCDR
• Grand empires of Egypt, Mesopotamia, Persia, Asyria and Chaldea ,
Herbew monarchies and Phoenician city states concluded treaties based on
equality of signatories and the principle of pacta sunt servanda
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• Ancient Greece (1100 BCE -146 BCE) :

• Followed set of rules for proper conduct of relations between cities.
Polis – origins of modern state national state is collection of the Polis
• Technique of treaties and art of diplomacy; International arbitration; laid the
origins of Consular protection of foreigners.
• Developed rules for proper conduct of relations for Greek cities: War should
be avoided; war should be commenced by declaration; soldiers killed in
battle were entitled for burial; refuge in temples; exchange of prisoners.IHL
• Considered these rules as religious obligations
• Ancient Rome:
• Before period of conquest and expansion, they made treaties with latin cities
around Rome (in the region of latium where romans and latins were given
rights to each other courts and promised mutual cooperation)
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• Roman Empire organized their relations with foreigner on the basis of jus fetiale
and jus gentium.
• Jus Fetiale – religious rules which governed Rome’s external relations and its
formal declaration of war (inviolability of ambassadors; distinction between just and
unjust war)
• Jus Gentium (first truly international law): regulated legal relations between roman
citizens and foreigners. It was based on the principles of equity and bona fide (good
faith). Provided for Citizenship. It has influence on European Legal System and thus
on PIL. The ius gentium is not a body of statute law or a legal code, but rather
customary law thought to be held in common by all gentes ("peoples" or "nations") in
"reasoned compliance with standards of international conduct.
stoic philosophy
• Ancient Rome International Law inherited doctrine of universal law of nature i.e.
natural law developed by Stoic philosophers of ancient Greece adopted by Romans.
Natural law is the expression of right reason inherent in man and nature. Doctrine
of natural law is regarded as a precursor to the concept of human rights.
• Cicero (De Re publica) had also developed theory of just war (law of the war- ius
bellicum)
this further led to development of the Human Right
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Middle Ages
• During Middle ages, the existence of international law is questionable because
Church was omnipresent and the distinction between church and states as
separate entities disappeared.(12-13 C) power Dynamic
• The confrontation between papacy and German emperors over the matter of
ultimate authority in Christian empire led to revival of legal studies in Italian
universities.
• Here legal arguments were based on Roman and and Cannon law. As a result
treaties principles and standards which were elaborated by the medieval
Christian world at later stage became the origins of international customary
law
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• Middle Ages, two sets of international law developed

• Lex mercatoria (tenth century): common legal framework for trade
(rules of conduct and fair trade; pacta sunt servanda)
• Maritime customary Law: maritime customs and usages were
formed. High seas were no mans land. Rules of sea based on
Rhodian Sea law (codification undertaken by Byzantine empire) were
widely recognized. English black book of Admiralty; Maritime Code of
Visby established in 13 Century. Codification became accepted in
Europe
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• Middle ages saw the rise of nation states. During this time,
international law was considered fragmentary. Law of nations was
conceived as universal and natural law applicable between
independent princes and free commonwealths. Italian school: Bartolus
and Baldus
• Niccolo Macchiavelli, a Florentine politician (1469-1527). IIPrincipe
(The Prince) provided practical advice to Prince Lorenzo for acquiring
political power.
• Preservation of state against external enemies. State reason must
prevail over law and morals. State reason as justification for binding
international obligations. Principle of claussula rebus sic stantibus
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• End of Medieval period , Spanish school of international law represented by

Francesco de Vitoria (1486-1546) added to ideas of international law;
universal validity of international law and its application on America
• Concept of just war and unjust war was developed by St Agustine of Hippo
and refined by St Thomas Acquinas. Methods and means of warfare and
maintaining peace
war time in Europe - write about the Just & Unjust War - help IHL development
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17th Century
• Concept of sovereignty. Territorial limitation. Development of customary international
law
• Anglo dutch school- Hugo Grotius and Alberto Gentilli (separated IL from theology
and Ethics)
• Hugo Grotius, Mare Liberum 1609, advocated for freedom of seas: it would be
against natural law to rule over the sea. uk different from Mare Closumum
• His principal work, De Jure Belli ac Pacis (on the law of war and peace 1625):
Positive International Law. War violating natural law. Accepted as necessity. War was
to obtain right. War for state crimes. Regulation of war. peaceful settlements of
disputes. Voluntary law by state conduct.
• Accepted states as basic units of international law and the function of law of nations
as universally accepted. Civil rights derives from the laws of a sovereign state is
inferior to a right based on the law of nations.
• His work was developed by German Jurist Samule Von Pufendorf and English
philosophers Thomas Hobbes and John Locke.
war is necessity , only for the state crime , peace settlement , more about the king and subject
then the state
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Peace Treaty of Westphalia

• 1648 – 1815 :Classical international law formation
• Break up feudal system and formation of society into free nation states.
• 1648 marks ends to thirty year war in Europe by PTW, constitutional treaty of
Europe
• Principles of sovereignty, territorial integrity and equality of states.
• Prevention of war. Depriving of territory of state defeated. (continued till 1945)
• This system lasted until French Revolution and Napoleonic wars and was then
adopted by 1815 Congress of Vienna to establish a new balance of power in
Europe
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• End of 18 Century: Independence of British colonies in North America based

on self determination. (1782 Treaty of Paris)
• French Revolution: idea of humanity, state duties vis a vis citizens
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1815 Congress of Vienna

• End of 25 years of Napoleonic war in Europe. The congress was convened by
four European powers. Peace and status quo
• Codified law on diplomatic agents and missions, prohibited slave trading, free
navigation of rivers, cooperate to prevent war
• Order to maintain peace, beginning of diplomatic era, adoption of treaties, law
of neutrality, rules of conduct for wars, international armed conflict, rules for
state responsibility
• 1815- WWI 16 thousand treaties concluded
• 1815 – WWII 400 non governmental transnational organization
• 1815 to WWI: Sovereignty, Balance of Power, Legitimacy and equality
between nations
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20 th Century
• Steady increase in number of states and level of interdependence.
• Technological revolution. Disparity in wealth and income between states.
• First world war (1914-1918)
• Experience of First world war – reconsideration of methods applied for international
relations.
• Avoid risk of future conflict.
• President Woodrow Wilson (1913 – 1921) resolved to reorder international
relations to ensure that the principles of collective security and rule of law in
resolution of problems
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• https://youtu.be/tul0iUZ5F50
• https://youtu.be/lbdhxLVlrhI
• https://youtu.be/3TAswhH3D7Q
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• Treaty of Versailles provided the Covenant for the

League of Nations. (restricting use of force, post war
treaties with newly independent states to have
guarantees of minority protection)
• [It marks the international community’s first attempt to

establish an international organization with permanent
institutions for the purpose of safeguarding world peace
and of institutionalizing international co-operation]
• Article 12- 15; signatories to submit dispute Judicial

settlement, arbitration or enquiry by council. Three
months waiting period before recourse to war.
• https://libraryresources.unog.ch/ld.php?content_id=3297
1179
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Historical facts about League!

• From 1917, British and French committees, chaired by Lord
Phillimore and Léon Bourgeois respectively, had drawn up
preparatory reports.
• Influenced by these reports, President Wilson and his advisor,
Colonel House, produced their own drafts, to which the British
politician and diplomat Lord Robert Cecil contributed.
• Finally, the pamphlet ‘The League of Nations: A Practical
Suggestion’ by the South African General Jan Smuts, the first to be
generally available to the public, presaged the institutional
structure of the new organization and popularized the ‘League
idea’.
• At Wilson’s insistence, the Paris Peace Conference began its work
with the drafting of the new organization’s founding document and
for that purpose set up a Committee, chaired by Wilson himself.
• On the basis of a provisional text drafted by the American diplomat
David Hunter Miller and his British colleague Cecil Hurst, the https://archive.org/details/lea
Committee produced a draft of the Covenant of the League of gueofnationsp00smutuoft/pa
Nations (‘League Covenant’) within no more than 11 days. ge/n3/mode/2up
• On 28 April 1919, the plenary assembly of the Peace Conference
accepted the draft and decided to include it, as Part I, in the Peace
Treaties of Versailles, St. Germain, Trianon and Neuilly
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• Thus linked to the post-war settlement, the League’s existence officially began
on 10 January 1920, the date on which the first of the Peace Treaties—that of
Versailles—entered into force.
• The founding nations were: Argentina, Australia,Belgium, Bolivia, Brazil,

Canada, Chile, China, Colombia, Cuba, Czechoslovakia, Denmark, El
Salvador, France, Greece, Guatemala, Haiti, Honduras, India, Italy, Japan,
Liberia, Netherlands, New Zealand, Nicaragua, Norway, Panama, Paraguay,
Persia, Peru, Poland, Portugal, Romania, Siam, Spain, Sweden. Switzerland,
South Africa, United Kingdom, Uruguay, Venezuela, Yugoslavia
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• ARTICLE 12.
• The Members of the League agree that, if there should arise between them
any dispute likely to lead to a rupture they will submit the matter either to
arbitration or judicial settlement or to enquiry by the Council, and they agree in
no case to resort to war until three months after the award by the
arbitrators or the judicial decision, or the report by the Council. In any
case under this Article the award of the arbitrators or the judicial decision shall
be made within a reasonable time, and the report of the Council shall be made
within six months after the submission of the dispute.
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• ARTICLE 13.
• The Members of the League agree that whenever any dispute shall arise between them which
they recognise to be suitable for submission to arbitration or judicial settlement and which
cannot be satisfactorily settled by diplomacy, they will submit the whole subject-matter to
arbitration or judicial settlement.
• Disputes as to the interpretation of a treaty, as to any question of international law, as to the
existence of any fact which if established would constitute a breach of any international
obligation, or as to the extent and nature of the reparation to be made for any such breach, are
declared to be among those which are generally suitable for submission to arbitration
or judicial settlement.
• For the consideration of any such dispute, the court to which the case is referred shall be the
Permanent Court of International Justice, established in accordance with Article 14, or any
tribunal agreed on by the parties to the dispute or stipulated in any convention existing
between them.
• The Members of the League agree that they will carry out in full good faith any award or
decision that may be rendered, and that they will not resort to war against a Member of the
League which complies therewith. In the event of any failure to carry out such an award or
decision, the Council shall propose what steps should be taken to give effect thereto.
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• ARTICLE 14.
• The Council shall formulate and submit to the Members of the League for
adoption plans for the establishment of a Permanent Court of International
Justice. The Court shall be competent to hear and determine any dispute of an
international character which the parties thereto submit to it. The Court may
also give an advisory opinion upon any dispute or question referred to it by the
Council or by the Assembly.
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• ARTICLE 16.
• Should any Member of the League resort to war in disregard of its covenants under Articles 12, 13 or 15, it
shall ipso facto be deemed to have committed an act of war against all other Members of the League,
which hereby undertake immediately to subject it to the severance of all trade or financial relations, the
prohibition of all intercourse between their nationals and the nationals of the covenant-breaking State, and the
prevention of all financial, commercial or personal intercourse between the nationals of the covenant-breaking
State and the nationals of any other State, whether a Member of the League or not.
• It shall be the duty of the Council in such case to recommend to the several Governments concerned what
effective military, naval or air force the Members of the League shall severally contribute to the armed forces to
be used to protect the covenants of the League.
• The Members of the League agree, further, that they will mutually support one another in the financial and
economic measures which are taken under this Article, in order to minimise the loss and inconvenience
resulting from the above measures, and that they will mutually support one another in resisting any special
measures aimed at one of their number by the covenant-breaking State, and that they will take the necessary
steps to afford passage through their territory to the forces of any of the Members of the League which are co-
operating to protect the covenants of the League.
• Any Member of the League which has violated any covenant of the League may be declared to be no longer a
Member of the League by a vote of the Council concurred in by the Representatives of all the other Members
of the League represented thereon.
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Structure of the League

• https://www.youtube.com/watch?v=19f_98uOv-Q
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PCIJ
• In February 1920, Council established a committee of ten jurists to prepare
plans for the PCIJ and report to the Council. This was known as the Advisory
Committee of Jurists, several of whose members had taken part in the Hague
Peace Conference of 1907.
• Under the chairmanship of Baron Descamps of Belgium, this committee was
in session from 16 June to 24 July 1920. It completed its work in a
comprehensive report submitted to the Council. In this report, on which the
Advisory Committee of Jurists was unanimous, the committee developed a
procedure for the election of the judges.
• This was widely known as the Root-Phillimore Plan, named after the jurists
from the United States (‘US’) and the United Kingdom who jointly conceived it.
The committee also recommended that the Court would have compulsory
contentious jurisdiction over legal disputes as it defined them.
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• The Council examined this proposal during the second half of 1920. It rejected any
idea of compulsory jurisdiction over legal disputes and made some other
amendments to the draft plan, which was then placed before the first Assembly in
November 1920 in accordance with Art. 14 League Covenant.
• After a detailed examination in a subcommittee chaired by Francis Hagerup of
Norway, also a delegate at the Hague Peace Conference of 1907, the Assembly
adopted a resolution on 13 December 1920 in which it declared its approval of the
PCIJ Statute as amended by the Assembly. The resolution called for the statute to be
submitted in the shortest possible time to the members of the League for adoption in
the form of a protocol duly ratified and declaring their recognition of this statute.
• On 16 December 1920, the Protocol of Signature of the PCIJ Statute was opened for
signature and ratification. It entered into force on 1 September 1921. At the end of
1939, it was in force among 50 States. In 1921, preparations were in progress for the
general election of the members of the Court once the statute had entered into force.
This general election took place from 14–16 September.
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• As a result of the arrangements of 1920, the Protocol of Signature had no

formal relationship to the League Covenant. The PCIJ was established as an
independent international judicial organ formally separate from the League but
available to the League for certain purposes
• At the same time, Art. 1 PCIJ Statute made it clear that the PCA would
continue to exist alongside the PCIJ, and ever since then, arbitration has
remained a separate form of third-party pacific settlement of international
disputes
• The Court held a preliminary session in January 1922 and its formal
inauguration took place in The Hague on 15 February 1922.
• In the course of its active existence (1922–39), the PCIJ rendered 32
judgments in contentious cases, 27 advisory opinions (all at the request of the
Council), 6 orders indicating provisional measures of protection
73
• Versalilles, Committee (The Root Phillmore Committee, Report 1920) of Jurist was
established to draft a statue to serve as constitution of Permanent court of
International Justice.
• PCIJ at Hague in 1922.
• US failed to ratify Treaty of Versailles ensured that US would not become a member
of League of Nations.
• Under the League terms, Germany was not invited to join, having started the war, and Russia
was not invited as it was a Communist country. Germany eventually was allowed to join in 1926
• Meanwhile the two major powers, Britain and France were so depleted by the war, they had little
economic or military power to back league decisions.
• While the League had some minor successes in international conflicts, it also failed to get
involved or resolve several others.
• Arrival of Adolf Hitler in 1933, Japan withdrawal from league in 1933, invasion of
Abyssinia by Italy in 1935, subsequent withdrawal from league in 1937
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• Second world war outbreak in September 1939:

collapse of international machinery and League
of nations.
• In 1940, PCIJ moved from Hague to Geneva.
• Establishment of new structure:
• Inter allied Declaration (1941): post world war
founded on peace and security./principles
• The Atlantic Charter (1941): post war
international machienry
• The UN Declaration (1942): 26 states approved
AC and UN establishment
• The London Committee (1943): Possibility of new
ICJ
75
• Moscow Declaration (1943): International body to be charged with

maintenance of peace
• Tehran (1943): international body would be established to
preserve world peace
• Bretton Wood (1944): Establishment of IMF and International
Bank for Reconstruction and Development (world bank)
• The Dumbarton Oaks Conference (21 Aug to Oct 1944): US state
dept- un charter drafts (approval of President Roosevelt) put up
proposal. Division of responsibilities SC and GA
• Yalta Conference (1945): Constitution and powers of SC were
agreed. Commission of jurist to produce Statue for the proposed
ICJ
• San Francisco Conference (25 April 1945): Conference concluded
with the signing of UN Charter on 26 June 1945. Draft Statue of
ICJ was approved
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• UN Charter came in force on 24 Oct 1945.

• Who was the first country to sign the UN Charter?
•
77
• First meeting of GA in London in 10 Jan 1946.

• 18 April 1946 the last session of League of Nations Assembly was held for the
purpose of dissolving both league and PCIJ. ICJ came into existence.
• Objectives of UN:
• Maintain international peace and security.
• Develop friendly relations among nations
• Achieve international cooperation in solving international problems
• To be centre for harmonizing the actions of nations in the attainment of
common ends
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• Highlights
• Collective security
• Arrangements of power structure in 1945
• Detailed reference to human rights. Movement away from Strict positivism
• Cooperation not just to preserve peace but to address common economic and
social problems
79
PIL
• Internal continuous evaluation
• Sutori Project: 20 Marks
• https://www.sutori.com/story/surrogacy-in-india-legal-developments--
xjrABCHjrEKL1zKEybVZdmd2
• International Organization Project: 20 Marks
• Research Questions
• MCQ: 10 Marks
• Total: 50 Marks
80
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• https://www.youtube.com/watch?v=FnQESSTouNU
• 50 or 51 states? Why?
81
Preamble
• Unlike the Covenant of the League of
Nations, the Dumbarton Oaks Proposals
did not envisage a Preamble for the
Charter of the United Nations.
• Field Marshal Smuts insisted on drafting
a Preamble
• Charter of the United Nations’, a wording
which incorporates both the name of the
legal instrument and that of the
Organization.
• The name ‘United Nations’ was adopted in
tribute to the memory of President Franklin
D Roosevelt,
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• Charter v Covenant
• The first seven words of the Preamble
caused considerable debate at the San
Francisco Conference.
• analogous to the Preamble of the United
States Constitution
• Thus, the term ‘peoples’, as used in the
Preamble, refers to the populations of the
member States.
•
83
• To save succeeding….
• Organization is a response to the two
world wars
• intention of the member States to
suppress war.
• The use of the word ‘war’ does not intend
to limit Art. 2 (4), which speaks of ‘threat
or use of force’, as this part of the
Preamble has a historical connotation,
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• To reaffirm human rights…

• combines human rights issues with the sovereign
equality of States in a rather peculiar manner.
• The four powers which had issued the invitation to the
San Francisco Conference had already introduced a
demand to provide for respect for human rights.
• Some delegations advocated the inclusion of a human
rights charter in the Preamble -discussed in the US
State Department -preparation of the Dumbarton Oaks
Proposals;
• Idea abandoned because of the objections raised by
the United Kingdom and the USSR.
• Committee I/1 of the San Francisco Conference
decided, without resort to a vote, to leave the
elaboration of a human rights charter to the General
Assembly.
• dignity and worth of the human person as well as the
equal rights of men and women are only of a
declaratory character.
85
Who is she?
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• equality of States
• Preamble
• equal rights of nations or peoples’
• sovereign equality of all its members
• Preamble; Arts 1 (2), 55 and ‘Arts 2 (1), 78.
• institutional treatment of States as members of
the United Nations and to the status of nations
in international relations
• With respect to the sovereign equality of States
in international relations, Arts 1 (2) and 55 do
not merely address this principle but make it a
responsibility of the United Nations to develop
friendly relations among nations upon that
basis.
• Hence, the principle of sovereign equality is not
self-executing but rather represents a
requirement to be observed in the future work of
the Organization
87
• Charter contains several references to justice, such as

in Art. 1 (1) and Art. 2 (3), alluded to in the Preamble in
the words ‘to establish conditions under which
justice…can be maintained’.
• words must be read in conjunction with Chapter IV
(especially Arts 11, 12, 13, and 14, which define the
role of the General Assembly in examining situations
and disputes) and in conjunction with Chapters VI, VII,
and, Chapter XIV.
• UN Should be committed to IL/Political body
• The separate mention of treaties, apart from other
sources (customary law and general principles of law),
does not indicate a hierarchical order
• Indicates that justice means something different from
international law, and to that extent the Preamble
refers to natural law.
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• importance of international cooperation in

economic and social spheres. Those
provisions were based upon the belief that,
apart from the abolition of war, the
maintenance of peace and security required
economic and social stability among and within
the States
• smaller nations represented in San Francisco
which advocated broader and strengthened
functions of the United Nations in this respect.
• In its fourth and eighth commitment, the
Preamble contains only a very rudimentary
reference to the various provisions in the
Charter
• Arts 1 (3), 13 (b); Chapters IX and X.
89
• ‘to practice tolerance and live together in peace

with one another as good neighbours’ was taken
from an address given by President Roosevelt
on 4 March 1933.
• The commitment ‘to unite our strength to
maintain international peace and security’ was
already part of the Atlantic Charter and the
Dumbarton Oaks Proposals
• read together with the commitment which follows
it, under which member States agree to adopt
principles and institute methods to ensure that
‘armed force shall not be used, save in the
common interest’.
• Both obligations refer to the principle of
collective security and must be interpreted
together with Art. 1 (1) and (2), Art. 2 (3), (4), (5),
and (6), and Chapters IV, VI, and VII.
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UN Structure
• https://www.youtube.com/watch?v=Uv3nRmHNbfk
• UN System chart
• https://www.un.org/en/pdfs/un_system_chart.pdf
91
• Who funds UN?

• Find the Article in UN Charter?
• What is the scale of Contribution of India in UN Budget in 2021?

• https://undocs.org/ST/ADM/SER.B/1025
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• Can UN have its own military force?
• Who can amend UN Charter? Which Article/s? How many amendments so

far?
• Who can seek AO by ICJ? Which Article?
• Article? What if State does not abide by ICJ Judgement?
93
• ICJ Documentary
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Growth of IL
• Present century have witnessed greater impetus to the development of international
law.
• Its domain encompasses a wide range of issues of international concern, such as
human rights, disarmament, international crime, refugees, migration, problems of
nationality, the treatment of prisoners, the use of force, and the conduct of war,
among others. It also regulates the global commons, such as the environment and
sustainable development, international waters, outer space, global communications
and world trade.
• https://youtu.be/yIg061CTxvs
• IL was a natural result of growing interdependence of states and vastly increased
intercourse.
• Initially international society could rely on slow process of custom but modern
exigencies called for speedier method of law making.
• There is a growth of multilateral treaties- law making treaties/international legislations.
• Remarkable development in use of arbitration to settle disputes
95
• Contribution of PCIJ and ICJ to the development of International Law

• Work of codification and progressively developing IL, sponsored by UN
through ILC(1947)
• IL is not mere rules designed to maintain peace. (even during time of war or
armed conflict, there is no absolute breakdown of international law)
• https://www.youtube.com/watch?v=X9x5Ubed8NM
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Sir Eric
• Form a framework within which international relations can be conducted and
to provide a system of rules facilitating international intercourse; and as a
matter of practical necessity it has, and will, operate as a legal system even
when wars are frequent.
• It is, of course true that the ideal of international law must be perfect legal
system in w hich war will be entirely eliminated, just as the ideal of municipal
law is a constitution and legal system so perfect, that revolution, revolt, strikes
etc can never take place and every man’s right are speedily, cheaply and
infallibly enforced.
97
SOURCES OF INTERNATIONAL LAW
International law can be defined solely by

the ways in which its norms are created
- Hans KElSEN
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• Primary Rules v Secondary Rules

• Rules that set out right and obligations of States and other international actors
• Eg: prohibition of use of force; obligation to respect HR
• Rules to establish sources of IL
• Rules that are applied to determine the existence and content of the primary rules
• Rules on when and how primary rules are formed, whom they bind and how they can be
changed : Doctrine of Sources
• Sources of IL: It refers to the medium through which the international law rules are
created and accepted as valid and binding
99
To understand- Why we need sources in IL not in

domestic law?
• Law-making in the international community

• what are the processes through which rules of international law come into
existence.  “THE SOURCES OF INTERNATIONAL LAW”, referred in the
formal way, (processes by which legal rules prescribing new obligations are
made; instrument-oriented) rather than material way (historical, moral, political,
economic, psychological, etc. reasons that explain the emergence of a specific
rule of law; context and content oriented).
• It is not about law-making in general, but about making law that can be
considered as having an international law character.
• By studying the various ways by which international law comes into
existence, we study what is international law?
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Legal system
• In a legal system there must be some accepted

criteria by which laws are established.
• Domestic Law:
• Constitution will identify the various powers and the
authorities within the State and allocate to each of them
the specific sources and law-making processes.
• a clear typology of domestic sources and also a clear
hierarchy among the various domestic sources of the law
101
Deficiency of international law (Posner and Goldsmith)

• The basic structure of international law resulting from the equal
sovereignty of States is a horizontal structure, as opposite to the idea of
a pyramid.
• International law is flat, not hierarchical. Law cannot be created as a
result of the will of a higher authority because there is no such higher
authority, all States being equally sovereign in law. Therefore, law will
have to result from some form of consent of the States concerned.
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Source of international law

• Rules of International Law emanate from the will of the States
• S.S Lotus Case
103
THE WIMBLEDON CASE, 1923

• An English steamship, the “Wimbledon”, time-chartered by the French Company Les
Affréteurs réunis, had been loaded at Salonica, in March 1921, with a cargo of
munitions and artillery stores consigned to the Polish Naval Base at Danzig.
• When the vessel arrived in the course of its voyage at the entrance to the Kiel Canal,
it was refused permission to pass through by the Director of Canal Traffic, who based
his action on the German neutrality orders issued in connection with the Russo-Polish
war and on instructions received by him.
• The French Ambassador at Berlin requested the German Government to withdraw
this prohibition and to allow the S.S. “Wimbledon” to pass through the Canal, in
conformity with Article 380 of the Treaty of Versailles.
• Under the Treaty of Versailles, the Kiel Canal, in Northern Germany, was declared an
international waterway and it was to remain “free and open to the vessels of commerce and of
war of all nations at peace with Germany on terms of entire equality” (Articles 380 to 386).
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• In reply, he was informed that the German Government was unable to allow a
vessel loaded with munitions and artillery stores consigned to the Polish
Military Mission at Danzig, to pass through the Canal, because the German
neutrality orders of July 25th and 30th, 1920, prohibited the transit of cargoes
of this kind destined for Poland or Russia, and Article 380 of the Treaty of
Versailles was not an obstacle to the application of these orders to the Kiel
Canal.
• Without waiting any longer, the Société des Affréteurs réunis telegraphed to
the captain of the “Wimbledon” ordering him to continue his voyage by the
Danish Straits. The vessel weighed anchor on April 1st and, proceeding by
Skagen, reached Danzig, its port of destination, on April 6th; it had thus been
detained for eleven days, to which must be added two days for deviation.
105
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The SS ‘Wimbledon’, United Kingdom and ors v

Germany, Judgment, (1923)
• PCIJ Series A no 1, ICGJ 235 (PCIJ 1923), 17th August 1923,
• Case brought before the Permanent Court of International Justice (PCIJ) by
France and others against Germany on 16 January 1923,
• the applicants claimed Germany’s refusal to permit the steamship ‘Wimbledon’
to pass through the Kiel Canal on its way to Danzig to be in violation of the
Versailles Peace Treaty (1919).
• Issue:
• whether the German authorities were entitled to refuse access to and passage through the
Kiel Canal to the S.S. ‘Wimbledon’
• a treaty could not be interpreted as giving up its sovereignty,?
107
• Germany argued that such grant would amount to depriving Germany of a

personal and imprescriptible right, which formed an essential part of its
sovereignty.
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• "The Court declines to see in the conclusion of any Treaty by which a State undertakes to
perform or refrain from performing a particular act an abandonment of its sovereignty. No
doubt any convention creating an obligation of this kind places a restriction upon the exercise
of the sovereign rights of the State, in the sense that it requires them to be exercised in a
certain way. But the right of entering into international engagements is an attribute of State
sovereignty”
109
• Whether International Law and State sovereignty are

irreconcilable?
110
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"Competence of the Court".

• Article 38 of the Statute of the International Court of Justice.
111
• The Statute of the ICJ is very much a cut-and-paste of the Statute

of the PCIJ, which was drafted in 1920 by an advisory committee
of jurists chaired by a Belgian senator and professor, Baron
Edouard Descamps.
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Compare
Statute of the Permanent Court of STATUTE OF THE INTERNATIONAL COURT
International Justice OF JUSTICE
113
• https://www.youtube.com/watch?v=GkEMHcoEoUk
• Primary Sources v Secondary sources/ Subsidiary Sources/

• Primary sources create the rules of law
• Subsidiary source evidence or process of the creation of the rules
114
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Custom
• The Paquete Habana, 175 US 677 US Supreme Court 1900
• Paquete Habana and Lolo – Cuban fishing vessel.
• Cuba was ruled by Spain. US gunboat seized the vessel in 1898 (Spanish American war 1898) and were
sold by auction for the sums of $490 and $800
• Issue: USA had no right to seize foreign fishing vessels even in the times of war
• Whether USA acted in accordance with international law?
• US Supreme Court: Cited orders of English King, decrees or orders from the other countries, looked into
treaties between other counties to find exemptions, found local courts apply this rule. Noted exceptions like
France. Textbook, jurists opinion
• Existence of general practice a rule of CIL
115
Custom
• “International Custom as evidence of a general practice accepted as law”
• International Custom= Evidence of General practice + General practice
accepted as law (Two element theory)
• Custom= Material/Objective Element (State Practice) +
Subjective/phycological Element ( opinion juris)
• Do you think: the phrase in Article 38 should be “international custom
as evidenced by a general practice accepted as law’.
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Do you know?
• Opinio juris sive necessitatis was first formulated by the French
writer Francois Geny as an attempt to differentiate legal custom
from social usage
117
• International custom is, as a matter of principle, binding on all States and also
on international organizations.
• So, customary international law is also called "general international law". This
stands in contrast to treaties because treaties, as treaties, are only binding on
their contracting parties, i.e. on the States or international organizations that
have explicitly consented to them.
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• Where is Custom??
• Specific legal instrument ??
119
Identification of custom
• Practice of (No) of States • Material acts
• General CIL • What I say or what I do
• A custom can be regional/local
• Time
• Vattel, 18th Century, Long use
• Short use, length of use?
• Instances of practice
• Many instances
• Few instances
• Instant custom
• Whose practice
• Interested state practice
• Forms of practice
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North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal
Republic of Germany v Netherlands) (‘North Sea Continental Shelf Cases’), decided in
1969
• Issue: ‘[w]hat principles and rules of international law are applicable to the
delimitation as between the Parties of the areas of the continental shelf in
the North Sea which appertain to each of them beyond the partial boundary’
• Denmark and the Netherlands: the equidistance-special circumstances rule
was applicable to their delimitations with Germany, either as a rule of
conventional or customary international law.
121
122
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Dashed lines: Germany

Dotted lines: Denmark and
Netherlands
123
Contentions of parties
DENMARK & NETHERLAND GERMANY
• Disputed delimitations had to be carried

out in accordance with the principle of • Germany had not
equidistance as defined in Article 6 of the ratified that
1958 Geneva Convention on the
Continental Shelf.
Convention,
• Article 6 of the 1958 Convention, dealing • Article 6 of the 1958
with equidistance, applied also to non-
parties to the 1958 Convention by virtue of
Convention had no
having become a rule of customary customary nature.
international law.
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Reasoning structure
• Art. 6 Continental Shelf Convention embodied an already existing rule of
customary law.
• Whether the equidistance principle had become a rule of customary law since
the adoption of the Continental Shelf Convention?
125
• Art. 6 Continental Shelf Convention embodied an already existing rule of

customary law.
• The Court concluded that the drafting history of Art. 6 Continental Shelf
Convention did not support such a contention. This conclusion was found to
be significantly confirmed by the fact that Art. 6 Continental Shelf Convention
is one of those which allowed for reservations. This cannot be the case for
general or customary law rules and obligations.
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ICJ
• “74. [...] Although the passage of only a short period of time is not necessarily, or of itself, a
bar to the formation of a new rule of customary international law on the basis of what was
originally a purely conventional rule, an indispensable requirement would be that within the
period in question, short though it might be, State practice, including that of States whose
interests are specially affected, should have been both extensive and virtually uniform in the
sense of the provision invoked; -- and should moreover have occurred in such a way as to
show a general recognition that a rule of law or legal obligation is involved.
127
• “77. [...] Not only must the acts concerned amount to a settled practice, but they must also be
such, or be carried out in such a way, as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it. The need for such a belief,
i.e., the existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual character of the acts is not in
itself enough. There are many international acts, e.g., in the field of ceremonial and protocol,
which are performed almost invariably, but which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty”.
128
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• 79. Finally, it appears that in almost all of the cases cited, the delimitations concerned were median-line
delimitations between opposite States, not lateral delimitations between adjacent States. For reasons
which have already been given (paragraph 57) the Court regards the case of median-line delimitations
between opposite States as different in various respects, and as being sufficiently distinct not to
constitute a precedent for the delimitation of lateral boundaries. In only one situation discussed by the
Parties does there appear to have been a geographical configuration which to some extent resembles
the present one, in the sense that a number of States on the same coastline are grouped around a sharp
curve or bend of it. No complete delimitation in this area has however yet been carried out. But the Court
is not concerned to deny to this case, or any other of those cited, all evidential value in favour of the
thesis of Denmark and the Netherlands. It simply considers that they are inconclusive, and
insufficient to bear the weight sought to be put upon them as evidence of such a settled practice,
manifested in such circumstances, as would justify the inference that delimitation according to
the principle of equidistance amounts to a mandatory rule of customary international law,-more
particularly where lateral delimitations are concerned.
129
• Some 15 cases had been cited in which the States concerned had agreed to
draw or had drawn the boundaries concerned according to the principle of
equidistance, but there was no evidence that they had so acted because they
had felt legally compelled to draw them in that way by reason of a rule of
customary law. The cases cited were inconclusive and insufficient
evidence of a settled practice.
130
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• The Court concluded that equidistance did not apply as a customary rule to
the delimitation of parts of the continental shelf, but rather that the applicable
rule was that "delimitation is to be effected by agreement in accordance
with equitable principles, and taking account of all the relevant
circumstances
131
JURISDICTIONAL IMMUNITIES OF
THE STATE (GERMANY V. ITALY)
JUDGMENT OF 3 FEBRUARY 2012
132
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Background Facts
• In June 1940, Italy entered the Second World War as an ally of the German
Reich.
• In September 1943, following the removal of Mussolini from power, Italy
surrendered to the Allies and, the following month, declared war on Germany.
• German forces, however, occupied much of Italian territory and, between
October 1943 and the end of the War, perpetrated many atrocities against the
population of that territory, including massacres of civilians and the deportation
of large numbers of civilians for use as forced labour.
133
After WWII
• On 10 February 1947, in the aftermath of the Second World War, the Allied
Powers concluded a Peace Treaty with Italy, regulating, in particular, the legal
and economic consequences of the war with Italy.
• In 1953, the Federal Republic of Germany adopted the Federal Compensation
Law concerning Victims of National Socialist Persecution
(Bundesentschädigungsgesetz (BEG)) in order to compensate certain
categories of victims of Nazi persecution.
• On 2 August 2000, a federal law was adopted in Germany, establishing a
“Remembrance, Responsibility and Future” Foundation (hereinafter the “2000
Federal Law”) to make funds available to individuals who had been subjected
to forced labour and “other injustices from the National Socialist period”
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• On 23 September 1998, Mr. Luigi Ferrini, an Italian national instituted

proceedings against the Federal Republic of Germany in ITALY
• Germany claimed Jurisdictional Immunity
• Italian Court denied
135
Jurisdictional Immunities of the State (Germany v. Italy)

Judgment of 3 February 2012
• On 23 December 2008, the Federal Republic of Germany instituted
proceedings against the Italian Republic, requesting the Court to declare that,
• Italy had failed to respect the jurisdictional immunity which
Germany enjoys under international law by allowing civil claims to
be brought against it in the Italian courts seeking reparation for
injuries caused by violations of international humanitarian law
committed by the Third Reich during the Second World War.
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ICJ- ISSUE
• However, the Court is not called upon to decide whether these acts were
illegal, a point which is not contested. The question for the Court is whether or
not, in proceedings regarding claims for compensation arising out of those
acts, the Italian courts were obliged to accord Germany immunity
137
Where is Obligation? Finding source!

• As between Germany and Italy, any entitlement to immunity can be derived only
from customary international law, rather than treaty. Although Germany is one of
the eight States parties to the European Convention on State Immunity of 16 May
1972 (Council of Europe, Euro- pean Treaty Series (ETS), No. 74; UNTS, Vol. 1495,
p. 182) (hereinafter the “European Convention”), Italy is not a party and the
Convention is accordingly not binding upon it. Neither State is party to the United
Nations Convention on Jurisdictional Immunities of States and Their Property,
adopted on 2 December 2004 (hereinafter the “United Nations Convention”), which is
not yet in force in any event. As of 1 February 2012, the United Nations Convention
had been signed by twentyeight States and obtained thirteen instruments of
ratification, acceptance, approval or accession. Article 30 of the Convention provides
that it will enter into force on the thirtieth day after deposit of the thirtieth such
instrument. Neither Germany nor Italy has signed the Convention
138
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ICJ
• “It follows that the Court must determine, in accordance with Article 38 (1) (b) of its Statute, the
existence of “international custom, as evidence of a general practice accepted as law”
conferring immunity on States and, if so, what is the scope and extent of that immunity. To do
so, it must apply the criteria which it has repeatedly laid down for identifying a rule of
customary international law. In particular, as the Court made clear in the North Sea
Continental Shelf cases, the existence of a rule of customary international law requires
that there be “a settled practice” together with opinio juris (North Sea Continental Shelf
(Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands),
Judg- ment, I.C.J. Reports 1969, p. 44, para. 77). Moreover, as the Court has also
observed,…..
139
• In the present context, State practice of particular significance is to be found

in the judgments of national courts faced with the question whether a
foreign State is immune, the legislation of those States which have enacted
statutes dealing with immunity, the claims to immunity advanced by States
before foreign courts and the statements made by States, first in the course of
the extensive study of the subject by the International Law Commission and
then in the context of the adoption of the United Nations Convention. Opinio
juris in this context is reflected in particular in the assertion by States
claiming immunity that international law accords them a right to such
immunity from the jurisdiction of other States; in the acknowledgment, by
States granting immunity, that international law imposes upon them an
obligation to do so; and, conversely, in the assertion by States in other
cases of a right to exercise jurisdiction over foreign States. ……
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• The Court notes that that practice is accompanied by opinio juris, as

demonstrated by the positions taken by States and the jurisprudence of a
number of national courts which have made clear that they considered that
customary international law required immunity. It finds that the almost
complete absence of contrary jurisprudence is also significant, as is the
absence of any statements by States in connection with the work of the ILC
regarding State immunity and the adoption of the United Nations Convention
or, so far as the Court has been able to discover, in any other context
asserting that customary international law does not require immunity in such
cases.
141
Legality of the Threat or Use of Nuclear Weapons

• By a letter dated 19 December 1994, filed in the Registry on 6 January 1995,
the Secretary-General of the United Nations officially communicated to the
Registry a decision taken by the General Assembly, by its resolution 49/75 K
adopted on 15 December 1994, to submit to the Court, for advisory opinion,
the following question :
• “Is the threat or use of nuclear weapons in any circumstance permitted under international
law ?”
• The resolution asked the Court to render its advisory opinion “urgently”.
• Written statements were filed by 28 States, and subsequently written
observations on those statements were presented by two States.
142
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LEGALITY OF THE THREAT OR USE OF NUCLEAR

WEAPONS Advisory Opinion of 8 July 1996
• It notes that the members of the international community are profoundly divided on
the matter of whether non-recourse to nuclear weapons over the past 50 years
constitutes the expression of an opinio juris. Under these circumstances the
Court does not consider itself able to find that there is such an opinio juris. It points
out that the adoption each year by the General Assembly, by a large majority, of
resolutions recalling the content of resolution 1653 (XVI), and requesting the Member
States to conclude a convention prohibiting the use of nuclear weapons in any
circumstance, reveals the desire of a very large section of the international
community to take, by a specific and express prohibition of the use of nuclear
weapons, a significant step forward along the road to complete nuclear disarmament.
The emergence, as lex lata, of a customary rule specifically prohibiting the use of
nuclear weapons as such is hampered by the continuing tensions between the
nascent opinio juris, on the one hand, and the still strong adherence to the doctrine of
deterrence (in which the right to use those weapons in the exercise of the right to
self-defence against an armed attack threatening the vital security interests of the
State is reserved), on the other
143
• The Court notes by way of introduction that international customary and

treaty law does not contain any specific prescription authorizing the
threat or use of nuclear weapons or any other weapon in general or in
certain circumstances, in particular those of the exercise of legitimate
selfdefence.
144
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• What if the state practice is contrary/deviations to Custom
•Does it amount to Breach of Custom?

•Does it amount to emergence of new custom?
• Persistent objector Rule
• Local Customs
145
Contrary practice and rule of custom

• https://www.youtube.com/watch?v=M8Ihf9w_KCU
• Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States
of America)
• On 9 April 1984 Nicaragua filed an Application instituting proceedings against the United
States of America
• It arose from the activities of the contras, opponents of the Nicaraguan (Sandinista)
government, who in 1981 commenced a guerrilla insurgency movement, operating from bases
in neighbouring States and funded and assisted
• Nicaragua claimed that the US support for the contras was an unlawful use of force against
it, as well as unlawful intervention in its internal affairs, covertly and overtly, by the United
States of America
146
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• "186. It is not to be expected that in the practice of States the application of the rules in question should
have been perfect, in the sense that States should have refrained, with complete consistency, from the
use of force or from intervention in each other's internal affairs. The Court does not consider that, for a
rule to be established as customary, the corresponding practice must be in absolutely rigorous
conformity with the rule. In order to deduce the existence of customary rules, the Court deems it
sufficient that the conduct of States should, in general, be consistent with such rules, and that
instances of State conduct inconsistent with a given rule should generally have been treated as
breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way
prima facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or
justifications contained within the rule itself, then whether or not the State's conduct is in fact justifiable
on that basis, the significance of that attitude is to confirm rather than to weaken the rule."
147
• Can a CIL rule emerge if one State objects to

the practice by the other States?
148
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Persistent objector rule

• Once a rule of customary international law has been established and is binding on a State
(States), that State cannot exempt itself unilaterally from the obligations imposed by that rule.
• a State which persistently objects to a rule of customary international law during the
formative stages of that rule will not be bound by it when it comes into existence. Thus,
while a rule based on general practice and opinio iuris can come into being and be generally
applicable, thereby allowing the development of the law for the generality of States, that rule
will not be binding on persistent objectors who have demonstrated their unwillingness
to be bound by it before the rule becomes established.
149
• The persistent objector rule is often regarded as a logical consequence, essentially

consensual nature of customary international law.
• the persistent objector rule could be considered as implying that customary international law is
a system of cumulated particular relationships, in which different States are bound by the rules
to which they have consented (Consent) or acquiesced (Acquiescence), and in which different
groups of States are governed by different customary law regimes, but nevertheless a system
that generates rules that bind all States.
150
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Fisheries (United Kingdom v. Norway) 25 July 1974

• In 1935 Norway enacted a decree by which it reserved certain fishing grounds situated off its
northern coast for the exclusive use of its own fishermen.
• ISSUE: The question at issue was whether this decree, which laid down a method for
drawing the baselines from which the width of the Norwegian territorial waters had to
be calculated, was valid international law.
• Norwegian coast comprises of (1) FJORDS rocks and bays; (2) reefs and islands some of
which run parallel to actual coast this part is known as the SKJAERGAARD ( a Norwegian
word meaning a rock rampart).
• Title to jurisdiction: declarations of the two States accepting the Court's compulsory
jurisdiction under Article 36, paragraph 2, of the Statute
151
152
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Dispute
• The ICJ was asked to rule on the validity of the lines of delimitation of
the Norwegian fishery zone north of the Arctic Circle
• The fish in this area had been exploited by Norwegian fishermen for
centuries.
• In response to British fishing vessels appearing off the Norwegian coast
beginning in 1906, the Norwegian Government in the Royal Decree of 1935
drew straight baselines (up to 44 miles in length) with 48 fixed points on the
mainland, islands, and rocks in the sea, enclosing a large area of water.
• the United Kingdom objected to the drawing of straight baselines from which
the fishery zone was measured and maintained that, at least, such baselines
should not exceed 10sm under international law.
• After the failure of consultations, the UK instituted proceedings before the ICJ
against Norway on 28 September 1949.
153
ICJ: initial and sustained objection

• ICJ : on the basis of the lack of a sufficiently general and uniform practice, that there was no rule
prohibiting the drawing of straight baselines exceeding 10 miles in length across the mouth of bays. The
ICJ went on to hold that even if this 10-mile rule ‘had acquired the authority of a general rule of
international law’, it would ‘appear to be inapplicable as against Norway inasmuch as she has always
opposed any attempt to apply it to the Norwegian coast’ (at 131)
• ‘[i]n any event the ten-mile rule would appear to be inapplicable as against Norway inasmuch as
she has always opposed any attempt to apply it to the Norwegian coast.’
• Except in the passage above the doctrine of the persistent objector has not been
supported in the practice of international courts and tribunals; moreover, States do
not seem to rely on it.
154
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• Can a new state can be a persistent objector?
155
Asylum (Colombia v. Peru); Judgment of 20 November

1950,
• Peruvian Leader granted asylum by Colombia
• The granting of diplomatic asylum in the Colombian Embassy at Lima, on 3 January 1949,
to a Peruvian national, Victor Raúl Haya de la Torre, a political leader accused of having
instigated a military rebellion, was the subject of a dispute between Peru and Colombia
which the Parties agreed to submit to the Court.
• Issue:
• whether Colombia had the right to grant asylum and whether Haya de
la Torre should be surrendered to the Peruvian authorities or granted a
safe-conduct out of the country
• The ICJ delivered three judgments of which the first two were published under the name
Asylum Case (Colombia/Peru) (‘Asylum Case’) and the third one under the name Haya de la
Torre Case (Colombia/Peru) (‘Haya de la Torre Cases’).
156
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• Colombia was competent to qualify, by unilateral and definitive decision,

the offence committed by a refugee for the purpose of granting him diplomatic
asylum ?
• The ICJ stated that the rule invoked must be ‘in accordance with a constant
and uniform usage practised by the States in question, and…this usage is the
expression of a right appertaining to the State granting asylum and a duty
incumbent on the territorial State’
157
• Colombia failed to prove that the right of unilateral qualification is a general rule of customary
international law because the cases it relied upon in which diplomatic asylum was actually
granted merely demonstrated uncertainty and contradiction in the exercise of diplomatic
asylum from which it was impossible ‘to discern…any constant and uniform usage, accepted
as law’
• The ICJ was willing to accept a regional or local custom as evidence of regional customary
law but found that Colombia had failed to prove the existence of a regional or local custom
with respect to unilateral and definitive qualification. (The Montevideo Convention, which
modified the Havana Convention and contained a right of unilateral and definitive qualification,
had only been ratified by a small number of States, which only went to show that this alleged
right did not represent a regional customary norm)
• There was a high degree of inconsistency in conventions on asylum on the question of
diplomatic asylum and the practice was often influenced by questions of political expediency
rather than the application of a legal norm.
158
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• Therefore, Colombia had not proved the existence of a right of

unilateral and definitive qualification and thus its qualification of
Haya de la Torre’s offence as political was irregular and could have
no binding effect on Peru
159
Right of Passage over Indian Territory (Portugal v. India);

12 April 1960
• The Case concerning Right of Passage over Indian Territory (Portugal v India) concerned a
right of passage between the Portuguese territory of Daman, on the west coast of the Indian
subcontinent, and the territories of Dadrá and Nagar-Aveli, which were enclaved within Indian
territory, as well as passage between these two enclaves.
• In 1954, bands of Indian irregulars occupied the two enclaves with a view to uniting them with
India, and India refused to allow Portuguese troops to cross its territory to restore colonial rule
• Portugal claimed that it had a right of passage to those enclaves and between one enclave
and the other to the extent necessary for the exercise of its sovereignty and subject to the
regulation and control of India ; it also claimed that, in July 1954, contrary to the practice
previously followed, India had prevented it from exercising that right and that that situation
should be redressed.
160
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• As an alternative argument, the P relied on an alleged customary right of passage constituting

a local custom. (pp. 11, 39) India countered that no local custom could be established
between two States only. (p. 39)
• The Court disagreed finding that: ‘[i]t is difficult to see why the number of States between
which a local custom may be established on the basis of long practice must necessarily be
larger than two.’ (p. 39)
161
• The Court went on to examine the question of the existence of a local custom
in terms of a right of passage of private persons, civil officials and goods, on
the one hand, and passage of armed forces and armed police, on the other, as
discussed by the Parties in their written and oral submissions
• Concerning armed forces and armed police, however, it was determined that
they have not been passing between the enclaves as of right given that
following 1878 ‘such passage could only take place with previous
authorization by the British and later by India, accorded either under a
reciprocal arrangement already agreed to, or in individual cases.’ (p.
42) Specifically, the Court noted that: ‘[t]he practice predicates that the
territorial sovereign had the discretionary power to withdraw or to refuse
permission.’ (p. 42) Such discretion is incompatible with the alleged
existence of opinio juris necessary for the establishment of a customary
law right
162
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• The Court found that Portugal had in 1954 the right of passage claimed by it
but that such right did not extend to armed forces, armed police, arms and
ammunition, and that India had not acted contrary to the obligations imposed
on it by the existence of that right.
163
Answer this?
• How does the Customary Law Change?
164
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• Contrary Practice?
• Whether opinion juris is relevant factor?
• Reception of contrary conduct by other states?
• Acquiescing the breach through contrary practice?
• Custom has advantages:

• It develops by spontaneous practice and reflects changing community values
so unlike treaty it is not out of date
• With vague nature of customary law, conflicts can be avoided and a practical
solutions to be worked out according to legal guidelines rather than definite
legal obligations
165
Despite Uncertainty: CIL has the challenges

• CIL in technical fields where detailed rules may be required for consistent and
durable practice
• Local customs an impediment for development of major legal regimes such as
regulating ocean resources, protection of environment etc
166
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• https://legal.un.org/ilc/texts/instruments/english/draft_articles/1_13_2018.pdf
167
Treaties
• Article 38 (1) (a)
• Important source after Peace Treaty of Westphalia
• VCLT: Article 2 (1) (a) "Treaty" means 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;
• Treaty v Custom: Reason for growth of treaties in volume and importance
168
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• Principles governing treaty:

• Voluntary; express consent
• Only parties to the treaty are bound. Exceptions: boundary treaties:
Valid erga omnes
• Bindingness inter-se with the parties. (Understand the interrelation of
CIL)
• Theoretical Viewpoint: Why are treaties binding: Customary international law
pacta sunt servanda
• Treaties : Law Creating or obligation creating?
• Law making treaties v Contract treaties
169
Solve this,
• A B C entered into treaty with X Rule to be applied for maritime delimitation

• D did not ratify the treaty
• X Rule is binding on which parties? Is it binding on D?
170
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• What if, X Rule is a practice followed by A, B, C, D over the years before A, B

and C entered into treaty. There has been clear Opinio Juris for the practice of
this Rule between A B C and D
• Will the X rule binding on D? Why?
171
Important to understand!
• Treaties can become custom, and
customary rules can be codified into
treaties,
172
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Relationship between CIL and Treaty law

• Treaty provision- general norm creating character
• North Sea Continental Shelf cases
• It may declarative of custom ( codify pre-existing rule of CIL)
• It may crystallise a rule of custom in statue nascendi (process of emerging)
• It may serve to generate rule of customary law in the future ( may come to be
accepted as customary rule)
173
• Treaty codified CIL Provision

• Parties binding: ?
• Non parties binding : ?
• Generative CIL Treaty provision
• Parties binding : ?
• Non parties binding; ?
174
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• Where Custom and Treaty are complementary

• Parallel obligations: Nicaragua v USA
• Where Custom and treaty are in conflict
• Lex posteriori derogate juri priori (subject to application of jus cogens)
• Lex specialis derogat legem generalis
• Treaty later in time: Parties, Non parties?
• Contrary custom after adoption of treaty: Parties? Non Parties ?
175
General Principles of Law as Source

• In a system of law, a situation may very well arise where the court in
considering a case before it realizes that there is no law covering exactly that
point, neither parliamentary statue nor judicial precedent?
• What will your National Court do?
• Imagine a similar situation before International Court
176
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• While there may not always be an immediate and

obvious rule applicable to every situation, but every
international situation is capable of being detrained
as a matter of law
177
General principles of law

• "the general principles of law recognized by civilized nations".
• Issue of non liquet ( it is not clear): a situation where the Court would be asked to decide a
case but would not find any treaty nor any rule of customary international law to be applied to
the facts of the dispute.
• Concept of general principles of law was introduced to fill the gaps as it were, the gaps that
could be left in case there would be no relevant treaty or custom.
• Debate: Naturalism v Positivism. (consent exists nevertheless because of the convergence of
domestic laws. Is it voluntarism?)
• GPL constitute a separate source of law but of fairly limited scope
178
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• GPL: GPL in ML or GPL in IL or such principles of ML as applicable between

states?
• Chorzow Factory Case (Germany v Poland, 1928):
• Seizure of a nitrate factory in Upper Silesia by Poland
• PCIJ: it is a general conception of law that every violation of an engagement involves an obligation to make
reparation.
• Also relied on principle, a party cannot take advantage of its own wrong
• GPL, ML analogies in procedure, evidence, judicial process
179
• Principle of res judicata:

• Effect of Awards of Compensation Made by the United Nations Administrative
Tribunal
• The United Nations Administrative Tribunal was established by the General Assembly to
hear applications alleging non-observance of contracts of employment of staff members of
the United Nations Secretariat or of the terms of appointment of such staff members.
• Issue: Dismissal of UN Secretariat staff; Whether GA had right to refuse to give effect to
awards to them by Tribunal
180
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• Advisory Opinion of 13 July 1954

• 20 This examination of the relevant provisions of the Statute shows that the
Tribunal is established, not as an advisory organ or a mere subordinate
committee of the General Assembly, but as an independent and truly judicial
body pronouncing final judgments without appeal within the limited field of its
functions.
• 21 According to a well-established and generally recognized principle of law,
a judgment rendered by such a judicial body is res judicata and has binding
force between the parties to the dispute…
181
• 60 For these reasons,

• having regard to the Statute of the United Nations Administrative Tribunal and to any other relevant
instruments and to the relevant records,
• The Court is of opinion,
• by nine votes to three,
• that the General Assembly has not the right on any grounds to refuse to give effect to an award of
compensation made by the Administrative Tribunal of the United Nations in favour of a staff member of
the United Nations whose contract of service has been terminated without his assent.
• […The obligatory character of these awards has been established by the
considerations set out above relating to the authority of res judicata and the
binding effect of the judgments of this Tribunal upon the United Nations
Organization.]
182
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• https://www.youtube.com/watch?v=gMuk3t3NoTU
• https://www.youtube.com/watch?v=Ae_cTGvxYGI
• On 20 March 1993, the Republic of Bosnia and Herzegovina instituted

proceedings against the Federal Republic of Yugoslavia in respect of a dispute
concerning alleged violations of the Convention on the Prevention and
Punishment of the Crime of Genocide,
183
Genocide Convention (Bosnia and Herzegovina v Serbia and Montenegro) Case:
184
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185
• Principle of estoppel
• https://www.youtube.com/watch?v=bdp7ZZYS
qkk
• Temple of Preah Vihear (Cambodia v.

Thailand) Judgment of 26 May 1961
• Issue: Court to declare that territorial
sovereignty over the Temple
186
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• Franco-Siamese Treaty of 1904 provided that, in

the area under consideration, the frontier was to
follow the watershed line, and that a map based
on the work of a Mixed Delimitation Commission
showed the Temple on the Cambodian side of the
boundary.
• Thailand asserted various arguments aimed at
showing that the map had no binding
character. One of its contentions was that the
map had never been accepted by Thailand
187
• Siam recd the map without protest

• 1930 Siamese Prince visited the disputed area where he was officially received by French
authorities
• ICJ
• The Thai Government lodged no protest after receiving the maps. In fact, it has not expressed any
dissatisfaction or complained for more than fifty years. (p. 32; See pp. 22-23) The Court attributed
great significance to the fact that, despite the many occasions which it had, Thailand has remained
silent and has even used the map for official purposes and later produced her own maps showing
the Temple as lying on the Cambodian side of the frontier.
• Even if there were any doubts as to Siam’s acceptance of map in 1908 and hence of the frontier
indicated Theron the court would consider in the light of subsequent course of events that Thailand
is now precluded by her conduct from asserting that she did not accept it
188
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Corfu Channel (United Kingdom of Great Britain and Northern Ireland v.

Albania), Judgment (Merits), International Court of Justice, 9 April 1949
• Admissibility of Circumstantial evidence
• https://www.youtube.com/watch?v=b_yk2DorWv
M
• The dispute relates to an incident which occurred

on 22 October 1946, when two British destroyers
passing through the North Corfu Strait struck
mines in Albanian territorial waters resulting in
the total destruction of one of the destroyers,
damages to the other and loss of life
• Issue: whether Albania was responsible for
this incident under international law.
• United Kingdom presented two lines of argument.
• Its main proposition was that Albania had itself
laid the mines.
• In the second place, it was claimed that the
mines were laid with the connivance or
knowledge of the Albanian Government.
189
• The Court observed, however, that by reason of the exclusive control which a
State exercises over its territory, the State victim of a breach of international
law is often unable to furnish direct proof of the facts giving rise to
responsibility. Therefore, the latter State should be allowed a more liberal
recourse to inferences of fact and circumstantial evidence
• The Court added that: ‘[t]he proof may be drawn from inferences of fact,
provided that they leave no room for reasonable doubt’ (p. 18) since ‘[a]
charge of such exceptional gravity against a State would require a degree of
certainty.’ (p. 17)
190
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• Concept of trusts (South West Africa Cases)

• Concept of Subrogation (Mavrommatis Palestine Concessions Case (1925
PCIJ)
• Concept of limited liability (Barcelona Traction Case 1970, ICJ)
191
Equity under GPL

• Diversion of Water from the Meuse Case (Netherlands v. Belgium)
• [1937], P.C.I.J. (Ser. A/B) No. 70
• In 1863, Belgium and the Netherlands signed a Treaty governing diversions from the Meuse that would
supply water for navigation and irrigation canals. As economic conditions evolved, both States enlarged
and expanded their respective waterways by constructing new canals, locks, and barrages. In 1937, the
Netherlands initiated this injunctive proceeding, alleging that Belgium’s expansion projects were in
violation of the treaty. Belgium filed counterclaims declaring that the Netherland's claims were ill-founded
and that the expansion projects in the Netherlands violated the treaty.
192
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• Permanent Court of International Justice,

• ‘[i]n these circumstances, the Court finds it difficult to admit that the Netherlands are now
warranted in complaining of the construction and operation of a lock of which they themselves
set an example in the past.’ (p. 25)
• [This case is one of the most notable examples of the application of the ‘clean hands’ doctrine.
193
• [321] What are widely known as principles of equity have long been considered to constitute a
part of international law, and as such they have often been applied by international tribunals. A
sharp division between law and equity, such as prevails in the administration of justice in some
States, should find no place in international jurisprudence ; even in some national legal
systems, there has been a strong tendency towards the fusion of law and equity. Some
international tribunals are expressly directed by the compromis which control them to apply
"law and equity". See the Cayuga Indians Case, Nielsen's Report of the United States– British
Claims Arbitration (1926), p. 307. Of such a provision, a special tribunal of the Permanent
Court of Arbitration said in 1922 that "the majority of international lawyers seem to agree that
these words are to be understood to mean general principles of justice as distinguished from
any particular systems of jurisprudence". Proceedings of the United States–Norwegian
Tribunal (1922), p. 141. Numerous arbitration treaties have been concluded in recent years
which apply to differences "which are justiciable in their nature by reason of being susceptible
of decision by the application of the principles of law or equity". Whether the reference in an
arbitration treaty is to the application of "law and equity" or to justiciability dependent on the
possibility of applying "law or equity", it would seem to envisage equity as a part of law.
194
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• [322] The Court has not been expressly authorized by its Statute to apply equity as
distinguished from law. Nor, indeed, does the Statute expressly direct its application of
international law, though as has been said on several occasions the Court is "a tribunal
of international law". Series A, No. 7, p. 19 ; Series A, Nos. 20/21, p. 124. Article 38 of the
Statute expressly directs the application of "general principles of law recognized by civilized
nations", and in more than one nation principles of equity have an established place in the
legal system. The Court's recognition of equity as a part of international law is in no way
restricted by the special power conferred upon it "to decide a case ex cequo et bono, if the
parties agree thereto". Anzilotti, Corso di Diritto internazionale (3rd ed., 1928), p. 108 ;
Habicht, Power of the International Judge to give a Decision ex sequo et bono (1935), pp. 61
et sqq.; Lauterpacht, Private Law Sources and Analogies of International Law (1927), pp. 63 et
sqq. Cf., Monskheli, "L'equite en droit international moderne", 40 Revue generate de Droit
international public (1933), p. 347; [p77] Strupp, "Le droit du juge international de statuer selon
1'equite", 33 Recueil des Cours (1930), pp. 357 et sqq. It must be concluded, therefore,
that under Article 38 of the Statute, if not independently of that Article, the Court has
some freedom to consider principles of equity as part of the international law which it
must apply.
195
• Judge Manley Hudson construed certain maxims of equity as ‘general principles of law
recognized by civilized nations’ (at 76). So—he concluded—maxims such as ‘equality is
equity’ (ibid 77) and ‘he who seeks equity must do equity’ (ibid), would compel a judge to
ensure that ‘where two parties have assumed an identical or reciprocal obligation, one party
which is engaged in a continuing non-performance of that obligation should not be permitted
to take advantage of a similar non-performance of that obligation by the other party’
• [The Diversion of Water from the Meuse case itself has been described as equity’s ‘locus
classicus’ ]
196
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• North Sea Continental Shelf Cases (Federal Republic of Germany/Denmark;

Federal Republic of Germany/Netherlands).
• Continental Shelf Arbitration, France v. United Kingdom
• Fisheries Jurisdiction Case UK v Iceland
• Case concerning the Continental Shelf (Tunisia/Libyan Arab Jamahiriya) 1980
• [equity] was often contrasted with the rigid rules of positive law, the severity of which had to
be mitigated in order to do justice. In general, this contrast has no parallel in the
development of international law; the legal concept of equity is a general principle directly
applicable as law (at para. 71).
• Continental Shelf Case, Libyan Arab Jamahiriya v. Malta
• Delimitation of the Maritime Boundary in the Gulf of Maine Area, Canada v
United States, [1984]
• Frontier Dispute Case [Burkina Faso/Republic of Mali]). 1986
197
• The Usage of Equity

Equity Intra Legem (within law)
Equity Praeter Legem (to fill gaps)
Equity Contra Legem (opposite to law)
198
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Subsidiary sources- Judicial decisions

• d. subject to the provisions of Article 59, judicial decisions and the teachings of
the most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law.
• Declaratory of pre-existing law- law identifying source
• Article 59: The decision of the Court has no binding force except between the
parties and in respect of that particular case.
• There is no rule of Stare decisis but case law as great legal value
199
Position of Article 59
• Decision of the Court between states A and B will in principle not affect State C
• Article 59 allows the Court to ignore the actual decision in one case, even when deciding
another about the similar subject matter between
• Different states
• Same two states
• Article 59 allows the court to ignore a prior determination as to the substance or content of a
rule of international law on a specific matter simply because it was elucidated in a previous
decision
200
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• Judicial decisions:
• Judgement of ICJ?
• Judicial determinations at national and regional level (regional courts, ICC, International
Tribunals, ad-hoc International tribunals)
• Arbitration Awards
• National court decisions
201
ICJ Decisions and advisory matters
• Reparations Case: legal standing of IO

• Genocide Case: Change in the rules of reservations in law of treaties
• Anglo Norwegian Fisheries Case: Change in the drawing of baseline method
in Geneva Convention
• Nottebohm case: Clarification of principles pertaining to state responsibility
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• ICJ’s judgments have primary and secondary effects on international

lawmaking.
• Primary effects of the judicial law-making is when the Court’s determination that a rule
of international law exists, contributes to the clarification or expansion of the body of
international norms and rules.
• Secondary effects of judicial law-making are the result of the Court’s influence on the
behavior of States, who by following the Court’s pronouncement generate new
customary norms
203
• Decision of Court can create law for the parties

• AO: In the legal Consequences of the Construction of a Wall in the Occupied Palestine Territory
• Obligations not fulfilled will involve International responsibility
• Effect on CIL
• Accelerate the creation of customary law by confirming trends in state practice and by discovering the
necessary opinion juris
• Anglo Norwegian Fisheries Case; Tunisia v Libya : EEZ
• May confirm that the treaty has attained the status of General CIL: VCLT; ILC draft article
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Teachings of the Most highly qualified Publicists

• Writers and teachers played a significant role in the development of IL
(Grotius, Vattel, Gentili etc)
• 17-18th century: Statements of opinion as taken as representing law
• 19th Century: Growing importance of treaty and CIL reduced their influence;
political orientation
• ICJ does not give it much relevance but States do in their practice or may be
other Intl Courts do!
205
Other sources- Unilateral acts

• Article 38 ?
• Unilateral act: acts or statements – will expressed with the intent of
bringing about legal consequences
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Nuclear Tests (New Zealand v. France), Judgment,

International Court of Justice, 20 December 1974
• On 9 May 1973, Australia and New Zealand each instituted proceedings against France
concerning tests of nuclear weapons which France proposed to carry out in the atmosphere in
the South Pacific region
• Between 1966 and 1972 France carried out a long series of atmospheric—ie above ground—
tests of nuclear weapons in the territory of French Polynesia in the South Pacific
• In 1973 there were indications that France planned further atmospheric tests. Australia and
New Zealand, after unfruitful protests to France, accordingly filed separate applications, both
on 9 May 1973, with the ICJ instituting proceedings against France
207
• The Court inferred from the French statements—especially one made by the President of the French
Republic at a press conference on 25 July 1974, followed by another made by the French defence
minister also at a press conference—that France intended, unconditionally, to cease atmospheric testing
following the conclusion of the 1974 series
• the Court took into consideration a Note of 10 June 1974 from the French Embassy in Wellington to the
New Zealand Ministry of Foreign Affairs stating that France ‘will be in a position to move to the stage of
underground firings as soon as the test series planned for this summer is completed. Thus the
atmospheric tests which will be carried out shortly will, in the normal course of events, be the last of this
type
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• The Court found that declarations made by way of unilateral acts may have the effect of creating
legal obligations, if given publicly and with an intent to be bound.
• ‘not all unilateral acts imply obligation; but a State may choose to take up a certain position in
relation to a particular matter with the intention of being bound – the intention is to be
ascertained by interpretation of the act.’
• France ‘was bound to assume that other States might take note of these statements and rely on their
being effective’ and that a ‘unilateral undertaking resulting from these statements cannot be interpreted
as having been made in implicit reliance on an arbitrary power of reconsideration’, especially with a view
to the ‘security of international intercourse.’
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Law-
• Intent of states to bind themselves must be clear from the circumstances of
the statement or act
• The unilateral legal act must be publically know or at least generally known
• The form of the unilateral legal act is irrelevant but it must be explicit, in other
words not ambiguous
• Acceptance or any other response by any subject of international law is not
necessary
• (ICJ: Foundations in Good faith)
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• While examining : Differentiate between

• Acts of State as ‘notification’
• Acts of State as ‘recognition’
• Acts of State as ‘protest’
• Acts of State as ‘promise’ (unilateral acts)
• Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations,
with commentaries thereto 2006
https://legal.un.org/ilc/texts/instruments/english/commentaries/9_9_2006.pdf
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Other Sources- Resolutions

• UNSC Resolutions under article 24 and 25 binding on all member states
• UN GA Resolutions?
• UNGA- parliamentary advisory body with binding decisions being taken by
UNSC
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• GA is a political body
• Should resolutions be binding?
• But resolutions deals with questions of international law
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Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.

United States of America) Judgment of 27 June 1986
• This opinio juris may, though with all due caution, be deduced from, inter alia,
the attitude of the Parties and the attitude of States towards certain General
Assembly resolutions, and particularly resolution 2625 (XXV) entitled
"Declaration on Principles of International Law concerning Friendly Relations
and Co-operation among States in accordance with the Charter of the United
Nations". The effect of consent to the text of such resolutions cannot be
understood as merely that of a "reiteration or elucidation" of the treaty
commitment undertaken in the Charter. On the contrary, it may be understood
as an acceptance of the validity of the rule or set of rules declared by the
resolution by themselves.
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Legality of the Threat or Use of Nuclear Weapons

Advisory Opinion of 8 July 1996
• 70. The Court notes that General Assembly resolutions, even if they are not
binding, may sometimes have normative value. They can, in certain
circumstances, provide evidence important for establishing the existence of a
rule or the emergence of an opinio juris. To establish whether this is true of a
given General Assembly resolution, it is necessary to look at its content and
the conditions of its adoption; it is also necessary to see whether an opinio
juris exists as to its normative character. Or a series of resolutions may show
the gradual evolution of the opinio juris required for the establishment of a new
rule
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• Resolutions are not legally binding

• What is State have voted in favour of it?
• At times, States issue statements during voting on Resolutions
• Exception
• Resolutions with internal effect/on internal working of UN
• Resolutions on admittance of new states, election to the SC, request for ICJ AO, budget, Appointment of
Judges
• Resolutions with external effect
• Non Members should respect
• Eg: Namibia AO- UN Administered territories
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Resolutions have legal effect and have legal value

• GA-R to colonial people and the right of self
• May be declaratory of existing CIL
determination
• May crystallize a state practice: New CIL rule
is created
• Factors relevant: unanimous voting
• Eg: Outer Space, 1963 declaration on the Legal
Principles Governing Activities of States in
Exploration and Use of Outer Space
• Distinguish between: evidence of custom v hope
of custom
• Eg: Threat or Use of Nuclear Weapons Case
• GA-R – voluntary code of conduct – can
become rule of CIL
• Eg: Right of Self determination in 1960
Declaration on the granting of independence
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• Can GA-R destroy an existing rule of CIL

• Eg: 1974 Declaration on the Establishment of the New Economic order
• 1974 Charter of Economic Rights and Duties of States
• Vote can have impact on the behaviour of state

• Political necessity is more compelling than legal necessity
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Soft Law
• Non-binding instruments or documents: code of conduct, principles, best
practices, statements, guidelines etc
• Have role in the formation and development of international law
• Are more effective in areas of international economic, environmental, human
rights and space law
• Informal international law making- IN-LAW
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• Do you think, Article 38 should add new sources?
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Module 3
• International Legal Personality
• What is International Legal Personality?

• Who is a legal person?
• Subjects of International Law
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• Person:
• Who has rights and duties by Law
• ILP: Who has international rights and duties
• A subject of International Law is a body or entity recognized or accepted as being

capable or as in fact being capable of exercising rights and duties
• It means
• Ability to make claims to vindicate rights given by International Law (before
international/national courts/tribunals)
• To be subject to some or all of the obligations imposed by IL
• To have power to make international agreements binding under IL
• To enjoy some or all immunities as attribute of International Legal person
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• International personality is not an absolute concept

• It operates on a sliding scale
• Original personality v Derived personality
• States (par excellence; capacity in full measure)
• IOs and Individuals (functional personality)
• Personality is a relative concept. It denotes the ability to act within the system
of international law as distinct from national law
• Question that needs to be answered is

• How is International personality achieved?
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States
• IL was conceived originally as system of rules governing the states
• States have all the capacities
• How do you know whether an entity qualifies as State?

• How does IL qualifies an entity as State?
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• In 2002, Switzerland become a UN Member state
• Was it a State before becoming UN Member?
• Yugoslavia was suspended from rights of membership from 1999-2000

• Was it not a state?
• Kosovo is not member of UN, but recognized by almost 100+ states of the
world
• Is it a State?
225
What is this?
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https://www.youtube.com/watch?
v=BeFA8rtAGfA
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We need to understand!
• Are their any criteria's of statehood?
• Yes/No? Where? List?
• Who decides whether you are a State?
• Confers ILP?
• Role of Recognition (political act)
• Duty to Recognize? Duty to not recognize?
• Issues:
• Entities which can potentially become states
• De facto regimes
• NLM
• State like entities Sui Generis Entities
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229
Criteria's of the Statehood
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Traditional Criteria
Capacity to enter legal
relations
Permanent Population Defined Territory Government Independence
Number of inhabitants? Clear borders? Disputed Democratic/republic/monarch
Citizens? borders Effective authority
Permanent? Migration?
The principle of effectiveness is at the root of the criteria set out in Montevideo
Convention. The principle plays a vital role in IL because in absence of any central
authority which can decide whether an entity has met the criteria of statehood, any
legal fiction may be discouraged.
The principle of effectiveness requires that no entity should be regarded as a state
within IL unless that entity has government which controls a defined territory and its
inhabitants effectively and independent from any other states. Otherwise the entity in
question will neither be able to fulfill obligations deriving from IL nor benefit from
international rights
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Manchuria became Manchukuo

• https://www.youtube.com/watch?v=RTdo1Q9CACM
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Traditional view
• Under the traditional view once an entity satisfies the criteria set out in the MC
the entity irrespective of its recognition or non recognition and irrespective any
other factors such as its legality or otherwise or origin its compliance with HRL
and other rules of IL
• Debate: whether the traditional view on criteria based on principle of

effectiveness has been challenged by the development of IL
• Can there be additional criteria’s?
• Illegality in creation of states/ rules of jus cogens
233
The Opinions of the Badinter Arbitration Committee

• Break up of SFRY:
• On the 27th of August 1991,' the Community and its Member States, at the
same time as convening a peace conference on Yugoslavia, created an
Arbitration Committee.
• The Committee was chaired by Mr Robert Badinter, President of the French
Constitutional Council, and was furthermore comprised of the Presidents of
the German and Italian Constitutional Courts, the Belgian Court of Arbitration
and the Spanish Constitutional Tribunal
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235
236
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Stimson Doctrine (unlawful annexation)

• After the armed forces of Japan established Manchukuo as a putative new
State in the territory of China,
• the US declared that it would not recognize territorial changes resulting from
aggression (Territorial Change, Effects of).
• Henry L Stimson, as Secretary of State, indicated to Japan and China:
• [The US] does not intend to recognize any situation, treaty, or agreement
which may be brought about by means contrary to the covenants and
obligations of the Pact of Paris of August 27, 1928, to which treaty both China
and Japan, as well as the United States, are parties (Wheeler-Bennett 262).
237
• According to the League Resolution of 11 March 1932:

• [I]t is incumbent upon the members of the League of Nations not to recognize any situation, treaty, or
agreement which may be brought about by means contrary to the Covenant of the League of Nations or to
the Pact of Paris (League of Nations Official Journal 87).
• The doctrine also was taken up in various inter-American treaties
• The UNGA has restated the principle underlying the Stimson Doctrine.
• UNGA Resolution 2625 (XXV) of 24 October 1970 under its first principle—prohibition of threat or use of
force—states, inter alia: ‘No territorial acquisition resulting from the threat or use of force shall be
recognized as legal’ (at 123) (Friendly Relations Declaration [1970]).
• Article 5 (3) of the definition of aggression adopted by UNGA Resolution 3314 (XXIX) of 14 December 1974
provides that ‘[n]o territorial acquisition or special advantage resulting from aggression is or shall be
recognized as lawful’.
• The principle was also restated in the Declaration of Principles Guiding Relations between Participating
States, one of the components of the Conference on Security and Co-operation in Europe Helsinki Final Act
of 1 August 1975. This declaration provides, inter alia, in its fourth principle—territorial integrity of States—
that ‘[n]o … [military] occupation or acquisition [by means of direct or indirect measures of force in
contravention of international law] will be recognized as legal’
The doctrine is echoed in Art. 41 (2) Responsibility of States for Internationally Wrongful Acts (and draft Art.
44 (2) Articles on Responsibility of International Organizations), whereby the prohibition is stated against
recognizing as lawful a situation created by a serious breach of a peremptory norm.
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• Case concerning East Timor (Portugal v Australia) (‘East Timor Case’)

• ‘The rule or, as Sir Hersch Lauterpacht says, the principle of non-recognition now
constitutes part of general international law’ (at 262) and the Stimson Doctrine was
‘pioneering … in this development’ (ibid).
• The combination of the words ‘rule or…principle’ is somewhat equivocal.
• If the Stimson Doctrine was the start of a process of customary international
law formation for a rule prohibiting recognition of situations resulting from
unlawful acts, then the East Timor Case tested the extent to which the
proposed rule had been accepted.
239
• The non-recognition of the annexation of the Baltic States after 1940, of

Kuwait in 1990–91, and of the Crimea region of Ukraine in 2014 might be
characterized as applications of the Stimson Doctrine, though in later years
States did not generally refer to the doctrine by name when rejecting unlawful
annexations
• Entities created with the assistance of foreign military interventions and whose
existence depends on foreign support will not support the criteria of
independence: eg Turkish republic of northern Cyprus; Abkhazia; Ossetia
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Racial Discrimination and apartheid

• SA created homeland of Transkei, Ciskei, Bophuthatswana and Venda
• Breach of self determination and racial discrimination
• Bangladesh: Use of Force or Right of Self determination
241
• Having criteria’s by itself lead to the State?

• Recognition
• Recognition is a political act!

• There is no duty to recognize
• But there is a duty to not recognize in IL in certain situations
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Recognition of State - IL and Municipal Law

• In IL, it shows that recognized state possess the attributes of statehood and
that the recognizing state is willing to engage in foreign relations with the
recognized state
• At municipal law, recognized state will be accorded rights and obligations
243
Recognition of States in IL
• Most controversial one
• Theoretical debate
• Constitutive theory of recognition
• Declaratory theory of recognition
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Theories
Constitutive Declaratory
• Recognition is necessary • Recognition is merely consequence

requirement for the establishment of international personality
of de jure international personality • Recognition is mere formality-
of new state States exists as a matter of fact.
• Based on positivist view (19th Cent) Granting recognition is
Recognition creates new states: acknowledgement of fact.
State may possess all formal • Advantage: It allows objective
attributes and qualifications of state determination of Statehood.
but unless recognized by other • Endorsed by international treaties,
states it will not be an International courts
legal person
• Recognition is purely political act
245
Montevideo Convention
246
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OAS Charter
247
Tinoco Concessions Arbitration; Great Britain v. Costa

Rica
• 1917: the Costa Rican government was overthrown by Frederico Tinoco, the
Secretary of War in that government. Tinoco assumed undisputed power,
called an election, and established a new constitution.
• 1919: His government fell in September 1919, without having been recognized
by some nations, including Great Britain
• Tinoco retired and left the country, the old constitution was restored.
• 1922, the restored government passed a law known as the Law of Nullities No
41, which invalidated all contracts entered into by the Tinoco government.
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• Among these were two contracts with British companies.

• oil concessions granting the right to explore and exploit oil reserves within Costa Rica to a
British-owned petroleum company
• a funded debt with the Royal Bank of Canada.
• The British government contested the validity of the Law of Nullities with
regard to the rights and property of the British companies that were concerned
by the law
249
Arbitration
• The jurisdiction of the sole arbitrator William R Taft, Chief Justice of the
Supreme Court and former President of the US, derived from a treaty of
arbitration between Costa Rica and the UK, dated 12 January 1922, in which
the settlement of the conflict through arbitration had been stipulated
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Held
• well settled international law’  principle of continuity of States, de facto
regimes are able to bind the subsequent governments irrespective of the way
they gained power.
• recognition of a government by other nations is usually strong evidence of its
existence,  that the non-recognition of the Tinoco regime by some nations,
including the US and the UK, could not outweigh the evidence presented as to
the de facto character of Tinoco’s government
• GB was estopped from urging claims as GB did not recognize the Tinoco
government?  it was nevertheless a de facto government that could create
rights in British subjects which the British government now wanted to protect.
251
• arbitrational ruling is usually cited as a reference for the limited relevance of

the recognition of States by foreign nations. It showed that recognition
alone is not constitutive for the establishment of power but has
declaratory effect only.
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Deutsche Continental Gas-Gesellschaft v. Polish State

• (1929) 5 A.D. 11.
• Mixed Arbitration Tribunal examined the new Polish entity that emerged after II
World war
• …according to the opinion rightly admitted by the great majority of writers on
international law, the recognition of a state is not constitutive but merely
declaratory. The state exists by itself, and the recognition is nothing else than
a declaration of this existence, recognised by the state from which emanates
• Badinter Commission: existence of state is question of fact and effects of

recognition are purely declaratory
253
• State’s practice support Constitutive theory:

• Disadvantages:
• New states are without rights and obligations under IL unless recognized
• Legal status of State depends on political act?
• Cant ignore unrecognized entity
• Partial recognition and its consequences?
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• There is no legal obligation imposed upon states to recognize an entity only

because it satisfies the requirement of statehood.
• State practice is neither declarative nor constitutive. A mix of both!
• Modes of recognition: Formal announcement/ bilateral treaty of recognition;

• Explicit and implied recognition
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Obligation of non recognition

• On 27 October 1966, the General Assembly decided that the Mandate for
South West Africa was terminated and that South Africa had no other right to
administer the Territory.
• In 1969 the Security Council called upon South Africa to withdraw its
administration from the Territory, and on 30 January 1970 it declared that the
continued presence of the South African authorities in Namibia was illegal and
that all acts taken by the South African Government on behalf of or concerning
Namibia after the termination of the Mandate were illegal and invalid; it further
called upon all States to refrain from any dealings with the South African
Government that were incompatible with that declaration.
• On 29 July 1970, the Security Council decided to request of the Court an
advisory opinion on the legal consequences for States of the continued
presence of South Africa in Namibia.
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The Namibia Doctrine of Non-Recognition
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Obligations of Non-Recognition
• The ICJ has stated in its advisory opinion of 1971 concerning Namibia that a
‘duty of non-recognition’ exists as to the administration of the territory by South
Africa:
• ‘The member States of the United Nations are … under obligation to recognize
the illegality and invalidity of South Africa’s continued presence in Namibia’
• ‘the termination of the Mandate and the declaration of the illegality of South
Africa’s presence in Namibia [were] opposable to all States in the sense of
barring erga omnes the legality of a situation which is maintained in violation
of international law […]
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• The United Nations Security Council and the United Nations General
Assembly have in several cases called upon States not to recognize newly
formed entities as States:
• Rhodesia (UNSC Res 216 [1965] [12 November 1965]; Rhodesia/Zimbabwe);
• Transkei (UNSC Res 402 [1976] [22 December 1976]);
• Northern Cyprus (UNSC Res 541 [1983] [18 November 1983]).
• The reason was either that independence was gained by a racist minority
regime (Rhodesia), or the regime was seen as established by outside
intervention.
• In all cases the decisions by the Security Council were complied with almost
without exception.
259
• Art 41 (2) Draft Articles on Responsibility of States for Internationally Wrongful

Acts adopted by the International Law Commission in 2001 reads:
• ‘No State shall recognize as lawful a situation created by a serious breach
within the meaning of article 40, nor render aid or assistance in maintaining
that situation.’
• Art 40 describes a serious breach as a gross or systematic failure to fulfil an
obligation arising under a peremptory norm of general international law .
Especially for territorial acquisitions resulting from the threat or use of force an
obligation not to recognize their validity is well established as a general
principle in international law and United Nations practice
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Recognition of Governments
• Long history
• Tobar Doctrine: Central America: recognition would be denied to government
taking power by revolutionary action which did no thereafter seek
constitutional legitimacy
• Estrada Doctrine emphasis on diplomatic relations not on act of recognition
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IO
• Reparation for Injuries Suffered in the Service
of the United Nations
• [1949] ICJ Rep 174,
• Assassination, on 17 September 1948, of Count
Folke Bernadotte of Sweden, the UN mediator in
the Palestine conflict, and of Colonel André
Sérot, a French UN observer.
• These murders were attributed to a group of
Israeli extremists—the Stern Group—whose
members had so far failed to be arrested and
prosecuted by the Israeli authorities
• the assassination took place after Israel declared
independence on 14 May 1948 but before it was
admitted to the UN on 11 May 1949. The
advisory opinion was delivered on 11 April 1949.
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263
264
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https://www.bbc.co.uk/sounds/play/w3cszmrj
265
• Decides to submit the following legal questions to the International Court of Justice
for an advisory opinion:
• ‘I. In the event of an agent of the United Nations in the performance of his duties
suffering injury in circumstances involving the responsibility of a State, has the United
Nations, as an Organization, the capacity to bring an international claim against the
responsible de jure or de facto government with a view to obtaining the reparation
due in respect of the damage caused (a) to the United Nations, (b) to the victim or to
persons entitled through him ?
• II. In the event of an affirmative reply on point I (b), how is action by the United
Nations to be reconciled with such rights as may be possessed by the State of which
the victim is a national ?’
• Instructs the Secretary-General, after the Court has given its opinion, to prepare
proposals in the light of that opinion, and to submit them to the General Assembly at
its next regular session.”
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ICJ
267
268
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Answer this?
• Legal capacity of UN under UN Charter?
• Find the Article
269
270
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271
UN can bring claim
272
136
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On what basis? The claim? Which law?
273
IO has it’s own rights
274
137
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Israel is not a State? Does it have Personality against

non member
275
Reconciling the claims
276
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277
278
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279
After the Advisory Opinion

• the UN General Assembly authorized the UN Secretary-General to press for a claim
(UNGA Res 365 [IV] [1 December 1949]).
• April 1950, Israel was asked to present a formal apology (Satisfaction), to arrest the
culprits and to pay an indemnity of $54,624
• June 1950, Israel remitted the claimed sum as reparation for the monetary damage
borne by the UN, and expressed ‘its most sincere regret that this dastardly
assassination took place on Israeli territory, and that despite all its efforts the
criminals have gone undetected’ https://www.un.org/unispal/document/auto-insert-
178849/
• The Israeli government explained at length why it considered that, failing new
evidence, the re-examination of the case—which it did not regard as closed—was
unlikely to be successful.
• The UN Secretary-General considered this to ‘constitute substantial compliance’ (ibid)
by Israel with the UN claim
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• opinion has become standard reference for legal personality, capacity and
competences
• The dictum on the objective personality of the UN, is certainly settled law.
• implied powers doctrine and the principle of functional protection.
281
World Court Project

• WCP as a unique umbrella network of NGOs:
• The World Court Project was started in New Zealand in 1986 by a retired Christchurch district
court judge, Harold Evans, and initially led by New Zealanders.
• Over 32,000 New Zealanders signed ‘Declarations of Public Conscience’ condemning nuclear
weapons and supporting the World Court Project in the early 1990s. Worldwide, the number
was nearly 4 million. This was an enormous figure for public engagement in the age before
online mass-petitions.
• After years of campaigning, the Project had its international launch at the UN in Geneva in
1992. The three core co-sponsoring organisations were the International Peace Bureau
(Nobel Peace Prize winner, 1910), International Physicians for the Prevention of Nuclear War
(Nobel Peace Prize winner 1985), and International Association of Lawyers against Nuclear
Arms.
• how it lobbied governments on the most radical issue on the UN General Assembly's disarmament
agenda; how it persuaded the Court to accept citizens’ evidence for the first time; and how it helped
to empower ordinary citizens to learn about, and then use, the UN system to influence
governments.
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• This move first succeeded in the WHO.

• On 23 May 1993, the Assembly of the WHO adopted resolution WHA 46.40
asking the ICJ to answer the following question:
• In view of the health and environmental effects, would the use of nuclear weapons by a
State in war or other armed conflict be a breach of its obligations under international law
including the WHO Constitution?
• A year later, this move was successful in the UN General Assembly, against
the adamant resistance of a number of military powers and their allies. On 15
December 1994, the UN General Assembly adopted Resolution 49/75K
(GAOR 49th Session Supp 49 vol 1, 153) by which it requested the ICJ to give
an answer to the following question:
• ‘Is the threat or use of nuclear weapons in any circumstances permitted under international
law?’
283
• The Court responded by two advisory opinions dated 8 July 1996. The first
one refused to give the opinion requested by the WHO; the second one
answered the question put by the UN General Assembly.
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Competence of WHO
• The Court denied that competence for two reasons. First, while there is no
denying the fact that the health effect of the use of nuclear weapons is
considerable, the competence of the WHO only relates to these effects, and
the legality or illegality of their use is immaterial for their effects. It thus falls
outside the competence of the WHO.
• Secondly, there is a division of powers between the various specialized
agencies of the UN system. Their relations are governed by the ‘principle of
speciality’. Applying this principle, the Court concluded that questions relating
to the use of force and to arms control and disarmament are the exclusive
domain of the United Nations, not that of any specialized agency.
285
Individuals in International Law

• The question whether and to what extent individuals are subjects of international law remains
contentious. It has, however, lost much of its practical significance
• Much of the relevant debate has thus shifted to the question of what rights and
duties individuals obtain under contemporary international law.
• In particular, international human rights law, international criminal law, and international
humanitarian law grant individuals rights and impose duties on them, resulting in a re-
evaluation of the status of individuals under contemporary international law.
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Rights of Individuals
• the end of World War I, States gradually included protection of minorities, particularly through
peace treaties.
• The concept of self-determination constituted a basis for the developing of such a minority
protection system after World War I.
• Therefore, since World War II, individuals have increasingly gained specific rights,
sometimes followed by a secondary right to vindicate these primary rights
through individual communication in cases of violations.
287
IHRL
• Most important for the enhancement of the status of individuals was the shift towards human rights.
• 1948 adoption of the Universal Declaration of Human Rights (1948) (‘UDHR
• the International Covenant on Civil and Political Rights (1966) (‘ICCPR’) and the International Covenant on
Economic, Social and Cultural Rights (1966) (‘ICESCR’)—the International Bill of Rights.
• the Convention on the Elimination of All Forms of Discrimination against Women (‘CEDAW’), the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (‘CAT’), the Convention on
the Rights of the Child (‘CRC’), the International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families (‘ICRMW’), and the Convention on the Rights of Persons with
Disabilities (‘CRPD’). Other treaties deal with genocide, apartheid and the protection of refugees. UN Member
States also strengthened individual human rights protection through guidelines, declarations, rules, or
principles with a non-binding character
• Human rights law provides effective protection of individuals through its range from the international to the
regional and national levels including sublevels. Important regional instruments of the human rights protection
system are the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950)
(‘ECHR’), the American Convention on Human Rights (1969) the African Charter on Human and Peoples’
Rights (1981) (1520 UNTS 217 [Banjul Charter]), and the revised Arab Charter on Human Rights (2004)
([2005] 12 IHRR 893).
• On the national level, domestic implementation incorporates human rights law as a safeguard for an effective
protection of the individual.
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IHL
• International humanitarian law also aims at the protection of individuals—sick
or wounded combatants, prisoners of war, or civilians—in armed conflict
(Protected Persons)
• Other instruments in international law can also create individual rights. In the
field of international economic law, individuals generally obtain rights through
bilateral investment treaties.
289
ICJ
• Vienna Convention on Consular Relations (1963), the ICJ strengthened
individual rights, when it stated in 2001 that ‘Article 36, paragraph 1, creates
individual rights’ (LaGrand Case [Germany v United States of America] [2001]
ICJ Rep 466, 494). https://www.youtube.com/watch?v=KBBKKXCXuPM
• Not undisputed, this interpretation in favour of individual rights was confirmed

by the ICJ in March 2004 (Avena and Other Mexican Nationals Case [Mexico
v United States of America] [2004] ICJ Rep 12).
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Individual right
• The Court recognized that the VCCR not only provided for the rights of States
with regard to consular relations but also, that its Art. 36 (1) (b) ‘creates
individual rights, which, by virtue of Article I of the Optional Protocol, may be
invoked in this Court by the national State of the detained person’. The Court
based this finding solely on the text of the provisions set out in Art. 36 VCCR
and found that ‘the clarity of these provisions, viewed in their context, admits
of no doubt’ (ibid).
291
Enforcement of Individual rights in IL
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• This complaint mechanism is provided for in the treaty itself or in an Optional

Protocol; the latter is a separate treaty open to States Parties to the respective
treaty and is ‘optional’ because the States Parties to the treaty can decide
whether or not to adopt the protocol.
• Since its adoption in 1966, the ICCPR system has provided both for the rights
of individuals and for the enforcement of these rights.
• First, Art. 2 (1) ICCPR asserts that each State Party ‘undertakes to respect and to ensure to
all individuals within its territory and subject to its jurisdiction the rights recognized in the
present Covenant’.
• Second, the Optional Protocol to the ICCPR provides legal protection of the individual by
bringing an alleged violation of rights under the ICCPR before the Human Rights
Committee.
293
• Art. 14 ICERD establishes a procedure that makes it possible for ‘individuals

or groups of individuals’ claiming to be victims of racial discrimination to file a
complaint with the Committee on the Elimination of Racial Discrimination
against the State concerned.
• Art. 22 CAT gives individuals claiming to be victims of a violation by a State
Party of the provisions of the CAT the right to lodge a complaint with the
Committee against Torture.
• At the end of the 1950s, the establishment of the European Court of Human
Rights (ECtHR), set up under the Council of Europe (COE) and established
under the ECHR, is a cornerstone for the enforcement of individual rights.
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• IHL: Under the traditional State-centric system, individual victims had no

standing to demand a remedy in the field of international humanitarian law. On
a government-to-government basis, the general procedure was that the State
whose national was a victim could legally invoke the responsibility of the State
to which the violation could be attributed—not against the individual
perpetrator.
• International investment law provides investors with the possibility to pursue
investment protection claims directly—usually without the exhaustion of local
remedies—in international arbitration. Diverse institutional arrangements exist
for such claims arising from the violation of bilateral investment treaties.
However, only nationals of States Parties benefit from bilateral investment
treaties.
• the World Trade Organization (WTO) generally does not grant individuals
access to dispute settlement.
295
Duties of Individuals
• the fields of international humanitarian law and international criminal law are
the main areas of relevance
• Traditionally, criminal law was a matter of national law, with the exercise of
jurisdiction being limited to the permissible bases of jurisdiction such as
territory or citizenship. As an exception, pirates were deemed enemies of
mankind (hostes humani generis), and all States were empowered to seize
pirate ships as well as to arrest and prosecute pirates—wherever the crime
was committed. Rule is enshrined in Art 105 UN Convention on the Law of the
Sea
• Since the Nuremberg and the Tokyo Tribunals after World War II, it has been a
cornerstone of international criminal law that individuals can be held
responsible for crimes in the international arena.
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• Individual criminal responsibility is the basis of operation of the International

Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal
Tribunal for Rwanda (ICTR), and the ICC. The ICC is a permanent forum in
which individuals can be indicted for genocide, crimes against humanity, and
war crimes.
• Sanctions targeting individuals under Chapter VII UN Charter.
• The UNSC relies on UN Member States to implement its sanctions regimes.
• In the fight against terrorism, the UNSC has named individuals as the target of its sanctions,
administrated by Sanction Committees (see eg UNSC Resolution 1267 (1999) of 15
October 1999 [SCOR 54th Year 148] concerning Al Qaeda and the Taliban and associated
individuals and entities).
• Member States are obliged to take the necessary measures of implementation. On the
domestic level, the economic sanctions then have a direct impact on the rights of
individuals.
297
States- Membership to UN
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Drafting history
• San Francisco Conference did not opt for the idea of automatic membership of
all States, which would have guaranteed the UN’s absolute universality;
instead, it was thought that the objectives of the UN would be better and more
effectively realized under a concept of conditional universality.
• The admission of new members was therefore made subject to threshold
criteria, which are laid down in Art. 4.
299
Additional conditions under A4?

• ICJ in its Advisory Opinion on Conditions of Admission of a State, the majority
considered it illegal to make the admission of a State dependent upon
additional conditions.
• At the same time, however, the ICJ argued that the elasticity of the criteria
mentioned in Art. 4 (1) called for their broad application. Consequently, it
concluded that: Article 4 does not forbid the taking into account of any factor
which it is possible reasonably and in good faith to connect with the conditions
laid down in that Article… [N]o relevant political factor—that is to say, none
connected with the conditions of admission—is excluded.
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• Admissions Procedure from 1946 to 1955

• The impasse over the admission of new members was finally broken with the so-called
‘package deal’ of 14 December 1955. Designed by the UNGA (Res 918 (X)), it made
possible the admission en bloc of sixteen States, ten of them European. Under the package
deal, the UNSC first voted separately on each applicant’s fulfilment of the membership
criteria, and in a second step decided en bloc on recommending to the UNGA their
admission
• Decolonization and membership-
• The number of applications increased significantly and the change in admission practice
allowed for a rapid intake of new members. Membership, which had grown from fifty-one
original members in 1945 to only seventy-six members in 1955, reached 159 in 1984
301
• The Criteria for Admission and their Relevance in Practice: Article 4 (1)
• Between 1946 and 1962, the statehood of applicants was repeatedly called
into question during admission procedures for an alleged lack mainly of
independent government
• As to independent government, it was judged by some to be missing for the following
reasons: foreign occupation (Republic of Korea), military occupation as a consequence of
World War II (Austria), special relations with the former colonial power (Ceylon), lack of
independence (Angola), or total factual dependence (Mongolia).
• As to a defined territory, statehood was disputed on the following grounds: absence of
sufficiently defined borders (Israel), and claims of neighbouring States to the territory of the
applicant State (Mauritania, Kuwait, Belize).
• In order to prove that an applicant for membership was a State within the meaning of Art. 4
(1), reference was also occasionally made to a certain degree of both diplomatic intercourse
and international recognition of the applicant State.
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• Objective determination: Article 2 (7)

• While the formal concept of statehood as known in general international law
was upheld, the principle of effectiveness was interpreted rather generously.
Only sporadically did the UNSC screen the effectiveness of an applicant’s
statehood in more detail by examining its public expenditures and its financial
and political capacity to safeguard its territorial integrity and political
independence
• Associate membership of Micro states
303
Observer status
• In response to actual needs, the UNSG and the UNGA initiated a practice of granting observer
status, ie limited participation rights in the UN, to non-member States, (mostly regional)
intergovernmental organizations and institutions, groups of States, and, in the first decades of
the UN, national liberation movements
• specialized agencies of the UN enjoy limited rights of participation in the UNGA on the basis of
international treaties they have concluded with the UN pursuant to Arts 57, 63, and 70 of the
Charter
• With the exception of the ICRC and the International Federation of Red Cross and Red
Crescent Societies, NGOs have not gained observer status and are unlikely to do so in the
future, as the UNGA decided to confine this status to States and intergovernmental
organizations (UN Doc A/49/747 (9 December 1994)). NGOs can, however, obtain a
consultative status with ECOSOC and its subsidiary bodies according to Art. 71
304
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• Observer status may be granted on a permanent and general basis, temporarily, or

functionally limited to the participation in particular organs or on specific issues
• The purpose of the observer status is twofold. On the one hand, it contributes to realizing the
universality principle by giving non-member States and other territorially based entities the
opportunity to participate in the work of the UN. On the other hand, the UN seeks to make use
of the specific knowledge and experience international organizations and institutions have
accumulated.
305
• The formal observer status of non-member States evolved from the practice of inviting them,
on the basis of Art. 35 (2) of the Charter, to participate in those debates of the UNGA that are
of particular interest to them, a practice which began with the participation of Albania and
Bulgaria in the deliberations concerning the question of Greece.
• All other countries which were once endowed with observer status as non-member States
have eventually become members of the UN.
• The observer status for national liberation movements has its legal basis in resolutions of the
UNGA ‘inviting’ them to participate in the work of the UN. Observer status was explicitly
granted to the Palestine Liberation Organization (PLO) in UNGA Res 3237 (XXIX) and to the
South West Africa People’s Organization (SWAPO) in UNGA Res 31/152. UNGA Res 3280
(XXIX), and UNGA Res 35/167 extended observer status at the UN to all national liberation
movements recognized by the Organization of African Unity and/or by the League of Arab
States. At present, no national liberation movement is listed as an observer.
306
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• List of non-member States, entities and organizations having received a

standing invitation to participate as observers in the sessions and the work of
the General Assembly (31 Aug 2020)
• https://undocs.org/A/INF/75/3
• Procedure:
https://ask.un.org/loader?fid=12419&type=1&key=116889c457de85b5d423fb4
3d2de3487
307
308
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STATE TERRITORY
309
What we will learn:

• Modes of acquiring territory in International Law
• Related Legal terminology used in International Law: (Rules of International
Law)
• Occupation
• Prescription
• Cession
• Accretion
• Principle of Effective Occupation
• Critical date theory and Inter-temporal law
• Principle of Uti possedities
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• International Law is founded upon the political unit of the State. The essential
characteristic of the State is that it enjoys SOVERIGN power; that
SOVERIGNITY will be both internal in respect of its own territory and external
in the form of its identity and equality as an international legal person.
• A State must posses territory.
• There is a close connection in International Law between the concepts of THE
STATE, SOVEREIGNTY, TERRITORY and JURISDICTION.
• Territory is a matter central concern to International Law. Any system of
International Law would be inadequate if it did not have rules as to how title to
territory might be acquired; such rules ae necessary if only to minimise the risk
of conflicts over territory
311
• Concept of TERRITORIAL SOVERIGNITY is central to international society

• It is reflected in Article 2 (4) and Article 2 (7) of UN Charter and in Declaration
1970.
• There are at least four ways through which a State can acquire territory.
occupation, prescription, cession, and accretion.
• Prior to the emergence of the United Nations, States could also acquire
territory through conquest or annexation by war. However, the UN Charter has
now prohibited the use of force by States, and even though States may still
use force in self-defence (Article 51), this does not entitle States to keep
captured territory as their property.
• These modes are not exclusive or exhaustive
312
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After 1898, Spanish

American War, Spain
ceded its sovereignty over
the Philippines to the
United States in the 1898
Treaty of Paris
In 1906, an American
General visited the Island
of Palmas (now known as
Miangas), but found the
Dutch flag flying on the
territory.
This island was claimed to
be part of the Dutch East
Indies
In 1928, Netherland and
US referred the question
of Soverignity of an Island
to an Arbitrator, Max
Huber
313
Netherlands v. United States of America (The Island of Palmas Case)
• (1928) 2 RIAA 829

• The dispute concerned the sovereignty over the Island of Palmas, ceded by
Spain to the United States of America by treaty concluded in 1898, but
claimed by the Netherlands as forming part of its possessions on the basis of
having exercised sovereignty there for more than 200 years.
• On January 23, 1925, the United States of America and the Netherlands
referred their dispute concerning sovereignty over the Island of Palmas to
arbitration by a sole arbitrator. The sole arbitrator was asked to determine
whether the Island of Palmas (or Miangas) in its entirety formed a part of the
territory belonging to the United States of America or of the territory of the
Netherlands.
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Summary: Contentions of US
• The United States, as successor to the rights of Spain over the Philippines, bases its
title in the first place on discovery.
• As, according to the same argument, nothing has occurred of a nature, in
international law, to cause the acquired title to disappear, this latter title was intact at
the moment when, Spain ceded the Philippines to the United States. In these
circumstances, it is, in the American view, unnecessary to establish facts showing the
actual display of sovereignty precisely over the Island of Palmas (or Miangas).
• The United States Government finally maintains that Palmas (or Miangas) forms a
geographical part of the Philippine group ; and in virtue of the principle of contiguity
belongs to the Power having the sovereignty over the Philippines.
• At one hand there were territorial claims by Netherland based on Occupation and on
the other hand claimed by US as ceded territory which title can be established by
Spanish discovery.
315
Summary: Contentions of Netherland

• According to the Netherlands Government, on the other hand, the fact of
discovery by Spain is not proved, nor yet any other form of acquisition, and
even if Spain had at any moment had a title, such title had been lost. The
principle of contiguity is contested.
• East India Company, have possessed and exercised rights of sovereignty from
1677, or probably from a date prior even to 1648, to the present day.
• This sovereignty arose out of conventions entered into with native princes of
the Island of Sangi (the main island of the Talautse (Sangi) Isles), establishing
the suzerainty of the Netherlands over the territories of these princes,
including Palmas (or Miangas). The state of affairs thus set up is claimed to be
validated by international treaties.
316
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Sovereignty in its relation to territory

• Sovereignty in the relations between States signifies independence. Independence in regard
to a portion of the globe is the right to exercise therein, to the exclusion of any other State, the
functions of a State. The development of the national organisation of States during the last few
centuries and, as a corollary, the development of international law, have established this
principle of the exclusive competence of the State in regard to its own territory in such a way
as to make it the point of departure in settling most questions that concern international
relations. …………..
317
Keywords: Superior Title; Display of Sovereignty; Critical Date;

Display of State activities
• If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine
which of the States claiming sovereignty possesses a title— cession conquest, occupation,
etc.—superior to that which the other State might possibly bring forward against it. However, if
the contestation is based on the fact that the other Party has actually displayed sovereignty, it
cannot be sufficient to establish the title by which territorial sovereignty was validly acquired at
a certain moment; it must also be shown that the territorial sovereignty has continued to exist
and did exist at the moment which for the decision of the dispute must be considered as
critical. This demonstration consists in the actual display of State activities, such as belongs
only to the territorial sovereign.
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• It seems therefore natural that an element which is essential for the constitution of sovereignty
should not be lacking in its continuation. So true is this, that practice, as well as doctrine,
recognizes—though under different legal formulae and with certain differences as to the
conditions required—that the continuous and peaceful display of territorial sovereignty
(peaceful in relation to other States) is as good as a title. The growing insistence with which
international law, ever since the middle of the 18th century, has demanded that the occupation
shall be effective would be inconceivable, if effectiveness were required only for the act of
acquisition and not equally for the maintenance of the right……………….
319
• Territorial sovereignty, as has already been said, involves the exclusive right to display the
activities of a State. This right has as corollary a duty: the obligation to protect within the
territory the rights of other States, in particular their right to integrity and inviolability in peace
and in war, together with the rights which each State may claim for its nationals in foreign
territory. Without manifesting its territorial sovereignty in a manner corresponding to
circumstances, the State cannot fulfil this duty……………
• ……………. The principle that continuous and peaceful display of the functions of State within
a given region is a constituent element of territorial sovereignty
320
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Keyword: nemo dat quod non habet (no donor can give a greater
interest than he or she already has)
• The title alleged by the United States of America as constituting the immediate
foundation of its claim is that of cession, brought about by the Treaty of Paris,
which cession transferred all rights of sovereignty which Spain may have
possessed in the region indicated in Article III of the said Treaty and therefore
also those concerning the Island of Palmas (or Miangas). It is evident that
Spain could not transfer more rights than she herself possessed.
• As pointed out above, the United States bases its claim, as successor of
Spain, in the first place on discovery.
• For these reasons, discovery alone, without any subsequent act, cannot at the
present time suffice to prove sovereignty over the Island of Palmas (or
Miangas)
321
Keyword: Principle of Contiguity

• Although States have in certain circumstances maintained that islands
relatively close to their shores belonged to them in virtue of their geographical
situation, it is impossible to show the existence of a rule of positive
international law to the effect that islands situated outside territorial waters
should belong to a State from the mere fact that its territory forms the terra
firma (nearest continent or island of considerable size). Not only would it seem
that there are no precedents sufficiently frequent and sufficiently precise in
their bearing to establish such a rule of international law, but the alleged
principle itself is by its very nature so uncertain and contested that even
Governments of the same State have on different occasions maintained
contradictory opinions as to its soundness.
• …………….. Nor is this principle of contiguity admissible as a legal method
of deciding questions of territorial sovereignty; for it is wholly lacking in
precision and would in its application lead to arbitrary results.
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• It is admitted by both sides that international law underwent profound

modifications between the end of the Middle-Ages and the end of the 19
century, as regards the rights of discovery and acquisition of uninhabited
regions or regions inhabited by savages or semi-civilised peoples. Both
Parties are also agreed that a juridical fact must be appreciated in the light of
the law contemporary with it, and not of the law in force at the time when a
dispute in regard to it arises or falls to be settled. The effect of discovery by
Spain is therefore to be determined by the rules of international law in force in
the first half of the 16th century—or (to take the earliest date) in the first
quarter of it, i.e. at the time when the Portuguese or Spaniards made their
appearance in the Sea of Celebes.
323
Keyword: Intertemporal law

• As regards the question which of different legal systems prevailing at successive periods is to
be applied in a particular case (the so-called intertemporal law), a distinction must be made
between the creation of rights and the existence of rights. The same principle which subjects
the act creative of a right to the law in force at the time the right arises, demands that the
existence of the right, in other words its continued manifestation, shall follow the conditions
required by the evolution of law.
324
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• If on the other hand the view is adopted that discovery does not create a
definitive title of sovereignty, but only an "inchoate" title, such a title exists, it is
true, without external manifestation. However, according to the view that has
prevailed at any rate since the 19th century, an inchoate title of discovery must
be completed within a reasonable period by the effective occupation of the
region claimed to be discovered.
• This same conclusion must impose itself with still greater force if there be
taken into consideration—as the Arbitrator considers should be done—all the
evidence which tends to show that there were unchallenged acts of peaceful
display of Netherlands sovereignty in the period from 1700 to 1906, and
which—as has been stated above—may be regarded as sufficiently proving
the existence of Netherlands sovereignty
325
• For these reasons the Arbitrator, in conformity with Article I of the Special
Agreement of January 23rd; [925, decides that: The Island of.Palmas (or
Miangas) forms in its entirety a part of Netherlands territory.
• In summary, in respect of the Island of Palmas, Arbitrator Huber based
his decision on:
• effective occupation;
• critical date; (the date at which the right of the parties get crystallized and
it does not affect their legal position; whether Netherland acquired better
title than Spain till 1898? Critical date 1898)
• intertemporal laws. (one must access the facts in light of international law
at a relevant time, not the law of time when issue falls decided: Whether
spain’s discovery in 16th century was sufficient to give good title at that
time)
• What constitutes ‘effectiveness’ is fluid and varies from circumstance to
circumstance, but it seems that the size and nature of the territory is a
crucial factor.
326
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What we will learn!

• Application of principle of effective occupation
• Factors to be taken into consideration
• Development of IL by ICJ in such disputes
Difference between Occupation and Prescription
327
Clipperton Island Arbitration (France v Mexico), 2 RIAA

1105 (1932)
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• Clipperton Island, apparently uninhabitable, is a low coral reef, approximately

two and a third statute miles in diameter, and is situated six hundred and
seventy miles southwest from the Mexican coast, in the Pacific Ocean, about
as far from Panama as Washington is.
• Although discovered by Capt. Clipperton, an Englishman, in 1705, it was,
apparently, never claimed by the British Government. It was rediscovered by
a French captain in 1709 but France made no formal claim to sovereignty
until 1858.
• On November 17, 1858, LieutenantVictor Le Coat de Kerweguen,
commissioner of the French Government, while cruising about half a mile
from Clipperton, drew up on board the merchantman L'AMIRAL , he
proclaimed and declared that the sovereignty over the said island belonged
from that date forever to H. M. the Emperor Napoleon III and his heirs and
successors.
329
• Lieutenant De Kerweguen gave official notice of the fulfillment of his mission

to the French consulate at Honolulu, the latter making a similar communication
to the Hawaiian Government; furthermore, at the instance of the said
consulate, the declaration whereby the French sovereignty over Clipperton
had already been proclaimed was published in English in the Honolulu
newspaper "The Polynesian“ of December 8.
• Thereafter and up to the end of 1887 there is no positive and ostensible act
of sovereignty on the part of either France or other Powers
• The island remained without population, - at least without any stable
population and no administration was organized thereon;
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• Toward the end of 1897, to be exact, on November 12 of that year, France

discovered, through the Commander of the Naval Division of the Pacific (who
had been entrusted with making an inspection), that there were three persons
on the island engaged in collecting guano on account of the "Oceanic
Phosphate Company“ of San Francisco and that they had hoisted the
American flag upon the appearance of the French ship. The United States
Government was asked for explanations and answered that it had not granted
any concession to the aforesaid Company and did not intend to claim any right
of sovereignty over Clipperton (January 28, 1898).
331
• About one month after the act of vigilance performed by the French Navy and while
the diplomatic action with the United States was under way, Mexico, which was
unaware of the occupation claimed by France and which supposed that Clipperton
had been her territory for some time, sent her gunboat 'La Democrata" to the spot,
having been induced to do this by the report (which afterwards proved to be
incorrect) that England had designs upon the island. The detachment of officers and
sailors which landed from the said ship on December 13, 1897, found the three
persons who were residing there at the previous arrival of the French ship; it
compelled them to haul down the American flag and hoist the Mexican flag instead;
while of the three aforesaid individuals two consented to leave the island and the
third declared his desire-to remain and in fact did remain there, it is not known how
long. After which the "Democrata" left, on December 15.
• On January 8 France, having learned of the Mexican expedition, reminded that
Power of her rights to Clipperton. Hence arose a brief diplomatic discussion which
lasted until, by the convention of March 2, 1909, the two Governments agreed to refer
to arbitration for the settlement of the controversy regarding sovereignty over the
island.
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• the proof of a "historic right" of Mexico is not supported by any manifestation

of her sovereignty over the island, which sovereignty was never exercised up
to the expedition of 1897
• It must consequently be admitted that when France proclaimed her right of
sovereignty over Clipperton in November, 1858, the legal status of the island
was that of a territorium nullius and therefore open to occupation.
• Thus the next question arises, whether France proceeded to make an
effective occupation, fulfilling the conditions required by international
law for the validity of such mode of territorial acquisition. In point of fact
Mexico, in main contention which has been examined, alleges the
invalidity of the French occupation and consequently her own right to
occupy the island, which in 1897 should have still been considered as
nullius.
333
Award
• In connection with this question we must first of all consider that the document in
which France clearly and precisely stated in 1858 her wish to consider the island as
her territory.
• There is no doubt that, according to a custom of old standing which has the force of
a rule of law, not only the animus occupandi but also the material and not fictitious
taking of possession is a necessary factor in occupation. Taking possession consists
in the act or series of acts whereby the occupying nation reduces the territory to its
domination and takes steps to enforce its exclusive authority there. As a rule and in
ordinary cases this does not take place until it establishes on the territory itself an
organization capable of causing its rights to be respected. However, this is really only
a means of proceeding to take possession and consequently is not identical with it.
There may be cases in which it is unnecessary to resort to such means. Thus if a
territory, because of the fact that it is entirely uninhabited, is at the full and
undisputed disposal of the occupying State from the moment the latter makes its
appearance thereon, the taking of possession is to be considered as having been
accomplished from that moment and consequently the occupation remains perfected
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• From these premises it follows that Clipperton Island was legitimately

acquired by France on November 17, 1858. And there is no reason for
supposing that France has since lost her right by derelictio since she has
never had the animus of abandoning the island and the fact that she has not
exercised her authority in a positive way does not imply loss of an acquisition
already perfected in a definitive fashion.
335
Norway v. Denmark (1933) PCIJ SER. A/B, No. 53 (The Legal Status of
Eastern Greenland Case)
• In 1931, Norway proclaimed that it was ‘taking possession’ of Eastern
Greenland, forming part of the Greenland Island.
• Denmark, which had colonies in other parts of the island, requested the
Permanent Court of International Justice (PCIJ) to declare the Norwegian
Declaration, invalid.
• Denmark had argued that its title over the disputed territory was ‘founded on
the peaceful and continuous display of state authority over the Island’ (at 45).
336
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PCIJ
• a claim to sovereignty based not upon some particular act or title such as a
treaty of cession but merely upon continued display of authority, involves two
elements each of which must be shown to exist: the intention and will to act as
sovereign, and some actual exercise or display of such authority......
• the Court found that Denmark fulfilled these criteria through making laws to
regulate such activities as fishing and hunting, and also giving access to
the island to British and French nationals
• Hence, judgment was given for Denmark.
337
Sovereignty over Pulau Ligitan and Pulau Sipadan

(Indonesia/Malaysia):
• The status of Pulau Ligitan and
Pulau Sipadan had become an
issue in 1969 when Indonesia
disputed Malaysia’s sovereignty
over the two islands during
negotiations on the delimitation of
the continental shelf boundaries
between the two countries.
• Ligitan and Sipadan are two very
small islands located in the
Celebes Sea, off the north-east
coast of the island of Borneo.
338
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Indonesia v. Malaysia (2002) ICJ REP 625 (The Pulau Ligitan and
Pulau Sipadan Case)
• On 17.12.02, the ICJ gave judgment in the case concerning Sovereignty over Pulau Ligitan
and Pulau Sipadan (Indonesia/Malaysia). In its Judgment, which is final, without appeal and
binding for the Parties, the Court found, by sixteen votes to one, that "sovereignty over Pulau
Ligitan and Pulau Sipadan belongs to Malaysia".
• Indonesia’s claim to sovereignty over the islands was based primarily on a conventional title,
the 1891 Convention between Great Britain and the Netherlands. Under the Convention title to
those islands vested in The Netherlands, and now vests in Indonesia".
339
• The Court then considered the other titles on which Indonesia and Malaysia claimed to found
their sovereignty over the islands. It observed that, while the Parties both claimed title to the
islands and did not consider them as terrae nullius.
• The Court did not accept Indonesia’s contention that it retained title to the islands as
successor to the Netherlands, which allegedly acquired it through contracts concluded with the
Sultan of Bulungan, the original title-holder.
• Nor did the Court accept Malaysia’s contention that it acquired sovereignty over the islands as
part of a series of transfers of the title originally held by the former sovereign, the Sultan of
Sulu, that title having allegedly passed in turn to Spain, the United States, Great Britain on
behalf of the State of North Borneo, the United Kingdom of Great Britain and Northern Ireland
and finally to Malaysia.
340
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• The Court concluded that neither of the Parties had a treaty-based title to Ligitan and Sipadan
and then considered the question whether Indonesia or Malaysia could hold title to the
disputed islands by virtue of the effectivités cited by them, determining whether the
Parties’ claims to sovereignty were based on activities evidencing an actual, continued
exercise of authority over the islands, i.e., the intention and will to act as sovereign.
• Indonesia claimed a continuous presence of the Dutch and Indonesian navies in the vicinity of
the islands and that the waters around the islands were traditionally used by Indonesian
fishermen. The Court concluded "it cannot be deduced that the naval authorities concerned
considered Ligitan and Sipadan and the surrounding waters to be under the sovereignty of the
Netherlands or Indonesia".
341
• It also considered that "activities by private persons cannot be seen as effectivités if they
do not take place on the basis of official regulations or under governmental authority".
The Court therefore rejected Indonesia’s arguments based on its effectivités.
• The Court then considered the effectivités relied on by Malaysia. Malaysia cited inter alia
measures taken by the North Borneo authorities to regulate and control the collecting of turtle
eggs on Ligitan and Sipadan, an activity of some economic significance in the area at the
time. It relied on the Turtle Preservation Ordinance of 1917 and maintained that the Ordinance
"was applied until the 1950s at least" in the area of the two disputed islands. It noted that
North Borneo constructed a lighthouse on Sipadan in 1962 and another on Ligitan in 1963,
and that those lighthouses still exist and have been maintained by Malaysia since
independence.
342
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• The Court noted that "the activities relied upon by Malaysia ... are modest in number but
… they are diverse in character and include legislative, administrative and quasi-
judicial acts. They cover a considerable period of time and show a pattern revealing an
intention to exercise State functions in respect of the two islands in the context of the
administration of a wider range of islands". The Court stated that "at the time when these
activities were carried out, neither Indonesia nor its predecessor, the Netherlands, ever
expressed its disagreement or protest".
343
Occupation/Effective Occupation
• This is the original mode of acquiring a territory whereby State acquires a
territory which is Terra Nullius
• States unilaterally acquiring territory rather than being granted the territory by
another State.
• A claim based on occupation must demonstrate,
• That prior to acts of occupation, the territory was terra nullius
• That the occupation was for and on behalf of State rather than individuals
• That there must have been an effective taking of possession
• That there must have been intention to occupy as sovereign
344
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Prescription
• Certain conditions govern the validity of acquisitive prescription—namely:
• (a) possession must be exercised à titre de souverain;
• (b) possession must be ‘peaceful and uninterrupted’; and
• (c) possession must exist for ‘a reasonable length of time’.
345
Malaysia v. Singapore (2008) ICJ REP 12 (Case Concerning

Sovereignty
over Pedra Branca/Pulau Batu Puteh)
• Dispute concerning territorial sovereignty over three maritime features in the
Straits of Singapore, namely Pedra Branca/Pulau Batu Puteh, Middle Rocks
and South Ledge
• Pedra Branca is a granite island, measuring 137 m long, with an average
width of 60 m. It is situated at the eastern entrance of the Straits of Singapore
– one of the busiest maritime passages in the world. It lies approximately 24
nautical miles to the east of Singapore, 7.7 nautical miles to the south of the
Malaysian state of Johor and 7.6 nautical miles to the north of the Indonesian
island of Bintan.
• Middle Rocks consists of two clusters of small rocks that are permanently
above water, and is located 0.6 nautical miles to the south of Pedra Branca.
• South Ledge is a low-tide elevation and lies at 2.2 nautical miles to the south-
south-west of Pedra Branca.
346
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347
• On 21 December 1979, Malaysia published a map entitled “Territorial Waters and

Continental Shelf Boundaries of Malaysia.” The map depicted the island of Pedra
Branca as lying within Malaysia’s territorial waters.
• By a diplomatic note dated 14 February 1980, Singapore rejected Malaysia’s claim to
Pedra Branca and requested that the 1979 map be corrected
• Malaysia and Singapore attempted in vain to settle the dispute through a series of
bilateral negotiations from 1993-1994.
• During the first round of talks in February 1993, the question of the appurtenance of
Middle Rocks and South Ledge was also raised.
• In view of the lack of progress in the negotiations, the Parties signed a Special
Agreement on 6 February 2003 (entered into force on 9 May 2003) and submitted the
dispute to the International Court of Justice (hereafter the ICJ or the Court) on 24 July
2003. Thus, under Article 2 of the Special Agreement, the Court was requested to
determine whether sovereignty over Pedra Branca, Middle Rocks and South Ledge
belongs to Malaysia or Singapore.
348
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Critical date?
• With regard to the dispute as to sovereignty over Pedra Branca, the Court
considered 14 February 1980, the time of Singapore’s protest in response to
Malaysia’s publication of the 1979 map, as the critical date.
• Furthermore, the Court concluded that the dispute as to sovereignty over
Middle Rocks and South Ledge crystallized on 6 February 1993.
349
Contentions
• Malaysia:
• Malaysia based its claim for sovereignty over Pedra Branca/Pulau Batu Puteh
on original title of long standing and maintained that no event or action had
ever taken place that had relieved it of its sovereignty over this location.
• Singapore’s construction, operation, and maintenance of the lighthouse had
been undertaken with the permission of the Sultan of Johor, which Malaysia as
its successor continued to grant.
• Pedra Branca/Pulau Batu Puteh, Middle Rocks, and South Ledge, did not
constitute one identifiable group of islands and have always been considered
to fall within the Johor/Malaysian jurisdiction.
350
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• Singapore
• Pedra Branca/Pulau Batu Puteh had been terra nullius so that the construction and
operation of the lighthouse from 1847 to 1851 under the auspices of its predecessor,
the British Crown, constituted the taking of lawful possession of a territory and the
effective and peaceful exercise of State authority.
• Singapore argued that prior to 1847 Pedra Branca had never been the subject of a
claim by any sovereign entity.
• Sovereignty over Middle Rocks and South Ledge was dependent upon the
determination of sovereignty over Pedra Branca/Pulau Batu Puteh because the two
features geographically and morphologically formed a single group of maritime
features. Since they were uninhabited, unoccupied, and never independently
appropriated by Malaysia, they belonged to Singapore by virtue of their position in
Singapore’s territorial waters as generated by Pedra Branca.
351
ICJ
• a principal issue relates to the question whether the Sultanate of Johor—a
predecessor of Malaysia—had sovereignty over Pedra Branca.
• ICJ examined three letters, all from 1824, written by the British Resident in
Singapore as well as an article from the Singapore Free Press dated 25 May
1843. In light of these documents, the Court considered that:
From at least the seventeenth century until early in the nineteenth it was acknowledged that the territorial and
maritime domain of the Kingdom of Johor comprised a considerable portion of the Malaya Peninsula, straddled the
Straits of Singapore and included islands and islets in the area of the Straits. Specifically, this domain included the
area where Pedra Branca/Pulau Batu Puteh is located
• Court concluded that the Sultanate of Johor had original title to Pedra Branca.
352
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• By the 1824 Anglo-Dutch Treaty, the old Sultanate of Johor was divided into
the Sultanate of Johor with Sultan Hussein as its sovereign and the Sultanate
of Riau-Lingga with Sultan Abdul Rahaman as its sovereign.
•
353
• Singapore argued,
• that the 1824 Treaty left the entire Straits open for access; and that since
Pedra Branca had become terra nullius as a result of the disappearance of the
“old Sultanate of Johor” by the division of the Kingdom, there was a legal
vacuum with regard to sovereignty over Pedra Branca, leaving room for the
“lawful possession” of the island by the British during the period of 1847-1851
• ICJ
• Malaysia has established to the satisfaction of the Court that […] when the
British started their preparations for the construction of the lighthouse on
Pedra Branca/Pulau Batu Puteh in 1844, this island was under the sovereignty
over the Sultan of Johor.
354
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ICJ
Whether Malaysia has retained sovereignty over Pedra Branca following 1844 or whether the
sovereignty has since passed to Singapore. (Legal status of Pedra Branca/Pulau Batu Puteh
during the construction and commissioning of the lighthouse)
Title to territory might pass from one sovereign to another on the basis of the parties’ conduct, in
particular conduct of the sovereign which amounts to abandonment of sovereignty. Such conduct must
be manifested clearly by relevant facts.
355
• Malaysia argued,
• that the conduct of the United Kingdom and Singapore related only to the
construction and commissioning of the lighthouse and later operating it with the
consent conferred by the Sultan of Johor and that they were not actions intended to
acquire sovereignty over Pedra Branca.
• Singapore contended,
• that the United Kingdom acquired title to the island in the period of 1847-1851 by
taking lawful possession of the island in connection with building the lighthouse on it.
• ICJ looked into the conduct of the Parties after the construction of the lighthouse
• Singapore cited several legislative enactments relating to the management of the
Horsburgh Lighthouse but the ICJ disagreed, stating that they were normal acts
of a lighthouse operator and did not manifest sovereignty.
356
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• The Parties’ exchange of correspondence in 1953 played a significant

role in the ICJ judgment. ICJ concluded that as of 1953 Johor recognized
that it didnot possess sovereignty over Pedra Branca/Pulau Batu Puteh.
• On 12 June 1953, the Colonial Secretary of Singapore sent a letter to the
British Adviser to the Sultan of Johor, writing that:
It is [now] desired to clarify the status of Pedra Branca. I would therefore be most grateful to know whether
there is any document showing a lease or grant of the rock or whether it has been ceded by the Government
of the State of Johore or in any other way disposed of.
In a letter dated 21 September 1953, the Acting State Secretary of Johor

replied as follows:
I have the honour to refer to your letter …dated 12th June 1953, addressed to the British Adviser, Johor, on
the question of the status of Pedra Branca Rock some 40 miles from Singapore and to inform you that the
Johor Government does not claim ownership of Pedra Branca.
• According to the Court, in light of the context of the request by
Singapore, it is evident that the letter addresses the issue of sovereignty
over the island. Accordingly, the Court held that: “Johor’s reply shows
that as of 1953 Johor understood that it did not have sovereignty over
Pedra Branca/Pulau Batu Puteh
357
• Court examined the various conduct of the Parties after 1953. The Court ruled
that the following actions of Singapore can be seen as conduct à titre de
souverain:
(i) investigation by Singapore of shipwrecks in the waters around Pedra

Branca/Pulau Batu Puteh,
(ii) Singapore’s exercise of exclusive control over visits to the island,
(iii) the installation by Singapore of military communications equipment on the
island in 1977, and
(iv) proposed reclamation by Singapore to extend the island.
358
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Failure of Malaysia
• (i) the display of the British and Singapore ensigns on Pedra Branca/Pulau
Batu Puteh,
(ii) the delimitation of Malaysia’s territorial sea in 1969,
(iii) the inclusion of Horsburgh lighthouse as a “Singapore” Station in the 1959
Malaysian report and the 1966 joint report and its omission from the 1967
Malaysian report, and
(iv) official maps.
359
• the Court considered that the relevant facts reflect “a convergent evolution” of the positions of
the Parties concerning title to Pedra Branca. Hence, the Court concluded, by twelve votes to
four that by 1980 sovereignty over Pedra Branca had passed to Singapore
• the ICJ noted the complete absence of any action by Malaysia or its predecessor on the
disputed island for more than a century. The few official visits which Malaysia made to the
island were subjected to the approval of Singapore. The ICJ therefore concluded that by 1980,
the title to Pedra Branca/Pulau Batu Puteh had passed from Malaysia to Singapore.
360
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• With respect to the Middle Rocks, the ICJ accepted Malaysia’s argument and evidence that
as successor to the Sultan of Johor, it possessed a long-standing title. The ICJ stated that
none of the facts which enabled the passing of title over Pedra Branca/Pulau Batu Puteh from
Malaysia to Singapore were present in the case of the Middle Rocks.
• Concerning South Ledge, the ICJ held that it is a low tide elevation and that its legal
circumstances were therefore different from those of the Middle Rocks. South Ledge should
be governed under Art. 13 United Nations Convention for the Law of the Sea.
361
What we will learn!

• Principle of Uti possidetis juris
• Its development
• Interrelation of UPP with principle of effectivities'
• Relevance of Critical date
• Accretion
• Difference between Accretion and Avulsion and its legal implication
• Transfer of Sovereignty
• Key reasoning for Critical date and Terra Nullius
362
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What is
It?
What do
you
notice?
363
What do this picture

explain?
364
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Uti possidetis juris

• ‘New States will come to independence with the same boundaries they
had when they were administrative units within the territory or territories
of a colonial power
• In 19th century it was determined that the administrative boundaries of
spanish empire in latin and central America should form the international
boundaries of the newly independent states.
• This policy was adopted in post colonial Africa where colonial frontiers
created new independent states
• Policy was adopted by OAU (Cairo declaration) : Administrative
convenience over ethnic and cultural identity. AHG/Res 16(1) Colonial
frontiers existing as at the date of independence constituted a tangible
reality and that all member states pledged themselves to respect such
borders
365
• UPP- a customary international law

• In Latin America, uti possidetis, was qualified as a regional norm for the
determination of boundaries. Through uti possidetis iuris the newly
decolonized States felt bound to adopt as their international boundaries the
delimitations—usually administrative but sometimes international in
character—traced or tolerated by the colonial authorities and existing at the
date of independence, thus contributing to the consolidation of the norm.
• UPP is not a preemptory norm. States are free to adopt other principles
as the basis of a settlement
366
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• application of uti possidetis iuris to be considered is the ‘critical date’ (

photograph of territory at the critical date)
• The issue of the critical date is intertwined with that of the elements for
applying uti possidetis
• By ‘formal elements’ one alludes to all the formal acts issued in the colonial (or
pre-independence) era indicating the existence in that period of a delimitation
in a certain area. For example, laws and regulations issued by the former
sovereign and describing the limits between various administrative entities.
• Informal elements amount rather to conduct of the previous sovereign. Acts
adopted and conduct taken prior to independence have a paramount role in
determining boundaries according to uti possidetis
367
Frontier Dispute Case (Burkina Faso/Republic of Mali),

• ICJ in Frontier dispute case (Burkina Faso v Mali) 1986, UP is general principle
alluding to the intangibility of frontiers from colonization
• there can be several scenarios with regard to the way effectivités interact with titles
• Where the act corresponds exactly to law, where effective administration is additional
to the uti possidetis juris, the only role of effectivités is to confirm the exercise of the
right derived from a legal title. Where the act does not correspond to the law, where
the territory which is the subject of the dispute is effectively administered by a State
other than the one possessing the legal title, preference should be given to the holder
of the title. In the event that the effectivité does not co-exist with any legal title, it must
invariably be taken into consideration. Finally, there are cases where the legal title is
not capable of showing exactly the territorial expanse to which it relates.
The effectivités can then play an essential role in showing how the title is interpreted
in practice (at para. 63).
• the legal title has primary relevance in the application of uti possidetis,
although effectivités become decisive if legal titles are not available or their
interpretation is difficult.
368
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• Where the act concerned corresponded to the title comprised in the uti
possidetis juris then the effectivities simply conferred the exercise of right
derived from a legal title
• Where the act did not correspond with the law ie the territory subject to the
dispute was effectively administered by a state other than the one possessing
the legal title, then the holder of the legal title should be given preference
• When there is no clear legal title, then effectivities play an essential role in
showing how title is interpreted in practice
369
Case Concerning Territorial and Maritime Disputes Between Nicaragua

and Honduras in the Caribbean Sea( Nicaragua v Honduras) 2007
• Such post independence practice could be examined not only in relation
to the identification of the UP line but also in the context of seeking to
establish whether any acquiescence could be demonstrated both as to
where the line was and as to whether any changes in that could be
proved to have taken otherwise.
• (Relevance of post independence acts in disputes)
370
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Territorial and Maritime Dispute [Nicaragua v Colombia] [2012]

ICJ Rep 624)
• It has thus been established that for many decades Colombia continuously
and consistently acted à titre de souverain in respect of the maritime features
in dispute. This exercise of sovereign authority was public and there is no
evidence that it met with any protest from Nicaragua prior to the critical date.
Moreover, the evidence of Colombia’s acts of administration with respect to
the islands is in contrast to the absence of any evidence of acts à titre de
souverain on the part of Nicaragua. The Court concludes that the facts
reviewed above provide very strong support for Colombia’s claim of
sovereignty over the maritime features in dispute (at para. 84).
371
• Frontier Dispute (Benin/Niger) 2005

• UPP was determining factor to decide sovereignty
• El Salvador v Honduras :
• Where the boundary was clear, effective display of state functions in the disputed
area or economic inequality generated by old boundaries was not sufficient to
displace UPP
• Territorial Dispute Case [Libyan Arab Jamahiriya/Chad]
• If a delimitation treaty is concluded after independence, uti possidetis does not apply
because the agreed delimitation overrides the pre-existent uti possidetis, although the
former could also coincide with the latter.
• Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria:
Equatorial Guinea Intervening) ([2002] ICJ Rep 303),
• even if uti possidetis is applicable, a consolidated acquiescence can overcome the
former.
372
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Thalweg?
373
The Chamizal Arbitration (1911)
1848 and 1858 Treaties between

US and Mexico established Rio
Grande as Boundry river
Before 1864 river changed in

course resulting in exposure of
land
In 1864, A big flood.
US: CT by Accretion
Mexico: CT by Avulsion
Mexico” 437 acres
374
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What we will learn!

• Interlinked issue: Transfer of Sovereignty- when is sovereignty transferred?
• Res Communis, Res Nullius and Common Heritage of Mankind, are they
interchangeable terms?
• What about Antarctica? Nature of it’s territory?
• Outerspace
375
Iloilo Claims Case (1925)- Transfer of Sovereignty

• 10 Dec 1898 Treaty of Paris:
• Spain Ceded Philippines to US
• On exchange of ratifications, Spain would evacuate Islands
• 24 Dec, Spanish troops were compelled by local insurgents to withdraw from
town of Iloilo
• A day after US forces entered. However property of British subjects were
burnt.
• 10 Feb: American troops captured Iloilo
• 11 April: Ratification instruments exchanged?
• British American Tribunal hearing the claims: Responsibility of US?
376
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Common Heritage of Mankind

• The term ‘common heritage of mankind’ has been developed in connection with codification
activities concerning the progressive development of international law within the
framework of the United Nations.
• No fully agreed definition of the notion exists due to the fact that the
application of the common heritage principle varies in the different legal regimes referring to it
or being based upon it.
377
• In the UN Convention on the Law of the Sea the common heritage of mankind is set forth
under different provisions.
• The Preamble refers to UN General Assembly Resolution 2749 (XXV) of 17 December 1970 in which the UN
General Assembly (‘UNGA’) solemnly declared, inter alia, that the area of the ‘sea-bed and ocean floor, and the
subsoil thereof, beyond the limits of national jurisdiction…as well as the resources of the area, are the common
heritage of mankind’.
• The principle is highlighted in Art. 136 UN Convention on the Law of the Sea, according to which this area and its
resources are the common heritage of mankind
378
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• The common heritage principle was extended to outer space for the first time in Art. 1
Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of
Outer Space (UNGA Res 1962 [XVIII] [13 December 1963]; ‘Declaration of Principles’), which
declares, amongst other things, ‘[t]he exploration and use of outer space shall be carried out
for the benefit and in the interests of all mankind’.
• The Stockholm Declaration of the United Nations Conference on the Human Environment
stated: ‘The non-renewable resources of the earth must be employed in such a way as to
guard against the danger of their future exhaustion and to ensure that benefits from such
employment are shared by all mankind.’ However, international environmental law rather uses
the term ‘common concern of mankind’
379
• non-appropriation element
• Cooperation, management, regulated utilization
380
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381
ANTARTICA
382
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• Antarctica was only discovered in 1773 by Captain Cook, who first crossed the
southern polar circle searching for the terra australis
• Approximately 98% of Antarctica is covered by ice
• Antarctica does not have an indigenous population
383
Territorial Claims
• Since its discovery, seven claimant States (Argentina, Australia, Chile, France, New
Zealand, Norway, and the ‘UK’) have claimed territorial sovereignty over parts of
Antarctica, which partly overlap.
• Two States ([‘USA’] and Russia, as the successor of the Soviet Union) have not yet
made any territorial claims but they reserved the right to do so at a later point in time.
• Only 15% of the Antarctic continent remains unclaimed.
• In 1908, the UK was the first nation to claim
• The claimant States found their claims on different legal arguments comprising
occupation, contiguity, sector principle, continuity, discovery and exploration,
and historic rights. It is highly controversial whether this argumentation is legally
justified. Most of these legal arguments are not yet widely recognized in international
law. Thus, none of these claims have been recognized by any non-claimant State. In
contrast, the claimant States have recognized their claims amongst one
another, except where they infringe upon each other
384
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385
Settling sovereignty claims

• The effort made by the UK in 1955 to gain legal security in two cases (against
Chile and Argentina) through the International Court of Justice (ICJ) failed.
• The UK requested the Court, among others, to recognize the validity of its
titles to sovereignty. Concerning the jurisdiction of the ICJ in this case, the UK
invoked Art. 36 (1) ICJ Statute. However, neither Chile nor Argentina was
prepared to accept the Courts jurisdiction (Antarctica Cases [United Kingdom
v Argentina; United Kingdom v Chile] [1956] ICJ Rep 12).
• In practice, these claims do not play a significant role anymore, because
of ATS
386
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Antarctic Treaty Regime

• First proposal to establish international regulation of Antarctica was advanced
by Norway in 1934.
• 1948 Escudero Proposal (Prof Escudero representing Chile represented his
ideas for Antarctic modus vivendi)
• Up until 1950, the USA made several attempts to reach a solution with the
claimant States for the Antarctic continent, namely in the form of an
international trusteeship regime and a condominium, but no consensus could
be reached
• Soviet Union declared in 1950 that no decision on the regime
for Antarctica could have legal force without Soviet participation
• Positive international scientific co-operation carried out during the International
Geophysical Year (‘IGY’; from 1 July 1957 to 31 December 1958) finally
enabled the Antarctic Treaty (‘AT’) to be concluded.
387
• The IGY was a co-operation project between the members of the International
Council of Scientific Unions; its activities were partly dedicated to the
exploration of Antarctica. Inspired by the desire firstly to continue this peaceful
scientific co-operation and secondly to prevent new frictions between States
active in Antarctica,
• the USA invited all States that participated in the IGY (the seven claimant
States plus Belgium, Japan, South Africa, and the Soviet Union) to take an
active role in discussions relating to the future of the continent.
• After several preparatory meetings, the Antarctic Conference began in
Washington DC on 15 October 1959. It ended on 1 December 1959 with the
conclusion of the Antarctic Treaty, which entered into force on 23 June 1961.
388
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The Antarctic Treaty System

• The Antarctic Treaty System (‘ATS’) describes all agreements made by the States to
co-ordinate activities and relations on the Antarctic continent.
• It consists of the Antarctic Treaty + several recommendations adopted by the States
Parties at Antarctic Treaty Consultative Meetings (‘ATCM’);
• the Convention for the Conservation of Antarctic Seals (‘CCAS’), signed in
1972 and entered into force in 1978;
• the Convention on the Conservation of Antarctic Marine Living Resources
(‘CCAMLR’), signed in 1980 and entered into force in 1982;
• and the Protocol on Environmental Protection to the Antarctic Treaty
(‘Environmental Protocol’), which was signed in 1991 and entered into force in
1998, plus its six Annexes.
• The Convention on the Regulation of Antarctic Mineral Resource Activities
(‘CRAMRA’), signed 2 June 1988, never entered into force. The later-concluded
Environmental Protocol expressly prohibits all activities relating to Antarctic
mineral resources, except for scientific research.
389
Objectives
• The ATS is based on four objectives:
the dedication of Antarctica to peaceful purposes;
the freedom of scientific investigation;
the protection of the Antarctic environment;
and lastly a regulation regarding territorial claims, which should not hinder
the implementation of the other objectives.
390
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• The Antarctic Treaty applies to the area south of 60° S latitude, including all
ice shelves
• The AT does not hinder the application of the international law of the sea
• However, the law of the sea is modified as far as the AT entails rules that limit
or change rights and duties of the law of the sea
• The Treaty is of unlimited duration and only foresees the option of a review
process after 30 years of operation. This may be requested by any
consultative party
• Any member of the UN or any State invited by all consultative parties may
accede to the Treaty
• The acceding party is bound by all recommendations of the ATCM
391
Different categories of State parties

• The Treaty differs between three categories of States Parties:
• the 12 original signatory States:
• The original signatory States have all rights.
• They take part in the ATCMs through appointed representatives and thus in the decision-
making process.
• secondly, the acceding States, which demonstrate their interest
in Antarctica by conducting substantial scientific research
• the following States have become consultative parties: Poland (1977), Germany (1981),
Brazil (1983), India (1983), China (1985), Uruguay (1985), Italy (1987), Spain (1988),
Sweden (1988), Finland (1989), Korea (1989), Peru (1989), Ecuador (1990), The
Netherlands (1990), Bulgaria (1998), and Ukraine (2004). The rights of the Soviet Union are
now held by Russia.
• and thirdly, other acceding States. the ATCMs are now open to non-
consultative parties, who may attend the ATCMs but still have no vote.
392
196
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• Convention for the Conservation of Antarctic Seals (CCAS)

• The CCAS was concluded on 1 June 1972 and entered into force on 11 March
1978.
• Six different species of seal live in Antarctic waters: Ross, Weddell,
crabeater, leopard, fur and elephant seals.
• a special group of the Scientific Committee on Antarctic Research monitors
the activities of the parties regarding seals.
393
394
197
01-07-2021
Convention for the Conservation of Antarctic Marine

and Living Resources of 1980 (CCAMLR)
• krill fishery resources in the Southern Ocean
395
• CCAMLR is based on an ecosystem approach to conservation, which requires

that determination of the rate of use of any target species must take into
account the effects on species dependent on the target species for food.
• To implement this approach, CCAMLR established an international
organization with a commission as its main organ, a scientific committee, and
a secretariat with headquarters in Hobart (Tasmania, Australia).
• The functions of the Commission are equal to those of a fishery organization,
however the Commission does not possess the right to determine national
quotas; those quotas are negotiated between the users themselves.
396
198
01-07-2021
Convention on the Regulation of Antarctic Mineral

Resource Activities (CRAMRA)
• Avoid gold rush on mineral resources of Antarctica
• Comprehensive regime for regulating mineral resources and establishment of
institutions regulating those regime
• Protocol on Environmental Protection to the Antarctic Treaty and
Annexes I–VI
• Its ambitious aim is the ‘comprehensive protection of the Antarctic
environment and dependent and associated ecosystems
• As the Protocol designates Antarctica as a natural reserve devoted to peace
and science
• The Protocol places a moratorium on mining for mineral resources
in Antarctica for 50 years. Since this ban is not permanent,
397
Outer space
• Variety of theories prior to the First world war with regard to the status of
airspace above states and territorial waters
• 1919 Paris Convention for the Regulation of Aerial Navigation 
recognized the full sovereignty of states over airspace above their land and
territorial sea
• There is no right of innocent passage through the airspace.
• Airspace to unrestricted extent? Space Exploration?
• States have agreed to apply IL principles of res communis to outer space
398
199
01-07-2021
• GA resolutions in late 1950 advent of satellite era

• UNGA Resolution 1962(XVII): Declaration of Legal principles governing the
activities of States in the exploration and use of outer space
• 1967 Treaty on Principles governing the activities of states in the Exploration
and use of outer space including the moon and other celestial bodies
• 1968 Agreement on the Rescue of Astronauts, the return of astronauts and the
return of objects launched into outer space
• 1972 Convention on International Liability for damage caused by space
objects absolute liability principle for compensation for damage for space
object (SR)
• 1975 Convention on the registration of objects launched into outer space
• 1979 Agreement governing the activities of states on the moon and other
celestial bodies
399
• 1993 UNGA adopted principles relevant to the use of nuclear power sources in
outerspace
• UNGA Resolution adopted in 51/126 in 1996: Declaration on International
Cooperation in the Exploration and use of outerspace cooperation
• 2007 UNGA  space debris mitigations guidelines
400
200
01-07-2021
State Succession
401
402
201
01-07-2021
403
404
202
01-07-2021
405
406
203
01-07-2021
State Succession • Transfer of territory from one nation

to another through cession,
annexation of colonial territories,
federation, or dissolution of a
federation.
• In decolonization, problems of
succession arise in other contexts,
including secession, the
dismemberment of existing states,
and the formation of unions of states.
407
Does the successor

To what extent does a
inherit its predecessor’s
successor state acquire
membership in
the treaty rights and
international
obligations of its
governmental
predecessor?
organizations?
Questions Do the inhabitants of

the transferred territory
To what extent does the
predecessor’s state
of inquiry become nationals of the

successor?
property pass to the
successor?
What state is to be held Where do the state

liable for public debts of archives of the
the predecessor? predecessor go?
408
204
01-07-2021
• In recognition of this need, the International

Law Commission has undertaken the task,
culminating in the conclusion of the
 Vienna Convention on Succession of States in
Respect of Treaties of 1978 (Treaty Succession
Convention)
 Vienna Convention on Succession of States in
Respect of State Property, Archives, and Debts of
1983 (Other Succession Convention).
• Article 2(1)(a), 1978 Convention defines State

sucession as the replacement of one state by
another in the responsibility for the
international relations in territory/ (Article 2
(12)a of 1983 Convention)
409
• The Treaty Succession Convention applies only

to the effects of a succession occurring “in
conformity with international law.” Hence, its
prescriptions will not apply to transfers of
territory through the use of force or in violation
of the principle of self-determination.
• The Other Succession Convention deals with
state succession in respect only to the categories
listed—state property, archives, and debts—and
is inapplicable to other subjects. Like the Treaty
Succession Convention, the Other Succession
Convention applies only to the effects of
succession that occur lawfully in accordance
with the principles of the U.N. Charter
410
205
01-07-2021
Facts about conventions

Convention is signed by 20 States and
ratified by three (Ethopia, Iraq and
Yugoslavia) acceded by 7 states. 4
states are registered as successor.
1978
1983
convention is signed by only 6 states
411
Two
theories
Universal Outright Non
Succession Succession
412
206
01-07-2021
Membership of • Matter of Concern to newly independent

International states: membership of UN, IMF or ILO
or it may be for EU or NATO
Organization
• The central issue is
• whether such organizations will readily extend
admission opportunities to new states,
• or whether they will be extended membership by

virtue of a predecessor’s membership.
• Joining an organization as a new member or as a

successor to the membership of an existing state
can be of considerable significance.
413
UN Charter • Article 4 accords with the prevailing view that

principles of state succession to treaties have no
application to membership of international
organizations. Instead it depends on the
particular constitution or rules of the
organization.
• The UN Charter makes no provision for
succession to membership.
• Article 4(2) simply states: 1. Membership of the
United Nations is open to all other peace-loving
states [‘other’ meaning other than original
members] which accept the obligations
contained in the present Charter and, in the
judgment of the Organization, are able and
willing to carry out these obligations. 2. The
admission of any such state to membership of
the United Nations will be effected by a decision
of the General Assembly upon the
recommendation of the Security Council.
414
207
01-07-2021
• Pakistan’s membership on gaining

independence by splitting from India in
1947.
• Pakistan claimed that it should be

treated as an original member of the
United Nations by virtue of India’s Pakistan’s
membership in the organization.
membership in
• The Legal Committee of the U.N.
Secretariat disagreed, concluding that UN
Pakistan was a new state and as such
must apply for admission as a new
member.
• India, however, was said to have retained

its legal identity and its membership
415
“cease to be a Member simply

because its Constitution or
frontier has been subjected to
changes, and that the extinction of
the State as a legal personality
recognized in the international
legal order must be shown before
The committee declared that a its rights and obligations can be
state does not considered thereby to have ceased
to exist.”
416
208
01-07-2021
• But in 1947, following the debate about whether Pakistan could

succeed to British India’s membership, the Sixth Committee of the
General Assembly adopted the following principles as
embodying its views on the legal rules ‘to which, in the future,
a State or States entering into international life through the
division of a Member State of the United Nations should be
subject’:
• 1. That, as a general rule, it is in conformity with 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 its frontier have been subjected to changes, and that
the extinction of the State as a legal personality recognized in the
international order must be shown before its rights and obligations
can be considered thereby to have ceased to exist.
• 2. That when a new State is created, whatever may be the territory

and the populations which it comprises and whether or no they formed
part of a State Member of the United Nations, it cannot under the
system of the Charter claim the status of a Member of the United
Nations unless it has been formally admitted as such in conformity
with the provisions of the Charter.
• 3. Beyond that, each case must be judged according to its merit
417
• Russia, in a letter to the secretary-general,

claimed that it would maintain the Soviet
Union’s membership, including the
permanent membership of the Security
Council.
• former members of the USSR, in the name

of the Commonwealth of Independent
States (CIS), formally announced their
support of Russian succession to the After the collapse
USSR’s membership, including permanent
membership in the Security Council. of Soviet Union
• The secretary-general circulated the
request, and the member states did not
object to Russia’s succession.
• Although Russia’s succession to the USSR’s

membership in the United Nations was
fairly smooth, it was not without
opposition.
418
209
01-07-2021
• legality of the succession, especially

given the U.N. Charter in Article 23(1)
specifies the Union of Soviet Socialist
Republics, and not the Russian
Federation, as a permanent member of
the Security Council.
• The main legal issue was whether the

Russian Federation was a new state or
the continuation of the Soviet Union.
419
• After dissolution of the Socialist Federal

Republic of Yugoslavia (SFRY), the new
Federal Republic of Yugoslavia (FRY)
claimed a right to succeed to its
membership of the United Nations.
• Security Council, by an overwhelming vote

of twelve in favor with three abstaining,
decided that the Serb-dominated FYR after
government of the FRY “cannot continue
automatically the membership of the dissolution of
former Socialist Federal Republic of
Yugoslavia in the United Nations.” SFYR
• Members of the Security Council explained
that such a decision was mostly based on
the lack of support from the former
members of the SFRY. Shortly thereafter,
the General Assembly followed the Security
Council’s lead, as 127 members voted
congruently while only six dissented.
420
210
01-07-2021
• The International Court of Justice

also sided with the Security Council
and the General Assembly as it
dismissed a genocide action brought
by the FRY against NATO in 1999.
• The court held that it did not have
jurisdiction to hear the case because,
at the time of filing, the FRY was not
a member of the United Nations.
• In 2000, the FRY was admitted to the
United Nations as a new state.
421
• Merger of Egypt and Syria in 1958 to form UAR:
• UAR : single member
• On dissolution in 1961, Syria resumed its separate membership of

organization
• Merger of North and South Yemen in 1990, the new state replaced the
predecessor
• New states of Czech Republic and Slovakia as new members in 1993
422
211
01-07-2021
We will learn
• Succession and Nationality: two views
 Nationality in International Law
 A domestic jurisdictional matter but remains regulated by IL
 Limitation
 Right of Nationality
 Obligation of statelessness
 Nationality governed under IL: Nottenbohm case
 Principle of Effective Nationality
 Relevance of the principle
 Draft Articles on DP and PEN
 Disintegration of USSR and Nationality issues
 Legal Developments
 Normative framework for Succession and Nationality
423
NATIONALITY & State Succession

• Two distinct views on the effect of succession on the nationality
• The dominant view holds that nationality changes automatically to
that of the successor state: because it is not only the sovereign
authority but also the duty of the successor state to confer
nationality to a population localized on the territory concerned.
• The other view maintains that nationality is essentially a matter of
domestic jurisdiction and hence it is up to the national law of the
successor state to decide.
424
212
01-07-2021
International
Nationality
law
425
Nationality is a • Nationality is relevant in international

legal concept of law because international rights and
obligations result from this link between
National and the State and its nationals.
International
Law • 1930 Convention on Certain Questions
relating to the Conflicts
of Nationality Laws, Art. 1 of which
reads:
 It is for each State to determine under
its own law who are its nationals. This
law shall be recognised by other States
in so far as it is consistent with
international conventions, international
custom, and the principles of law
generally recognised with regard
to nationality.
426
213
01-07-2021
• In 1923, the Permanent Court of International Justice stated in the

Nationality Decrees in Tunis and Morocco case that:
• “in the present state of international law,

questions of nationality are … in principle
within the reserved domain”.
427
Article 3 of European convention of

nationality 1997
• Article 3 – Competence of the State
• 1 Each State shall determine under its own law who are its
nationals.
• 2 This law shall be accepted by other States in so far as it is
consistent with applicable international conventions, customary
international law and the principles of law generally recognised with
regard to nationality.
428
214
01-07-2021
• Both the Convention concerning Certain

Questions Relating to the Conflict of Nationality
Laws and the European Convention on
Nationality confirmed that questions
concerning nationality are within the
jurisdiction of States.
• It has been suggested that this principle now
consists in customary international law
429
Limitations set out by IL

• Guarantees of non discrimination in respect of conferment of nationality.
• Art. 5 (d) (iii) Convention on the Elimination of All Forms of Racial

Discrimination extends the prohibition of racial discrimination to ‘the right
to nationality’, so that parties to that Convention must enact laws on
acquisition and loss of their nationality without any distinction as to race,
colour, or national or ethnic origin.
• Art. 5 (1) European Convention on Nationality which, moreover, prohibits

any discrimination on the grounds of sex and religion.
• Art. 9 (1) Convention on the Elimination of All Forms of Discrimination

against Women (‘CEDAW’) obliges the States Parties, which are almost all
existing States of the world, to grant women equal rights with men to
acquire, change, or retain their nationality.
430
215
01-07-2021
• Art. 18 (1) Convention on the Rights of Persons with Disabilities grants

equal treatment with regard to nationality and binds the parties to ensure
that persons with disabilities have the right to acquire and change
a nationality and are not deprived of their nationality arbitrarily or on
the basis of disability.
431
Human Right to Nationality

• UDHR
 Article 15: Right to a nationality
 Everyone has the right to a nationality.
 No one shall be arbitrarily deprived of his nationality nor denied the right
to change his nationality.
• Art. 19 American Declaration of the Rights and Duties of Man (1948).
• The right to acquire a nationality is explicitly laid down for children in Art.
24 (3) International Covenant on Civil and Political Rights (1966) (‘ICCPR’),
• Art. 7 Convention on the Rights of the Child, as well as for children
• with disabilities in Art. 18 (2) Convention on the Rights of Persons with

Disabilities.
432
216
01-07-2021
Statelessness- obligation
• 1961 Convention on the Reduction of Statelessness provides that States
Parties shall, in specific situations and under certain conditions, grant
their nationality to persons who would otherwise be stateless, that States
shall not deprive a person of their nationality if such act would render the
person stateless, and that States shall in general ensure that the application
of their laws does not result in statelessness of persons under their
jurisdiction.
• Art. 4 (b) European Convention on Nationality stipulates as a basic

principle that statelessness shall be avoided,
• 1999 ILC Draft Articles on Nationality of Natural Persons in relation to the

Succession of States (Art. 4) and the Council of Europe Convention on the
Avoidance of Statelessness in Relation to State Succession of 2006 (Art. 3)
433
• various UNGA resolutions of recent years explicitly point out that

the ‘prevention and reduction of statelessness are primarily the
responsibility of States, in appropriate cooperation with the inter-
national community’ (eg UNGA Res 61/137, 62/124, 63/148, and 64/127)
434
217
01-07-2021
International Law and National

Law- Nationality
• International law does not prescribe or prohibit certain criteria for
the acquisition of nationality by States, it limits the recognition
of that acquisition in the inter-national relations of States, ie
its consequences on the international plane.
• Modes of conferring nationality: Jus sanguinis, jus soli, marriage,
naturalisation
• The two most common connections that are generally accepted as
criteria for the conferment of nationality ex lege are descent and
place of birth. Jus Sanguinis v. Jus soli
435
CIL- children of diplomats

• Customary inter-national law restricts the principle to the effect that
children of persons entitled to diplomatic immunity (Immunity,
Diplomatic) in the State where the birth occurs shall not
automatically acquire that State’s nationality;
• this rule has been laid down explicitly in Art. 12 Convention on
Certain Questions relating to the Conflicts of Nationality Laws, in
Art. II of the respective Optional Protocols concerning Acquisition of
Nationality to the Vienna Convention on Diplomatic Relations (1961)
and the Vienna Convention on Consular Relations (1963), and is
moreover generally recognized.
436
218
01-07-2021
• Some States confer nationality ex lege upon certain changes in the civil
status of persons, such as the adoption or legitimation by, or the marriage
with, a national of that State.
• Although that kind of connection is traditionally recognized as legitimate
under international law, it is today only admissible within the limits of
applicable treaty law, especially with regard to the equality of women. Thus,
several treaties explicitly stipulate that neither marriage, nor the
dissolution of marriage, nor the change of nationality by her husband
during marriage, shall automatically affect the nationality of a woman
• (Arts 10 and 11 Convention on Certain Questions relating to the Conflicts
of Nationality Laws, Art. 1 Convention on the Nationality of Married
Women, Art. 9 (1) CEDAW). Art. 4 (d) European Convention
on Nationality extends that rule to both spouses. Naturally, this leaves the
possibility of a voluntary change of nationality in connection with a
marriage unaffected.
437
• Voluntary naturalization is the conferment of nationality onto an alien by a

formal individual act with the consent of, and usually upon special
application by, the person concerned.
• Under international law States are in principle free to decide on the

individual naturalization; the consent of the hitherto home State of the
person concerned is not required.
• On the other hand, there are few restrictions established in international

law on the freedom of States to naturalize, ie situations in which
naturalization may be prohibited by international law.
• force naturalization or collective naturalization
438
219
01-07-2021
Bindingness of nationality to other

states
• The most fundamental rule on nationality is derived from the
principle of State sovereignty: a State may only regulate acquisition,
loss, and consequences of its own nationality, and not of that of other
States.
• This does not exclude, however, that a State lays down rules on who
is, for the purpose of its own legislation, to be considered a national
of another State; such legislation can naturally only have a binding
effect for the legislating State itself.
• Also beyond that, the discretion of States with respect to nationality
is limited by the principle of non-intervention:
439
Nottebohm (Liechtenstein v. Guatemala),

Judgment (Second Phase), International
Court of Justice, 6 April 1955
• Nottebohm was born at Hamburg on September 16th,
1881. He was German by birth, and possessed German
nationality.
• In 1905 he went to Guatemala. He took up residence
there and made that country the headquarters of his
business activities, which increased and prospered;
• He paid a few visits to a brother who had lived in
Liechtenstein since 1931. Some of his other brothers,
relatives and friends were in Germany, others in
Guatemala. He himself continued to have his fixed abode
in Guatemala until 1943,
440
220
01-07-2021
• At the beginning of October 1939, he applied for

naturalization in Liechtenstein.
• According to the Liechtenstein Nationality Law of 1934,
naturalization depended inter alia upon previous local
residence for at least three years.
• The law also provided that ‘this requirement can be
dispensed with in circumstances deserving special
consideration and by way of exception’.
441
• Without indicating the special circumstances warranting such a waiver,

Nottebohm sought dispensation from the residence requirement and
undertook to pay 25,000 Swiss francs to the commune of Mauren where he
had applied for acceptance into the Home Corporation (Heimatverband), and
12,500 Swiss francs to the principality.
• On 13 October 1939 the Reigning Prince declared his consent to Nottebohm’s

naturalization. Two days later the commune of Mauren conferred its
citizenship upon him.
• On 20 October 1939 he took the oath of allegiance, and a certificate of

nationality was issued to him, indicating that he was naturalized by
supreme resolution of the Reigning Prince.
442
221
01-07-2021
• According to German nationality law, Nottebohm

simultaneously lost ex lege his German nationality.
• Having obtained a visa from the consul general of
Guatemala in Zurich on his Liechtenstein passport,
Nottebohm returned to Guatemala at the beginning of
1940 and resumed his former business activities.
• After Guatemala had entered World War II in 1941
against Germany, Nottebohm was arrested as an enemy
alien in 1943, deported to the United States and interned
there
443
• Guatemala seized and retained his property

• Released in 1946, he took up permanent residence in
Liechtenstein after Guatemala had refused to readmit
him.
• By Legislative Decree of 25 May 1949, Guatemala
expropriated the property of all ‘private persons or
corporations holding the nationality of any of the
countries with which the Republic was at war, or who
held such nationality. On that basis, the property of
Nottebohm was confiscated.
444
222
01-07-2021
• By application of 17 December 1951, the Government of

Liechtenstein instituted proceedings before the International Court
of Justice (ICJ) in which it claimed restitution and compensation on
the ground that the Government of Guatemala had ‘acted towards
the person and property of Mr. Friedrich Nottebohm, a citizen of
Liechtenstein, in a manner contrary to international law’
• The final judgment was rendered on 6 April 1955.
• By eleven votes to three the ICJ held that the claim submitted by
Liechtenstein was inadmissible, Judges Klaestad and Read and
Judge ad hoc Guggenheim dissenting.
445
Question before ICJ

• whether such an act of granting nationality by
Liechtenstein directly entails an obligation on the part of
Guatemala to recognize its effect, namely, Liechtenstein's
right to exercise its protection. In other words, it must be
determined whether that unilateral act by Liechtenstein
is one which can be relied upon against Guatemala in
regard to the exercise of protection.
446
223
01-07-2021
• It is for Liechtenstein, as it is for every sovereign State, to settle

by its own legislation the rules relating to the acquisition of its
nationality, and to confer that nationality by naturalization
granted by its own organs in accordance with that legislation. It is
not necessary to determine whether international law imposes any
limitations on its freedom of decision in this domain. Furthermore,
nationality has its most immediate, its most far-reaching and, for
most people, its only effects within the legal system of the State
conferring it. Nationality serves above all to determine that the
person upon whom it is conferred enjoys the rights and is bound by
the obligations which the law of the State in question grants to or
imposes on its nationals. This is implied in the wider concept that
nationality is within the domestic jurisdiction of the State.
447
• But the issue which the Court must decide is not one which pertains to
the legal system of Liechtenstein. It does not depend on the law or on
the decision of Liechtenstein whether that State is entitled to exercise
its protection, in the case under consideration. To exercise protection, to
apply to the Court, is to place one self on the plane of international law.
It is international law which determines whether a State is entitled to
exercise protection and to seise the Court. The naturalization of
Nottebohm was an act performed by Liechtenstein in the exercise of its
domestic jurisdiction. The question to be decided is whether that act has
the international effect here under consideration. International practice
provides many examples of acts performed by States in the exercise of
their domestic jurisdiction which do not necessarily or automatically
have international effect, which are not necessarily and automatically
binding on other States or which are binding on them only subject to
certain conditions : this is the case, for instance, of a judgment given by
the competent court of a State which it is sought to invoke in another
State.
448
224
01-07-2021
• In the present case it is necessary to determine whether the

naturalization conferred on Nottebohm can be successfully invoked
against Guatemala, whether, as has already been stated, it can be
relied upon as against that State, so that Liechtenstein is thereby
entitled to exercise its protection in favour of Nottebohm against
Guatemala.
449
• The character thus recognized on the international level as pertaining to

nationality is in no way inconsistent with the fact that international law leaves
it to each State to lay down the rules governing the grant of its own nationality.
The reason for this is that the diversity of demographic conditions has thus far
made it impossible for any general agreement to be reached on the rules
relating to nationality, although the latter by its very nature affects
international relations. It has been considered that the best way of making such
rules accord with the varying demographic conditions in different countries is to
leave the fixing of such rules to the competence of each State. On the other
hand, a State cannot claim that the ruIes it has thus laid down are entitled to
recognition by another State unless it has acted in conformity with this general
aim of making the legal bond of nationality accord with the individual's genuine
connection with the State which assumes the defence of its citizens by means of
protection as against other States.
450
225
01-07-2021
• According to the practice of States, to arbitral and judicial decisions

and to the opinions of writers, nationality is a legal bond having as its
basis a social fact of attachment, a genuine connection of existence, interests
and sentiments, together with the existence of reciprocal rights and duties.
It may be said to constitute the juridical expression of the fact that the
individual upon whom it is confered, either directly by the law or as the
result of an act of the authorities, is in fact more closely connected with the
population of the State conferring nationality than with that of any other
State. Conferred by a State, it only entitles that State to exercise protection
vis-à-vis another State, if it constitutes a translation into juridical terms of
the individual's connection with the State which has made him its national.
451
• Diplomatic protection and protection by means of international judicial

proceedings constitute measures for the defence of the rights of the State. As
the Permanent Court of International Justice has said and. has repeated,
"by taking up the case of one of its subjects and by resorting to diplomatic
action or international judicial proceedings on his behalf, a State is in reality
asserting its own rights-its right to ensure, in the person of its subjects,
respect for the rules of international law"
452
226
01-07-2021
APPLICATION TO FACTS
• his actual connections with Liechtenstein were extremely tenuous. No
settled abode, no prolonged residence in that country at the time of his
application for naturalization : the application indicates that he was paying
a visit there and confirms the transient character of this visit by its request
that the naturalization proceedings should be initiated and concluded
without delay. No intention of settling there was shown at that time or
realized in the ensuing weeks, months or years-on the contrary, he returned
to Guatemala very shortly after his naturalization and showed every
intention of remaining there. If Nottebohm went to Liechtenstein in 1946,
this was because of the refusal of Guatemala to admit him.
453
• These facts clearly establish, on the one hand, the absence of any bond of
attachment between Nottebohm and Liechtenstein and, on the other hand,
the existence of a long-standing and close connection between him and
Guatemala, a link which his naturalization in no way weakened. That
naturalization was not based on any real prior connection with
Liechtenstein, nor did it in any way alter the manner of life of the person
upon whom it was conferred in exceptional circumstances of speed and
accommodation. ln both respects, it was lacking in the genuineness requisite
to an act of such importance, if it is to be entitled to be respected by a State
in the position of Guatemala. It was granted without regard to the
concept of nationality adopted in international relations.
454
227
01-07-2021
• Naturalization was asked for not so much for the purpose of

obtaining a legal recognition of Nottebohm's membership in fact in
the population. of Liechtenstein, as it was to enable him to
substitute for his status as a national of a belligerent State that of a
national of a neutral State, with the sole aim of thus coming within the
protection of Liechtenstein but not of becoming wedded to its traditions, its
interests, its way of life or of assuming the obligations-other than fiscal
obligations-and exercising the rights pertaining to the status thus acquired.
Guatemala is under no obligation to recognize a nationality granted in such
circumstances. Liechtenstein consequently is not entitled to extend its
protection to Nottebohm vis-à-vis Guatemala and.its claim must, for this
reason, be held to be inadmissible.
455
Significance
• It is difficult to determine the significance of the judgment for today’s
international law, since most of the Court’s reasoning at that time met
severe criticism and is still rather controversial today.
• Draft Articles on Diplomatic protection prepared by ILC (2006)
• Article 4 State of nationality of a natural person
• For the purposes of the diplomatic protection of a natural person, a State of

nationality means a State whose nationality that person has acquired, in
accordance with the law of that State, by birth, descent, naturalization,
succession of States, or in any other manner, not inconsistent with
international law.
456
228
01-07-2021
• Draft article 4 does not require a State to prove an effective or genuine link between
itself and its national, along the lines suggested in the Nottebohm case, as an additional
factor for the exercise of diplomatic protection, even where the national possesses only
one nationality. Despite divergent views as to the interpretation of the case, the
Commission took the view that there were certain factors that served to limit
Nottebohm to the facts of the case in question, particularly the fact that the ties between
Mr. Nottebohm and Liechtenstein (the Applicant State) were “extremely tenuous”
compared with the close ties between Mr. Nottebohm and Guatemala (the Respondent
State) for a period of over 34 years, which led the International Court of Justice to
repeatedly assert that Liechtenstein was “not entitled to extend its protection to
Nottebohm vis-à-vis Guatemala”. This suggests that the Court did not intend to
expound a general rule applicable to all States but only a relative rule according to
which a State in Liechtenstein’s position was required to show a genuine link between
itself and Mr. Nottebohm in order to permit it to claim on his behalf against Guatemala
with whom he had extremely close ties. Moreover, it is necessary to be mindful of the
fact that if the genuine link requirement proposed by Nottebohm was strictly applied it
would exclude millions of persons from the benefit of diplomatic protection as in today’s
world of economic globalization and migration there are millions of persons who have
moved away from their State of nationality and made their lives in States whose
nationality they never acquire or have acquired nationality by birth or descent from
States with which they have a tenuous connection.
457
• Although it has been followed in some

cases, the genuine link requirement is not
generally accepted and therefore not part
of customary international law
• It has mixed precedential value
458
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01-07-2021
NATIONALITY & STATE

SUCCESSION
• Following the dissolution of the USSR, Lithuania adopted the dominant
view while Estonia and Latvia maintained that nationality was a matter of
domestic jurisdiction.
• Lithuania adopted a policy to grant citizenship to all permanent residents

who desired to obtain Lithuanian citizenship.
• In contrast, Estonia and Latvia adopted legislation which granted

citizenship to only those persons who had citizenship prior to Soviet
annexation and their descendants.
• Furthermore, their naturalization laws include a thorough language

requirement, which has proven to be a high barrier for large percentages of
Russian-speaking residents, who were mostly relocated to the territories
during the annexation.
459
• The International Law Commission was troubled by the practices of Estonia

and Latvia, and thus the draft of Nationality of Natural Persons in Relation
to the Succession of States commends the dominant view.
• While the draft articles recognize that the matter of nationality is

determined through domestic legislation, it points out that such matters
raise international concerns and shall follow the limits of international law.
• Hence, domestic legislation on nationality shall guarantee the protection of

human rights, namely an individual’s right to the nationality of at least one
of the states concerned. A corollary to the protection of human rights is the
prevention of statelessness and the harms which follow.
460
230
01-07-2021
• The draft articles are divided into two parts. While the provisions of Part I
are general, in the sense that they apply to all categories of succession of
States, Part II contains specific provisions on attribution and withdrawal of
nationality and on the right of option applicable in different categories of
succession of States.
• The provisions in Part II are grouped into four sections, each dealing with a
specific type of succession of States.
461
• Article 1. Right to a nationality
• Every individual who, on the date of the succession of States, had the
nationality of the predecessor State, irrespective of the mode of acquisition
of that nationality, has the right to the nationality of at least one of the
States concerned, in accordance with the present draft articles
462
231
01-07-2021
• Article 4. Prevention of statelessness
• States concerned shall take all appropriate measures to prevent persons

who, on the date of the succession of States, had the nationality of the
predecessor State from becoming stateless as a result of such succession.
463
• Article 5. Presumption of nationality
• Subject to the provisions of the present draft articles, persons concerned

having their habitual residence in the territory affected by the succession of
States are presumed to acquire the nationality of the successor State on the
date of such succession
• The purpose of article 5 is to address the problem of the time-lag between

the date of the succession of States and the adoption of legislation or, as the
case may be, the conclusion of a treaty between States concerned on the
question of the nationality of persons concerned following the succession.
Since such persons run the risk of being treated as stateless during this
period, the Commission feels it important to state, as a presumption, the
principle that, on the date of the succession of States, the successor State
attributes its nationality to persons concerned who are habitual residents of
the territory affected by such succession.
464
232
01-07-2021
General Guidelines
• Ensure that the circle of persons to whom that State grants its nationality
include all persons that have an appropriate connection to the State.
• International law, in deference to human rights, requires that in order for

the successor state to confer its nationality on the inhabitants of the
predecessor territory there be an appropriate connection between those
persons and the territory.
• Thus the nationality of the successor state can be conferred on nationals of

the predecessor state only if they submit voluntarily to its jurisdiction, by
virtue of an explicit declaration or voluntary return to their land of origin.
465
• Enlarge the circle of persons entitled to acquire their nationality through

providing a right of options, including the retention of the original
nationality (where the predecessor state continues to exist).
• An agreement among concerned states of which the occurrence of

statelessness would be precluded. Despite efforts to grant its nationality to
those that establish an appropriate connection and to enlarge the circles of
persons, a single nation’s effectiveness in preventing statelessness is
inadequate.
466
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01-07-2021
Specific cases
• Transfer of part of the territory: When one state transfers part of its territory to
another state, the successor state shall grant its nationality to the habitual
residents of the territory and the predecessor state shall withdraw its nationality
from such persons, unless otherwise indicated by the right of option, which shall
be granted to affected persons.
• Uniting of states: In a uniting of states, all citizens of the predecessor state will
be granted citizenship of the successor state.
• Dissolution of states: When a state dissolves into two or more successor states,
each successor state, unless otherwise indicated by the right of option, shall
grant its nationality to those that have their habitual residence or an
appropriate connection to its territory.
• Separation of part or parts of the territory of a state: “When part or parts of the
territory of a State separate from that State and form one or more successor
States while the predecessor State continues to exist,” a successor state, unless
otherwise indicated by the right of option, shall grant its nationality to those
that have their habitual residence or an appropriate connection to its territory.
467
Treaty
• One of the most important aspects of state succession in the effect of
changes in sovereignty upon the changes in sovereignty upon treaty
obligations
• Distinction between
• treaties that concern rights over territory and other treaty obligations.
 multilateral treaties
 bilateral treaties and
 human right treaties,
 treaties concerning territorial definition and regime
• General rules are those of customary international law which have in part
been codified by 1978 Vienna Convention on Succession of States in respect
of Treaties
468
234
01-07-2021
Practice
• Total Rejection: Doctrine of Clean Slate; Israel, Algeria and Upper Volta
• Devolution Agreement: New state agrees to assume the rights and

obligations of treaties tat the prior administering power concluded for and
applied to the territory of new state; British dependencies
• Temporary Application: Nyerere Doctrine (President Julius Nyerere of

Tanganyika) temporary period treaties in force. Review and alter. Lapse
option; Botswana, Burundi, Kenya, Malawi, Swaziland
• Selective Application: pick and chose unilaterally; Congo
• Deferment of decision: non committal posture. Madagascar.
469
Article 2: DEFINTION
• .For the purposes of the present Convention:
• (a) “treaty” means 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;
• VCLT DEFINITION
470
235
01-07-2021
Treaties concerned with rights over

property: SUCCESSION
• General Rule: where a treaty is concerned with rights over property then
there will be succession to rights and obligations. (dispositive treaty)
• Dispositive treaty may relate to boundary or servitude

 This rule is based on the need for order and stability in international relations
 Eg: dissolution of Spanish empire in south America
• State who succeeds the territory also succeed the boundary treaty
471
• Article 11
• Boundary regimes
 A succession of States does not as such affect:
 (a) a boundary established by a treaty; or
 (b) obligations and rights established by a treaty and relating to the regime of a boundary.
472
236
01-07-2021
Article 62 (2) of VCLT

• 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; or
• (b) If the fundamental change is the result of a breach by the party invoking
it either of an obligation under the treaty or of any other international
obligation owed to any other party to the treaty.
473
• Article 12 Other territorial regimes
• 1.A succession of States 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 restrictions upon the use, of any territory of a foreign State
and considered as attaching to the territories in question.
474
237
01-07-2021
475
476
238
01-07-2021
• Political Treaties: Agreement no more than a treaty of friendship or alliance

or neutrality or where the agreement is with a particular regime then such a
treaty will not bind subsequent government or succeeding state.
• Bilateral Treaties: favours Clean Slate doctrine
477
Territorial Rearrangements
A B A B A A
B C B C
C A
1 2
3 D 4 A
Choose correct terms

C C A. Cession
A B B. Incorporation
C. Merger
D. Dissolution
5
E. Separation
478
239
01-07-2021
Specific cases
• Cession of Territory
• With regard to cession of territories the so-called moving treaty frontiers

principle, as codified in Art. 15 VCSS-T, applies. Accordingly treaties of the
predecessor State cease to be in force in respect of the ceded territory while
treaties of the successor State generally extend ipso facto to this territory.
• This approach was most recently followed with regard to the transfer of
Hong Kong, Macau, and Walvis Bay.
479
• Article 15 Succession in respect of part of territory
• When part of the territory of a State, or when any territory for the
international relations of which a State is responsible, not being part of the
territory of that State, becomes part of the territory of another State:
• (a) treaties of the predecessor State cease to be in force in respect of the

territory to which the succession of States relates from the date of the
succession of States; and
• (b) treaties of the successor State are in force in respect of the territory to
which the succession of States relates from the date of the succession of
States, unless it appears from the treaty or is otherwise established that the
application of the treaty to that territory would be incompatible with the
object and purpose of the treaty or would radically change the conditions for
its operation.
480
240
01-07-2021
Incorporation of One State into

Another and Merger of Two States
• Where one State voluntarily decides to be incorporated into another, the
former ceases to exist as a subject of international law, while the territory of
the latter extends to that of the incorporated State.
• In such a scenario the treaties of the incorporating State extend to the

absorbed territory while the treaties of the incorporated State, with the
notable exception of localized treaties, ipso facto lapse unless the parties
involved decide otherwise.
• German Democratic Republic, which became part of the Federal Republic of

Germany as of 3 October 1990, the former ceases to exist as a subject of
international law
481
• In contrast, where two States merge to form a new State, as was the case
with regard to the Yemenite unification, the model provided for in Art. 31
VCSS-T, at least by and large, applies.
• Accordingly all treaties entered into by either of the two predecessor States,
both of which cease to exist as of the time of unification, continue to be in
force, albeit with their territorial scope of application of such treaties being
limited to the territory to which they had already been applied beforehand.
482
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01-07-2021
Article 31: Any Treaty in force at the

date of succession
• Continue to be in force, unless:
 successor and other state otherwise agree
 it appears from the treaty that it will be incompatible or would radically change the
conditions of the operation of the treaty
• Such treaty will apply only in respect of the part of the territory of the
successor State in respect of which the treaty was in force at the date of the
succession, unless
 successor make a notification in case of treaties not requiring agreement of other
parties
 successor State and other parties agree
 in case of bilateral treaties both parties agree
483
• Complete Dissolution of a State

• When a part or parts of the territory of a State separate to form one or more
States, whether or not the predecessor State continues to exist, Art. 34
VCSS-T provides that, as a matter of principle, the treaties of the
predecessor State automatically continue in force in respect of each
successor State.
• Recent State practice, and in particular that concerning the dissolution of
the Socialist Federal Republic of Yugoslavia, as well as that concerning the
CSFR, at least somewhat tends to confirm the customary law nature of this
rule.
• In addition, the Arbitration Commission of the Peace Conference on the
Former Yugoslavia (Badinter Commission [for the Former Yugoslavia]), set
up under the auspices of the Peace Conference for the former Yugoslavia,
considered the principles of international law embodied in the VCSS-T to
constitute at least a starting point for its considerations.
484
242
01-07-2021
• Separation
• a mere separation presupposes that one of the entities existing on the

territory of the predecessor State continues its legal personality and is, as
such, identical, although in a limited geographical way, with that
predecessor State.
• The most important recent example has been the case of the USSR, where
the Russian Federation is generally considered to continue the legal
personality of that State. Accordingly the continuing State
automatically continues all treaty relations of the predecessor State
unless such treaties are localized on the territory of a successor
State, a result enshrined in Art. 35 VCSS-T.
485
• Newly Independent States

• The VCSS-T, in line with previous State practice, defined the category of so-
called newly independent States in its Art. 2 (e) by referring to successor States
as ‘the territory of which immediately before the date of the succession of States
was a dependent territory for the international relations of which the
predecessor State was responsible’. It thus covers mainly former colonies
(Colonialism).
• In line with the post-independence practice of many former dependent
territories Art. 16 VCSS-T, applying the clean slate or tabula rasa principle,
provides that any such newly independent State is not bound to maintain in
force, or to become a party to, any treaty of its predecessor State, but that it may
establish its status as a party to any such treaty by way of a unilateral
declaration.
• The relatively few dependent territories which came into existence after 1978
have, by and large, followed the model prescribed by the convention and have in
particular claimed a right to apply the terms of individual treaties inherited from
their predecessor provisionally until such time as they inform the depository or
(in the case of bilateral treaties) the respective other party otherwise.
486
243
01-07-2021
• Newly independent State may, by a notification of succession, establish

its status as a party to any multilateral treaty which at the date of
succession was in force in respect of the territory to which the succession of
States relates (Article 17- 19)
• Unless:
• it appears from treaty or otherwise, that it is incompatible or would

radically change the conditions of the operation of the treaty consent of all
parties is required
487
• It shall be considered that the State maintains any reservation to the treaty
at the moment of succession UNLESS It expresses a contrary intention Or
formulates a reservation (Reservation Article 20)
• Notification of succession: Written form; Who is authorized To depository

and be considered to be made at the date it is received by the depository
• Effects of Notification: Unless otherwise provided or agreed: The State is

considered to be party to the treaty from the date of the succession of States
or from the date of entry into force of the treaty, whichever is the later date.
Treaty is considered suspended until the notification, unless the provisional
applications is applied
488
244
01-07-2021
Bilateral Treaties; Articles 24 and 25

• Are considered as being in force between the newly independent State and
other State party:
 they expressly agree, or by reason of their conduct they are to be considered as
having so agreed
 It is from the date of the succession unless otherwise established
489
• Human Rights and Related Treaties
• The practice of supervisory bodies established in accordance with the various

human rights treaties, such as the Human Rights Committee, indicates that
successor States are in all circumstances bound by treaty obligations entered into
by their respective predecessor State in the field of human rights, even where
otherwise no State succession with treaties would take place.
• This approach has however so far not been followed uniformly in recent instances of
State succession, in particular where new States have been created. It therefore
still remains somewhat doubtful whether, at this stage, a new rule of customary
international law has already been created.
490
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01-07-2021
State Succession and Public Property

Rights
• 1983 Convention on the succession of state in respect of property, archives
and Debts. Not in force . Reflective of custom
• Basic principle is that the predecessor state and the successor state should
endeavor to reach agreement on property questions. 1983 Convention
deemed to apply in cases where there is no agreement
• Basic principle that public property of the predecessor state will pass to the
successor state.
• Questions as to the meaning of public property.
• Determined by the internal law of predecessor state (public ownership)
491
• Article 8: State property
• For the purposes of the articles in the present Part, “State property of the
predecessor State” means property, rights and interests which, at the date of
the succession of States, were, according to the internal law of the
predecessor State, owned by that State.
• Operative date: date of succession (date of independence)
• In case of federal state where property has been transferred under

constitution, then property cannot be regarded as property of federal state
492
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01-07-2021
• Distinction between movable and immovable property
• Immovable property within the territory passes to the successor state
• Based on the state practice of lex situs
• However if the immovable property is located outside the territory of the

successor state, then in customary international law it will remain with
predecessor state.
• Although such rule can be modified by agreement;
• If predecessor state no longer exists then the property is divided between

successor states
493
• 1983 convention: special rules for independent states Article 15 (deviation of

customary international law)
• 1.When the successor State is a newly independent State:
• (a) immovable State property of the predecessor State situated in the territory to
which the succession of States relates shall pass to the successor State;
• (b) immovable property, having belonged to the territory to which the succession
of States relates, situated outside it and having become State property of the
predecessor State during the period of dependence, shall pass to the successor
State;
• (c) immovable State property of the predecessor State other than that mentioned
in subparagraph (b) and situated outside the territory to which the succession of
States relates, to the creation of which the dependent territory has contributed,
shall pass to the successor State in proportion to the contribution of the
dependent territory;
494
247
01-07-2021
• Article 17 Separation of part or parts of the territory of a State
• (b) movable State property of the predecessor State connected with the
activity of the predecessor State in respect of the territory to which the
succession of States relates shall pass to the successor State;
• (c) movable State property of the predecessor State, other than that
mentioned in subparagraph (b), shall pass to the successor State in an
equitable proportion.
495
• Archives
• Will pass to S State
• Without compensation
• Special category
• Public Debts
• State debt: financial obligation of P state arising in conformity with IL
• Art 36: S does not affect the rights and obligations of creditor
496
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01-07-2021
State jurisdiction
497
What we will learn this module

• Interlink- State Jurisdiction, State Immunity and Extradition
• Understand State Jurisdiction?
• Principle: Jurisdiction is territorial

 Prohibitory v Permissive rules to assert jurisdiction
• Principles to assert Jurisdiction in International Criminal Law
498
249
01-07-2021
• Jurisdiction is essential attribute of sovereignty

• Jurisdiction in the context of PIL refers the limits of legal
competence of state to make apply and enforce rules with
regard to person property and situation/events outside its
territory.(judicial, legislative and administrative
competence)
• Jurisdiction concerns both the extent of sovereign power
and scope or limitations of those power at the
international level.
499
• The Restatement (Third) of the Foreign Relations Law of the United

States divides jurisdiction into three categories:
• (a) jurisdiction to prescribe, i.e., a country’s ability to make its law
applicable to persons, conduct, relations, or interests;
• (b) jurisdiction to adjudicate, i.e., a country’s ability to subject
persons or things to the process of its courts or administrative
tribunals.
• (c) jurisdiction to enforce, i.e., a country’s ability to induce or compel
compliance or to punish noncompliance with its laws or regulations.
500
250
01-07-2021
• Under public international law, two approaches could be taken to the

question of jurisdiction.
• States can exercise jurisdiction as they see fit, unless there is a prohibitive
rule to the contrary,
• States cannot exercise jurisdiction as they see fit, unless there is a

permissive rule to the contrary.
501
S.S Lotus
Case: Do
you
remember?
502
251
01-07-2021
Lotus Case
• PCIJ Stated
• “Now the first and foremost restriction imposed by

international law upon a State is that – failing the
existence of a permissive rule to the contrary – it may not
exercise its power in any form in the territory of another
State. In this sense jurisdiction is certainly territorial; it
cannot be exercised by a State outside its territory except
by virtue of a permissive rule derived from international
custom or from a convention.” (para 45)
503
• It does not, however, follow that international law prohibits a State

from exercising jurisdiction in its own territory, in respect of any
case which relates to acts which have taken place abroad, and in
which it cannot rely on some permissive rule of international law.
Such a view would only be tenable if international law contained a general
prohibition to States to extend the application of their laws and the
jurisdiction of their courts to persons, property and acts outside their
territory, and if, as an exception to this general prohibition, it allowed States
to do so in certain specific cases. But this is certainly not the case under
international law as it stands at present. Far from laying down a
general prohibition to the effect that States may not extend the
application of their laws and the jurisdiction of their courts to
persons, property and acts outside their territory, it leaves them in
this respect a wide measure of discretion which is only limited in
certain cases by prohibitive rules.
504
252
01-07-2021
Territory
State A State B
(Sovereign) (Sovereign)
State B
505
• In Lotus, the PCIJ made the important distinction between enforcement and
prescriptive jurisdiction.
• States are precluded from enforcing their laws in another State's territory
absent a permissive rule to the contrary,
• International law poses no limits on a State's jurisdiction to prescribe its

rules for persons and events outside its borders absent a prohibitive rule to
the contrary.
• Thus, under Lotus, States could set rules for persons, property and acts
outside their territory in the absence of a prohibitive rule, provided that they
enforce these rules territorially
• In claiming jurisdictional freedom for States, Lotus reaffirmed the voluntary

nature of international law
506
253
01-07-2021
• The Lotus judgment has been vehemently criticized in the doctrine.

It is nowadays often considered as obsolete, and even considered as
never having been a precedent at all
• Whilst Lotus permits extraterritorial prescriptive jurisdiction as a
principle, arguably even as an a priori theoretical
construction, customary international law based on actual State
practice turns Lotus upside down
• Under the customary international law of jurisdiction, as historically
developed, extraterritorial prescriptive jurisdiction is arguably
prohibited in the absence of a permissive rule.
507
• The 1935 Harvard Research on International Law in particular has

been instrumental in the permissive principles approach becoming
the main framework of reference for assessing the legality of
jurisdictional assertions.
• The permissive principles approach, as inductively derived from the
practice of States, usually links sovereignty with territoriality
(‘territorial sovereignty’). It views territorial jurisdiction as the
fundamental rule of the international jurisdictional order.
• The primacy of territorial jurisdiction is usually premised on the
principle of sovereign equality of States and the principle of non-
intervention (or non-interference), which render unlawful ‘such
legislation as would have the effect of regulating the conduct of
foreigners in foreign countries’.
508
254
01-07-2021
• Other grounds of jurisdiction than the territoriality principle

(‘extraterritorial jurisdiction’) are not logically deduced from that principle.
Instead, they function as exceptions to the cornerstones of international
law—territoriality, sovereign equality and non-intervention ‘based upon
ideas of social expediency’
• Harvard Research Draft Convention on Jurisdiction with respect to crime
1935
• Territorial Principle
• Passive personality principle
• Nationality Principle
• Protective Principle
• Universality Principle
509
6 bases of jurisdiction in IL
• Subjective territoriality
• Objective territoriality (effects doctrine)
• Nationality
• Protective principle
• Passive nationality
• Universality
510
255
01-07-2021
Territorial Jurisdiction (S+O)

• Over its territory
• Civil and Criminal Jurisdiction over persons and things with in the
territory of state which falls with in its territorial jurisdiction
• Possession of jurisdiction over all persons and things within its
territorial limits and in all causes civil and criminal arising within
its limit is attribute of sovereignty
• Territory for jurisdictional purposes: land, dependent territories,
airspace, aircraft, ships, territorial sea, certain jurisdictional
rights in Contagious zone, EEZ, Continental shelf
• Jurisdiction with in its territory is a right of state
511
• Draft Declaration on Rights and duties of state (ILC, 1949) lays down
• Every state has right to exercise jurisdiction over it and over all persons and
things therein
• State territory is constructive element of the concept of state
• Violation of area is violation of state personality
• Kelsen states that the territory of a state is not a thing it is specially not the
land or a piece of land it is an area determined by International Law
512
256
01-07-2021
Limitations on Territorial
Jurisdiction
• State has exclusive jurisdiction over the territory
• But not absolute
• Limitations imposed upon the rule of TJ developed through Customs and

International Treaties
• Foreign state may claim exemption, suspension or non amenability to the

jurisdiction of another state
• Eg: Immunity (Doctrine of State immunity is founded on maxim par in

parem non habet imperium i.e. an equal has no power over an equal)
513
• Immunity is also restricted
• UN Convention on Jurisdictional Immunity of States and their Property

adopted on Dec 2, 2004 favours restricted immunity
Article 5
State immunity
• A State enjoys immunity, in respect of itself and its property, from the
jurisdiction of the courts of another State subject to the provisions of the
present Convention.
514
257
01-07-2021
Exceptions to the rules of TJ

• Diplomatic Agents
• Embassies
• Foreign Sovereign
• Property of Foreign Sovereign
• Foreign Armed Forces
• Foreign Warships and their Crew
515
Nationality Principle
• State may prosecute its nationals for the crimes prosecuted anywhere in the
world- inherent right of state
• Who determines Nationality? (Article 1-4 Hague Convention on Certain

Questions Relating to the Conflict)
• Based on the allegiance
• Application of nationality principle creates parallel jurisdiction. i.e.

jurisdiction by more than one state and possible double jeopardy In cases of
dual nationality.
516
258
01-07-2021
• Common law states lay limitations on nationality principle
• Serious crimes
 eg English Courts lay down connecting factor of nationality in case serious offences
like treason, murder and bigamy
 UK bribery act 2010
• jurisdiction is required because of International agreements and/or the

offence is also a crime under IL
 England War Crimes Act 1991
 Australia Child Sex Tourism Act 1994
517
• Nationality can also form the basis for the exercise of

jurisdiction by international court like ICC
 UNSC terrorism and nationality link: denial of nationality-
removing citizenship– preclude the rule of law?
 S/RES/2178 (2014): foreign terrorist fighters

 https://www.un.org/en/ga/search/view_doc.asp?symbol=S/RES/2178%20
%282014%29
 https://www.un.org/sc/ctc/wp-content/uploads/2016/09/FTF-Report-1-
3_English.pdf
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Protective Principle
• States assume jurisdiction to punish acts prejudicial to national
security or other vital interests of a s state even when they are
committed by aliens abroad
• Eg Safety, public order, foreign bank notes etc
• Attorney General of Israel v. Adolf Eichmann (Supreme Court

of Israel)
• Adolf Eichmann, was an Austrian by birth who volunteered to work for

the Security Service (SD) in Berlin. He rose through the ranks and
eventually occupied the position of Head of Section (Referant) for
Jewish Affairs charged with all matters related to the implementation
of the Final Solution to the Jewish Question.
519
• In May 1960, the Israeli intelligence service, Mossad, abducted

Eichmann from his hiding place in Argentina and transferred him to
Jerusalem to face an Israeli court.
• The trial commenced on 11 April 1961 with the indictment charging

Eichmann with 15 counts of crimes against the Jewish people, crimes
against humanity, war crimes and membership in an organisation
declared criminal by the International Military Tribunal in
Nuremberg 15 years earlier. On 11 December 1961, Eichmann
was convicted on all 15 counts and sentenced to death.
520
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• Israel Court took the jurisdiction based on the protective principle
• …. The state of Israel’s right to punish the accused derives in our view from
two cumulative sources: a universal source (pertaining to the whole of
mankind), which vests the right t to prosecute and punish crimes of this
order in every state within the family of nations and a specific or national
source which gives the victim nation the right to try any who assault it’s
existence.
• The second foundation of criminal jurisdiction conforms according to

accepted terminology the protective principle (Competence reelle)…
521
• State of Israel did not existed at the time of crime

• “The right of injured group to punish offenders derives directly, as
Grotius explained…...from the crime committed against them by the
offender and it is only want of sovereignty that denies it the power to try
and punish the offender. If the injured group or people thereafter
achieves political sovereignty in any territory, it may exercise such
sovereignty for the enforcement of its natural right to punish the
offender who injured it.
• Questions of legitimacy?
• State Practice: Western countries are less hostile to reception of protective
principle
• (growth in cases of international terrorism and drug smuggling)
• US apply in immigration cases and espionage cases etc
522
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• Issues with Protective principle:

 May be easily abused by states
 May arise cases where individual may be convicted for
acts which had not been regarded as criminal offences
in State where they were committed
 Possibility of double conviction for same offence
(principle ne bis in idem: not twice for the same
meaning that no legal action can be instituted twice for
the same cause of action) (Safeguard for the individual )
523
Passive Personality Principle

• State has jurisdiction to punish aliens for harmful acts committed abroad
against it nationals
• Civil law countries claim jurisdiction on this ground whereas UK and US

regard it as contrary to international law so far as ordinary torts and crimes
are considered but not in respect of terrorist killing and taking of hostages
etc.
• US Torture Victim Protection Act 1991: civil action can be brought by victim
(US National or foreigner) against individual, acting in official capacity fro
any foreign government on act of torture or extra judicial killings
524
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Which movie is it?

525
• The five terrorists of Palestinian origin-Zayd Hassan Abd Al-Latif Masud Al

Safarini, Mohammed Abdul Khalil Hussain, Daud Mohammed Hafiz,
Mohammed Ahmed al-Munawar and Jamal Saeed were all arrested by
Pakistani security forces.
• At a trial held in 1988, all of the convicts admitted to having carried out the
hijackings and were given death sentences that were later commuted to life
imprisonment.
• The alleged leader of the operation Zayd Safarini was released from prison
in Pakistan in 2001 after a series of amnesties. He was, however, arrested a
day later by FBI agents in Bangkok on his way to Jordan.
• US: In 2003, Zayd Safrini pleaded guilty to 95 charges which included

murder, attempted murder and conspiracy to commit murder among other.
The trial was attended by at least half a dozen of survivors.
526
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• At the conclusion of the proceeding, Judge Sullivan sentenced the defendant

to three consecutive life terms plus 25 years, for a total of 160 years. Judge
Sullivan also recommended that the defendant never receive parole.
• December 3, 2009 - The FBI announced that it has added the four fugitive
hijackers to the FBI Most Wanted Terrorists list. This action was
undertaken in coordination with a joint announcement with the U.S.
Department of State that the Rewards for Justice Program is offering a
reward of up to $5 million each for information leading to the arrest and/or
conviction of the four individuals – Wadoud Muhammad Hafiz al-Turki ,
Jamal Saeed Abdul Rahim, Muhammad Abdullah Khalil Hussain ar-
Rahayyal, and Muhammad Ahmed al-Munawar — all believed to have been
members of the Abu Nidal terrorist organization.
• https://www.justice.gov/usao-dc/victim-witness-assistance/hijacking-pan-am-
flight-73/significant-events
• https://edition.cnn.com/2004/LAW/05/12/hijacker.sentencing/index.html
527
Universal Jurisdiction
• States have adopted this principle with limitation
• Jurisdiction over acts of non nationals where the circumstances including

the nature of the crime justify the repression of some types of crimes as
matter of international public policy
• Jurisdiction over offender irrespective of nationality of place of commission

or of nay link between prosecuting state and offender
• Jurisdiction is solely based on the nature of crime
528
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• Rationale: Certain offences are so destructive of the international order and

are contrary to the interest of international community tht hey may be
treated as international crimes
• Are of universal crime and can be regarded as attack on international legal

system.
• Under customary law, states were permitted to exercise universal

jurisdiction over piracy on the high seas
• Other offences for which universality principle is claimed includes slave

trade, crime against humanity, genocide and terrorism
529
• Universality principle has been provided in treaties such as
• Drug trafficking
• Hijacking and sabotage of aircraft
• Apartheid
• Attack on diplomat
• Taking of hostages
• Torture
• War crimes are also triable by courts of all states.
530
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• Extra territorial acts can only be lawful, if general

principles are observed
 Substantial and bona fide connection between the subject matter
and source of jurisdiction
 The principle of non intervention in the domestic or territorial
jurisdiction of other state
 Principle based on elements of accommodation, mutuality and
proportionality
531
Extradition
532
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533
534
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535
536
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537
What we will learn:

• Understanding Extradition
• How does the law of Extradition work: Source
• When can a state extradite: Imp principles applied
• When can a state deny extradition: Certain grounds
538
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• In International Law, the rules regarding extradition are not well

established mainly because extradition is a topic which does not came
exclusively under the domain of International Law.
• Law of extradition is a dual law. It has operation national as well

international operation.
• Extradition or non-extradition is determined by the municipal Courts of a

State, but at the same time it also a part of International Law because it
governs the relation between two States over the question whether or not a
given person should be handed over by one State to another State. This
question is decided by the national Courts but on the basis of international
commitments as well as the rules of International Law relating to the
subjects
539
Origin
• The term extradition has its origin in the Latin word “extradere” which
means forceful return of a person to his sovereign
• The modern word extradition is perhaps derived from the practice which
was called “extra-tradition” because it was against the traditional
hospitality offered to an alien by a state who had allegedly committed an
offence and sought refuge or asylum to save himself from prosecution or
punishment.
540
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Definition
• Art 102 of Rome Statute of the International Criminal Court.: “Extradition”
means the delivering up of a person by one state to another as provided by
treaty, convention or national legislation.
• United Nations Model Law on Extradition 2004: “Extradition” means the
surrender of any person who is sought by the requesting state for criminal
prosecution for an extraditable offense or for the imposition or enforcement of a
sentence in respect of such an offence.
• Oppenheim: Extradition is the delivery of an accused or a convicted individual to
the State on Whose territory he is alleged to have committed, or to have been
convicted of a crime, by the State on whose territory the alleged criminal
happens to be for the time being.”
• Starke: “The term ‘extradition’ denotes the process whereby under treaty or
upon a basis of reciprocity one State surrenders to another State at it’s the laws
of the requesting State, such requesting state being competent to try the alleged
offender.
541
Extradition v Deportation
• E: In Interest of requesting state/ D: in Interest of expelling state
• E: Consensual Cooperation between two states/ D: unilateral action
• E: Applies to criminal prosecution/ D: Expulsion of foreigner on any grounds
• E: Done on request of other state/ D: order of State prohibiting a person to

remain inside the territory of the ordering state.
• When an offender is returned to another state in the absence of an

extradition treaty, normally the act is called as deportation
542
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Extradition facilitate Criminal

Justice
• Crimes may not go unpunished
• deterring effect on offender
• International Security
• Based on Reciprocity
• Promoting International Cooperation
• Evidence and enforcement
543
Obligation to extradite
• Customary International Law (?)
 There exists no customary law about such an obligation.
 Likewise, general international law contains no limitations on a State’s freedom to
extradite, except for those fundamental human rights that can be considered as part
of ius cogens.
• Whether, beyond that bar, extradition is admissible in

the absence of a treaty is decided solely under domestic
law.
• While the common law countries are prevented from
extraditing in the absence of a treaty, most civil law
countries do grant extradition without treaty on the basis
of reciprocity and according to the rules of their national
extradition acts.
544
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Source
• bilateral agreements (Extradition Treaty)
• multilateral conventions
• national extradition acts
• Whether the provisions of an extradition treaty take precedence over those

laid down by the national extradition act of the requested State is decided by
domestic law
• Most European States, extradition treaties take precedence over domestic

statutes, either on the basis of an express provision in that statute.
545
• Most of the basic principles and rules provided for in

extradition treaties or schemes and in national
extradition statutes are almost identical and multilateral
conventions served as a model for recent amendments of
statutes and bilateral treaties, the prevailing opinion is
that these principles and rules have nevertheless, with
very few exceptions, not become rules of customary
international law.
546
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Principles
• Extraditable Offences
 Enumeration method/open-ended list
 Elimination method/ No list
 Accessory Extradition
547
• Extradition Treaty entered by India with Netherlands in year 1898
548
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Extradition Treaty entered by India

with Bangladesh in the year 2013
549
 The Double-Criminality Rule

 an act shall not be extraditable unless it constitutes a
crime under the laws of both the requesting and the
requested States
 sometimes considered as part of customary
international law.
 no State is obliged to extradite a person for an act not
recognized as criminal by its own standards, and also
serves the principle of reciprocity according to which a
State is not required to extradite categories of offenders
which it, in turn, would never have occasion to demand.
550
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• rule as such requires that the act is in abstracto chargeable as an offence but
does not usually require that the act is in concreto prosecutable and could
result in a conviction.
• Limitations
• Recent extradition treaties—eg the UN Convention against Transnational

Organized Crime of 2000, the International Convention for the Suppression
of the Financing of Terrorism of 1999, the International Convention for the
Suppression of Terrorist Bombings of 1997, and the Convention on
Cybercrime within the European Council of 23 November 2001 provide more
and more exceptions from the double-criminality rule by accepting the
demand of the requesting State exercising jurisdiction
551
• Evidence of Guilt
 Common Law : Prima facie case of guilt
 Civil Law: May require additional evidence
• Reciprocity
 the principle of reciprocity underlies the whole structure of extradition.
 some recent extradition treaties and statutes either do not mention reciprocity at
all, allow considerable exceptions, or express the principle in optional terms, thus
conceiving reciprocity as a political maxim rather than as a legal precondition.
552
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• The Speciality Rule

 incorporated in almost every treaty and statute and considered as a rule of general
international law, an alleged offender may not be detained, tried, or in any way
punished in the requesting State for any offence committed prior to surrender other
than the one for which extradition was granted.
• Prior consent is not required if the description of the offence for

which extradition was granted is altered in the course of the
proceedings, provided that the offence in its new description is based
on the same facts and itself constitutes a returnable offence—under
some treaties a lesser returnable offence, under others a returnable
offence for which no higher maximum penalty is fixed.
553
• The speciality rule, though generally not conceived of as a rule conferring

individual rights, nevertheless protects the alleged offender from having to
face charges of which he or she had no notice prior to transfer. It also
reinforces the double-criminality rule and rules prohibiting extradition for
certain categories of offences—eg political, fiscal, or military offences—and it
protects from abuse the legal processes of the requested State, which is
called upon in extradition to renounce its jurisdiction over, and protection of,
the alleged offender.
554
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Can state deny Extradition

• Nationals
• Common Law v Civil Law State practice
 Extradition treaties, therefore, if not excluding the extradition of citizens altogether,
usually concede to requested States the right to deny extradition of nationals if their
domestic law so provides. Some extradition treaties restrict the requested State’s
freedom to naturalize alleged offenders after demand has been made for them.
555
Does India extradite its own

Nationals?
• India adheres to the principle of extraditing its own nationals
• India follows dual system, by extraditing nationals on the basis of

reciprocity. If the other treaty State does not extradite, India also bars
extradition of own nationals.
• countries to which extradition of Indian Nationals is barred by the bilateral

Extradition Treaty.
• France, Germany – Spain- UAE- Saudi Arabia- Bahrain - Belarus Bulgaria -

Hong Kong - Republic of Korea - Kuwait - Mongolia -Nepal -Poland -Russia
-Tunisia Turkey –Ukraine- Uzbekistan -Vietnam
556
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• Capital Punishment
• Under most extradition treaties and statutes surrender may be denied if the
offence for which extradition is requested is punishable by death under the
law of the requesting State, unless the authorities of that State previously
give assurances, which the requested State considers sufficient, that the
death penalty will not be imposed or carried out.
557
Soering v United Kingdom (1989) 11

EHRR 439, Judgment of 7 July 1989.
• The applicant, Jens Soering, is a German national, born in 1966, who was
brought by his parents to the United States at age eleven. In 1984, he was
an 18-year-old honor student at the University of Virginia, where he became
good friends with Elizabeth, a Canadian national two years his elder.
• Eliz parents, were against their daughter's relationship with Soering.
• Soering and Elizabeth decided to kill parents;
• Soering drove to the residence and dined with the unsuspecting couple.
During or after dinner, he picked a quarrel and viciously attacked them with
a knife. Both were found with their throats slit and with stab and slash
wounds to the neck and body.
• In October 1985, Soering and Elizabeth Haysom fled to Europe; and, on 30

April 1986, they were arrested in England, United Kingdom on charges of
cheque fraud
558
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559
• Complaint: the applicant claimed that the extradition from the UK to the USA and the
risk of serving on death row would constitute a violation of article 3 of the European
Convention.
• the European Court of Human Rights (ECtHR) ruled for the first time that extradition
could raise the responsibility of the requested State under Art. 3 Convention for the
Protection of Human Rights and Fundamental Freedoms
• Art. 5 (1) (f) ECHR, the convention does not grant a right not to be extradited.
• However, the ECtHR unanimously endorsed the established case law of the European
Commission on Human Rights (‘ECommHR’) by which extradition of an individual to a
State where he would be likely to be subjected to torture or inhuman or degrading
treatment engaged the responsibility of the requested State under Art.3 ECHR.
• Stressing the absolute nature of Art. 3 ECHR and the need to interpret the ECHR in a
way that renders its safeguards practical and effective, the ECtHR held that the loss of
control after extradition did not absolve the State from responsibility for
foreseeable consequences of extradition suffered outside its jurisdiction
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• The Soering Case raised the question as to how a conflict between an

obligation under an extradition treaty to extradite an individual and a
converse obligation under the ECHR to refrain from extraditing the
individual should be solved
• The ECtHR did not accept the argument advanced by the UK that it was
bound by the extradition treaty concluded with the US, without however
explicitly addressing the question of the ranking in priority of the treaty
obligations or undertaking an effort to harmonize them. Instead, it confined
itself to examining whether there was a violation of the convention.
• Thus, the ECtHR in effect accorded primacy to the human rights norm over
the extradition treaty and acknowledged a certain hierarchy of legal
obligations that recognized the higher status of at least certain human
rights norms.
561
• Procedural Defects
 Recent statutory law and agreements preclude extradition if there is reason to
believe that the criminal proceedings in the requesting State have not been or will
not be in conformity with the internationally recognized minimum standards of
procedural guarantees.
• Humanitarian grounds: Age/Health/Discrimination/ or any other factor
• Military offences
• Fiscal offences
• Pending proceedings or final decisions passed in respect of the same offence

in the requested State/ tribunal (Ne bis in idem)
• Lapse of time
562
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• Political Offence
 The political offence exception,
 based on humanitarian concern for the offender on the one hand
 and on the reluctance of States to become involved in the political problems of the other
States on the other
• Character as a binding rule of customary law is at least debatable.
• Classification of an offence as political to the requested State.
563
International Practice
• Absolute or purely political offences—eg treason, espionage, sabotage—
defined as offences aimed directly and exclusively against the State, its
organs, or political organization.
• Relative or related political offences - pursued a political purpose or

was politically motivated or because the common crime fell into a political
context in that it was committed incidentally to or in the course of and in
furtherance of civil war, insurrection, or political commotion.
• Pure political offenses are not usually extraditable because they are
expressly omitted from treaties
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• Broadly defined, a relative political offense is one that requires a nexus

between the offense and the political motivation behind its perpetration.
• Three distinct tests have emerged: (i) the French “objective” test; (ii) the
Swiss “proportionality” or “predominance” test; and (iii) the Anglo-American
“incidence” test.
• French test  offense non-extraditable  if it directly injured the rights of

the State and the motives of the accused had been considered irrelevant.
• Swiss test examines the political motivation of the offender and the
circumstances surrounding the commission of the crime and applies one of
two standards: the proportionality between the means and the
political ends or the predominance of the political elements over the
common crime elements.
565
• The Anglo-American system uses an “incidence” test, which requires that

the act must be incidental to and forming a part of political disturbances.
There must be a preliminary showing that a political disturbance existed in
the requesting state at the time of the operative behaviour.
566
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In Re Castioni, (1891) 1 QB 149,

• The fugitive, being dissatisfied with the administration of the Swiss
Government, joined other people to stage an uprising against the
government and killed a member of the government in the course of the
movement. After being charged with the offence of murder, the fugitive
escaped to England.
• The Swiss Government requested his extradition.
• The fugitive opposed extradition on the ground that the offence he was
accused of was of a political character.
567
• Hawkins, J., with the concurrence of Stephen J and Denman J, held that
certain crimes were of a political character if “those crimes were
incidental to and formed a part of political disturbances”
• The fugitive succeeded in his plea because the circumstances of the case
indicated that he had committed the offence in the course of a political
uprising. The crime was held to be incidental to and formed a part of the
political disturbances staged against the Swiss Government.
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• Two observations can be made from the ratio of Hawkins J.
• First, it would be an offence of a political character if the fugitive

committed the criminal offence with the object (motive) of staging a
political disturbance.
• Second, there must be a nexus between the criminal act and a

political disturbance.
569
In Re Meunier, (1894) 2 QB 415

• The fugitive was an anarchist and he was accused of causing explosion at a
cafe and in certain barracks in France as a protest against the French
Government. The French Government requested his extradition after the
fugitive had escaped to England.
• The fugitive resisted extradition by pleading that the offence was a political
offence.
• Cave J. held that “in order to constitute an offence of a political character,

there must be two or more parties in the State, each seeking to impose the
Government of their own choice on the other, and that, if the offence is
committed by one side or the other in pursuance of that object, it is a
political offence, otherwise not”
570
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• The fugitive’s plea of political offence failed because he committed the

offences with the mere intention of expressing his hatred, distrust of, or
disbelief in government as an institution.
• The court in Meunier had followed closely the principles laid down in
Castioni in that in construing an offence of a political character, the fugitive
had to commit the offence with the object of staging a political disturbance
and that there must be a nexus between the criminal act and the political
disturbance.
571
• Very few treaties and statutes expressly exclude genocide, murder,

manslaughter, or related crimes in general from the concept of
political offences.
• Out of the special international conventions, only the Convention on the

Prevention and Punishment of the Crime of Genocide and the European
Convention on the Suppression of Terrorism unambiguously declare the
limited number of offences established by them as ‘non-political’ for the
purpose of extradition;
572
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Irregular Extradition and IL: France

v UK, 1911, PCA
• Vinayak Damodar Savarkar (‘Savarkar’) was an Indian law
student accused of various offences in India. After being
located by British authorities in London, Savarkar was
given a hearing and ordered extradited to India to stand
trial (Extradition). On 1 July 1910, Savarkar was placed on
board the Morea, a British merchant vessel, for the trip to
India.
• Having been notified by British officials that the Morea and
Savarkar would be stopping in Marseilles, the French
Minister for the Interior informed the local authorities on 4
July 1910 of Savarkar’s expected arrival and requested that
they take all measures necessary to guard against Indian
revolutionaries attempting to effect Savarkar’s escape.
The Morea arrived in Marseilles on 7 July 1910. Shortly
afterwards, a Commissaire of the French Police came
aboard the Morea and placed himself at the ship’s disposal
during its stay in port.
573
• In the early morning hours of 8 July 1910, Savarkar broke out through a
porthole, swam ashore, and attempted to escape. Three men from the
Morea—two Indian police officers and a crewman—began shouting and
gesticulating before running ashore after Savarkar. A brigadier of the
French maritime gendarmerie saw Savarkar escape, heard the yelling, and
apprehended Savarkar after a roughly 500 metre chase.
• With the help of the three Morea men, the French brigadier escorted
Savarkar back to the ship and turned him over to the British officers.
Savarkar went peacefully and the entire incident lasted no more than a few
minutes. The Morea sailed from Marseilles the next day with Savarkar on
board.
574
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• Shortly thereafter, France demanded that the United Kingdom (‘UK’) return
Savarkar to French custody and file an official formal request for extradition
under the 1876 Treaty on Extradition.
• As such, the UK refused to comply with France’s demand. However, on 25

October 1910, France and the UK agreed by compromis to submit the issue
to the Permanent Court of Arbitration (PCA).
575
• France Contention:
• UK had no right to bring a political fugitive into their jurisdiction without
prior consent and that the UK lost its jurisdiction over Savarkar upon
entering French waters (Jurisdiction of States).
• release of Savarkar to British authorities was too irregular an extradition to
be binding upon France.
• The UK counter arguments
• Savarkar was in their lawful custody and that a difference existed between
the transit of a political fugitive through the actual territory of a sovereign
State and simply stopping at a port while on a sea journey.
• the brigadier in fact handed Savarkar over to British authorities and that
any irregularity by the brigadier in this regard was a matter of French
concern, not British.
576
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• On 24 February 1911, the PCA handed down its decision in the Savarkar
Case.
• The PCA found that there was no ‘recourse to fraud or force in order to
obtain possession of’ Savarkar, that there was no violation of French
sovereignty by the British officials, and that ‘all those who took part in the
matter certainly acted in good faith and had no thought of doing anything
unlawful.’
• The PCA also held that even though the arrest and handing over of
Savarkar to the British authorities was irregular, there existed no rule of
international law imposing an obligation on the UK to return custody of the
fugitive to France because of a mistake by a French official. Thus, the UK
was entitled to retain Savarkar.
577
India
• The Extradition Act 1962 provides India’s legislative basis for extradition.
• The Act consolidated the law relating to the extradition of fugitive criminals
from India to foreign states. It was substantially amended by Act 66 of 1993.
• History
 The Extradition Act, 1870
 The Indian Extradition Act, 1903
 The Extradition Act, 1962
578
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Facts and Figures

• The Government of India has entered into bilateral Extradition Treaties
with 43 countries to bring speed and efficiency to the process of extradition.
Besides, India has entered into extradition arrangements with 10 more
countries. A database of such treaties is available
at http://www.mea.gov.in/treaty.htm.
• India is also a party to regional extradition treaties such as the London

Scheme (Commonwealth Scheme for the Rendition of Fugitive Offenders
1966), an arrangement less than treaty status which is non-binding at
international law and does not impose legal obligations on participants
unlike an Extradition Treaty.
579
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2(d)
• Extradition Treaty means:-
• A treaty,
• agreement or
• arrangement
• with a foreign state relating to the extradition of Fugitive criminals
581
2 (c)
• An extradition offence means:-
• Offence provided in the extradition treaty with the foreign states.
• An offence punishable with imprisonment for a term which shall not be less
than one year under Indian Law or of a foreign state.
582
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Who may be extradited

• 2 (f) Fugitive criminal means-
• A person who is accused or convicted of an extradition offence committed

within the jurisdiction of a foreign state;
• A person who, while in India
• Conspires,
• attempts to commit
• Incites
• Participates as an accomplice in the commission of an extradition offence in

a foreign state
583
• CHAPTER II EXTRADITION OF FUGITIVE CRIMINALS TO FOREIGN

STATE TO WHICH CHAPTER III DOES NOT APPLY
• CHAPTER III RETURN OF FUGITIVE CRIMINALS TO FOREIGN

STATES WITH EXTRADITION ARRANGEMENTS
• CHAPTER IV SURRENDER OR RETURN OF ACCUSED OR CONVICTED

PERSONS FROM FOREIGN STATES
• CHAPTER V MISCELLANEOUS
584
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CII CIII
• Requisition of Surrender (S4)  CG Order for • CG
Magisterial Inquiry (S5)
• Endorses Warrant (s 15)
• Magistrate
 Issue Warrant of arrest (S6) • Magistrate
 Procedure (s7)
• Inquiry
 Take evidence
 Chk authentication, EO
 Check EO and PO
 Bail (S25)
 Commit to Prison
 opinion that a prima facie case is not made out  Detain such person/release on bail
 Discharge  Send Report +WS
 opinion that a prima facie case is made out
 commit to prison • CG
 report the result of his inquiry to CG +WS of FC  Issue Warrant of Custody and removal
 Forward the report to FC  Order release
 CG opinion FC to be surrendered (S8)

 Issue Warrant of Custody and
removal
585
Read S21 of Extradition Act

• 21. Accused or convicted person surrendered or returned by foreign State not
to be tried for certain offences.―
• Whenever any person accused or convicted of an offence, which, if committed

in India would be an extradition offence, is surrendered or returned by a
foreign State, such person shall not, until he has been restored or has had
an opportunity of returning to that State, be tried in India for an offence
other than―
• (a) the extradition offence in relation to which he was surrendered or

returned; or (b) any lesser offence disclosed by the facts proved for the
purposes of securing his surrender or return other than an offence in
relation to which an order for his surrender or return could not be lawfully
made;
• or (c) the offence in respect of which the foreign State has given its consent.
586
293
01-07-2021
• 31. Restrictions on surrender.―

• [(1)] A fugitive criminal shall not be surrendered or returned to a foreign State
 (a) if the offence in respect of which his surrender is sought is of a political character or if he
proves to the satisfaction of the magistrate or court before whom he may be produced or of the
Central Government that the requisition or warrant for his surrender has, in fact, been made with a
view to try or punish him for an offence of a political character;
 (b) if prosecution for the offence in respect of which his surrender is sought is according to the law
of that State barred by time;
 (c) unless provision is made by that law of the foreign State or in the extradition treaty with the
foreign State that the fugitive criminal shall not be determined or tried in that State for an offence
other than— (i) the extradition offence in relation to which he is to be surrendered or returned; (ii)
any lesser offence disclosed by the facts proved for the purposes of securing his surrender or return
other than an offence in relation to which an order for his surrender or return could not be lawfully
made; or (iii) the offence in respect of which the Central Government has given its consent;
(assurance of Rule of Speciality)
 (d) if he has been accused of some offence in India, not being the offence for which his surrender
or return is sought, or is undergoing sentence under any conviction in India until after he has been
discharged, whether by acquittal or on expiration of his sentence or otherwise;
 (e) until after the expiration of fifteen days from the date of his being committed to prison by the
magistrate.
587
588
294
01-07-2021
Abu Salem Case Study:

• 12.3.1993:
• Series of 12 bomb blasts in the city
of Bombay
• 257 deaths, 713 injured, 27 crores
property destroyed
• 27 criminal cases registered in
various police stations in Bombay
city, District Thane and District
Raigarh
• A Single chargesheet filed
• 189 accused including 44
absconding on 4.11.1993
589
• Abu Salem was shown as absconding accused as

A139 in the charge sheet
• Proclamation was issued against Abu Salem on

15.09.1993
• A red corner notice was issued through Interpol for

the arrest of Abu Salem
Charge sheet: Abu Salem was

• Court framed common charges of criminal entrusted with the task of
conspiracy punishable under Section 3(3) of TADA , transporting illegally smuggled
various charges under IPC 1860, Arms Act 1959,
Explosives Act 1884, Explosive Substances Act
arms and ammunition, their
1908, Prevention of damage to public property act storage and distribution to other
1894 conspirators
Brought Ak56 rifles,

ammunition, hand grenades and
distributed them among various
co-accused
590
295
01-07-2021
• Abu Salem entered Portugal in the name of Arsalan Mohsin Ali on

the Pakistani passport
• 18.9.2002 was detained by Portuguese Police at Lisbon on the basis

of Red Corner Notice
• December 2002, GoI submitted the request for extradition of Abu

Salem in 9 criminal cases
• The request was made relying on the International Convention for

the Suppression of terrorist Bombings India and Portugal are
signatories
591
• 13.12.2002 GOI issued a notification under Section 3 (1) of EA1962
• 17.12.2002: GOI extended assurance to Government of Portugal

 AS if extradited – will not be conferred with death penalty nor be subject
to imprisonment for a term beyond 25 years
• 28.3.2003: Portugal  Ministerial order Extradition under S120B r,w

S302 IPC and Section 3(2) of TADA
592
296
01-07-2021
• 25.5.2003 Ambassador of India gave further assurance: AS will not be

prosecuted for offences other than those for which extradition has been
sought and AS would not re-extradited to any third county
• 27.1.2005: Supreme Court of Justice, Portugal granted extradition in respect

of various offences like criminal conspiracy, 302, 307, 435, 436
• 3(2) and 3(3) of TADA, section 3 of Explosive Substance act 1908, section 4of
prevention of damage to public property act 1984
• Custody was handed over on 10.11.2005
• 11.11.2005, AS reached India and produced before designated court, Mumbai
593
• 1.3.2006 Supplementary charge sheet (s 173 (8) CrPC) was filed
• Order dated 18.3.2006: Substantive charges, in addition to the charge of

conspiracy were framed against the AS
594
297
01-07-2021
Extradition- charges Trial- chargesheet

criminal conspiracy, murder punishable under (i) Criminal conspiracy punishable under Section
Section 302 IPC, attempt to murder under Section 3(3) of TADA and Section 120-B IPC read with
307 IPC, offence punishable under Section 435 IPC, Sections 3(2)(i), 3(2)(ii), 3(3), 3(4), 5 and 6 of TADA
mischief by fire or explosive punishable under read with Sections 302, 307, 326, 324, 427, 435,
Section 436 IPC, offence punishable under Sections 436, 201, 212 IPC read with Sections 3 and 7 read
3(2) and 3(3) of TADA, offence punishable under with Sections 25(1-A), 25(1-B)(a) of the Arms Act,
Section 3 of the Explosive Substances Act, 1908 and 1959; Sections 9-B(1)(a), (b), (c) of the Explosives
offence punishable under Section 4 of the Act, 1884; Sections 3, 4(a), 4(b), 5 and 6 of the
Prevention of Damage to Public Property Act, 1984. Explosive Substances Act, 1908 and Section 4 of the
Prevention of Damage to Public Property Act, 1984;
(ii) Section 3(3) of TADA;
(iii) Section 5 of TADA;
(iv) Section 6 of TADA;
(v) Section 4(b) of the Explosive Substances Act,
1908;
(vi) Section 5 of the Explosive Substances Act,
1908;
(vii) Sections 25(1-A), (1-B)(a) read with Section
387 of the Arms Act, 1959; and
(viii) Section 9-B of the Explosives Act, 1884.
595
AS Supreme Court of India

• By way of order dated 13-6-2006, the Designated Court
allowed the application for separation of trial
• It was also held that the assurances were given
with respect to sentence which could be imposed
and not with respect to the offences with which he
could be tried.
• In September 2006: AS filed Criminal Appeal
No. 990 of 2006 in SC. A writ petition was also
filed invoking Article 32 of the Constitution
challenging the said orders.
596
298
01-07-2021
• AS’s Argument
• It was his categorical claim that the respondents are lowering the esteem of
the nation by their deceitful behaviour in the field of international law,
breaching the principle of speciality established under the rule of
international law and recognised by Section 21 of the Extradition Act after
securing the extradition and gaining control of the appellant.
• The construction made by the Designated Court is not acceptable and the
appellant is being wrongly tried by the Designated Court in violation of the
extradition decree and prayed for quashing of the entire proceedings.
597
AS Court of Appeals of Lisbon

• AS moved an application before the Court of Appeals of Lisbon stating that
he is being tried in India in violation of principle of speciality as contained in
Article 16 of Law 144 of 1999.
• By order dated 18-5-2007, the Court of Appeal expressed its inability to

enquire into the question of surrender by the Indian State on the ground
that the Indian State has violated certain conditions on which extradition
was granted
• The Court of Appeal, by order dated 13-10-2008, adjourned the matter till
Suprme Court of India passed the final order
598
299
01-07-2021
Abu Salem Abdul Qayoom Ansari v.

State of Maharashtra, (2011) 11 SCC 214
: (2011) 3 SCC (Cri) 125
• This Court, by judgment and order dated 10-9-2010 dismissed the appeal as
well as the petition filed by the appellant
• In the light of the said notification, the additional charges that have been
framed fit well within the proviso to Section 21(b) of the Extradition Act.
The offences with which the appellant has been additionally charged are
lesser than the offences for which the appellant has been extradited.
• To put it clear, the offences with which the appellant is charged are
punishable with lesser punishment than the offence for which he
has been extradited. The extradition granted in the present case
had due regard to the facts placed which would cover the offences
with which the appellant has been charged.
599
Portugal Court
• Subsequent to the judgment dated 10-9-2010 [Abu Salem Abdul Qayoom
Ansari v. State of Maharashtra, (2011) 11 SCC 214 : (2011) 3 SCC (Cri) 125]
, the Court of Appeals of Lisbon, by judgment dated 14-9-2011, took a
contrary view and held that the authorisation granted for the extradition of
Abu Salem ought to be terminated.
• It was held that Article 16 of Portuguese law 144/99 clearly provides that a
person cannot be tried for an offence other than the one that gives rise to
request for cooperation by way of extradition.
600
300
01-07-2021
• … In the light of the Portuguese legal system, the Indian Union were not
considering the limits imposed by the Portuguese Republic to the extradition
of Abu Salem of which it was perfectly aware … violated the principle of
speciality.”
• the Union of India preferred an appeal before the Supreme Court of Justice,
Portugal but the same was dismissed as not maintainable.
• The Constitutional Court of Portugal has, however, on 5-7-2012, decided the

appeal preferred by the Union of India.
601
Supreme Court of Justice, Portugal

• That is: in spite of having considered the trial for new crimes illegal and of
having decided to terminate the authorisation granted for the extradition of
Abu Salem Abdul Qayoom Ansari, the decision of the Lisbon Court of
Appeals only concludes for the violation of the principle of speciality. It does
not by itself bind the requesting State to the practice of a certain act and,
namely, to return the extradited person and thus it is not a decision
rendered against the Union of India, a decision that directly and effectively
prejudices it. As a result of the reply to the question of knowing which is the
consequence of the violation of the principle of speciality in the light of
Portuguese law, it will be incumbent on the Portuguese State rather than on
Portuguese judicial instances to decide what such consequence will be,
which will have to do with the political diplomatic plan of the relations
between the two sovereign States.”
602
301
01-07-2021
AS in India
• AS had made a representation dated 14-9-2012 to the Ministry of Home
Affairs and the Ministry of External Affairs  annulment of the extradition
order due to its alleged violation by the prosecution.
• AS filed a petition to the Court of Appeals of Lisbon on 19-9-2012 praying

that directions may be given to the Government of Portugal for taking steps
for his devolution to Portugal in view of the orders passed by the Portuguese
courts.
603
AS SC
• Appeal filed by AS under S 19 of TADA challenging final judgment and
order passed by designated court where designated judge dismissed the
applications filed by AS in view of the order dated 14.9.2011 passed by the
Court of appeals of Lisbon, Portugal terminating the extradition order dated
28.03.2003 for stay of all further proceedings
604
302
01-07-2021
Question of Rule of Speciality:

Portugal court
• Eight charges  charges mentioned at Sl. Nos. (iii) to (viii) hereinabove
have been termed as “additional charges” by the Portuguese Court because
of which it has come to the conclusion that there has been a violation of the
principle of speciality.
605
Abu Salem Abdul Qayyum Ansari v.

CBI, (2013) 12 SCC 1
• In view of the earlier commitment given to the Government of Portugal and
also in view of the comity of courts as well as in the interest of justice, CBI
seeks to withdraw the abovementioned charges i.e. charges at Sl. Nos. (iii) to
(viii).
• Abu Salem submitted that CBI’s clarification/modification of the judgment

and order dated 10-9-2010 rendered in Abu Salem Abdul Qayoom Ansari v.
State of Maharashtra [Abu Salem Abdul Qayoom Ansari v. State of
Maharashtra, (2011) 11 SCC 214 : (2011) 3 SCC (Cri) 125] is vexatious and
serves no purpose and the same should be dismissed.
• AS that since the order of extradition itself has been set aside and is no
longer valid and subsisting, the withdrawal of additional charges will have
no effect and the appellant cannot be tried in India.
606
303
01-07-2021
Legal issue before the SC

• 28. In view of the above, the following points arose for consideration:
• Whether Supreme Court can modify the judgment rendered in Abu Salem
[Abu Salem Abdul Qayoom Ansari v. State of Maharashtra, (2011) 11 SCC
214 : (2011) 3 SCC (Cri) 125] dated 10-9-2010 under the grounds raised by
the respondent.
• Secondly, whether the order of extradition dated 28-3-2003 stands

annulled/cancelled as alleged by the appellant.
607
Immunity
608
304
01-07-2021
• Even when states can establish jurisdiction on lawful

ground the exercise of the jurisdiction may be
impeded by immunity
• International law 
 immunity is accrued to states and international
organisations as well as their officials because of
special status as subjects of international law
609
• Immunity is a procedural impediment to exercise of

jurisdiction
• Immunity involves jurisdictional immunity and
enforcement immunity
• Immunities are different from privileges exemptions from
local law such as tax or social security legislation
• Immunity is different from inviolability prohibition to
trespass, interference with property, assets or personal
liberty. (By means of arrest, detention)
610
305
01-07-2021
• The extent of immunity varies on the nature of

protected person
• Distinct regime applies to states , IOs, Diplomats,
state officials and officials of IO
• Sources of these legal regimes varies: CIL, BTs, MTs
611
• Immunities are not absolute —

 waived by States—
 treaty based system may alter or limit it—
 interpretations of HR treaties may alter it
State immunity State officials IOs Immunity

immunity
612
306
01-07-2021
State Immunity
• Based on principle of sovereign equality
• Dates back to 1648
• Par in parem non habet imperium
• Mainly based on CIL
• Two conventions:
 European Convention of State Immunity (1972) (8 state
parties),
 UN Convention on the immunities of states and their
property(2004) (not yet entered in force)—represents CIL
613
State immunity
• Modern law of State immunity—> Not absolute
Jure Jure
imperii gestionis
• Immunity to acta jure imperii ( sovereign acts of the state)

• No Immunity to acta jure gestionis ( managerial or commercial acts)—
- introduced by Italian and Belgian Courts in 19 Century
• In non sovereign functions —Immunity cannot be invoked- widely
accepted
614
307
01-07-2021
Jurisdictional Immunities of the

State (Germany v Italy, Greece
Intervening)
• 2012 judgment
• the International Court of Justice (ICJ) determined the scope and extent of
States’ entitlement to jurisdictional immunity in civil proceedings before
foreign courts involving claims based on serious violations of humanitarian
law under customary international law.
615
Background
• In 1940, Italy entered the Second World War as an ally of the German
Reich.
• In 1943, Italy surrendered to the Allies and declared war against
Germany.
• German forces occupied significant Italian territory committed
many crimes against civilians and soldiers, including massacres,
deportations and forced labour.
• After the end of the war, Germany enacted several laws to
facilitate the payment of compensation to these victims.
616
308
01-07-2021
• However, thousands of former Italian military internees did not fall

within these laws and they could not get compensation in Germany
• These internees brought civil cases against Germany in Italian
Courts to claim compensation. Germany objected to the proceedings
on the basis of jurisdictional immunity before foreign courts.
• Italian courts allowed
 jurisdictional immunity is not absolute
 in cases of crimes under international law, the jurisdictional immunity of
States should be set aside.”
617
Germany  ICJ Italy breached JI?

• On 23 December 2008, the Federal Republic of Germany instituted
proceedings against the Italian Republic, requesting the Court to
declare that Italy had failed to respect the jurisdictional immunity
which Germany enjoys under international law by allowing civil
claims to be brought against it in the Italian courts seeking
reparation for injuries caused by violations of international
humanitarian law committed by the Third Reich during the Second
World War
• Germany asked the Court to find that Italy had also violated
Germany’s immunity by taking measures of constraint against Villa
Vigoni, German State property situated in Italian territory.
618
309
01-07-2021
• Judgment rendered on 3 February 2012,
• The Court noted in this respect that the question which it was called upon to
decide was not whether the acts committed by the Third Reich during the
Second World War were illegal, but whether, in civil proceedings
against Germany relating to those acts, the Italian courts were
obliged to accord Germany immunity.
• The Court held that the action of the Italian courts in denying Germany
immunity constituted a breach of Italy’s international obligations. It stated
in this connection that, under customary international law as it presently
stood, a State was not deprived of immunity by reason of the fact that it was
accused of serious violations of international human rights law or the
international law of armed conflict.
• the Court also discussed Italy’s argument that the customary international
law on State immunity had a ‘territorial tort exception’.
619
ICJ
• TT applies to traffic accidents- not extended to civil proceedings for acts….
Committed by armed forces and other organs of a state in the conduct of
armed conflict.
• Court analysed that the overwhelming majority of judgments of national

courts concerned with the present question granted immunity.
Consequently, the Court rejected Italy’s contention.
• the Court examined Italy’s argument that the Italian courts were justified in
denying Germany immunity, because all other attempts to secure
compensation for the various groups of victims involved in the Italian
proceedings had failed. (Last resort argument)
• The Court found no basis in the relevant domestic or international practice

that international law made the entitlement of a State to immunity
dependent upon the existence of effective alternative means of securing
redress.
620
310
01-07-2021
Foreign State officials

immunity
• Immunity of State trickles down to State officials
• State is abstract entity of natural persons-suing of
state persons—State be indirectly sued
• Two categories
Ratione materiae Ratione personae
621
• RM—> Functional/conduct based Immunity— all state

officials— limited to their official acts
• RP—>limited high ranking officials— extending to
their non official acts
622
311
01-07-2021
The Pinochet case- Background
• General Augusto Pinochet led a 1973

military coup that overthrew
democratically-elected Chilean President
Salvador Allende.
• at least 3,196 people were killed or forcibly
disappeared during Pinochet's subsequent
17-year dictatorship. Thousands more were
tortured or exiled
623
624
312
01-07-2021
• A private visit for medical treatment to the United Kingdom

(‘UK’)
• On October 16, 1998, British authorities detained Augusto
Pinochet in London on an arrest warrant issued by Spanish
Magistrate Baltasar Garzón. Garzón had charged Pinochet
with genocide, terrorism, and torture committed during the
Chilean dictatorship.
• Although Garzón's complaint included several Spanish
victims, the majority were Chilean citizens who had been
killed or tortured in Chile.
• Garzón's case was therefore largely founded on the
principle of universal jurisdiction-that certain crimes
are so egregious that they constitute crimes against
humanity and can therefore be prosecuted in any court in the
world.
625
• The Crown Prosecution Service, acting on behalf of the

Kingdom of Spain, applied for
General Pinochet’s extradition to Spain.
• The basis for extradition was the European Convention
on Extradition, which was given effect in the UK by the
Extradition Act 1989 (UK).
• On 22 October Judge Garzon issued a more detailed
second arrest warrant, charging Pinochet with torture
and conspiracy to torture, hostage-taking and conspiracy
to hostage-taking, murder and conspiracy to murder.
626
313
01-07-2021
• (Re Augusto Pinochet Ugarte)

• On 28 October 1998 a panel of three judges headed by
Lord Chief Justice Bingham of Cornhill of the Divisional
Court of England and Wales upheld Pinochet’s claim
to State immunity .
• In the meantime arrest warrants had also been issued by
Belgian, French, and Swiss magistrates.
627
Pinochet cases
• (R v Bow Street Metropolitan Stipendiary Magistrate, ex
p Pinochet Ugarte (No 1); ‘Pinochet No 1’),
 Crown’s appeal to the House of Lords, a panel formed by five Law Lords decided on 25
November 1998
• (R v Bow Street Metropolitan Stipendiary Magistrate, ex

p Pinochet Ugarte (No 2);
 the decision was set aside by a House of Lords Committee on 17 December 1998
• R v Bow Street Metropolitan Stipendiary Magistrate, ex

p PinochetUgarte (No 3); ‘Pinochet No 3’)
 On 24 March 1999 a new panel composed of the seven most senior Law Lords
628
314
01-07-2021
Pinochet 1
• by a majority of three
• (Lord Nicholls of Birkenhead, Lord Steyn, and Lord Hoffmann
concurring, Lord Slynn of Hadley and Lord Lloyd of Berwick
dissenting)
• Held, that the immunity ratione materiae of a former

Head of State was confined to acts performed in the
legitimate exercise of his official functions, and that
these did not include torturing political opponents.
629
• House of Lords:-
• Recognized and applied UJ based on CIL
• Held Pinochet’s loss of immunity applied to all the
offences committed by him including torture, taking of
hostages and conspiracy to murder
• Denied immunity ratione materiae legitimate
exercise of official functions
630
315
01-07-2021
Pinochet 2
• qualification of one of the majority judges, Lord
Hoffmann, who had failed to disclose the fact that he had
served as a director of Amnesty International Charity
Ltd, the research and educational branch of Amnesty
International (AI), an intervener in the case.
631
Do this exercise
• Extradition of Pinochet
• Offences for extradition requested
I. Murder, conspiracy to murder 1975-76
II. Acts of Torture before 1988
III. Acts of Torture after 1988
• 1988, UK ratified CAT (legislation) providing Act of Torture as Crime on the

basis of UJ
• CAT provides Immunity for Former heads of state for official acts. UK requires
dual criminality rule for extradition
• Answer this (Assume that acts of torture are not officials act)
 Will extradition happen for II and III? Which date you used for answering this, date of
crime or date of extradition request?
 What if you consider that Acts of Torture are international crimes under CIL? How will
impact your earlier decision?
 What will happen to I? for Murder, is there an exception of official act???
632
316
01-07-2021
Pinochet 3
• three main issues, namely double criminality as a condition for
extradition, exercise of extraterritorial jurisdiction, and personal
immunity of former Heads of State,
• 6:1:- Universal Jurisdiction could only be assumed on the basis of an
international treaty and not on CIL including the rules of jus-cogens
• 5:2 :- Dual criminality rule Extradition offences (operational date: date of

operation) 1988, Act came in force acts of torture committed prior to the
Act not extraditable
• Rejected Pinochet’s claim to immunity in respect of charges of torture after

CAT came into effect i.e. 1988 (by a majority of six to one)
633
• By a 6-1 margin the court held the charges against Pinochet

in Spain’s petition for crimes allegedly committed prior to
September 29, 1988, not to be valid bases for extradition,
because they did not satisfy the dual criminality rule.
• Unanimously, the court held three charges of torture and
conspiracy to commit torture in Chile after September 29,
1988, and a single charge of murder and conspiracy to
commit murder in Spain in 1975- 1976 to satisfy the dual
criminality test and to be valid bases for extradition.
634
317
01-07-2021
• By a 5-2 margin the court held Pinochet to be entitled

to claim immunity with respect to the charge of
murder and conspiracy to commit murder in Spain in
1975-76.
• By a 6-1 margin the court held Pinochet not to be
entitled to claim immunity with respect to the three
remaining charges of torture and conspiracy to torture
allegedly committed after September 29, 1988.
635
Arrest Warrant Case (Democratic

Republic of the Congo v Belgium)
• Judgement on 14 February 2002
• On 11 April 2000, an investigating judge of the Brussels Tribunal of
First Instance (Belgium Court) issued an arrest warrant against the
incumbent Minister for Foreign Affairs of the Democratic Republic of
Congo (‘DRC’ Congo), Abdulaye Yerodia Ndombasi
• Allegedly, he had incited racial hatred in various speeches in the DRC
in 1998, which had contributed to the massacre of several hundred
persons. He was therefore charged with grave breaches of the GC
636
318
01-07-2021
• Belgian authorities initiated proceedings under the Belgian

Law of 16 June 1993 Concerning the Punishment of Grave
Breaches of the Geneva Conventions of 12 August 1949 and
Additional Protocols I and II of 8 June 1977 (as amended in
1999), which provided for universal jurisdiction in
respect of the crimes for which Mr Yerodia was
sought
• The law further provided that immunity attached to the
official capacity of a person should not prevent the
application of the law.
637
• On 17 October 2000, the DRC filed an application with

the International Court of Justice (ICJ), requesting the ICJ to declare
that Belgium should annul the arrest warrant.
• The claim was based on two different legal grounds:
• first, the DRC claimed that the principle that a State may not
exercise its authority on the territory of another State and the
principle of sovereign equality of States (Art. 2 (1) UN Charter)
had been violated by Belgium’s arrogation of universal
jurisdiction.
• Second, the DRC argued that the arrest warrant disregarded
the immunity of the incumbent Congolese Foreign Minister
under customary international law.
638
319
01-07-2021
Argument by Belgium
• Jurisdiction related- no legal dispute
• As a subsidiary argument, Belgium further contended that "[iln the event

that the Court decides that it does have jurisdiction in this case and that the
application is admissible, ... the non ultra petita rule operates to limit
the jurisdiction of the Court to those issues that are the subject of the
[Congol's ] final submissions
• ICJ:
• Thus in the present case the Court may not rule, in the operative part of its
Judgment, on the question whether the disputed arrest warrant, issued by
the Belgian investigating judge in exercise of his purported universal
jurisdiction, complied in that regard with the rules and principles of
international law governing the jurisdiction of national courts.
639
• The ICJ held that the immunity of incumbent Foreign Ministers is not
defined by international treaties
• Foreign Ministers are granted immunity under customary international
law in order to ensure the effective performance of their functions.
• these functions made it necessary to grant incumbent Foreign Ministers
full immunity from criminal jurisdiction and inviolability protecting
them against any authoritative act of another State. The exercise of
their functions would be too seriously impeded if the immunity was
limited to official acts (as opposed to private ones), to acts committed
during the period of office (as opposed to acts committed before
assuming office), or to situations in which the person concerned was on
an official visit (as opposed to a private visit) in the territory of the
arresting State (Arrest Warrant Case [Judgment] 21–2).
640
320
01-07-2021
• Second, the ICJ discussed Belgium’s argument that incumbent Foreign

Ministers do not enjoy immunity from criminal prosecution in cases where
they are suspected of war crimes or crimes against humanity.
• the ICJ argued that current State practice, including

the Pinochet and Gaddafi cases as well as national legislation, did not
indicate the existence under customary international law of any exceptions
to the immunity of incumbent Foreign Ministers. It stressed that the non-
applicability of such immunities before international criminal tribunals
could not be extended to national courts.
• The ICJ noted that obligations of prosecution or extradition imposed on

States by certain international conventions did not affect immunities under
customary international law.
641
• Thus, immunities enjoyed by Foreign Ministers did not bar criminal

prosecution in four situations:
• (1) if they are prosecuted in their own State;
• (2) if their State waves their immunity;
• (3) if they cease to hold office, with regard to acts committed prior or
subsequent to their term of office, or, during their term of office in a
private capacity; and
• (4) before ‘certain international criminal courts, where they have
jurisdiction’, such as the ad hoc tribunals for Yugoslavia and Rwanda
(International Criminal Tribunal for the Former Yugoslavia
[ICTY]; International Criminal Tribunal for Rwanda [ICTR]); as well
as the International Criminal Court [ICC] (Arrest Warrant Case
[Judgment] 25).
642
321
01-07-2021
ILC
• Draftarticles on immunity from foreign
criminal jurisdiction of State officials
provisionally adopted by the Commission
• http://legal.un.org/docs/?symbol=A/CN.4/722
643
Law of the Treaties
644
322
01-07-2021
Outline
 Starting point for Treaties in IL: Article 38 ICJ Statue
 What is law of treaties? (different from treaty law)
 ILC and it’s codification on law of treaties- VCLT/History
 Codification on the law of treaties- conventions and draft articles
 Relevance of VCLT
 Contents of VCLT
645
Article 38 ICJ: Formal statement on Formal

sources
• The term sources refers to the formal sources of international law—> the
methods for establishing legal norms of IL. It does not refer to the
substantive or material sources of IL—> content of treaty provision or rules
of CIL
• 1920: Statue of PCIJ drafted by Advisory Committee of Jurists appointed by

League of Nations. In 1945, drafting of ICJ statue, accepted as the correct
statement of the sources of IL
• Inserting of the words, in the under mentioned order. Doesn’t mention,

unilateral legal acts, decisions of IO, norms of jus cogens, soft law or
informal law
646
323
01-07-2021
Treaties in International Law

• Why are treaties important in IL
• Main source of IL, key pillar of PIL
• 158000 registered treaties with UN
• In many fields treaties have replaced rules of CIL
• Treaties bring legal certainty: content/substance of IL and the
parties bound by it.
647
What is ‘law of the treaties’?

• The law of treaties is the body of rules which govern what is a treaty,
how it is made and brought into force, amended, terminated, and
generally operates.
• Apart from issues of ius cogens, it is not concerned with the
substance of a treaty (the rights and obligations created by it), which
is known as treaty law.
648
324
01-07-2021
ILC and it’s codification for Law of

the Treaties
• The law of treaties was one of the topics selected by the ILC at its
first session in 1949 as being suitable for codification.
• A succession of eminent British international legal scholars, Brierly,
Hersch Lauterpacht, Fitzmaurice, and Waldock were appointed
by the ILC as Special Rapporteurs on the subject
• The ILC adopted a final set of draft articles, with a commentary on

each one, in 1966 (‘1966 Draft Articles on the Law of Treaties’).
649
VCLT
• The Vienna Conference on the Law of Treaties considered the ILC’s
1966 -Draft Articles on the Law of Treaties in 1968 and 1969. The
conference adopted the VCLT on 22 May 1969.
• The text of the treaty was accepted by 79 votes to 1 with 19

abstentions.
• Its entry into force required 35 ratifications and happened on 27

January 1980.
• Currently 116 states are parties to VCLT including 26EU member

states
650
325
01-07-2021
The codification of the Law of the

Treaties
• Traditionally, the Law of treaties was governed by CIL. The UN has codified
the law of the treaties
 1969 Vienna Convention on Law of the treaties
 1978 Convention on Succession of States with respect to treaties
 1986 Vienna Convention on Law of treaties between States and IO or between IOs
(not yet in force)
• Recent codification on the law of the treaties
 Reservation to treaties (Guide to practice)
 Effects of armed conflicts on treaties
 Subsequent agreements and subsequent practice in relation to interpretation of
treaties
 Provisional application of treaties
651
Why VCLT- relevant?

• Although the Vienna Convention on
the Law of Treaties (‘VCLT’) does not occupy the whole
ground of the law of treaties, it covers the most important
areas and is the indispensable starting point for any
description of the law. For good reason, the VCLT has
been called the treaty on treaties.
652
326
01-07-2021
Strengths of VCLT
• VCLT governs law of all treaties
 Whatever their name
 Whatever their subject matter
 Both Bilateral or Multilateral treaties
 Whatever the form in which they are concluded
• VCLT governs all aspects of treaty law

 Birth of treaty (Conclusion, entry in force etc)
 Life of the treaty (interpretation, application, amendments etc)
 Death of the treaty (invalidity, termination, suspension)
• VCLT strikes a balance between regulations of all treaties

 New and classic forms of treaty making
 Stability and flexibility of treaty relations
653
Flexibility of VCLT
• VCLT is the key reference to settle issues arising in treaty law but not settle
all.
• VCLT consolidates key principles of the law of the treaties

 The principle of consent of the state parties
 The principle of pacta sunt servanda
• VCLT is a set of residual rules

 IT’s provisions are subject to the contrary view of the parties (however refer A53
and 64)
654
327
01-07-2021
To whom VCLT Applies? Parties

only?
• Strictly speaking VCLT applies only to treaties that are
concluded by states after the entry into force of the convention
with regard to such states. (Article 4)
• However most though not all of the provisions of the VCLT are
considered to represent customary international law and are as
such applicable to other treaties as well.
• Notably numerous judgements and advisory opinions of the ICJ

refer to VCLT as an expression of customary international
law. There has as yet been no case where the ICJ has found that
the VCLT does not reflect customary law
655
The VCLT as a reflection of Customary

International Law
• The provisions of Arts 3 (a) and 4 VCLT, and, more generally, the
eighth paragraph of the preamble to the VCLT, confirm that the
rules of customary international law continue to govern
questions not regulated by the VCLT.
• the rules set forth in the VCLT are invariably relied upon by the
States concerned, or the international or national court or tribunal,
even when the States concerned are not parties to the VCLT.
• The justification for invoking the VCLT is rarely made clear, though
the unspoken assumption is that the VCLT represents customary
international law.
656
328
01-07-2021
Content of VCLT
• Itcan be said that VCLT represents both

the codification of CIL and its
progressive development (see article
9(2), 19-23, 40-41 and Part V)
657
Overview of VCLT
• Part I: Introduction, including scope of application of the convention
and definitions
• Part II: Conclusion and entry into force including reservations
• Part III: Observance, application and interpretation of treaties
• Part IV: Amendment and modification of treaties
• Part V: Invalidity, termination and suspension of operation of
treaties
• Pat VI: Miscellaneous provisions
• Part VII: Depositories, notifications, corrections and registration
• Part VIII: Final provisions
658
329
01-07-2021
Basic elements of a multilateral

treaty
• ➢ Title
• ➢ Preamble
• ➢ Main text (substantive provisions)
• ➢ Final clauses
 Participation-Signature-consent to be bound-entry into force-reservations-declarations-
provisional application-depository-registration-publication-dispute settlements-amendments-
withdrawal-termination-duration-authentication
• ➢ Testimonium
 In witness whereof the undersigned Plenipotentiaries, being duly authorized thereto by their
respective Governments, have signed the present Convention. Done at … this …th day of …,
….
• ➢ Signature pages
• ➢ Annexes (if any)
659
Scope of VCLT
• Article 1: Scope of the present convention
 The present convention applies to treaties between States
• Article 3.
 INTERNATIONAL AGREEMENTS NOT WITHIN THE
SCOPE OF THE PRESENT CONVENTION
• Article 5.
 TREATIES CONSTITUTING INTERNATIONAL
ORGANIZATIONS AND TREATIES ADOPTED WITHIN
AN INTERNATIONAL ORGANIZATION
660
330
01-07-2021
Definition - treaty
• Article 2(1)(a)
• 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
661
To qualify a treaty
• It must be a written instrument or instruments between two or more
parties
• The parties must be states within the meaning of international law
• It must be governed by international law
• It must be intended to create legal obligations
662
331
01-07-2021
• What about Oral Agreements?:

 VCLT does not applies
 But legal force of such non-written agreements
shall not be affected (Refer Article 3)
663
Written Form
 Article 2 (1) (a) does not specify the formal requirement that to be
fulfilled by the written instrument
 Evidentiary requirement- CIL allows non written form
 This element is not applied restrictively
 Requirement that some sort of permanent and readable record of

agreement exists
 Non written treaties are currently rare.
664
332
01-07-2021
Treaties between States

• VCLT applies to Agreements between States
• Agreement between or between non state actors are excluded (Article
3)
• ILC purposefully excluded it (certain treaties have peculiarities –
treaties in which IGO’s are parties, differing rules of such
agreements will make VCLT complicated and delay its drafting)
665
Agreement must be governed by IL

• Certain inter-state agreements can be subject to
municipal law (expressly or by implication )
666
333
01-07-2021
Intent to create legal effects

• Element of intention is embrace in phrase ‘governed by
IL’
• Agreement can be political- without legal obligation.
These agreements are therefore not registered as treaties
with UN
667
Solve?
• Case concerning the Land and the Maritime Boundary between
Cameron and Nigeria 2002,
• Cameron: Maritime delimitation to be based on Maroua Declaration
• Nigeria: disputed, signed but not ratified by Head of the Nigerian
State
• Court:
 Is Maroua Declaration a international agreement?
668
334
01-07-2021
Birth of the treaty/Inception of the

treaty
• Provisions of Part II of VCLT deals with rules pertaining to the creation of
treaties in IL.
• Covers procedural aspects of treaty formation.
• Drafting provides for Alternative rule if such has been expressly

incorporated in the particular treaty
•
Part II: CONCLUSION AND ENTRY INTO FORCE OF TREATIES
 Section 1: Conclusion of treaties (A6-18)
 Section 2: Reservations (A19-23)
 Section 3: ENTRY INTO FORCE AND PROVISIONAL APPLICATION OF
TREATIES (A24-25)
669
Practice: Conclusion of Treaties
• Negotiation
• Adoption
• Authentication
• Consent to be bound
• Entry into force
670
335
01-07-2021
Conclusion of treaties- Authority to

conclude treaties
• Matter of national law to decide which government official or entity is competent to
enter into international treaties on its behalf. These are national law provisions and
usually affect the validity of the treaty in national law only
 Article 46. PROVISIONS OF INTERNAL LAW REGARDING COMPETENCE TO

CONCLUDE TREATIES
 1. A State may not invoke the fact that its consent to be bound by a treaty has been
expressed in violation of a provision of its internal law regarding competence to
conclude treaties as invalidating its consent unless that violation was manifest and
concerned a rule of its internal law of fundamental importance.
 2. A violation is manifest if it would be objectively evident to any State conducting
itself in the matter in accordance with normal practice and in good faith.
671
• Eastern Greenland Case: ICJ rejected Norway’s claim that is foreign

minister was not competent under national to give promise
• In the Maritime Delimitation and Territorial Questions Case (Qatar
v Bahrain): Court rejected the argument that the Doha Minutes were
not a treaty….. it was irrelevant that the Bahrain Foreign Minister
claimed to have no constitutional authority to conduce a treaty per se
672
336
01-07-2021
Who represents a legitimate state or

government?
• Governed by Doctrine of Full Powers
• Article 2 (c) "Full powers" means a document emanating from the
competent authority of a State designating a person or persons to
represent the State for negotiating, adopting or authenticating the
text of a treaty, for expressing the consent of the State to be bound
by a treaty, or for accomplishing any other act with respect to a
treaty;
673
• Article 7. FULL POWERS
• 1. A person is considered as representing a State for the purpose of adopting or authenticating

the text of a treaty or for the purpose of expressing the consent of the State to be bound by a
treaty if: (a) He produces appropriate full powers; or (b) It appears from the practice of the States
concerned or from other circumstances that their intention was to consider that person as
representing the State for such purposes and to dispense with full powers.
• 2. In virtue of their functions and without having to produce full powers, the following are
considered as representing their State: (a) Heads of State, Heads of Government and Ministers
for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty; (6)
Heads of diplomatic missions, for the purpose of adopting the text of a treaty between the
accrediting State and the State to which they are accredited; (c) Representatives accredited by
States to an international conference or to an international organization or one of its organs, for
the purpose of adopting the text of a treaty in that conference, organization or organ.
674
337
01-07-2021
Model instrument of full powers

• (To be signed by the Head of State, Head of Government or Minister for
Foreign Affairs)
• I, [name and title of the Head of State, Head of Government or Minister for
Foreign Affairs], HEREBY AUTHaORISE [name and title] to sign the [title
of treaty] on behalf of the Government of [State].
• Done at [place] on [date].
• [Signature and title]
675
• What if treaty is concluded by a person not

authorized under Article 7, will treaty have legal
effect?
Article 8. SUBSEQUENT CONFIRMATION OF AN ACT

PERFORMED WITHOUT AUTHORIZATION
An act relating to the conclusion of a treaty performed by a
person who cannot be considered under article 7 as
authorized to represent a State for that purpose is without
legal effect unless afterwards confirmed by that State
676
338
01-07-2021
Adoption & Authentication

• Article 9. ADOPTION OF THE TEXT
• 1. The adoption of the text of a treaty takes place by the consent of all the
States participating in its drawing up except as provided in paragraph 2.
• 2. The adoption of the text of a treaty at an international conference takes
place by the vote of two thirds of the States present and voting, unless by the
same majority they shall decide to apply a different rule.
• Article 10. AUTHENTICATION OF THE TEXT The text of a treaty is established
as authentic and definitive:
• (a) By such procedure as may be provided for in the text or agreed upon by
the States participating in its drawing up; or
• (b) Failing such procedure, by the signature, signature ad referendum or
initialling by the representatives of those States of the text of the treaty or of
the Final Act of a conference incorporating the text.
677
Modes of consent and entry into force

• Two important criteria for a treaty to be binding: State’s consent to be bound
and treaty must be entered in force
 Article 11. MEANS OF EXPRESSING CONSENT TO

BE BOUND BY A TREATY
 The consent of a State to be bound by a treaty may
be expressed by signature, exchange of
instruments constituting a treaty, ratification,
acceptance, approval or accession, or by any
other means if so agreed.
• Modes are explained in Article 12-17
678
339
01-07-2021
Model instrument of ratification,

acceptance of approval
• (To be signed by Head of State, Head of Government or Minister for Foreign
Affairs)
• WHEREAS the [title of treaty] was adopted at [place] on [date],
• AND WHEREAS the said [treaty] has been signed on behalf of the
Government of [State] on [date],
• NOW THEREFORE I, [name and title of the Head of State, Head of

Government or Minister for Foreign Affairs] declare that the Government of
[State], having considered the above [treaty], [ratifies/accepts/approves] the
same and undertakes faithfully to perform and carry out the stipulations
therein contained.
• IN WITNESS WHEREOF, I have signed this instrument of

[ratification/acceptance/approval] at [place] on [date].
• [Signature]
679
Entry into the force

• Article 24. ENTRY INTO FORCE
• 1. A treaty enters into force in such manner and upon such date as it may provide or as the
negotiating States may agree.
• 2. Failing any such provision or agreement, a treaty enters into force as soon as consent to be
bound by the treaty has been established for all the negotiating States.
• 3. When the consent of a State to be bound by a treaty is established on a date after the treaty
has come into force, the treaty enters into force for that State on that date, unless the treaty
otherwise provides.
• 4. The provisions of a treaty regulating the authentication of its text, the establishment of the
consent of States to be bound by the treaty, the manner or date of its entry into force,
reservations, the functions of the depositary and other matters arising necessarily before the
entry into force of the treaty apply from the time of the adoption of its text.
680
340
01-07-2021
Example
• The Convention contains the following provision:
• “1. The present Convention shall enter into force on the 90th day after the
deposit of the 50th instrument of ratification, acceptance, approval or
accession.
• 2. For each State ratifying, accepting, approving or acceding to the
Convention after the entry into force of the Convention, the Convention shall
enter into force on the 90th day after the deposit of its own such
instrument.”
 Your State was the 50th signatory of the Convention and the 30th State to
have ratified it. When shall the Convention become binding for your State?
 The 50th instrument of ratification was deposited on 1 April 2021. Your
State has ratified the Convention on 15 April. When shall the Convention
become binding for your State?
681
• The Paris Agreement

• Article 21
• 1. This Agreement shall enter into force on the thirtieth day after the date
on which at least 55 Parties to the Convention accounting in total for at
least an estimated 55 per cent of the total global greenhouse gas emissions
have deposited their instruments of ratification, acceptance, approval or
accession.
• 2. Solely for the limited purpose of paragraph 1 of this Article, “total global
greenhouse gas emissions” means the most upto-date amount communicated
on or before the date of adoption of this Agreement by the Parties to the
Convention
682
341
01-07-2021
Other Relevant provision

 Article 25. PROVISIONAL APPLICATION
 Article 18. OBLIGATION NOT TO DEFEAT THE OBJECT AND PURPOSE
OF A TREATY PRIOR TO ITS ENTRY INTO FORCE
 A State is obliged to refrain from acts which would defeat the object
and purpose of a treaty when:
 (a) It has signed the treaty or has exchanged instruments
constituting the treaty subject to ratification, acceptance or
approval, until it shall have made its intention clear not to become a
party to the treaty; or
 (b) It has expressed its consent to be bound by the treaty, pending
the entry into force of the treaty and provided that such entry into
force is not unduly delayed.
683
Reservations
684
342
01-07-2021
• International law recognizes that states may be able to

become parties to treaties without accepting all the
provisions.
• This is achieved by means of Reservations to the treaty
and their validity and effect are dealt in the VCLT
(Article 19-23)
685
Need for reservations- multilateral

treaties
• Reservations enable a State to participate in a treaty in which
it would not otherwise be able to participate due to an
unacceptable provision or provisions.
• Multilateral treaties are the result of negotiations - with many
concessions and compromises.
• It is desirable to have States parties to treaties with
reservations than for States not to be parties to such treaties
at all.
• In many cases the purpose of the reservation is merely to
adjust the reserving State’s obligations under the treaty to
conform to its domestic law where, for political, cultural or
social reasons, it is not feasible or desirable to change the law.
• Many States make reservations.
686
343
01-07-2021
Article 2(1)(a) of the Vienna

Convention
• “reservation” means a unilateral statement, however phrased 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 certain provisions of the treaty in their
application to that State
• Therefore:
 A reservation is a unilateral act
 A reservation purports either (i) to exclude or (ii) to modify the legal effect
of the treaty
 A reservation may be made when signing, ratifying, accepting, approving
or acceding to the treaty
 The name of the reservation does not matter
687
• A reservation is a unilateral statement: reservations need not be

agreed between the contracting parties during the negotiations, they
are unilateral statements of each of them.
• It does not matter what the reserving State calls its reservation: it
can call it 'reservation' or 'declaration' or 'statement'. What matters
is the intent conveyed by that unilateral statement.
• Reservations must be specific. They cannot be about the treaty in
general.
• Any late reservation is not a reservation and produces no legal effect.
688
344
01-07-2021
History of reservation
• The classical regime (adopted in the practice of League of
Nations)
 A rigid regime, based on the unanimous acceptance of reservations
 Rule of unanimity: ensuring integrity and uniformity of
multilateral treaty obligations
 Multilateral treaty:
 State A makes reservation
 Other states accept reservation then State A becomes party to the treaty at all
689
• The Pan-american regime

 A more flexible regime, which resulted in the “bilateralization” of multilateral treaty
relations
 Advisory Opinion of the International Court of Justice on
Reservations to the Genocide Convention (1951)
 Several states attempted to make reservations to the Genocide Convention 1948, UNGA
requested for advisory opinion
 Whether a state can be a party to a multilateral treaty even though it has made a
reservation which is objected to by other parties
 What will be the legal effect of such a reservation for those states that have accepted or
rejected the reservation
690
345
01-07-2021
ICJ AO
• Took Pan-American approach:
• If a reservation has been objected to by one or more
parties, but not by others the reserving state will be a
party, provided the reservation is compatible with the
object and purpose
• If a party objects to a reservation because it considers it
incompatible with object and purpose that party may
consider the reservation state as not a party
• If a party accepts a reservation as being compatible with
the object and purpose, it may consider the reserving
state as a party.
691
When can a state formulate reservation/

reservation permissibility
• Upon signature, ratification, acceptance,
approval, accession, etc., unless:
 The reservation is prohibited by the treaty;
 The treaty provides that only specified reservations,
which do not include the reservation in question may be
made; or
 The reservation is incompatible with the object and
purpose of the treaty
 (VCLT, article 19).
692
346
01-07-2021
• Some treaties specifically prohibit all reservations,

for example:
• Statute of the International Criminal Court (Art. 120);
• Many disarmament treaties deposited with the S-G
(Comprehensive Nuclear-Test-Ban Treaty, Chemical Weapons
Convention, Anti-Personnel Mines Convention);
• Most environmental treaties deposited with the S-G (Montreal
Protocol, Kyoto Protocol, Rotterdam Convention, Stockholm
Convention, Cartagena Protocol, etc.)
693
• Other treaties prohibit certain reservations, for example:

• UN Convention on the Law of the Sea, pursuant to its article 309,
states that no reservations may be made to the Convention unless
expressly permitted by other articles of this Convention.
694
347
01-07-2021
Legal effects of reservation I

• Legal effect between the reserving party and the
other contracting parties Rule of Reciprocal
effect
• In a treaty between States A, B, C and D,
• State A declares that it consents to the treaty except for,
say Article 21,
• State A is not bound by Article 21,
• but as a matter of reciprocity, States B, C and D are not
bound to respect Article 21 vis-a-vis State A.
695
Legal effects of reservation II

• Between the other contracting parties, the reservation
does not modify their obligations under the treaty.
relative effect
• the reservation does not modify the provisions of the
treaty for the other parties to the treaty inter se.
• To take the same example: between States B, C and D,
who have not made a reservation about Article 21, Article
21 applies fully and B, C and D must respect Article 21
vis-a-vis each other.
• Creates a web of bilateral effects in multilateral treaty
696
348
01-07-2021
Article 21 of VCLT
• 1. A reservation established with regard to another party
in accordance with articles 19, 20 and 23:
• {a) Modifies for the reserving State in its relations with
that other party the provisions of the treaty to which the
reservation relates to the extent of the reservation; and
• (b) Modifies those provisions to the same extent for that
other party in its relations with the reserving State.
(Reciprocal effect)
• 2. The reservation does not modify the provisions of the
treaty for the other parties to the treaty inter se.
((Relative effect)
697
• The question of the legal effect of the treaty will

have to be analyzed from the point of view of
each contracting party, in relation to every other
party.
• The same multilateral treaty will not produce the
same legal effects for each of its contracting
parties.
698
349
01-07-2021
Special class of treaties- Reservation

Acceptance and objection
• Article 20. ACCEPTANCE OF AND OBJECTION TO
RESERVATIONS
• 1. A reservation expressly authorized by a treaty does not
require any subsequent acceptance by the other
contracting States unless the treaty so provides.
• 2. When it appears from the limited number of the
negotiating States and the object and purpose of a treaty
that the application of the treaty in its entirety be tween
all the parties is an essential condition of the consent of
each one to be bound by the treaty, a reservation requires
acceptance by all the parties. (unanimity rule)
699
RESERVATIONS: ACCEPTANCE
AND OBJECTION
• Invalid Reservations if accepted
• Reservations that are prohibited by the treaty or
that are incompatible with its object and purpose
should not be accepted by the other parties.
• The acceptance of an objectively invalid
reservation cannot make it legal.
700
350
01-07-2021
• Valid reservations should be accepted in order to

produce their effect
• One other contracting party accepts the reservation
for the reserving party to become party to the treaty
and for the reservation to produce its effect.
• Article 20 paragraph 4 (c)
 An act expressing a State's consent to be bound by the
treaty and containing a reservation is effective as soon
as at least one other contracting State has accepted the
reservation.
701
Time frame for accepting reservation

• Reservations are considered to be accepted by another
contracting party if it has not raised any objection within
one year of the notification of the reservation or its
ratification of the treaty.
• Article 20 paragraph 5.
 For the purposes of paragraphs 2 and 4 and unless the treaty
otherwise provides, a reservation is considered to have been
accepted by a State if it shall have raised no objection to the
reservation by the end of a period of twelve months after it
was notified of the reservation or by the date on which it
expressed its consent to be bound by the treaty, whichever is
later.
 What if the state is silent?
702
351
01-07-2021
What if, all contracting states object

to a state’s reservation?
• if all the other contracting parties unanimously
object to the reservation, the reserving State
will not become party to the treaty at all.
703
What if, only few states object to

State’s reservation effects
• Objection may have two effects
• Article 20 paragraph 4 (b)
 An objection by another contracting State to a reservation does not
preclude the entry into force of the treaty as between the objecting
and reserving States unless a contrary intention is definitely
expressed by the objecting State
• It is possible for the party objecting to the reservation to
expressly declare that, because of the reservation, it opposes
the entry into force of the treaty between itself and the
reserving party.
• there is no treaty between the reserving State and the party
making such objection to the entry into force of the treaty.
704
352
01-07-2021
• If B objects to the entry into force of the treaty

because A made a reservation about Article 21,
there will be no treaty between A and B, but the
treaty will be binding between A and C, and also
between A and D
• the treaty will also be binding between B, C and
D.
705
Effect of simple objection

• Article 21 paragraph 3
 3. When a State objecting to a reservation has not opposed the entry into
force of the treaty between itself and the reserving State, the provisions to
which the reservation relates do not apply as between the two States to the
extent of the reservation.
• Reciprocal effect of Reservation

• if the reservation excludes a provision, that provision will not apply
between the two States, which is exactly what the reciprocal effect of
the reservation means
• And if the reservation modifies a provision, it will also not apply
between the two States, but only to the extent of the reservation:
706
353
01-07-2021
• The simple objection to a valid reservation has no

specific legal effect as it does not deprive a
reservation from its own intrinsic, reciprocal and
relative effects
707
Problem
• Acceptance and objection to reservations Twelve months after the deposit of
your instrument of ratification, several countries have reacted to the
reservation made by your country:
• State B “State B accepts the reservation formulated by Alpha”
• State C “State C does not accept the reservation formulated by Alpha and
opposes to the entry into force of the Convention between States Alpha and
C”
• State D “State D does not accept the reservation formulated by Alpha”
• State E Remained silent
• Is your country bound by the Convention vis-à-vis these

States?
708
354
01-07-2021
Withdrawal of reservations
• Article 22
• 1. Unless the treaty otherwise provides, a reservation may be withdrawn at

any time and the consent of a State which has accepted the reservation is
not required for its withdrawal.
• 2. Unless the treaty otherwise provides, an objection to a reservation may be

withdrawn at any time.
• 3. Unless the treaty otherwise provides, or it is otherwise agreed:

 (a) The withdrawal of a reservation becomes operative in relation to another
contracting State only when notice of it has been received by that State;
 (b) The withdrawal of an objection to a reservation becomes operative only when
notice of it has been received by the State which formulated the reservation.
709
procedure
• Article 23. PROCEDURE REGARDING RESERVATIONS
• 1. A reservation, an express acceptance of a reservation and an objection to a
reservation must be formulated in writing and communicated to the
contracting States and other States entitled to become parties to the treaty.
• 2. If formulated when signing the treaty subject to ratification,
acceptance or approval, a reservation must be formally confirmed by
the reserving State when expressing its consent to be bound by the treaty.
In such a case the reservation shall be considered as having been made on
the date of its confirmation.
• 3. An express acceptance of, or an objection to, a reservation made
previously to confirmation of the reservation does not itself require
confirmation.
• 4. The withdrawal of a reservation or of an objection to a reservation must
be formulated in writing.
710
355
01-07-2021
711
712
356
01-07-2021
Practice of depository
 SG sends all depository notifications to states
 SG receives an objection to a reservation it does not specify whether it

precludes the entry into force of treaty between objecting and reserving
states
 SG does not refuse an objection received after 12 month deadline.
 If treaty expressly forbids all reservations or reservations to specific articles-

SG complies with VCLT
 Compatible with Objects & Purpose:- SG queries with reserving state

circulate the statement to the interested states.
 Treaty silent on Reservation: SG circulates the Reservations does not

comment on the legal effects
713
Some specific articles
• Article 20 (3)
• 3. When a treaty is a constituent instrument of an
international organization and unless it otherwise
provides, a reservation requires the acceptance of the
competent organ of that organization.
714
357
01-07-2021
Late Reservations
• After ratification, Late reservations cannot be effective unless it is accepted
by the contracting parties expressly or tacitly.
• Previously: 90 days to object late reservations
• April 2000 12 months no objection is received  will accept it deposit
• If objection is received after 12 month it is circulated as a mere

‘communication’
715
International law commission study

on reservations
716
358
01-07-2021
717
The “Enrica Lexie” Incident (Italy v.

India), Provisional Measures
718
359
01-07-2021
719
Bilateral treaties-reservation
• UK US Supplementary Extradition Treaty 1985
• Senate approved on certain amendments are made
• US informed through exchange of notes
• UK confirmed amendments were acceptable and instruments of ratification

were exchanged
720
360
01-07-2021
Problem
• Second Optional Protocol to the International Covenant on Civil and
Political Rights, aiming at the abolition
of the death penalty
• Article 2
• 1. No reservation is admissible to the present Protocol, except for a
reservation made at the time of ratification or accession that provides for the
application of the death penalty in time of war pursuant to a conviction for a
most serious crime of a military nature committed during wartime.
• 2. The State Party making such a reservation shall at the time of ratification
or accession communicate to the Secretary-General of the United Nations
the relevant provisions of its national legislation applicable during wartime.
• 3. The State Party having made such a reservation shall notify the
Secretary-General of the United Nations of any beginning or ending of a
state of war applicable to its territory.
721
Problem
• Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment
• Article 2
• 1. Each State Party shall take effective legislative, administrative, judicial

or other measures to prevent acts of torture in any territory under its
jurisdiction.
• 2. No exceptional circumstances whatsoever, whether a state of war or a

threat of war, internal political in stability or any other public emergency,
may be invoked as a justification of torture.
• 3. An order from a superior officer or a public authority may not be invoked

as a justification of torture.
722
361
01-07-2021
• The Government of Chile reservations, made upon ratification, to

article 2 (3) and article 3, of the Convention:
(a) [To] Article 2, paragraph 3, in so far as it modifies the principle of
"obedience upon reiteration" contained in Chilean domestic law. The
Government of Chile will apply the provisions of that international
norm to subordinate personnel governed by the Code of Military
Justice, provided that the order patently intended to lead to
perpetration of the acts referred to in article 1 is not insisted on by
the superior officer after being challenged by his subordinate.
(b) Article 3, by reason of the discretionary and subjective nature of
the terms in which it is drafted.
723
• [Chile Reservation: if a subordinate initially challenged a

superior officer's order to commit torture, Article 2 would
not apply in the event the superior re-insisted that the
order be follow]
724
362
01-07-2021
• Italy (14 August 1989):

The Government of Italy considers that the reservations entered by Chile
are not valid, as they are incompatible with the objection and purpose of the
Convention. The present objection is in no way an obstacle to the entry into
force of this Convention between Italy and Chile.
• Denmark (7 September 1989):

"The Danish Government considers the said reservations as being
incompatible with the object and purpose of the Convention and therefore
invalid.
"This objection is not an obstacle to the entry into force of the said
Convention between Denmark and Chile."
725
• Luxembourg (12 September 1989):

. . . The Grand Duchy of Luxembourg objects to the reservations, which are
incompatible with the intent and purpose of the Convention.
This objection does not represent an obstacle to the entry into force of the
said Convention between the Grand Duchy of Luxembourg and Chile.
726
363
01-07-2021
• Czechoslovakia (20 September 1989):
• "The Czechoslovak Socialist Republic considers the reservations of the

Government of Chile [. . .] as incompatible with the object and purpose of
this Convention.
"The obligation of each State to prevent acts of torture in any territory under
its jurisdiction is unexceptional. It is the obligation of each State to ensure
that all acts of torture are offences under its criminal law. This obligation is
confirmed, inter alia , in article 2, paragraph 3 of the Convention concerned.
"The observance of provisions set up in article 3 of this Convention is
necessitated by the need to ensure more effective protection for persons who
might be in danger of being subjected to torture and this is obviously one of
the principal purposes of the Convention.
"Therefore, the Czechoslovak Socialist Republic does not recognize these
reservations as valid."
727
• France (20 September 1989):
• France considers that the reservations made by Chile are not valid as being incompatible
with the object and purpose of the Convention.
Such objection is not an obstacle to the entry into force of the Convention between France
and Chile.
• Sweden (25 September 1989):

". . . These reservations are incompatible with the object and purpose of the Convention and
therefore are impermissible according to article 19 (c) of the Vienna Convention on the Law
of Treaties. For this reason the Government of Sweden objects to these reservations. This
objection does not have the effect of preventing the Convention from entering into force
between Sweden and Chile, and the said reservations cannot alter or modify, in any respect,
the obligations arising from the Convention."
• Spain (26 September 1989):

. . . The aforementioned reservations are contrary to the purposes and aims of the
Convention.
The present objection does not constitute an obstacle to the entry into force of the
Convention between Spain and Chile.
728
364
01-07-2021
Some additional key points

• While the name or title of the statement is one aspect to be considered, its
substance will be decisive, taking into account the circumstances and
context (Continental Shelf Arbitration [France v United Kingdom]).
• If a statement has thus been identified as a reservation, its exact scope will
also be ascertained pursuant to the rules of treaty interpretation-
Reservations and Interpretation of Treaties in VCLT go hand in
hand
• Types of reservations
• ratione materiae, modifying the substance of the treaty obligations;
• ratione temporis, modifying the temporal range of the treaty obligations;
• ratione loci, modifying the geographical application of the treaty
729
• According to their target, reservations to substantive provisions can be

distinguished from reservations to procedural provisions/dispute
settlement clauses
• Sometimes States attach reservations to the declarations they make
pursuant to optional clauses. whereby they recognize, but at the same time
restrict by their reservation, the competence of supervisory bodies. While
these restrictive statements are not, technically, reservations because they
purport to modify the legal effect of a unilateral declaration and not a treaty,
they raise analogous problems because they affect the scope of the State’s
treaty obligations and should therefore be subject to analogous standards.
• Issue: While promoting a treaty’s universality these devices will inevitably
affect its coherence and integrity, as they result in a considerable
diversification of treaty obligations, thereby counteracting the codificatory
purpose of normative multilateral treaties and perhaps even frustrating
their essential legislative goal
730
365
01-07-2021
• The rules of the Vienna Conventions are declaratory of customary

international law. They are also residuary in nature.
• The VCLT make no provision for the succession of States or international

organizations in respect of reservations and objections thereto, and so
these issues have been partly regulated in Succession conventions
731
Icj jurisdiction- Optional clauses &

reservation
• Declarations recognizing as compulsory the jurisdiction of the
International Court of Justice under Article 36, paragraph 2, of the
Statute of the Court
• The declarations by which States recognize as compulsory the jurisdiction of

the Court are called optional clauses
• Under paragraph 4 of Article 36, optional clauses must be deposited with the
Secretary-General of the United Nations,
• Optional clauses are a specific feature of the International Court of Justice,
732
366
01-07-2021
• Under Article 36, paragraph 2, of the ICJ Statute:
• "2. The states parties to the present Statute may at any time declare that
they recognize as compulsory ipso facto and without special agreement, in
relation to any other state accepting the same obligation, the jurisdiction of
the Court in all legal disputes concerning:
• a. the interpretation of a treaty;
• b. any question of international law;
• c. the existence of any fact which, if established, would constitute a breach of

an international obligation;
• d. the nature or extent of the reparation to be made for the breach of an

international obligation."
733
• Such acceptance is made unilaterally, by a declaration. If such unilateral

declaration meets a similar declaration by another State, a jurisdictional
link exists between those two States and the jurisdiction of the Court will be
compulsory for them
• As Article 36, paragraph 2, provides, an optional clause is a declaration that

can be made by States bound by the Statute. States can make such
declaration "at any time", that is even long after having become bound by
the Statute. Such declarations are unilateral acts: they are made by each
State "without special agreement" of any other
734
367
01-07-2021
• They may accept the jurisdiction of the Court for all disputes, but they may
also make certain reservations in their optional clauses, excluding
from the scope of their consent certain type of disputes.
• In order for the Court to have jurisdiction, two optional clauses must meet
• Jurisdiction of the Court will be compulsory for the State making the
optional clause, but only "in relation to any other state accepting the same
obligation". And jurisdiction will exist only in so far as "the same obligation"
to submit disputes to the ICJ has been accepted on both sides.
735
Problem
• State A accepts the jurisdiction of the Court for
all purposes, except disputes relating to maritime
delimitation
• States B accepts the jurisdiction of the Court
without any limit or reservation
736
368
01-07-2021
• A boundary dispute between State A and State B

• Can State A bring a claim in ICJ?
• Can State B bring a claim in ICJ
737
• IsState B entitled to bring a case against State A at the

ICJ about that maritime delimitation dispute?
• Will the court lack jurisdiction?
738
369
01-07-2021
• Is State A entitled to bring a maritime

delimitation claim against State B?
• Can State A invoke jurisdiction of Court?
739
We will learn today

• Scope of Legal Obligations
• Treaty Interpretations
• Authentication (languages)
• Amendments and Modifications
• Treaties and Third Parties
• Invalidity
• Termination and Suspension
740
370
01-07-2021
Scope of legal obligations

• Fundamental Rule: SECTION I. OBSERVANCE OF TREATIES
• Article 26. "PACTA SUNT SERVANDA" Every treaty in force is binding upon the parties to it and
must be performed by them in good faith.
• Article 27. INTERNAL LAW AND OBSERVANCE OF TREATIES : A party may not invoke the provisions
of its internal law as justification for its failure to perform a treaty. This rule is without prejudice to
article 46.
• Represents CIL
• Article 27 preserves the objective validity of IL as a system of law distinct
from the local laws of each state (Questions relating to the Obligation to
Prosecute or Extradite (Belgium v Senegal) 2002
• Failure to perform a treaty obligation involves International Responsbility
(Interpretation of Peace Treaties Case 1950, Danube Dam Case)
741
Treaty Interpretation
• VCLT contains some rules on treaty
interpretation
• Article 31 -33 reflect CIL
• Refer: Sasikili/Sedudu Island(Botswana v
Namibia) 1999; Certain Questions of Mutual
Assistance in Criminal Matters ( Djibouti v
France) 2008), Palau Islands Case, Territorial
dispute case (Libya v Chad)
742
371
01-07-2021
Three schools of interpretation

Objective or textual interpretation: ordinary or plain What if language does not convey clear an objective
meaning of the treaty text meaning.
Therefore resorting to context/extra-linguistic
elements, meanings may be considered clear
Subjective interpretation: intention of the parties to What if no common intention b/w parties
the treaty who negotiated it. Constructive ambiguity
Intention of the parties and the meaning may change
over the time
Teleological interpretation: interpretation in light of General objects of treaty v intention of the parties
the object and purpose of the treaty Is it judicial legislation?
Contextual/systematic interpretation
Evolutive interpretation
The principle of effectiveness
Historical interpretation
743
• General rule of interpretation (art.31VCLT)

 In good faith
 In accordance with the ordinary meaning to be given to the terms of the treaty
 In their context(text, preamble, annexes, etc.)
 In light of the object and purpose
 Subsequent practice and agreement
 Relevant rules of international law
• Supplementary means of interpretation (art.32VCLT)

 Include: preparatory works, circumstances at the conclusion of treaties
 Only when the general rule above leaves the meaning ambiguous or obscure or leads
to manifestly absurd or unreasonable results
744
372
01-07-2021
• Preference is given to the ordinary meaning of the terms of the treaty in

their context
• It involves degree of subjectivity
• Maritime and Territorial Dispute Case (Qatar v Bahrain) ICJ Doha

minutes (the treaty) did have an ordinary meaning in the light of its context
and object and purpose. Rejected supplementary means of interpretation
• Practice of International Courts differs as to whether VCLT establishes any

hierarchy in the methods of interpretation of treaties. ICJ gives preference
to Textual and SI corroborated by Historical interpretation
• Eg: WTO favors the textual interpretation followed by SI. Rarely uses TI
and not used HI
745
Competence of the GA for the admission of a state ICJ held…the first duty of tribunal called upon to
to the UN AO 1950 interpret and apply the provisions of a treaty is
endeavor to give effect to them in their natural and
ordinary meaning in the context in which they occur
PCA in Eritrea- Ethiopia Boundary Case Elements contained in the Article 31 (1) were guides
to establishing what the parties actually intended
or their common will and in this process the
principles of contemporaneity is relevant. Treaty
should be interpreted by reference to the
circumstances prevailing at the time that the treaty
was concluded. For eg expressions and geographical
names  meaning that they possessed at that time
Kaisikili Sedudu Island Case Subsequent practice as constituting elements to be
taken into account in determining treaty’s meaning
Iran V US-Iran US Claim Tribunal Dual Nationality  US nationality Claim Article
31 (3) legal rules & legal literature
Libya V Chad 1994/ Costa Rica v Nicaragua 2009/
Case Concerning Oil Platforms (Iran v USA ) 2003
746
373
01-07-2021
• Article 33. INTERPRETATION OF TREATIES AUTHENTICATED IN TWO OR MORE LANGUAGES

• 1. When a treaty has been authenticated in two or more languages, the text is equally
authoritative in each language, unless the treaty provides or the parties agree that, in case of
divergence, a particular text shall prevail.
• 2. A version of the treaty in a language other than one of those in which the text was authenticated
shall be considered an authentic text only if the treaty so provides or the parties so agree.
• 3. The terms of the treaty are presumed to have the same meaning in each authentic text.
• 4. Except where a particular text prevails in accordance with paragraph 1, when a comparison of
the authentic texts discloses a difference of meaning which the application of articles 31 and 32
does not remove, the meaning which best reconciles the texts, having regard to the object and
purpose of the treaty, shall be adopted.
747
Amendment and Modification of

Treaties
• Articles 39-41; Part IV of VCLT
 Article 39. GENERAL RULE REGARDING THE AMENDMENT OF
TREATIES
 A treaty may be amended by agreement between the parties.
The rules laid down in Part II apply to such an agreement
except in so far as the treaty may otherwise provide.
748
374
01-07-2021
Example
Amendments to a multilateral treaty
• The Convention contains a provision on amendments which

reads, interalia, as follows:
• “2.The adoption of an amendment at a meeting of the
Conference of States Parties on which consensus cannot be
reached shall require at two-thirds majority of States
Parties.
• 3.Except as provided in paragraph 4 ,an amendment shall
enter into force for all States Parties one year after
instruments of ratification or acceptance have been
deposited with the Depositary by seven-eighths of them.
• 4.Any amendment to Article 2 (Definition of Crimes against
Humanity) shall enter into force for those States Parties
which have accepted the amendment one year after the
deposit of their instruments or ratification or acceptance.”
749
• Article 40 provides for default rules for amendment of

Multilateral treaties and Article 41 provides for
modification of multilateral treaties
 Article 40. AMENDMENT OF MULTILATERAL TREATIES
 1. Unless the treaty otherwise provides, the amendment of multilateral
treaties shall be governed by the following paragraphs.
 2….
750
375
01-07-2021
Amendment procedure
• Amendment:
• Proposal to amend the treaty to be notified to all the
state parties
• Right of participation of contracting states in
negotiation and conclusion of any agreement for the
amendment of the treaty
• Amendment must be adopted
• Enters into force upon acceptance by states who ratify
it
751
Solve?
• Entry into force of amendments
• By 15 September 2050, the amendments have
been accepted by more than seven-eighths of
States Parties.
• On16 September, a State accedes to the
Convention. Its instrument of accession refers to
the Convention without any reference to the
amendments.
• Is this State bound by the Amendments
752
376
01-07-2021
• What if the State becomes a party to the treaty after

the entry into force of the amendment. Will
amendment apply?
 Article 40
 5. Any State which becomes a party to the treaty after the entry into
force of the amending agreement shall, failing an expression of a
different intention by that State:
 (a) be considered as a party to the treaty as amended; and
 (b) be considered as a party to the unamended treaty in relation to any party to the
treaty not bound by the amending agreement.
753
Modification procedure A41

• Article 41 : AGREEMENTS TO MODIFY MULTILATERAL TREATIES BETWEEN
CERTAIN OF THE PARTIES ONLY
• 1. Two or more of the parties to a multilateral treaty may conclude an
agreement to modify the treaty as between themselves alone if:
 (a) The possibility of such a modification is provided for by the treaty; or
 (b) The modification in question is not prohibited by the treaty and:
 (i) Does not affect the enjoyment by the other parties of their rights under the treaty or the performance of their
obligations;
 (ii) Does not relate to a provision, derogation from which is incompatible with the effective execution of the object and
purpose of the treaty as a whole.
• 2. Unless in a case falling under paragraph l(a) the treaty otherwise provides,
the parties in question shall notify the other parties of their intention to
conclude the agreement and of the modification to the treaty for which it
provides.
754
377
01-07-2021
Treaties and third parties (34-38)

• General rule: treaty applies only between the parties to it
 Article 34. GENERAL RULE REGARDING THIRD STATES

 A treaty does not create either obligations or rights for a third State without its consent.
• Rule is corollary of the principle of consent and of the

sovereignty and independence of states.
• Based on Latin maxim: pact tertiis nocent nec prosunt

(agreements harm nor benefit third parties)
• Reflects CIL. Third state defined under Article 2(1)(h)
755
• VCLT provides, in exception cases, a treaty can create

benefits or even obligations for third parties A35-
obligations, A36-rights, A37- revocation or
modification of obligations or rights of third states
 Article 35. TREATIES PROVIDING FOR OBLIGATIONS FOR THIRD STATES
 An obligation arises for a third State from a provision of a treaty if the
parties to the treaty intend the provision to be the means of establishing the
obligation and the third State expressly accepts that obligation in writing.
756
378
01-07-2021
Conferment of rights on TP
eg: freedom of passage rights in a canal
 Article 36. TREATIES PROVIDING FOR RIGHTS FOR THIRD STATES
 1. A right arises for a third State from a provision of a treaty if the parties to the
treaty intend the provision to accord that right either to the third State, or to a group
of States to which it belongs, or to all States, and the third State assents thereto. Its
assent shall be presumed so long as the contrary is not indicated, unless the treaty
otherwise provides.
 2. A State exercising a right in accordance with paragraph 1 shall comply with the
conditions for its exercise provided for in the treaty or established in conformity with
the treaty.
757
• Article 37. REVOCATION OR MODIFICATION OF OBLIGATIONS OR

RIGHTS OF THIRD STATES
• 1. When an obligation has arisen for a third State in conformity with
article 35, the obligation may be revoked or modified only with the
consent of the parties to the treaty and of the third State, unless it is
established that they had otherwise agreed.
• 2. When a right has arisen for a third State in conformity with article
36, the right may not be revoked or modified by the parties if it is
established that the right was intended not to be revocable or subject
to modification without the consent of the third State.
• Doubtful that it represents CIL- lack of International practice
758
379
01-07-2021
Exception to A35- as general rule-

CIL
 Article 38. RULES IN A TREATY BECOMING BINDING ON THIRD STATES THROUGH
INTERNATIONAL CUSTOM
 Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding
upon a third State as a customary rule of international law, recognized as such.
• North Sea Continental Shelf Case:

 Treaty provision must meet these requirements before it achieves the
status of CIL
 It must be of a norm creating nature
 The parties to the treaty must agree that the provision is of such
nature
 State practice of non parties to the treaty must indicate that they
regard the relevant provision of the treaty as binding
Treaty Law and CIL
 Treaty provisions reflect pre-treaty CIL
 Or treaty provision may constitute evidence of custom and opinion
juris – crystallized into the formation of new customary rule
759
Invalidity of treaties
• The VCLT does not set up conditions for the validity of
treaties.
• To achieve a maximum of stability, it rather presumes

in its Art. 42 (1) the validity of a treaty and provides
in its Arts 46 to 53, 64 to 69 and 71 for exhaustive
rules under which treaties may be invalidated.
(defects)
• State Parties invoking one of the grounds of invalidity,

therefore, have the burden of proof
760
380
01-07-2021
• Grounds of invalidity
 Breach of internal provisions regarding the competence to
conclude treaties (46)
 Restrictions on authority to express consent {Unless the
restriction was notified to the negotiating state prior to his
expressing such consent} (47)
 Error : if error relates to a fact/situation forming essential basis
for that consent(48)
 Temple of Preah Vihar: Article 46/48 read together Error will not vitiate consent, if the state relying on it
contributed to that error or circumstances were such that it should have realized that it was operating under
material mistake
761
 Fraud (49)
 Corruption of a State representative (50)
 Coercion of a State representative (51)
 Coercion against State(threat or use of
force) (52)
 Conflict with jus cogens (53)
 Emergence of a new preemptory norm of
General International Law (64)
762
381
01-07-2021
• The main grounds for impugning the validity
• Affecting the capacity to consent (46 & 47)
• Affecting the reality of consent itself ( 48-52)
• Affecting lawfulness of the treaty (53 & 64)
• Just not these grounds! All grounds are interpreted narrowly
763
Absolute and Relative Grounds

 The VCLT draws a distinction between absolute and
relative grounds of invalidity.
 In cases covered by Arts 8 and 51 to 53 VCLT, the treaty is
void, or the expression of consent to be bound by the treaty
is ‘without legal effect’. If one of these grounds is
established, the treaty is null and void ex tunc, ie from the
moment it was concluded.
 In cases covered by Arts 46 to 50 VCLT, however, the
VCLT says that a State may merely invoke the vitiating
factor as invalidating the treaty, the effect of this formula
being that the treaty is probably voidable rather than
void; the treaty is valid until a State claims that it is
invalid.
 but it is doubtful whether this distinction is as clearly
established in customary law as the VCLT may suggest.
764
382
01-07-2021
Termination and suspension of

treaties
• The principle of pacta sunt servanda and of good faith
in A26 entails a state cannot release itself from its
treaty obligation whenever it wishes
• Under certain circumstances suspension and

termination is justified
• Difference between suspension and termination

 Treaty suspended is still valid but its operation is
suspended
 Treaty termination is no longer in force as it has ended
its existence
765
• Part V, Arts 42 to 45 and 54 to 64, VCLT set out

the various circumstances in which a treaty can
be denounced, terminated, or its operation
suspended, other than on the ground of
invalidity, which ground is very rarely invoked,
and even more rarely successfully.
• Arts 65 to 72 VCLT specify the procedures to be

followed and the consequences of termination or
suspension.
766
383
01-07-2021
• Under VCLT, treaty may be suspended in six

situations
 When all contracting parties agree to suspend the
operation of a treaty or some of its provision
 Where two or more parties agree to suspend its
operation temporarily between themselves
provided this is allowed under relevant treaty and
are not prohibited
 Rest of the grounds are set out in A59-62- same as
termination grounds
767
• When another party commits a material breach of

treaty (60)
• When it is impossible for a party to perform its
obligation; Supervening impossibility of performance
(61)
• Where there is a fundamental change of circumstances
since the treaty was concluded { Rebus sic stantibus}
(62)
• When all contracting parties to an earlier treaty are
also parties to a later treaty and the two treaties
relate to the same subject matter (59)
768
384
01-07-2021
• Additionally treaty can be terminated

• When it contains an express provision to this effect
and a contracting party acts in conformity with that
provision
• When all contracting parties agree ( Refer 54 and 56)
• When a new rule of jus cogens has emerged and an
existing treaty is in conflict with it. (64)
769
Termination by other’s parties

conduct
• Material breach (60), S. Impossibility of performance (61)
fundamental change in circumstances (62)
• Three provisions represents CIL
• Material breach defined as a repudiation of the treaty in a
manner not authorized by VCLT or violation of a provision
essential to the accomplishment of the object and purpose of
the treaty. Mixed question of fact and law
• Bilateral treaty: injured party elect terminate
• Multilateral treaty: all parties  unanimous action
terminate the treaty altogether or terminate for defaulting
state
770
385
01-07-2021
• MT Single state  suspend the treaty between itself and the defaulting
state or Single State may suspend the treaty for itself entirety treaty is
such that ta material breach by one state radically alters the obligation
under the treaty for all states
• Rules are subject to Treaty provisions
• Namibia case: SA effected a material breach of its mandate over the

territory thus justifying the termination of mandate by the United nations
• Danube Dam Case: Hungary argued it was entitled to terminate the treaty
because of prior breach of Czechoslovakia.
• ICJ: Article 60-> CIL, breach of treaty not breach of other rules of IL could
justify Hungary’s termination. Not entitled as Hungary could not rely on
material breach by C when C alleged breach was a response to H earlier
breaches
• Macedonia v Greece: Violation of Interim Accord by Greece by reason of
FYRM prior breach. Material breach object or purpose of the treaty
771
• Supervening impossibility:-
• it if the impossibility results from the permanent disappearance or
destruction of an object indispensable for the execution of the treaty.
• If the impossibility is temporary, it may be invoked only as a ground for
suspending the operation of the treaty.
• Impossibility of performance may not be invoked by a party as a ground for
terminating, withdrawing from or suspending the operation of a treaty if the
impossibility is the result of a breach by that party either of an obligation
under the treaty or of any other international obligation owed to any other
party to the treaty.
• Danube Dame Case: adopted restrictive interpretation.

• S. Impossibility must concern the destruction of something ‘indispensable’
for the performance
• Execution of treaty to be difficult is not caught by Art 61
• No reliance can be place if the state had contributed to the impossibility by
its own actions
772
386
01-07-2021
• Rebus sic Stantibus: Controversy in ILC

• Article 62: FCC can invoked only when the original circumstances
constituted an essential basis of the consent to the treaty and the effect of
the change is radically to transform the extent of obligations.
 The change must be of the circumstances existing at the time of the conclusion of
the treaties
 The change must be fundamental
 The change must have been unforeseen by the parties at the time of its conclusion
 The circumstances existing prior to the change must have been an essential basis of
consent
 The change must radically transform the extent of obligations remaining to be
performed
• Boundary treaties; if the fundamental change is the result of a breach by the

party invoking it (preserved)
773
• Fisheries Jurisdiction Case (UK v Iceland)

• Article 62 CIL
• Alleged change of circumstances did not radically alter Iceland’s obligation
to submit the fisheries dispute to the court for peaceful settlement
• FCC  if it meant that obligations to be performed under the treaty would
be radically altered to the extent of rendering the performance something
essentially different from that originally undertaken
• Danube Dam Case:
• 62 CIL
• Held, Hungary could not terminate on FCC, environmental knowledge and
environmental law since the dam treaty conclusion in 1977 would not
radically affect the parties obligation nor were such developments
unforeseen by the parties
• FCC is applied in exceptional circumstances
774
387
01-07-2021
• Whether state could escape the liability for

breach of a treaty if its conduct fell with in the
excuses of VCLT strictly
• Defenses
under SR are available in addition to
VCLT (Rainbow Warrior Arbitration and Danube
Dam Case)
775
Procedure and Consequences

• Article 65: Procedure to be followed with respect
to invalidity, termination, withdrawal from or
suspension of the operation of a treaty
• Notify the other party
• Notification shall indicate the measure proposed
to be taken with respect to the treaty and the
reasons thereof
• Expiry of period (not less than 3 months, special
urgecny), if not party has raised objection 
Instruments for declaring invalid, terminating,
withdrawing from or suspending the operation of
a treaty
776
388
01-07-2021
• Article 69: Consequences of the invalidity of a treaty

• 1. A treaty the invalidity of which is established under the present Convention is void. The
provisions of a void treaty have no legal force.
• 2. If acts have nevertheless been performed in reliance on such a treaty: (a) each party may
require any other party to establish as far as possible in their mutual relations the position that
would have existed if the acts had not been performed; (b) acts performed in good faith before
the invalidity was invoked are not rendered unlawful by reason only of the invalidity of the treaty.
• 3. In cases falling under article 49, 50, 51 or 52, paragraph 2 does not apply with respect to the
party to which the fraud, the act of corruption or the coercion is imputable.
• 4. In the case of the invalidity of a particular State’s consent to be bound by a multilateral treaty,
the foregoing rules apply in the relations between that State and the parties to the treaty.
777
• Article 70 Consequences of the termination of a treaty
• 1. Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty
under its provisions or in accordance with the present Convention: (a) releases the parties from
any obligation further to perform the treaty; (b) does not affect any right, obligation or legal
situation of the parties created through the execution of the treaty prior to its termination.
• 2. If a State denounces or withdraws from a multilateral treaty, paragraph 1 applies in the

relations between that State and each of the other parties to the treaty from the date when such
denunciation or withdrawal takes effect.
778
389
01-07-2021
• Article 71: Consequences of the invalidity of a treaty which conflicts with a peremptory norm of
general international law
• 1. In the case of a treaty which is void under article 53 the parties shall: (a) eliminate as far as
possible the consequences of any act performed in reliance on any provision which conflicts with
the peremptory norm of general international law; and 24 (b) bring their mutual relations into
conformity with the peremptory norm of general international law.
• 2. In the case of a treaty which becomes void and terminates under article 64, the termination of
the treaty: (a) releases the parties from any obligation further to perform the treaty; (b) does not
affect any right, obligation or legal situation of the parties created through the execution of the
treaty prior to its termination, provided that those rights, obligations or situations may thereafter
be maintained only to the extent that their maintenance is not in itself in conflict with the new
peremptory norm of general international law.
779
• Article 72 Consequences of the suspension of the operation of a treaty
• 1. Unless the treaty otherwise provides or the parties otherwise agree, the suspension of the
operation of a treaty under its provisions or in accordance with the present Convention:
• (a) releases the parties between which the operation of the treaty is suspended from the
obligation to perform the treaty in their mutual relations during the period of the suspension; (b)
does not otherwise affect the legal relations between the parties established by the treaty.
• 2. During the period of the suspension the parties shall refrain from acts tending to obstruct the
resumption of the operation of the treaty.
780
390
01-07-2021
Jus Cogens
• Peremptory norms of general international law (jus cogens)
• https://legal.un.org/ilc/reports/2019/english/chp5.pdf
• 23 conclusions
• Non Exhaustive list
781
391

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01-07-2021

Course: Public International Law

Course: Public International Law; Semester IV; Batch 2019-2024

What we have learnt so far:

Course: Public International Law; Semester IV; Batch 2019-2024

Course: Public International Law; Semester IV; Batch 2019-2024

Course: Public International Law; Semester IV; Batch 2019-2024

Course: Public International Law; Semester IV; Batch 2019-2024

Course: Public International Law; Semester IV; Batch 2019-2024

Key points to remember:

Course: Public International Law; Semester IV; Batch 2019-2024

• Modern international law seeks to control states by inhibiting or directing their

Course: Public International Law; Semester IV; Batch 2019-2024

DEFINTION OF INTERNATIONAL LAW

Course: Public International Law; Semester IV; Batch 2019-2024

Course: Public International Law; Semester IV; Batch 2019-2024

Course: Public International Law; Semester IV; Batch 2019-2024

• J L Brierley: The body of rules and principles of action which are

Course: Public International Law; Semester IV; Batch 2019-2024

Course: Public International Law; Semester IV; Batch 2019-2024

Course: Public International Law; Semester IV; Batch 2019-2024

Oppenheim (1992, International Law ed Jennings R and

• Intl Law is a body of rules which are legally binding on

Course: Public International Law; Semester IV; Batch 2019-2024

J G Starke (1947, Introduction to Intl Law)

Course: Public International Law; Semester IV; Batch 2019-2024

• Schwarzenberger (1976, A Manual of Intl Law)

Course: Public International Law; Semester IV; Batch 2019-2024

UN Millennium Report 2001

there is no perfect definition that deplovment over the

Course: Public International Law; Semester IV; Batch 2019-2024

Some Facts? Answer this

• Which Article of UN Charter provides for registration of treaties?

2nd page in class notes

Course: Public International Law; Semester IV; Batch 2019-2024

Course: Public International Law; Semester IV; Batch 2019-2024

Course: Public International Law; Semester IV; Batch 2019-2024

coined the tern international law

Course: Public International Law; Semester IV; Batch 2019-2024

Questioning International Law? Theoretical rejection on

Course: Public International Law; Semester IV; Batch 2019-2024

Existence of International Law Rules as System of law

Course: Public International Law; Semester IV; Batch 2019-2024

Operation Desert Storm/Sabre

Course: Public International Law; Semester IV; Batch 2019-2024

• INTL LAW IS NOT A LAW

Course: Public International Law; Semester IV; Batch 2019-2024

John Austin (1954, Province of Jurisprudence

Course: Public International Law; Semester IV; Batch 2019-2024

International Law- “Positive international law

Course: Public International Law; Semester IV; Batch 2019-2024

Who criticizes Austin?

• Henry Maine: primitive societies when there was not sovereign

Course: Public International Law; Semester IV; Batch 2019-2024

Rules of Int Law not morality

Course: Public International Law; Semester IV; Batch 2019-2024

• Rule is different. A Rule is not a rule because there is moral

Course: Public International Law; Semester IV; Batch 2019-2024

Kelsen- pure theory of Law

Course: Public International Law; Semester IV; Batch 2019-2024

Course: Public International Law; Semester IV; Batch 2019-2024

Intl Law a vanishing point of Jurisprudence- Holland

Course: Public International Law; Semester IV; Batch 2019-2024