PUBLIC

CURSO 2023-2024

INTERNATIONAL LAW
SARA BEN – SMIDA CORTAZAR
INDEX
2. HISTORY AND NATURE OF INTERNATIONAL LAW

2.1 DEFINITION OF INTERNATIONAL LAW

2.2 A BRIEF HISTORY OF INTERNATIONAL LAW

2.3 THE NATURE OF INTERNATIONAL LAW

3. CONCEPT AND VALUES OF INTERNATIONAL LAW

3.1 THE ENFORCEMENT OF INTERNATIONAL LAW

3.2 THE RELEVANCE OF INTERNATIONAL LAW

5. SOURCES AND INTERACTION

5.1 RULES OF PREVALENCE

5.2 JUS COGENS

5.3 RELATIONSHIP BETWEEN TREATIES AND CUSTOMARY RULES

6. CUSTOM AND CODIFICATION

6.1 INTERNATIONAL CUSTOM

6.2 PERSISTENT OBJECTOR

6.3 CODIFICATION

7. SOURCES OF INTERNATIONAL LAW

7.1 THE MAIN FEATURES OF THE VIENNA CONVENTION

7.2 THE DEFINITION OF A TREATY UNDER THE VCLT

7.3 THE FUNDAMENTAL PRINCIPLES

7.4 CLASSIFICATION OF TREATIES

7.5 CONCLUSION OF TREATIES

8. RESERVATIONS

8.1 DEFINITION OF RESERVATION

8.2 UNIVERSALITY VS INTEGRITY

8.3 NON – PERMISSIBLE RESERVATIONS

8.4 A TREATY CAN

8.5 CONDITIONS FOR RESERVATIONS TO HAVE EFFECT

9. LIFE OF THE TREATY

9.1 APPLICATION OF TREATIES

9.2 PRINCIPLES

9.3 INTERPRETATION

9.4 EFFECTS ON THIRD PARTIES

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 9.5 AMENDMENT

9.6 MODIFICATION

9.7 NULLITY

9.8 TERMINATION

9.9 SUSPENSION

9.10 PROCEDURES

10. OTHER SOURCES

10.1 UNILATERAL DECLARATIONS

10.2 ESTOPPEL

10.3 ACQUIESCENCE

10.4 RESOLUTIONS OF INTERNATIONAL ORGANIZATIONS

10.5 SOFT LAW

10.6 GENERAL PRINCIPLES OF LAW

10.7 JUDICIAL DECISIONS

10.8 ACADEMIC DOCTRINE

10.9 EQUITY

13. INTRODUCTION OF SUBJECT

13.1 CHARACTERISTICS

13.2 INTERNATIONAL SUBJECTIVITY OF THE INDIVIDUAL

13.3 CRITERIA FOR STATEHOOD

13.4 SPECIFIC POLITICAL ORGANIZATION: GOVERMENT

13.5 STATE INTERDEPENDENCE

13.6 DEPENDANT STATES

13.7 DE FACTO REGIMES

14. STATE SUCCESSION

14.1 RECOGNITION DEFINITION

14.2 LEGAL REGULATION

14.3 SECESSION AND SELF – DETERMINATION

14.4 RECOGNITION OF GOVERNMENTS

15. STATE TERRITORIALITY

15.1 TERRITORIAL SOVEREIGNTY

15.2 BORDERS

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 15.3 TYPES OF SOVEREIGNTY

15.4 ACQUISITION

15.5 MODES OF ACQUISITION OF TITLE TO TERRITORY

15.6 OUTER SPACE

19. STATE INSTITUTIONS AND DIPLOMACY

19.1 STATE INSTITUTIONS

19.2 DIPLOMACY DEFINITION

19.3 FUNCTIONS

19.4 MEMBERS OF THE MISSIONS

19.5 THE EXPULSION OF DIPLOMATS

19.6 INVIOLABILITY OF THE MISSION AND IT PREMISES

19.7 COMUNICATION

19.8 INVIOLABILITY OF THE DIPLOMATIC AGENT

19.9 IMMUNITY OF THE DIPLOMATIC AGENT

19.10 OBLIGATIONS THAT HAVE IMMUNITY

19.11 WAIVER OF IMMUNITY

19.12 CESSATION OF IMMUNITIES

20. DIPLOMACY, CONSULAR RELATIONS, AND STATE IMMUNITY

20.1 SPECIAL DIPLOMACY MISSIONS

20.2 CONSULAR RELATIONS

17. LAW OF THE SEA

17.1 LAW OF THE SEA. UNCLOS 1982

17.2 INTERNAL WATER: DELIMITATION AND REGULATION

17.3 THE RERRITORIAL SEA

17.4 BASELINES

17.5 STRAITS

17.6 CONTIGUOUS ZONE

17.7 EXCLUSIVE ECONOMIC ZONE (EEZ)

17.8 CONTINENTAL SHELF

17.9 HIGH SEAS

17. 10 INTERNATIONAL SEABED

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21. THE INTERNATIONAL WRONGFUL ACT

21.1 DEFINITION

21.2 DIRECT AND INDIRECT WRONG

21.3 DIPLOMATIC PROTECTION

21.4 CIRCUSTANCES PRECLUDING WRONGFULNESS

21.5 REPARATION FOR INJURY

22. STATES RESPONSIBILITY

22.1 REPARATION

22.2 SELF - PROTECTION

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2. HISTORY AND NATURE OF INTERNA-
TIONAL LAW
2.1 DEFINITION OF INTERNATIONAL LAW
International law may be defined as that 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, do commonly observe
in their relations with each other, including:
a) the rules of law relating to the functioning of international institutions or organisations, their relations
with each other, and their relations with states and individuals
b) certain rules of law relating to individuals and non-states so far as the rights or duties of such individuals
and non-state entities are the concern of the international community.

2.2 A BRIEF HISTORY OF INTERNATIONAL LAW

ANCIENT TIMES
• First recorded treaties concluded around 2100 BC between rulers of Eastern Mediterranean States
• Based on principle of pacta sunt servanda (agreements must be kept) and principle of bona fides
(good faith)
• Both principles recognised by VCLT (1969) → fundamental principles of modern law of treaties

ANCIENT GREECE (1100 BC – AD 146)

• Contribution to development of international law:
- Establishment of highly sophisticated system of international arbitration
- Institution of proxeny (State hospitality): root of consular protection of foreigners
• Rules of conduct aimed at restricting atrocities between ancient Greek city States (polis):
- War should be avoided and only commenced by declaration
- Heralds were not to be harmed
- Soldiers killed in battle were entitled to burial
- If a city was captured, refugees in temples were to be spared
- Prisoners could be ransomed, exchanged or enslaved, not killed
- Priests and seers were exempt

ANCIENT ROME
• Contribution to development of international law:

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 • Jus fetiale: religious rules that governed Rome’s external relations and formal declarations of
war, which inter alia, recognised inviolability of ambassadors, and was origin of distinction between
“just” and ´” unjust” war
• Jus gentium: which governed relations between Roman citizens and foreigners (and jus civile,
which governed relations between Roman citizens). Became essential part of Roman law, greatly
influenced all European legal systems, and through them PIL.
• Doctrine of “just” war by Cicero (Not violating terms and agreements made with foreign en-
emy)
• Doctrine of universal law of nature or “natural law” (Product of “right reason”, emanating
from assumptions about nature of man and society)

THE MIDDLE AGES

• 2 sets of international rules developed:
• Lex mercatoria: (rules of conduct and fair dealing between merchants)
Merchants decided cases in ports or courts on the last day of fair. They seated as judges and relied on busi-
ness practices, usages of trade, legal principles of Canon law like pacta sunt servanda and principle of good
faith. Compliance with judgements was ensured, as merchants knew each other and an undesirable member
of the community could be forced out.
• Maritime customary law:
High seas were no man’s land, it was necessary to establish rules of the sea. They were based on Rhodian
Sea Law, a codification undertaken by Byzantine empire, compiled into widely recognised collections. Codi-
fications became accepted throughout Europe.

FROM THE 1648 PEACE TREATY OF WESTPHALIA TO THE 1815 CONGRESS OF VIENNA
• That period considered period of formation of “classical” international law.
• 1648 Treaty of Westphalia often referred to as constitutional treaty of Europe:
- recognised principle of sovereignty
- recognised principle of territorial integrity
- recognised principle of equality of States
- legitimised principle of non-interference in affairs of a State
- recognised State independent from Church.
• At the end of 18th century had great influence on development of HRs and principle of self-determi-
nation

FROM THE 1815 CONGRESS OF VIENNA TO THE OUTBREAK OF WWI IN 1914

• 1815 Congress of Vienna:

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- codified law on diplomatic agents and missions
- prohibited slave trading
- laid foundations for free navigation of rivers that flow through at least 2 European States
• Main features of international law during period 1815-1914:
- Unorganised character of international community, composed of multitude of sovereign States legally equal
- Acceptance of war as ultimate instrument of enforcing law and safeguarding national honour and interests
- Recognition of States as only subjects of international law

FROM THE END OF WWI TO THE BEGINNING OF WWII

• 3 developments during this period:
- Creation of League of Nations (first permanent intergovernmental organisation (IGO)), responsible for
maintenance of international peace and security
- Adoption in 1928 of General Treaty for Renunciation of War (Kellogg-Briand Pact): first universal treaty
which outlawed war
- Creation of first world court: Permanent Court of International Justice (PCIJ)
• Neither system established by League of Nations no Kellogg-Briand Pact successful in preventing wars

SINCE THE END OF WWII

• Most important event: creation of United Nations (UN) in 1945 and International Court of Justice (ICJ)
as principal judicial organ of the UN

2.3 THE NATURE OF INTERNATIONAL LAW

• Practical level:
- Main argument against existence of international law as “law”: international law does not have legislature,
judiciary or executive within usual understanding of the terms
- To respond to this argument: municipal law and international law operate at different levels, so they cannot
be compared. Municipal law creates vertical system (relations between sovereign and citizens based on co-
ercion). International law creates horizontal system (regulates relations between equal, sovereign, independ-
ent States with the consequence that system is decentralised)
- Lack of a legislator is compensated by the fact that States create international law by international treaties
and customary international law (CIL)
- Lack of mandatory settlement of disputes by international courts, including ICJ, many international treaties
provide for compulsory jurisdiction of designated international courts and bodies to settle disputes relating
to relevant treaty.
- Main challenge of international law being “law”: its weak enforcement

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 Do you know…?
o What is a state?
o What is sovereignty?
o The relationships among the concepts of state, sovereignty and law. Implications.

3. CONCEPT AND VALUES OF INTERNA-

TIONAL LAW
3.1 THE ENFORCEMENT OF INTERNATIONAL LAW
• Absence of centralised process of enforcement of international law does not mean it is not enforced:
many mechanisms and processes, at universal, international and State levels.
• Universal level: UN system of enforcement and international courts and tribunals (International
Criminal Court, International Tribunal on the Law of the Sea
• Regional level: powerful IGOs (Council of Europe, African Union, Organization of American States,
European Union)
• States: externally by having recourse of various non-forcible measures, internally by ensuring inter-
national law is incorporated into domestic law, applied by domestic courts and bodies, enforced
against individuals and corporations, foreign and domestic, suspected of violations of international
law
• Growing awareness of ordinary people of their rights under international law, through the growth of
HRs law (HRL), entails that pressures exercised by public opinion on governments should not be un-
derestimated.
• States obey rules of international law out of fear of being punished, because they care about their
reputation and perceive rules of international law to be right, just and appropriate.

3.2 THE RELEVANCE OF INTERNATIONAL LAW

• Co-operation: States are naturally independent in many ways, international law facilitates co-opera-
tion.
• Co-existence: States have to co-exist with one another, a way of facilitating this is to define their
relationships by making treaties, other consensual agreements.
• Conflict: Here the role of international law is confined to 2 main functions: prescribing of technical
rules of conduct, keeping of any conflict to a minimum.

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Do you know…?
o What is purpose of PIL? Does int. law fulfil its purpose?
o Why do states comply with international law?
o In which sense does globalisation represent a challenge to international law?
o Is international law really "law"?

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5. SOURCES AND INTERACTION
All the sources are ruled by the jus cogens practice. Art. 38 (1) of the ICJ statute says: The Court, whose
function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

1. International conventions, whether general or particular, establishing rules expressly recognized by

the contesting states.

2. International custom, as evidence of a general practice accepted as law.

3. The general principles of law recognized by civilized nations.

4. Subject to the provisions of Article 59, judicial decisions, and the teachings of the most highly quali-
fied publicists of the various nations, as subsidiary means for the determination of rules of law.

* There is no hierarchy of sources

5.1 RULES OF PREVALENCE:

➔ Lex superior derogat lex inferiori (la ley superior (jus cogens) supera a las leyes inferiores)

➔ Lex porteriori derogat lex priori (la ley mas vieja supera a la nueva)

➔ Lex specialis derogat lex generalis (la ley más específica supera la ley más general)

➔ Self-contained legal regimes (hay áreas legales que tienen una regulación propia, si se regula por
unas normas concretas no miramos otras fuentes que podrían aplicarse, pero no son especialmente
para eso)

5.2 JUS COGENS:

• Are recognised and accepted by the international community as a whole.

• Are non-abrogable, which implies they can only be derogated from or abrogated or modified by rules
having the same character.

• Protect the fundamental values of the international community.

• Are superior to all other rules.

• Are universally applicable.

THEY RULE:
1. The existence of fundamental rights of the human person: the most important core of human rights,
not all human rights (the right to life, human dignity, prohibition of slavery…)

2. The right of peoples to self-determination.

3. The prohibition of the use or threat of force and the obligation of peaceful settlement of disputes.

4. Equal legal status of States and the principle of non-intervention in internal affairs.

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Erga omnes: are obligations toward all/whole international society, and when a state violates an obligation,
all states are victims. All jus cogens rules create erga omnes obligations, but not all erga omnes obligations
are necessarily based on jus cogens rules.

Example: If state B invades state B, does state C have the legitimacy to break some treaties they have in
common? YES. Because it is something that concerns everything.

5.3 RELATIONSHIP BETWEEN TREATIES AND CUSTOMARY RULES

The relationship between customary rules and treaties is complex. They co-exist, develop each other and, sometimes,
clash. For a treaty provision to become binding as a rule of customary law, the party invoking the rule must be in a
position to show that the rule meets all the general requirements for the creation of customary law and that a third
party has consented to it. A provision in a treaty can generate a rule of customary law which would become binding on
3rd parties, on conditions:

o The provision should be of a fundamentally norm-creating character.

o The participation must include those States whose interests would be especially affected by the provision in
question.
o Treaty law could not become binding as custom if the third states had not shown their consent to the rule.
o Since the adoption of the Convention, state practice must be extensive and uniform.

Do you know…?

o What is a source of international law?

o Are some sources hiearchically superior to others? Why?
o In case of conflict between different sources of law, which criteria should determine which source
prevails?
o Why is the protection of human rights generally not considered to be of a Jus Cogens nature?

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6. CUSTOM AND CODIFICATION
6.1 INTERNATIONAL CUSTOM:
A customary rule requires the presence of two elements:

1) A material element that is a general practice of a State. This practice must be sufficiently widespread,
relatively uniform, consistent, and represent. To be a custom in the material element there are three
elements:

• Generality of the practice

• Duration of the practice: the jurisprudence of the ICJ indicates that no particular duration is
required for practice to become law provided that the consistency and generality of practice
are proved.

• Uniformity and consistency of the practice

2) A psychological/subjective element consisting of the subjective conviction of a State that it is legally bound
to behave in a particular way in respect of a particular type of situation, that it accepts the practice as law.
This element is usually referred to as the opinio juris sive necessitatis or just as opinion juris. The main pur-
pose of opinio juris is to distinguish between a customary rule and mere usage followed out of courtesy or
habit.

6.2 PERSISTENT OBJECTOR:

When a State persistently objects to a rule of customary international law during the formative stage of that
rule, it will not be bound by it. It will apply to all States except persistent objectors. Persistent objector is a
state that consistently opposes a custom during the phase of its creation. Obviously, the greater the number
of objecting States the less likely that the rule will acquire the status of customary law.

The persistent objector must:

1) The objection must be raised during the formative stage of the rule

2) The objection must be expressed - if a State remains silent its silence will be interpreted as acquiescence
to a new rule.

3) The objection must be maintained consistently

4) The burden of proof is on the objecting State

The persistent objector rule doesn’t apply to jus cogens rules, and newly independent states cannot object
to a previously consolidated custom.

There are also local customs, they are regional or bilateral customs. Local customs may complement or pre-
vail over general customs.

6.3 CODIFICACTION

The process of codification is the conversion of legal rules from other sources into treaties. The ILC is in
charge of the codification of international law. Process of Codification, Phases:

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- Selection of themes and establishment of priorities (ILC and UNGA)

- Preparation of projects containing draft articles (ILC)

- International Conference

- Diplomatic negotiation based on the ILC project

- Entry into force, or failure and indirect effects

GENERAL PROCESS OF CODIFICATION OF PIL: FROM CUSTOM TO TREATIES

Effects of treaties (in relation to custom):

• Declarative: Express in writing and with formal consent the content of a custom A treaty
may be considered proof of opinio juris
• Crystallizing: Clarification of emerging customary rules
• Generation of custom: A treaty leading to rules becoming accepted as customary

Treaties do not replace customary rules. They exist independently!

Do you know…?
o What is the difference between a uniform and a general state practice?
o Must states consent to be bound by an international custom?
o Why has int. law gone through a process of codification?
o Are some sources of int. law better than others?

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 FISHERIES CASE EXERCISE

1. The Government of Norway, by Decree of 12 July 1935, establishes that …

In the northern part of the country, the zone in which the fisheries would be delimited.

2. What is the problem of the Norwegian coastline with respect to the delimitation of its
maritime territory?
As they cannot delimitate the zone with a straight line, they do not know if it is against international law or
not, because they can not determine which is the Norwegian coastline.

3. The principle alleged by the UK to establish the baseline is…

That the baseline must be law-watermark. Which is also the criterion generally adopted in the practice of
states.

4. Can the baseline be established according to other criteria than those alleged by the
UK?
Yes, they supported Norwegian ideas of creating straight lines of boundaries.

5. Is the 10-mile norm for the closing line of bays applicable to Norway? List the reasons
and argue your answer
No, because Norway has always been opposed to the Norwegian Coast.
Norway is a persistent objector, Norway applied the acquaintance so no one can regret its decision.

6. Which is the decision of the Court with respect to the Norwegian Decree of 1935?
On which grounds does the Court base its decision?
The court determines that the method employed is not contrary to international law; and that the baselines
fixed are not contrary to international law either.

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7. SOURCES OF INTERNATIONAL LAW
7.1 THE MAIN FEATURES OF THE VIENNA CONVENTION
The VCLT represents both the codification (i.e., of customary international law (CIL) and general principles)
and the progressive development of the law of treaties. It does not have retrospective effect, and only applies
to treaties entered into by a State from the time of its entry into force for that State.

7.2 THE DEFINITION OF A TREATY UNDER THE VCLT

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 instrument and whatever its particular
designation.

7.3 THE FUNDAMENTAL PRINCIPLES

1) Pacta sunt servanda (agreements must be kept) This principle states that: every treaty in force is binding
upon the parties to it and must be performed by them in good faith.
2) The principle of good faith is fundamental to the law of treaties. It applies throughout the life of a treaty,
from its negotiation through its performance and up to its termination.
3) Free consent, but a treaty may generate customary rules
4) Consent to be bound, signing a treaty may have different legal effects.

7.4 CLASSIFICATION OF TREATIES

• Number of subjects: multilateral or bilateral
• Depending on the conclusion: Solemn or simplified
• Possibility to participate:
- Open: everybody can become a party to the treaty and ratify it.
- Close: it is limited to some States by its very nature (NAFTA, EU Treaty).
• Type of content:
- Law-making treaties: Lay down general rules of universal application and are intended for future
and continuing observance
- Treaty - contracts: Concern the regulation of a narrow area of practice between some states (build-
ing an aircraft).
- Treaties codifying custom / creating new legal obligations.
- Constitutive of an-International Organization
• Terminology: convention, protocol, statute, agreement...

7.5 CONCLUSION OF TREATIES:

1. Negotiation: Representatives of States have the necessary powers to engage negotiation. The whole phase
of negotiation must be presided by the principle of good faith. State organs with capacity to conclude treaties:
- Heads of State, Heads of Government and Ministers of Foreign Affairs, those who have full powers
- Heads of diplomatic missions, for the purpose of adopting a treaty between the accrediting State and the
State to which they are accredited
- Representatives accredited by States to an international conference or to an IO or one of its organs, for the
purpose of adopting the treaty in that conference, organization, or organ.

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- Any other person that wants to conclude a treaty must produce “appropriate full powers” (a document
emanating from the competent authority of a State designating a person or persons to represent the State
for accomplishing any act with respect a treaty): explicit representation.
- Implicit representation: when it appears from the practice of States or from other circumstances that their
intention was to consider that person as representing the State.

2. Adoption of the text: First stage of the conclusion of the Treaty. In order to adopt a text:

o Bilateral agreements or few states: consensus (unanimity)

o Multilateral agreements: 2/3 majority, unless the same majority decides otherwise (hard to have
unanimity).

3. Authentication of the text: The proposed treaty is established as correct, authentic, and the formal pro-
cess by virtue of which the text of a treaty is established as authentic and not subject to alteration. The
method of authentication is usually by singing and initialling the relevant text.

4. Ratification, declaration of consent to be bound by a treaty: A State may express its consent to be bound
by a treaty by signing it, exchanging instruments constituting the treaty, ratifying, accepting, approving, or
acceding to it, or by any other means if so agreed.

ENTRY INTO FORCE: The conditions for entry into force are normally specified by
the treaty. Otherwise, a treaty is presumed to enter into force as soon as all the negotiating States have
expressed their consent to be bound by it. Multilateral treaties: minimum number of ratifications.

Do you know…?
o What is a treaty?
o How is a treaty adopted?
o How does a state express its consent to be bound by a treaty?

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 CASE ON THE CONCLUSIÓN OF TREATIES

On the 6th of November 1999, the Council of Ministers agreed the authorisation of the negotiation of a
Cooperation and Friendship Treaty with Chile, and in extension authorized the Minister of Foreign Affairs to
give full powers to the Director General for Latin America. In March 2000, the Ambassador of Spain to Chile
signed the Treaty ad referendum and sent it to the Ministry of Foreign Affairs in Madrid for further processing
in Spain.

Amongst other things, the Treaty involves the concession of preferential credits to Chile, with Spain being
obliged to include the corresponding amounts in the State Budget.

On the 2nd of May 2000, the Council of Ministers authorized the Minister of Foreign Affairs to ratify the
Treaty on behalf of Spain and ordered the conclusion of the Treaty to be communicated to Parliament as
soon as the ratification had taken place, based on the provisions in art. 94.2 of the Constitution.

1. Are the state organs that participated in each phase of the conclusion of the Treaty
competent?
2. Is the process of the conclusion of the Treaty in accordance with the provisions of
Spanish law?

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 8. RESERVATIONS
8.1 DEFINITION OF RESERVATION
A State may be willing to accept most provisions of a treaty, but it may, for various reasons, wish to object
to one or more of them. With regard to bilateral treaties, reservations pose no problem in that if any party
objects, then the matter is discussed and if no agreement can be achieved, the treaty will not be concluded.
However, with regard to multilateral treaties, the issue is more complex.

Article 2(1)(d) VCLT provides that a reservation is 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 ex-
clude or to modify the legal effect of certain provisions of the treaty in their application to that state. A
reservation must be written.

8.2 UNIVERSALITY VS INTEGRITY

There are tensions between the principle of universality and the principle of integrity:
- Universality: To include the maximum number of states. Means accepting many reservations.
- Integrity: That the treaty is applied to all in its totality
But normally they go from integrity to universality.

8.3 NON – PERMISSIBLE RESERVATIONS

Article 19 VCLT provides as follows: A state may, when signing, ratifying, accepting approving or acceding to
a treaty, formulate a reservation unless
❖ The reservation is prohibited by the treaty.
❖ The treaty defines specific reservations that can be made, and the reservation is not among these.
❖ The reservation is incompatible with the object and purpose of the treaty.

8.4 A TREATY CAN

Possibilities: A treaty can:
o Prohibit all reservations.
o Prohibit reservations to certain content authorize only certain reservations.
o Not state anything, meaning that only reservations contrary to the object and purpose.
o of the treaty are prohibited.

8.5 CONDITIONS FOR RESERVATIONS TO HAVE EFFECT

Conditions for reservations to have effect:
• A reservation expressly authorized by a treaty does not require any subsequent acceptance by the
other contracting states unless the treaty so provides.
• If the reservation is not expressly authorized, it must be explicitly or tacitly accepted by at least 1
other state. If not written objection within 1 year, the reservation is considered accepted.
• If a state expresses its consent to be bound with a reservation, it is party to a treaty once the reser-
vation has been accepted.
A state can object to a reservation OR declare it incompatible with the object and purpose of the treaty.
A multilateral treaty with reservations is a cluster of bilateral relations.

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 Example: If state A makes a reservation and B accepts it, the reservation modifies the content of the treaty in the
relations between A and B. If state A makes a reservation and C objects, the treaty enters into force, but the provi-
sions objects of the reservations are not applied in their relations. If state A makes a reservation and D declares it
contrary to the object and purpose of the treaty (opposes the entry into force of the treaty), it will not enter into
force between A and D. In no case does A’s reservation affect the entry into force among B, C and D (and E, F, etc.)

Do you know…?
o Why do states seek reservations to treaties?
o Should all reservations to treaties be allowed?
o What is the effect of reservations on international law?

EXERCISE ON RESERVATIONS TO TREATIES

1. When can reservations be formulated?

Art 15 When signing, ratifying, accepting, approving, or acceding to a treaty. Unless the treaty says the op-
posite thing.
The reservations can be made in many situations, excluding three of them:
- When the reservation is prohibited by the treaty
- When the treaty provides that only specified reservations, which do not include the
reservation in question, may be made.
- In cases not failing under subparagraphs (a) and (b), the reservation is incompatible
with the object and purpose of the treaty

2. To which provisions of a treaty can reservations be formulated?

Art 19. The treaty provides that only specified reservations, which do not include the reservation in question,
may be made.

3. Does a reservation need the acceptance of other contracting parties to

have effect?
Art 23.1. YES, a reservation… must be formulated in writing and communicated to the contracting states and
other states entitled to become parties to the treaty. If the reservation is expressed by the state NO, but if it
is not provided, they have to.

4. How does a state accept or object to the reservations formulated by

other states?
Art 24. By silence in 12 months.

SCENARIO: A multilateral trade agreement has been negotiated between states A, B, C, D and E. The treaty
has a total of 100 articles:
- 1-4 are general principles and definitions
- articles 5-50 regulate trade in industrial products
- articles 51-90 regulate trade in agricultural products
- articles 91-100 are about entry into force and dispute settlement.

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A particularly tough negotiation concerned article 50, the adopted version of which reads: “Import duties
shall not exceed 5%”. At the moment of ratifying, state A formulates a reservation to article 50, alleging
having a particularly vulnerable car industry with a need for extra protection. In its reservation, State A
therefore reserves the right to impose a 10% import duty on car parts.
The other states adopt the following attitude:
State B accepts A’s reservation State C objects to it
State D objects and opposes its entry into force
Detail the legal regulation (which part of the treaty applies) of the relationships among the four states (A-
B, A-C, A-D, B-C, B-D, C-D). You might consider aiding your explanation by an illustration (make a concept
map, flowchart etc.).
A-B 1-49/50(10%)/51-100=reciprocal
A-C 1-49/ /51-100
A-D A. No agreement. Nada, nothing
B-C Original treaty
B-D Original treaty
C-D Original treaty
OBJECTION: No sirve de nada porque al fin y al cabo si se opone a la reservation de A, la réservation se hace
entre A y B pero entre A y C ese artículo no se aplica y no hay ninguno que se aplique así que A puede hacer
lo que quiera. El estado que hace la reservation siempre gana porque o se acepta o no se aplica y los casos
en los que no se aplica no hay un acuerdo así que A puede hacer lo que quiera. Entonces cada vez que se
hace una acción la situación entre A y C puede cambiar.

21
9. LIFE OF THE TREATY
9.1 APPLICATION OF TREATIES
Art. 25: A treaty or a part of a treaty is applied provisionally pending its entry into force if:
- The treaty itself provides.
- The negotiating States have in some other manner so agreed
Possible conflicts with Municipal Law: A state should not try to apply a treaty if it goes against the municipal
law.

9.2 PRINCIPLES
- Pacta sunt servanda: Every treaty in force is binding upon the parties to it and must be performed
by them in good faith
- From the moment of entry into force: no retroactivity, unless specific provisions determine other-
wise.
Example: River example: If there is a contaminated river and there is made a treaty to prohibit the split
and there is a date when the treaty will enter into force. If the split is done before that there should not
be any problems. But if it is done a minute after the treaty enters into force, there happens an applica-
tion of international law.

- Applies to the totally of state territory unless specific provisions determine otherwise. So, treaties
made by the UK automatically extend to its overseas territories unless the treaty indicates otherwise.

9.3 INTERPRETATION
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms
of the treaty in their context and in the light of its object and purpose.
It is clear from Articles 31–32 that the VCLT endorses textual, systematic, teleological and historical inter-
pretation. These different methods of interpretation are defined below:
o The textual interpretation: seeks to ascertain the ordinary meaning of the terms to be interpreted
which meaning must be compatible with the text of the relevant treaty.
o The systematic interpretation: seeks to ascertain the sense of a wording by the context in which it is
used. It includes the surrounding body of law as part of the context and depending on how widely
the context or ‘system’ is understood, tends to work opposite to the principle of lex specialis (see
Chapter 2.4.2.1).
o The teleological interpretation: searches for the purpose (in Greek telos means purpose) of a law. It
chooses from among several possible interpretations the one which is most conducive to putting
this purpose into practice.
o The principle of effectiveness: In public international law the principle of “effet utile” or effective-
ness is applied by a judge when he is confronted with two possible interpretations of the same legal
provision, one which confers some meaning on it, and the other which renders it devoid of any sig-
nificance. In such a situation, he gives priority to the former. The ECJ not only sets aside the inter-
pretation which makes a provision devoid of its effet utile, but more importantly rejects any inter-
pretation which results in limiting or weakening the effet utile of that provision.
o Historical interpretation: determines the meaning of the legal wording based on historical material
such as the preparatory work of the treaty and other documents relevant to its conclusion.

22
9.4 EFFECTS ON THIRD PARTIES

Pacta tertiis nec nocent nec prosunt: A treaty does not create either obligations or rights for a third State
without its consent. The third state must explicitly accept obligations (art. 35), but its silence is assumed to
indicate acceptance of rights (art. 36). Rights created for third states cannot be revoked without its con-
sent. The treaty might create customary rules of PIL (art. 38)

UN Charter art 2: An exception? Member states have an obligation to ensure that no mem-
ber states also apply with the UN charter. What is to say, not because not being a un part
you cannot respect the UN charter and the international law

9.5 AMENDMENT
Definition: Change in treaty provisions that affect all parties.
The normal method of amending a treaty is by the unanimous agreement of the parties. Indeed ‘A treaty
may be amended by agreement between the parties. If all the parties agree to the amendment no difficulty
arises. But in large multilateral convention, it may not be possible to obtain unanimous agreement to a pro-
posed amendment. Many treaties contain provisions for an amendment procedure. Other multilateral trea-
ties provide for possible revision at the end of specified periods.

EFFECTS: The issue of the legal effect of adopted amendments is complex. In principle, an amendment will
only bind parties that have agreed to it, and if one State has agreed to the amendment and another State
has not, then the terms of the original treaty will remain operative between them. In practice, this rule is not
always possible to apply because some multilateral treaties can only work properly if all contracting parties
have the same duties and obligations. One way of pre-empting this problem is to impose on all contracting
States amendments when a specified majority of contracting States has approved them. A member State
which disagrees with the amendment can either resign itself to accepting it, or withdraw from the treaty,
although this may not be easy as the UN Charter does not contain a withdrawal clause.

9.6 MODIFICATION
This occurs when a number of parties to a treaty formally agree to modify the effects of the treaty among
themselves while continuing to be bound by the treaty in their relations with the other parties. Art 41 VCLT

Conditions:
- The possibility of such a modification is provided for by the treaty.
- Not to be prohibited by the treaty or against its object and purpose of it.
- Must not affect the rights or obligations of other parties to the treaty.

9.7 NULLITY
1. Non – compliance with provisions of municipal law
2. Treaties entered into by a representative who lacks authority.
3. Error
4. Fraud
5. Corruption of a state representative
6. Coercion of a state representative

23
 7. Coercion of a state
8. Incompatibility with Jus Cogens rule

CONSEQUENCES OF INVALIDITY:
• The treaty must be considered never having entered into force (ab initio)
• The wronged state may demand the establishment of the statu quo ante.
• Nullity only affects the state whose consent to be bound has been vitiated.
• Nullity can be total or partial, depending on circumstances.

9.8 TERMINATION
The termination of a treaty, is denunciation or the withdrawal (12 months before to all the parties) of a party,
may take place only as a result of the application of the provisions of the treaty or of the present Convention.
The same rule applies to suspension of the operation of a treaty.
There are some situations where a treaty can be terminated:
➢ According to the treaty provisions
➢ By consent of all the parties
➢ Conclusion of a treaty on the same subject matter
➢ Material breach: other state can choose to terminate or suspend the treaty-contracts.
➢ Impossibility to comply with obligations.
➢ Fundamental change of circumstances
➢ Emerge of new Jus Cogens rule

9.9 SUSPENSION
Contracting parties are allowed to suspend the operation of a treaty. During the period of suspension, con-
tracting parties are relieved from carrying out various treaty commitments. The treaty itself remains valid
(Article 72 VCLT) but its operation, partial or total, is suspended.

When a treaty is suspended, its provisions which reflect customary rules are applicable because customary
law cannot be suspended. There are 2 situations in which this may happen:

• The first is described in Article 57(b) VCLT and it relates to a situation where all contracting parties
agree to suspend the operation of a treaty or some of its provisions.
• The second is described in Article 58 VCLT and concerns a situation where two or more parties agree
to suspend the operation of a treaty temporarily between themselves, provided suspension is either
allowed under the relevant treaty or not prohibited. (However, the suspension is only allowed if it
does not impair the enjoyment by other parties of their rights deriving from the relevant treaty, does
not affect the performance.
of their obligations and is compatible with the object and purpose of the treaty.)

24
In addition, it should be noted that an additional ground for suspension exists, not provided for by the VCLT.
It occurs when the UNSC (security council) takes measures under Chapter VII which may require suspension
of the operation of a treaty or some of its provisions, e.g. a bilateral treaty of mutual friendship and assistance
will be suspended as a result of the imposition of, let's say, economic and diplomatic sanctions on one of the
parties.

9.10 PROCEDURES
Obligation to notify parties. If no objection within deadline (min. 3 months), the proposed measure can be
adopted (withdrawal, suspension etc).
In case of objection: The peaceful settlement of disputes, freedom to choose means BUT, if not resolved in
12 months:
- If arbitration is not agreed, any party may refer the case to the ICJ, if it is relative to Jus Cogens
rules
- Other matters: Conciliation procedure as established in the Annex
A. ENTRY INTO FORCE
If a treaty does not specify a date, there is a presumption that it is intended to enter into force as soon as all
negotiating States have expressed their consent to be bound by it. In the case of multilateral treaties negoti-
ated by many States it is very unlikely that they will all proceed to ratify it. In such a case the treaty usually
provides that it shall enter into force when it has been ratified by a specified number of States. When the
minimum number of ratifications is reached the treaty enters into force between those States which have
ratified it
B. DEPOSIT
The depositary may be a State, international organization or chief administrative officer of the organization
(Article 77(1)). The depositary's functions and competencies are set out in Articles 76–80 VCLT. The deposi-
tory is the formal custodian of a treaty and is charged with administrative tasks relating to the relevant treaty.
5 functions:
o Receiving instruments of ratifications, notifications, and other communications from contracting par-
ties.
o Forwarding all relevant information and documents to contracting parties.
o Ensuring that the final text of the treaty contains no errors and correcting any errors that may exist.
o Preparing certified copies of the treaty; and
o Authenticating any translated material.

A depository has no power to decide on the compatibility or otherwise of received communications or noti-
fications or reservations.
C. REGISTRATION
The reason is to ensure transparency in the conduct of international relations. Article 102 of the UN Charter
provides as follows:
1. Every treaty and every international agreement entered into by any Member of the United Nations after
the present Charter comes into force shall as soon as possible be registered with the Secretariat and pub-
lished by it.
2. No party to any such treaty or international agreement which has not been registered in accordance with
the provision of paragraph (1) of this article may invoke that treaty or engagement before any organ of the
United Nations.

25
Article 102 was intended to prevent States from entering into secret agreements without the knowledge of
their nationals, whose interests might be affected by such agreements. Secret diplomacy was condemned by
the League of Nations as it was felt that secret agreements were one of the causes of WWI. It is to be noted
that secret agreements between States are not unlawful and although they are disapproved of and difficult
to conceal, they still exist.
D. PUBLICATION
Once a treaty is registered with the INS-G it will be officially published in the UN Treaty Series “UNTS” so that
anyone can consult it

Do you know…?
o Can treaties have effect on third states?
o How can a state release itself from treaty obligations?
o In which cases is a ratified treaty not valid?

EXERCISE ON SUCCESSIVE TREATIES

1. Explain the meaning of the VCLT, art. 30.1.

Subject to art 103 of the Charter of the United Nations, the rights and obligations of states parties to succes-
sive treaties relating to the same subject matter shall be determined in accordance with the following para-
graphs.

2. In which case does an earlier treaty on the same subject matter apply in its totality?
The UN chapter is an earlier treaty that always applies before and above any other treaty.

3. In which case does a new treaty have the effect of terminating an earlier treaty?
It applies only where the parties to both treaties are identical and have greater relevance.
where the conflicting provisions belong to the same ‘regime’ in the sense that they are
institutionally linked or intended to advance the same objectives rather than where they
are part of different ‘regimes.

4. If there is a conflict between some provisions of an earlier treaty and some provisions
of a newer treaty, which provisions apply? According to lex posteriori maxim, the newer
treaty is the one that applies.
a. from the earlier treaty; the one which is not in conflict.
b. from the newer treaty? the one who is in conflict.

5. Which treaty applies in the relationships between the states A and B, parties to the
earlier treaty
a. When both states A and B are parties to the new treaty? The new one
b. When neither A nor B is party to the new treaty? The old one.
c. When A is party to the new treaty, but B is not? The old one mutual consent.

26
10. OTHER SOURCES
10.1 UNILATERAL DECLARATIONS
A public expression of intent made by a recognised representative of a subject of PIL, on its behalf with re-
spect to a specific situation with the intention of creating legal obligations for the subject, independently of
other legal acts and the conduct of other subjects of international law.

10.2 ESTOPPEL

A State cannot change its practice if it thereby prejudices rights or expectations of other states, created by
that very practice.

o It's the State that has the primary practice to maintain the status quo.

If State A has a primary practice and State B has developed a secondary practice in order to adapt to the
primary practice, State A cannot change its practice if it prejudices State B.

o If it has been tacitly consented by two states that a piece of land belongs to State

A and State B have adapted its practice to it, if there’s a fire in that piece of land State A cannot deliberately
claim the piece of land belongs to State B.

It is based on the principle of good faith and state practice (not only declared but also practice).

10.3 ACQUIESCENCE
If a State does not protest, it is understood that it consents to the situation or behaviour of another State.
o It’s on the non-protagonist State to maintain the status quo.
If State A has taken control over some territory and State B (being in the position of doing so) doesn’t protest
or object over that action, it is understood it has consented.
o State B cannot in 50 years’ time claim the territory for itself because it didn’t object and has adapted
its practice to State A’s decision.
10.4 RESOLUTIONS OF INTERNATIONAL ORGANIZATIONS
It is disputed whether it is an autonomous source or soft law. Internal rules of international organizations are
legally binding on member states. UNSC resolutions have legally binding effects on states and create legal
obligations on all states, they cannot be considered soft law.
❖ They include specific solutions to deal with particular situations. For example, the 1373 resolution
imposes detailed obligations on states in the fight against international terrorism after 9-11.
EU: sui generis: of its own kind, unique

10.5 SOFT LAW

It is a middle ground between creating legal obligations and total absence of legal impact.
❖ UNGA resolutions, codes of conduct.
They can generate posterior legal obligations in the form of unilateral acts or international customs.
It is a middle ground between a source of law (legal obligations) and a source of legitimacy (political obliga-
tions)

27
10.6 GENERAL PRINCIPLES OF LAW
Art. 38, ICJ Statute: “the general principles of law recognized by civilized nations” Function: to reduce the
risk of nonl quet and to avoid paralysis of ICJ due to absence of law There are two kinds of principles:
o The principles inferred from the nature of the international community.
o The principles inferred from municipal law.
The use of principles recognized by national laws provides a reserve of legal principles upon which interna-
tional law can draw and enables the filling of gaps in the law.

10.7 JUDICIAL DECISIONS

ICJ Statute Art 38: “Judicial decisions and the teachings of the most highly qualified publicists (…) as subsidiary
means for the determination of the rules of law”. Definition: The totality of legal norms derived from judicial
decisions

The decision of the Court has no binding force except between the parties and in respect of that particular
case (ICJ has no lawmaking power).

If a Court is unable to find a treaty or custom relevant to the dispute, any rule the Court adopts for the solving
of the case will form a new rule of PIL.
It can also follow previous decisions for the sake of judicial consistency.

10.8 ACADEMIC DOCTRINE

Many publicists have been crucial in the development of international law, and have international reputa-
tions: Grotius, Oppenheim, Guggenheim, Rousseau…
Evolution of IL, conventional, customary and institutional, reduces the new to refer to academic doctrine
(indirect impact)

10.9 EQUITY
- Contra legem: discarding existing legal rules requires the consent of the parties.
- Praeter legem: rely on equity the case of absence of law (no consent required).
- Infra legem: refer to equity in the application of legal rules.

Do you know…?
o Define General Principles and Unilateral declarations as sources of international law.
o What is the role of soft law?
o What is the difference between acquiescence and estoppel as sources of law?

SUMMARY EXERCISE: NICARAGUA V UNITED STATES

Purposes: - to practice reading and interpreting original documents of public international law, in this case,
a judgment from the International Court of Justice - to recall the theoretical content of unit 2 and see how it
has been applied in practice

28
Instructions: - Answer the questions individually or in small groups IN WRITING - Cite or quote the judgment
when answering the questions (Section, subsection) - You can use the textbook or internet sources to com-
plement the text of the judgment, but make sure you cite the judgment - ASK in case of doubts! - DO NOT
take into consideration the dissenting opinions at the end of the document

CASE (on Alud): CASE CONCERNING THE MILITARY AND PARAMILITARY ACTIVITIES IN AND AGAINST NICARA-
GUA (NICARAGUA v. UNITED STATES OF AMERICA), 27 June 1986.
1.Describe the facts of the case, including the allegations made by Nicaragua and the United States.
What is Nicaragua accusing the US about having done? - Intervening in the nuclear war. Breach of the inter-
national convention of non-intervention. - They mine the sovereign waters of Nicaraguan property - Invasion
of the air space of Nicaragua - Collaboration with one of the parties in the civil war. - Economic intervention:
Something with loans, embargo… What is Us accusing Nicaragua about having done? - Conducting military
attacks on Honduras and Costa Rica - Actively supporting groups in El Salvador supplying arms.

2. The perception of the United States a. How does the United States perceive the relationship between
treaties and customary international law?

It does not consider that it can be claimed, as the United States does, that all the customary rules which may
be invoked have a content exactly identical to Bhat of the rules contained in the treaties which cannot be
applied by virtue of the United States reservation. Even if: a treaty norm rind a customary norm relevant to
the present dispute were to have exactly the same content, this would not be a reason for the Court to take
the view that the operation of the treaty process must necessarily deprive the customary norm of its separate
applicability. Consequently, the Court is in no way 'bound to uphold customary rules only in so: Far as they
differ from the treaty rules which it is prevented by the United States reservation from applying

b. Which (further) conclusions are drawn from this perception by the US?

c. What does the Court argue in relation to the perception of the United States?

lOMoARcPSD|29956043
3. Which conditions does the Court establish for a rule to be created customarily?

The Court has next to consider what are: the rules of customary law applicable to the present dispute. For
this purpose, it has to consider whether a customary rule exists in the opinio juris of the States, and satisfy
itself that it is confirmed by practice.
4. Which criteria does the Court establish for the legitimate exercise of collective
self-defence?

UN Charter art 51
- Response to “army attack”
- Necessity
- Proportionality
- Declaration by victim of the armed attack
- Request by victim

5. Explain the relationship between custom and treaties as sources of law

29
13. INTRODUCTION TO SOURCES
13.1 CHARACTERISTICS
A subject of international law can be defined as an entity capable of possessing international rights and du-
ties and having the capacity to protect its rights by bringing international claims. Under the traditional view
the only subjects of international law were sovereign States. With the development of international law,
entities other than States have been recognised as subjects of international law. These are:
➔ Entities which can potentially become States:
• De facto regimes: Those which have had control of a defined territory for a lot of time, and usu-
ally claim to be a state or a government but have failed to achieve recognition by a significant
number of states.
• Insurgents and belligerents: During armed conflicts limited international personality may be
granted to some insurgent groups and belligerents when they exercise de facto control over a
part of a national territory, provided the requirements contained in the 1977 Additional Protocol
I to the four 1949 Geneva Conventions are satisfied. The main objective of such recognition is to
ensure the compliance of the parties involved in armed conflicts with IHL and HRL.
• National liberation: which declared that all colonial people have a right to self-determination.
➔ There are a number of entities that enjoy a special status under international law. They do not satisfy
the criteria for statehood but are recognized as States by the majority of states. Examples are the
Holy See, the Vatican City and the Sovereign Military Hospitaller Order of Malta.
➔ IGOs, within which States are co-operating at an international level:
It must be a permanent association state.
- It must be created to attain certain objectives
- It must have administrative organs
- It must exercise some power that is distinct from the sovereign power of its member
states
- Its competences must be exercisable on an international level and not confined exclusively
to the national systems of its member States.
The leading judicial authority on the personality of the IGO is contained in the Reparation for Inju-
ries Suffered in the Service of the United Nations.
The following factors are relevant to the establishment of the legal personality of an IGO
- Status under municipal law
- Treaty-making power
- International claims
- General powers
➔ Individuals: International law creates rights and duties for individuals which are capable of being en-
forced on an international level. Individuals are subjects of international law. However, as their rights
and duties, including procedural rights allowing them to bring claims against a State are ultimately
controlled by States, they are only partial subjects of international law.
➔ UN missions created by UNSC resolutions to administer certain territories: On the basis of UNSC res-
olutions the UN, through its missions, administered the territories of East Timor and Kosovo. In each

30
 territory, the UN exercised all functions of a State and thus enjoyed full international personality.
Each mission was designed as a mechanism for transition of these territories to self-governance.
* Only states and states-like entities have full legal personality, this means that, they have all legal rights, are
subject to all international legal obligations, and have unlimited capacity to bring claims against other sub-
jects of international law.

Subjects of international law, other than States and State-like entities, have been accorded partial personal-
ity, like, the extent of their rights and obligations as well as their capacity to bring claims against a State are
ultimately controlled by States. The distinction between full and partial legal personality has been confirmed
by the ICJ.

Controversial candidates for the status of subjects of international law are non-governmental organisations
(NGOs), multinational corporations (MNCs) and indigenous peoples. Other non-State actors are, private ar-
mies, international criminal gangs and terrorist organisations with global reach, have a tremendous impact
on international law but are unlikely to become subjects of international law bearing in mind the political
connotation of recognising an entity as a subject of international law.

13.2 INTERNATIONAL SUBJECTIVITY OF THE INDIVIDUAL

Active subjectivity:
• ICJ: only states can be parties to a case.
• ICC: only cases brought by states, the UNSC (UN security Council) or ICC Prosecutor
• State responsibility and the indirect wrongful act: figure of diplomatic protection (si tienes un pro-
blema puedes notificarlo al gobierno y ahí si poder presentarlo en ICC como un problema de estado)
• Specific treaties like The EU or The European Court of Human Rights

Passive subjectivity: breaches to international law can imply international individual responsibility. When
identifying international obligations and breaches to them, consequences are left to the municipal legal sys-
tem: Aut dedere aut punire: extradition or punishment. For example, piracy or hijacking of an aircraft.

JURISDICTION OF INTERNATIONAL CRIMINAL COURT (ICC):

The ICC is the first permanent, independent, international criminal court. It is based on international treaty:
pacta tertiis nec nocent nec prosunt. Its jurisdiction is based on cases where crimes were committed on the
territory (including ships and aircraft) of a state party to the treaty or by one of its citizens. They are cases
brought by the UNSC. It has complementary jurisdiction too. Excludes cases:

- If the case is being processed in the competent state

- If the case has been investigated by the competent states
- If the person has already been tried once: Ne bis in idem (not twice for the same, this
means that no legal action can be instituted twice for the same cause of action).

Sentences impose punishments, but these are administered in cooperation with the state.

31
INTERNATIONAL CRIMES:
✓ Genocide: understood as destruction of a national, ethnic, religious or racial group, usually in a vio-
lent way.

✓ Crimes against humanity: namely, murder, extermination, enslavement, deportation, and other in-
humane acts committed against any civilian population, before or during the war; or persecution
on political, racial or religious grounds in execution of or in connection with any crime within the
jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where
perpetrated.

✓ War crimes: namely, violations of the laws or customs of war. Such violations shall include, but not
be limited to, murder, ill-treatment or deportation to slave labor or any other purpose of civilian
population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the
seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns
or villages, or devastation not justified by military necessity.

✓ Aggression: Understood as use of force contrary to the UN Charter and it involves state and individ-
ual responsibility.
*A state only con be judge if he accepts to be judge.

UNIVERSAL CRIMINAL JURISDICTION

It is used when state tribunals have the competence to try and sentence foreign nationals for international
crimes committed outside of the state´s territory. But there are some problems with this:
- Sovereign equality between states.
- Non-interference principle.
- Immunity of people.
- When the state protects its criminal citizens: They cannot travel because of international arrest
warrants.

13.3 CRITERIA FOR STATEHOOD

Independent States remain the primary subjects of international law as they occupy the central position in
the international community. In order to be regarded as an independent State an entity must satisfy certain
criteria.
The state as a person of International Law should possess the following qualifications:
1. Permanent population. International law neither prescribes a minimum number of people making up a
population nor requires that the population is made up of nationals.

2. Defined territory (land, sea, air, underground). International law neither prescribes a minimum surface
nor requires that the international boundaries of an entity must be precisely delimited.

3. Government. A government, or at least some governmental control (effectiveness principle: effectively in

control of the territory), is required for qualification as a State. The government must maintain some degree
of order and stability. However, once a government has been established, the subsequent absence of gov-
ernmental authority does not affect the existing States right to be considered as a State.

32
4.Capacity to enter into relations with other States/independence. The capacity of an entity to enter into
relations with other States derives from the control the government exercises over a given territory, which
in turn is based on the fact that the State is independent, no submitted to any other state authority. Inde-
pendence can be described as the right of a State to exercise, to the exclusion of any other State, the func-
tions of a States. It is is important the recognition of other states with an absence of hierarchy.

Regarding to the creation of States, the principle of effectiveness requires that no entity should be regarded
as a State within the meaning of international law unless that entity has a government which controls both
a defined territory and its inhabitants, effectively and independently from any other State.

State practice shows that statehood need not necessarily be equated with effectiveness, and thus that con-
ditions unrelated to effectiveness are relevant to the determination of whether an entity should be regarded
as a State under international law. In particular, the development of jus cogens entails that peremptory rules
apply to all aspects of international law including the creation of States. Indeed, if an entity is created in
breach of one of those rules it should be denied international legal personality.
This criterion is closely linked with the principle of self-determination. If people are entitled to exercise their
right to self-determination, they can use force to break away from their existing State and create a new State.
Everything therefore depends on who is entitled to exercise the right, and under what circumstances.

The criteria should be of relevance in the assessment of statehood, namely:

• The legality of the origin of a State, which obviousness results from the existence of jus cogens rules
• The willingness and ability of the entity concerned to observe international law including human
rights law (HRL). However, State practice shows that this criterion has not become a formative ele-
ment of statehood.

13.4 SPECIFIC POLITICAL ORGANIATION: GOVERNMENT

A government, or at least some governmental control, is required for qualification as a State. The government
must maintain some degree of order and stability.

The structure or form of government need not follow any particular pattern. Moreover, once a government
has been established, the absence of any effective governmental authority does not affect the existing State's
right to be considered as a State. States have often survived periods of anarchy, civil war and hostile occupa-
tion.

13.5 STATE INTERDEPENDENCE

Independent States possess full international personality. However, they may enter into various agreements
with other States which may affect their international personality, such as:

1) Federation. In a federation two or more States unite to such an extent that they abandon their separate
statehood. Governmental responsibilities are divided between the federal authority and the constituent
members of the federation. Usually, the federal government is entrusted with exclusive competence in for-

33
eign affairs while the member States have competences in respect of internal domestic matters. Conse-
quently, only the federal State is regarded as a State under international law and only it will possess interna-
tional personality.

2) Confederation. In a confederation two or more independent States decide to unite for their mutual welfare
and the furtherance of their common aims but do not abandon their separate legal personality. A central
government is created that has certain powers, mostly in external affairs, and component States retain their
powers for domestic purposes. The central government acts upon the member States, not upon the individ-
uals. Each member State is fully sovereign and independent and thus possesses international legal personal-
ity.

3) The Commonwealth of Nations. Formerly known as the British Commonwealth of Nations (the term “Brit-
ish” was dropped in 1946) is a free association of sovereign States who have decided to maintain ties of
friendship and co-operation with each other and recognise the British monarch as a symbolic Head of their
association. The Commonwealth has no international personality. Its members, sovereign States, are subjects
of international law.

13.5 DEPENDANT STATES:

These are States subject to the authority of one or more other States. There are different forms of depend-
ency, and therefore in some situations a dependent State will retain its international personality, whereas in
others it will lose it.

Colonies. Under the traditional rules, colonies did not have international personality. The exercise of
their international relations were under the effective control of the colonial power but with the
emergence of the principle of self-determination they were granted various measures of interna-
tional personality. For example, the UK permitted India to become part of the UN.
Condominium. In condominium, two or more States exercise joint sovereignty over the same terri-
tory and its inhabitants. The territory under condominium has no international personality.
Diminutive States. These are very small States in terms of the size of their population and territory.
Despite this, they have been recognised as possessing full international personality. (ejem. Monaco,
Andorra)

13.6 DE FACTO REGIMES:

De facto regimes can be described as those which have had control of a defined territory for a long period of
time, and usually claim to be a State or a government but have failed to achieve recognition by a significant
number of States. If an entity controls the whole of a territory of a recognised State, the matter is that of
recognition or otherwise of a government. Their status depends on the circumstances of each case.

34
Do you know…?
o How can we define statehood?
o Apart from the full sovereign state, which other type of states or state-like entities exist?
o What is the difference between an international subject and an international actor?

REPARATION FOR INJURIES SUFFERED IN THE SERVICE OF THE UNITED NATIONS (ADVISORY OPINION)

FACTS
On 17 September 1948, the UN's chief truce negotiator, a Swedish national, Count Folke Bernardotte, and a
UN observer, a Frenchman, Colonel André Sérot, were assassinated by Jewish terrorist organizations, while
on an official mission for the UN. They were murdered in the eastern part of Jerusalem, which was under
Israeli control, at the time when Israel had proclaimed its independence, but had not yet been admitted to
the UN. The UN alleged that Israel had neglected to prevent or punish the murderers, and wished to make a
claim against Israel for compensation under international law. The UNGA sought the advice of the ICJ as to
the legal capacity of the UN to make such a claim.

HELD
The Court held that the UN possessed an international judicial personality and was therefore capable of pre-
senting such a claim with a view to obtaining reparation in respect of the damage caused to both its assets
and its agents (the so-called functional protection). The ICJ stated that:

In the opinion of the Court, the organization was intended to exercise and enjoy, and is in fact exer-
cising and enjoying, functions and rights which can be explained on the basis of the possession of a large
measure of international personality and the capacity to operate upon an international plane. It is at present
the supreme type of international organization, and it could not carry out the intentions of its founders if it
was devoid of international personality … Accordingly, the Court has come to the conclusion that the organ-
ization is an international person. That is not the same thing as saying that it is a State, which it certainly is
not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same
thing as saying that it is a ‘super-state’, whatever that expression may mean. It does not even imply that all
its rights and duties must be upon that plane. What it does mean is that it is a subject of international law
and capable of possessing international rights and duties and that it has capacity to maintain its rights by
bringing international claims.

It must be remembered, however, that when States create an international organization they set it up for
specific purposes and in this respect, legal personality must be treated as being relative to those purposes.
Therefore, in order to determine whether an organization has legal competence to perform a particular act
both its express and implied purposes and functions must be taken into consideration. As the ICJ emphasized:

Under international law, the organization must be deemed to have those powers which, though not
expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the
performance of its duties.

Consequently, the question whether an international organization possesses international personality can
only be answered by examining its functions and powers expressly conferred by, or to be implied from, its
constitution and developed in practice.

With regard to the issue of whether the UN had capacity to bring a claim for reparation against a non-State
member, the ICJ decided that:

35
 Fifty States, representing the vast majority of the members of the international community, had the
power, in conformity with international law, to bring into being an entity possessing objective international
personality, and not merely personality recognized by them alone, together with capacity to bring interna-
tional claims.

COMMENT
As can be seen from the above, the ICJ found that the UN had an objective international personality. The
distinction between objective and specific (or relative) personality is that objective international personality
operates erga omnes, i.e against all subjects of international law, while a specific (or relative) international
personality is bestowed by subjects of international law on an entity in question, and thus it is relative in the
sense that it has to be recognised by other subjects in order to exist. The justification for specific international
personality is that the principle of the pacta tertiis nec nocent nec prosunt requires that a third party to an
agreement cannot be bound by it. Only States and the UN possess objective international personality.

The ICJ explained that the UN possesses an objective international personality because of its almost universal
membership. This reasoning is, however, difficult to accept in that it is contrary to the principle that a third
State cannot be bound by agreements entered into by other States and therefore as long as there are States
which are non-members of the UN, they should not be required to recognise an organization to which they
are not contracting parties. This is despite the fact that, at the time of writing, 193 States are members of the
UN. Further, it can be said that nowadays IGOs other than the UN also enjoy quasi-universal membership,
and thus should accordingly possess an objective international personality. The fact remains that the ICJ de-
cided that the UN was a special case due to its quasi-universal membership and its universal mission.

FOLLOW-UP
The UN proceeded with a claim against Israel. In June 1950, Israel paid the sum claimed by the UN and apol-
ogized for the assassination and for its failure to find and prosecute the culprits.

THE EICHMANN CASE: ATTORNEY-GENERAL OF THE GOVERNMENT OF ISRAEL VS EICHMANN

FACTS
In 1960, Adolf Eichmann was illegally abducted from Argentina by members of the Israeli secret service, by
order of the then Prime Minister of Israel, David Ben-Gurion, to stand trial in Israel. He was charged under
Israel's Nazi and Nazi Collaborators (Punishment) Law 1950 with 15 counts of war crimes and crimes against
humanity. Under the Nazi regime Eichmann, by his own admission, was in charge of ‘cleansing’ or forcing the
emigration of 150,000 Jews from Austria. From 1942 he was one of the main persons responsible for Hitler's
‘final solution’, i.e. the systematic execution of some 6 million Jews. After the war he escaped to Argentina
and lived there with his family for 10 years before being abducted. Eichmann challenged the jurisdiction of
the Israeli Court on the grounds that: first, he was illegally abducted and thus Israel had no right to hold him;
second, he was charged with crimes that did not exist at the time when he was alleged to have committed
them, i.e. crimes against humanity; and third, he stood trial in a country that did not exist at the time of the
commission of the alleged crimes.

HELD
All arguments submitted by Eichmann was rejected. The Israeli District Court stated that the crimes commit-
ted by Eichmann were international crimes in nature and therefore it applied the universality principle of
jurisdiction.

The Court stated that: The crimes defined in this [Israeli] law must be deemed to have always been
international crimes, entailing individual criminal responsibility: customary international law is analogous to
the common law and develops by analogy and by reference to general principles of law recognised by civilized
nations, these crimes share the characteristics of crimes … which damage vital international interests, impair

36
the foundations and security of the international community, violate universal moral values and humanitar-
ian principles … and the principle of universal jurisdiction over ‘crimes against humanity’… similarly derives
from a common vital interest in their suppression. The state prosecuting them acts as an agent of the inter-
national community, administering international law.

Eichmann was found guilty by the Israeli courts and was executed on 31 May 1962.

COMMENT
In the Eichmann Case, the District Court relied mainly on the principle of universality. This was explained by
the Israeli Supreme

Court on appeal, as follows: if in our judgment we have concentrated on the international and uni-
versal character of the crimes … one of the reasons for so doing is that some of them were directed against
non-Jewish groups.44 Israel also relied on the protective and passive personality principles.

37
14. STATE SUCCESSION
14.1 RECOGNITION DEFINITION
To fully operate on the international plane a new State or government must be recognized by other States.
Recognition may be defined as a discretionary function exercised, usually unilaterally, by the government of
a State acknowledging the existence of another State or government.

Once a new State has been recognized, a recognizing State will not retract its recognition so long as the
requirements of statehood continue to be fulfilled. However, if a recognizing State refuses to recognize a
new government this refusal will not challenge the existence of a State. The matter of recognition of a new
government arises normally when a new government comes to power by unconstitutional means.
Recognition of a state is important for two reasons:
• Declarative theory: recognition is pure formality.
• Constitutive theory: recognition bestows legal personality; only recognized entities will be accorded
rights and have obligations under the law concerned.

The UN has acquired an important role with regards to recognition or non-recognition of an entity as a State.
First, if the UNSC adopts a binding resolution requiring the Members of the UN not to recognise an entity as
a State, the Members must comply. Second, although the UN has no power to recognise or not to recognise
an entity as a State once an entity is admitted to the UN, it is difficult to argue that that entity is not a State.
However, there is no obligation imposed on the Member States of the UN to recognise a newly admitted
State. Third, although resolutions of the UNGA are not binding, they reflect views of a majority of States on
whether an entity should or should not be recognised as a State and thus greatly influence the recognition
or otherwise of an entity that aspires to be a State.

14.2 LEGAL REGULATION

The substitution of one state by another in the international relations of a territory.
• Transfer → a territory changes from the sovereignty of one state to another, but no new state is
created:
- Treaties are applied by the sovereign state in all its territory. Changes effective from the day of transfer or
sovereignty.
• Separation of the territory → continuing state and successor state:
- Principle of tabula rasa/pacta tertiis: the successor state is a third state.
- Principle of continuity: treaties are still in force in the continuing state. But this is not accepted as general
custom.
• Separation of the territory → extinction of the state and the creation of 2 successor states
• Unification of states:
- Principle of continuity: in principle, the treaties of all predecessors are applied, but only in the territory of
the predecessor. Unless against object and purpose of treaty
• General and local custom

38
 • International organizations

14.3 SECESSION AND SELF – DETERMINATION

Self-determination of the peoples (not a minority) is understood as jus cogens and the right to use force
against foreign oppression have to be respected in a separation process.
The principle of uti possidetis juris goes against the self-determination in this context. This provides that the
old colonial boundaries will be recognized as the borders of the newly independent ex-colonial States. The
principle ensures territorial integrity for newly independent States thus allowing them to survive, consolidate
and develop.
Right of secession without consent when:
- Alien domination
- Massive, systematic, and grave violations of basic human rights
- If no other option

Right to secession by consent:

- No norm of international law impedes secession by consent of state. But there are problems:
1. If not an overwhelming majority in well – defined area
2. Problem of “racist” double standards

14.4 RECOGNITION OF GOVERNMENTS

➔ The objective approach, under which a State recognises a new government on a factual basis, namely
that the new government is independent and has effective control over that State’s territory and
that this control seems likely to continue, without giving any judgement on the legality of that gov-
ernment or any approval.
➔ The subjective approach, under which a State by recognising a new government expresses its ap-
proval and endorses the policy of that new government. The US has always used the recognition of
a new government as a powerful political tool.
➔ The approach contained in the Estrada doctrine. This approach assumes that a change of government
is an internal matter of the State concerned in which other States have no right to intervene. It avoids
the disadvantages of the subjective and the objective approach. Indeed, if non-recognition can be an
expression of disapproval of a new government, then it can be argued that recognition may be inter-
preted as implying approval of a new government even in cases where no such approval was in-
tended. The Estrada doctrine rejects the need for express and formal declarations granting recogni-
tion of governments. What is required for a new government is to show that it exercises effective
control over the relevant territory. The doctrine has gained increasing support.

Under objective and subjective approaches, a recognizing State may recognize a foreign en-
tity as either de jure or de facto government. The terms de jure or de facto reflect the quality of the

39
 government. De facto recognition of a new government is an interim step taken where there are
doubts as to its legitimacy and stability. The distinction between de facto and de jure is done bellow:

- De jure: A de jure government is one which in the opinion of the person using the phrase ought to
possess the powers of sovereignty, though at the time it may be deprived of them.

- De facto: A de facto government is one which is really in possession of them, although the posses-
sion may be wrongful or precarious.

Therefore, there are some problematic situations related with the conflict between de jure and de facto
governments.
- Recognition of local de facto governments
- Recognition of exiled governments
- Recognition of revolutionary governments or coup d’états

Do you know…?
o Which are the criteria for recognising states?
o Why is it problematic to recognise governments?

THE CASE OF QUEBEC

FACTS
The spectre of a unilateral declaration of independence by Quebec and its implications prompted the Cana-
dian Federal government to refer three questions to the Supreme Court of Canada regarding the legality
under both the Canadian constitution and international law of such a declaration.

HELD
The Supreme Court's reply was that unilateral secession was illegal under both. The second question is of
particular interest as it was formulated in the following manner:

Does international law give the National Assembly, legislature or government of Quebec the right to
effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination
under international law that would give the National Assembly, legislature or government of Quebec the
right to effect the secession of Quebec from Canada unilaterally?

The Supreme Court of Canada answered that international law does not specifically grant component parts
of sovereign states the legal right to secede unilaterally from their “parent” state. It emphasized that the
protection of territorial integrity prevails over the right to external self-determination since ‘A state whose
government represents the whole of the people or peoples resident within its territory, on a basis of equality
and without discrimination, and respects the principles of self-determination in its own internal arrange-
ments, is entitled to the protection under international law of its territorial integrity’. The Supreme Court of
Canada concluded that:

40
 In summary, the international law right to self-determination only generates, at best, a right to ex-
ternal self-determination in situations of former colonies; where a people is oppressed … or where a defina-
ble group is denied meaningful access to government to pursue their political, economic, social and cultural
development … Such exceptional circumstances are manifestly inapplicable to Quebec under existing condi-
tions.

41
15. STATE TERRITORIALITY
15.1 TERRITORIAL SOVEREIGNTY
The territory of a State is the foundation of its factual existence and the basis for the exercise of its legal
powers. Territory has both a physical1 and a legal dimension.

✓ Physical elements
The territory of a State comprises:
- All land areas (including subterranean areas).
- Waters (including national rivers and lakes).
- The territorial sea appurtenant to the land.
- The sea-bed and subsoil of the territorial sea, and the airspace over the land and the territorial
sea.
Territorial sovereignty may be exercised over various geographical features analogous to land including is-
lands, islets, rocks, and reefs.

✓ Legal elements
The possession of a territory and the exclusive exercise of territorial jurisdiction therein is one of the essen-
tial elements of state sovereignty.
Sovereignty understood as summa potestas, i.e., supreme power of command within a territory, has both
internal and external aspects which coexist, and are omnipresent:

A. THE INTERNAL ASPECT

Concerns the authority exercised by a State within its borders over persons and situations/events that oc-
cur there. It encompasses the right to dispose of the territory.

B. THE EXTERNAL ASPECT

Entails that a State must respect the territorial integrity of other States, must not interfere in the internal
affairs of other States, and must ensure the safety of foreign nationals present within its territory.

In addition to territorial sovereignty three other territorial regimes are recognized by international law:

• Territory that is not subject to the sovereignty of any State or States and which possesses a status of
its own (e.g., mandate and trust territories)
• Terra nullius, being land legally susceptible to acquisition by States, but not as yet placed under any
territorial sovereignty.
• Res communis, consisting of the high seas, and outer space, which is not capable of being placed
under the sovereignty of any State, as it belongs to the Community of States.

15.2 BORDERS
The definition of border is the delimitation of sovereignty. There are different types of borders:
- There are natural borders (rivers, deserts)
- Principle of stability: once a border is stablished cannot be changed unless there is a mutual consent by a
treaty.

42
- Lack of precise delimitation does not affect statehood.
* Activities that cause damage outside of state territory are not allowed

15.3 TYPES OF SOVEREIGNTY

A. Titular (or residual sovereignty) and effective sovereignty: An entity which has the ultimate capacity of
disposing of a territory may be said to possess ‘titular’ or ‘residual’ sovereignty. The entity which exercises
plenary power over a territory but lacks the capacity of ultimate disposal may be said to possess ‘effective’
sovereignty.

B. Condominium: this occurs when two or more States jointly exercise sovereignty over a piece of territory
and its inhabitants.

C. Terminable and reversionary sovereignty: this refers to a situation where sovereignty of a territory changes
by operation of law as a result of the fulfilment of a condition or a failure to meet an express or implied
condition.

D. Indeterminate sovereignty: this may occur when a territory that is not terra nullius, nevertheless, has no
determinate sovereign. This would apply for instance in a situation where a sovereign has renounced his
sovereignty and the coming into being of a new sovereign is postponed.

15.4 ACQUISITION
This will occur, in particular, in a situation where States make competing claims, and the subsequent exer-
cise of territorial sovereignty is considered a separate matter.

The principles and rules relating to the acquisition of title to territorial sovereignty can be divided into three
categories:

1.JUS COGENS: Jus cogens rules such as the prohibition of the use of force, the principle of peaceful settle-
ments of international disputes and the principle of self-determination of peoples apply to all modes of ac-
quisition/loss of territory by a State. Thus the validity of and or/effect of any mode of acquiring territorial
title (or losing it) by a State will be tested by reference to these rules. However, their application is subject
to the limitations imposed by intertemporal law (see below). Additionally, there is no agreement on what
rules have the status of jus cogens.

2. SPECIFIC PRINCIPLES:

▪ The principle of effectiveness: This has many meanings but in the context of acquisition of title to
territory it refers to how a factual situation affects the creation of a right i.e., the acquisition of legal
title to territory. It can be said that under the principle of effectiveness, decisive importance is given

43
 to a factual situation in the evaluation of a legal situation i.e., the factual effective situation consti-
tutes a prerequisite of the existence of the right of a State to claim sovereignty over a territory. The
application of the principle of effectiveness is justified on the ground that because there is no single
coercive international authority which decides on States’ titles to particular territories, effective con-
trol exercised by a State over a territory may create, in some circumstances, a legal title to it. How-
ever, the principle of effectiveness does not apply in all circumstances as its main purpose is not to
recognize a right based on strength, but to ensure the stability of the international legal order and to
guarantee legal security.

The principle of effectiveness is relevant to the following modes of acquisition of territory:

- Occupation
- Acquisitive prescription
- Conquest

The principle of effectiveness applies to settlement of disputes between States in the following way:
- If a State cannot show that title was acquired from a prior sovereign through a treaty of cession or through
State succession including decolonization and
- If the principle of uti possidetis is not applicable, the determination of whether a State can claim sovereignty
over a disputed territory or whether a prior sovereign had in fact held title, will be made on the basis of the
actual exercise of State power over the disputed territory

▪ The principle of uti possidetis: borders are maintained when states are created.

3.TEMPORAL APLICATION OF RULES: creation of rights and continuation of rights should be judge by the law
in force at the time of events occurring. So, the ICJ applies the law that is on force at that moment of inter-
pretation.

▪ The critical date rule: only facts occurring before the conflict erupts can be taken into consideration.

4.EVIDENTIARY RULES
- Recognition. In respect of land claims, recognition refers mainly to the attitude of third States, i.e., States
not involved in a dispute.
- Acquiescence. This refers to the attitude of a dispossessed State and is inferred from its failure to protest
in circumstances where protest might reasonably have been expected against the exercise of control by its
opponent over disputed territory.
- Estoppel. The situation of estoppel arises when a State’s conduct is clear, sustained, and consistent, and the
other party relying on such conduct has changed its position to its own detriment or has suffered some prej-
udice.

15.5 MODES OF ACQUISITION OF TITLE TO TERRITORY

✔ Occupation: only terra nullius can be acquired by occupation. The condition for the acquisition of
title to any territory by occupation is effective possession. Such possession combines the intention

44
 of a State to act as sovereign and some actual exercise or display of State activity consistent with
sovereignty. Motivation: sovereignty, not other reasons.
✔ Acquisitive prescription: Like occupation, acquisitive prescription is based on effective control over
territory, but whereas occupation is acquisition of terra nullius, prescription is the acquisition of ter-
ritory which belongs to another State.
Prescription is understood as the acquisition of territorial sovereignty through continuous and peace-
ful exercise of sovereignty over it during such a period as is necessary to create, under the influence
of historical development, the general conviction that the present condition of things is in conformity
with international order

✔ Accretion: when new land appears for the first time naturally, there can be two situations:
1. If it appears in the high seas, it would be terra nullius, so the first state who exercise sov-
ereignty there it would become their land.
2. If it appears in territorial waters, it becomes part of that territory.
Furthermore, to draw a border in a river you need to draw it in the deepest or in the middle.

✔ Cession: This is the transfer of sovereignty, usually by treaty, from one State to another. It is made
by a mutual consent, by sale or peace treaties. When title to territory is passed to a grantee State,
that State becomes responsible for any act occurring on the territory. The issue of nationality of in-
dividuals residing in a territory which has been ceded is normally settled between the two States
concerned. However, in the absence of any agreement, the successor State will normally grant its
nationality to the newly acquired population.

✔ Conquest: the original meaning is after conquering a territory, a state can choose to annex it or not,
but nowadays the use of force is prohibited. Moreover, there is discrepancy between de jure (la
teoria) and de facto (la práctica)

15.6 OUTER SPACE

GENERAL OUTERSPACE REGIME

There is a general legal regime that regulates outer space. It is the Treaty on the Principles Governing the
Activities of States in the Exploration and Use of Outer Space including the Moon and Other Celestial Bodies.
- It is pacta tertiis, but it reflects general custom, what is to say that is a treaty that applies only be-
tween the parties to it but is a treaty that also reflects general and uniform practice.
- It is a framework treaty, which is to say that it is a type of international agreement that sets out
the broad principles, objectives, and procedures for cooperation between two or more countries. It pro-
vides a general framework for future negotiations and agreements on specific issues.

It is based in four principles:

- Common heritage of all mankind: exclusion of territorial sovereignty.
- Freedom of access, exploration and exploitation.
- Partial demilitarization.
- Avoid contamination

45
* The moon has no claim of sovereighnity

15.7 POLAR REGIONS:

THE ARTIC
There is settled controversial territoriality due to the fact that borders have not been established:
- Several competing territorial claims, particularly by Canada and Russia.
- A “science race” to establish continental shelves or other facts to use for claiming territorial sovereignty
THE ANTARTIC

In total six nations made territorial claims to Antarctica. They were: Australia, Chile, France, New Zealand,
Norway and the UK. In 1959 was created the Antarctic Treaty and entered into force on 23 June 1961, provid-
ing such a solution. ’.

Apart from imposing a moratorium on territorial claims, the treaty ensures that Antarctica is used for peace-
ful purposes only and that freedom of scientific investigation and cooperation is preserved and that a mutual
right of inspection of all installations was settled.

Do you know…?
o Which implications do state sovereignty have for territoriality and its governance in the interna-
tional system?
o How is a given territory attributed to a sovereign state?
o Which are the problems with non-sovereign spaces?

ACCORDANCE WITH INTERNATIONAL LAW OF THE UNILATERAL DECLARATION OF INDEPENDENCE IN RE-

SPECT OF KOSOVO

FACTS
The UNGA asked the following question: ‘Is the unilateral declaration of independence by the Provisional
Institutions of Self Government (PISG) of Kosovo in accordance with international law?’

HELD
The ICJ held that the adoption of the unilateral declaration did not violate any applicable rule of international
law.

COMMENT
The Court pointed out that the question was ‘very narrow and specific’.70 It was very different from the
question put before the Supreme Court of Canada in Re Secession of Quebec. The UNGA had requested an
opinion on whether the unilateral declaration of independence by the PISG of Kosovo was in accordance with
international law. Thus the question neither asked about the legal consequences of that declaration (i.e.
whether Kosovo had achieved statehood) or whether international law conferred a positive entitlement on
Kosovo unilaterally to declare its independence or, a fortiori, on whether international law generally confers

46
an entitlement on entities situated within a State to unilaterally break away from it. Accordingly, the Court
held that it was not necessary for it to address these issues. It was also not necessary for it to answer the
specific question of whether a remedial right to secession71 had arisen in relation to Kosovo.

The Court held that there was no rule of international law prohibiting an entity from making a unilateral
declaration of independence.72 The ICJ referred to the extensive practice of States relating to instances of
issuing unilateral declarations of independence. It concluded that declarations of independence were not
illegal in international law. 73 However, they were capable of being illegal if they violated general public
international law or an applicable lex specialis.

With regard to general international law, in para 81 the ICJ stated that illegality of unilateral declarations
result not from the fact that they were unilateral but: ‘from the fact that they were, or would have been,
connected with the unlawful use of force or other egregious violations of norms of general international law,
in particular those of a peremptory character (jus cogens)’.

In light of the above, the Kosovo declaration did not violate general public international law but for example,
similar declarations that had been made by Rhodesia, TRNC and the Republika Srpska were illegal because
they were in breach of jus cogens. Further, the ICJ noted that the principle of territorial integrity is neutral
with regard to unilateral declarations of independence,74 i.e. it neither prohibits issuing declarations of in-
dependence nor accepting such declarations.

With regard to the lex specialis, i.e. Resolution 1244 and UNMIK regulations, including regulation 2001/9,
which promulgated the Constitutional Framework for Kosovo, adopted on the authority of Resolution 1244
(1999), the Court noted that Resolution 1244(1999) had established a temporary, exceptional legal regime
that had superseded the Serbian legal order. It was aimed at addressing the crisis existing in the territory in
1999 and designed for humanitarian purposes to provide a means for stabilization and reconstruction. It was
not intended to create a permanent institutional framework. The Court found that Resolution 1244 did not
contain specific provisions prohibiting independence or a declaration of independence. Likewise, subsidiary
documents, i.e. UNMIK regulation, the Constitutional Framework, and subsequent practice of UN administra-
tion did not preclude the achievement of independence by Kosovo. Accordingly, the Kosovo declaration did
not violate the lex specialis.

The next matter considered by the ICJ concerned the author of the Declaration. This was a crucial matter
given that the Provisional Institutions of Self Government (PISG) had to act within the restrictive framework
of Resolution 1244 and subsidiary instruments. The ICJ held that although the question asked by the UNGA
clearly stated that the author of the declaration was the PISG, it was part of the judicial function of the ICJ to
determine who, in fact, was the author of the declaration. In this respect the Court found that the members
the Kosovo Assembly, an element of the PISG, were not acting as members of the Assembly, but as the dem-
ocratically elected leaders of the people of Kosovo, i.e. ‘as persons who acted together in their capacity as
representatives of the people of Kosovo outside the framework of the interim administration.

Many commentators and judges consider that the question posed by the UNGA was not the question an-
swered by the Court. Judge Simma pointed out in his separate opinion that the Court's interpretation of the
question put before it (i.e. whether the declaration was in violation of international law?) goes against the
plain and ordinary meaning of that question, which was whether the declaration of independence was in
accordance with international law. 76 In answering that question the Court should have provided a compre-
hensive analysis of whether the principle of self-determination or some other rule permitted, or even enti-
tled, an entity to declare independence when certain conditions were satisfied. He opined that the Court's
methodology reflected ‘a tired view of international law, which takes the adage, famously expressed in the

47
Lotus Judgment, according to which restrictions on the independence of States cannot be presumed because
of the consensual nature of the international legal order’.78 It did not follow, however, that simply because
there were no rules prohibiting a particular course of action that action is.

THE ISLAND OF PALMAS ARBITRATION (THE NETHERLANDS VS. US): OCCUPATION FACTS

The US claimed the Island of Palmas which lies halfway between the Philippines and what was then the Dutch
East Indies. The US founded its title upon the 1898 Treaty of Paris by which Spain ceded the Philippine Islands
to the US. In this Treaty the Island of Palmas was described as forming part of the Philippines. However, the
island was actually under Dutch control. The issue was therefore whether sovereignty over the island be-
longed to Spain at the time she purported to cede the island to the US.

HELD
The arbitrator held that even if Spain did originally have sovereignty over the island the Dutch had adminis-
tered it since the early eighteenth century, thereby supplanting Spain as the sovereign. He stated that:

The continuous and peaceful display of territorial sovereignty (peaceful in relation to other states) is
as good as a title … Manifestations of territorial sovereignty assume, it is true, different forms, according to
conditions of time and place. Although continuous in principle, sovereignty cannot be exercised in fact at
every moment on every point of a territory. The intermittence and discontinuity compatible with the mainte-
nance of the right necessarily differ according as inhabited or uninhabited regions are involved, regions en-
closed within territories in which sovereignty is incontestably displayed or again regions accessible from, for
instance, the high seas.

The learned arbitrator found ample support for the Dutch arguments based upon its peaceful and continuous
exercise of State authority over the island. These included the close link existing since 1677 between the
people of the island and the Netherlands via the Dutch East India Company and the unchallenged peaceful
display of Dutch sovereignty from at least 1700 to the outbreak of the dispute in 1906.

THE LEGAL STATUS OF EASTERN GREENLAND CASE: OCCUPATION

FACTS
A dispute arose out of the action of Norway in proclaiming its occupation of parts of East Greenland in 1931.
Denmark argued that Danish sovereignty extended to the whole of Greenland. On the evidence submitted
the Court was satisfied that Denmark's intention to claim title to the whole of Greenland was established,
from at the latest 1721. For the Danish claim to succeed it was next therefore necessary to discover some
actual exercise or display of authority by Denmark over the disputed territory. The following factors were
submitted by Denmark in evidence:

o the absence, until 1931, of any competing claim;

o the character of the country – the arctic and inaccessible nature of
o the uncolonised parts of the territory where it would be unreasonable to demand a contin-
uous exercise of authority;
o the numerous Danish legislative and administrative acts purportinG to apply to the whole of
Greenland;
o treaties with other States in which those other States recognised the Danish claim to the
territory;

48
 o the granting of a trade monopoly and the granting of trading, mining and other concessions
by Denmark.
HELD
The Court held that this pattern of activity between 1721 and 1931 was sufficient to establish Danish title to
the whole of the territory.

CHAMIZAL ARBITRATION: ACCRETION

FACTS
The 1848 and 1852 Treaties between the US and Mexico established the Rio Grande as a boundary river
between the two countries. However, as the Rio Grande often changed its course a dispute arose. Before
1864, the Rio Grande was gradually changing its course which resulted in the gradual exposure of a tract of
land (by way of accretion). In 1864 there was suddenly a very big flood of the river. This flood dramatically
altered the course of the river resulting in a tract of some 600 acres, called the Chamizal Tract, which had
been on the south bank of the river near the Mexican shore finding itself adjacent to the north bank near the
US town of El Paso. The gradual accretion and the sudden flood both altered the course of the Rio Grande.
The US claimed that the Chamizal Tract was formed by slow and gradual erosion while Mexico argued that it
was formed by avulsion.

HELD
The Arbitral Tribunal made a distinction between the relevant two periods of alteration in the Rio Grande:
prior to 1864, the alteration was due to gradual erosion and accretion and consequently, the US was entitled
to the part of the Chamizal Tract resulting from the gradual southward accretion of land. In 1864 there was
a sudden alteration and thus Mexico was entitled to the acres exposed by the flood. Because of different
causes of alterations in the two periods, the majority of the arbitration commission awarded 437 acres of the
Chamizal Tract to Mexico (i.e. this was an area of the land that was on the Mexico side of the river before the
1864 flood). The US refused to accept the award for more than 50 years. After the intervention of US Presi-
dent J.F. Kennedy, a Treaty was signed between US and Mexico in 1963 under which the 437 acres of Chami-
zal Tract were transferred to Mexico.

CLIPPERTON ISLAND ARBITRATION: SYMBOLIC ANNEXATION

FACTS
The island was first discovered by the Englishman Clipperton in 1705 and later rediscovered by French navi-
gators. It is a small uninhabited island located in the Pacific Ocean, some 1,000 kilometers southwest of Mex-
ico, now part of French Polynesia. Neither the UK nor France made any claims to the island prior to 1858. In
that year, the French government granted a concession to exploit guano resources on the island and on 17
November 1858, a French navy officer, duly authorized by the French government, proclaimed French sov-
ereignty over the island from the deck of a French merchant ship cruising near the island. Although, at that
time, the French landed on the island, no visible marks of the French presence were left on the island. The
proclamation was reported to the French consulate in Honolulu and subsequently notified to the government
of Hawaii and published in thelocal Hawaiian newspaper. When in 1897 a French navy vessel found that
guano was being collected on the island on behalf of a US company, the French government requested that
the US declare that it had no claim to the island. The US confirmed this but Mexico decided to claim sover-
eignty over the island on the ground that the island was discovered by Spain and that Mexico, as the legal
successor to Spain, could claim title to the island. Mexico dispatched a warship whose crew landed there and
planted the Mexican flag. France and Mexico agreed to refer the dispute to the arbitration of King Victor
Emanuel III of Italy.

49
HELD
The arbitral award stated that Mexico had not acquired sovereignty over the island as it could neither prove
that the island was discovered by Spain nor that it had occupied the island prior to 1858. Accordingly, prior
to 1858 the island was terra nullius and could be occupied by France. In the absence of any effective rival
claim and taking into account the inaccessible and uninhabited nature of the island, France acquired the
island when sovereignty was proclaimed on 17 November 1858. Accordingly, the purported annexation,
though symbolic in form, was sufficient to confer on France the legal title to Clipperton Island.

CASE CONCERNING THE TERRITORIAL DISPUTE (LIBYAN ARAB JAMAHITIYA VS. CHAD): BOUNDARY
TREATIES

FACTS
After an armed conflict caused by competing claims to an area of border territory, Libya and Chad agreed to
refer the dispute regarding the location of their mutual border to the Court. A Treaty of Friendship and Good
Neighbourliness in 1955 had been negotiated between the newly independent State of Libya and France as
the colonial administrator of the territory which subsequently became Chad. In the treaty, a border had been
set down between the two countries but the treaty was expressed to be of limited duration.

HELD
The Court considered the matter and concluded that the border was definitely agreed in the 1955 Treaty to
which Chad was a party as the successor State to the French-administered territory. The subsequent actions
of the parties supported this determination. The fact that the treaty was only concluded for a limited period
– 20 years – was not relevant because treaties setting down borders create demarcations which endure in-
dependently of the agreement establishing them. In the words of the Court:
The establishment of this boundary is a fact which, from the outset, has had a legal life of its own, inde-
pendently of the fate of the 1955 Treaty. Once agreed, the boundary stands, for any other approach would
vitiate the fundamental principle of the stability of boundaries, the importance of which has been repeatedly
emphasized by the Court.

COMMENT
The Court's position accords with Article 62(2)(a) VCLT which precludes the application of rebus sic stantibus
to treaties settling international borders.

50
19. STATE INSTITUTIONS AND DIPLOMACY
19.1 STATE INSTITUTIONS
There are two types of state institutions. On the one hand, we have internal state institutions that fulfil the
order of the states in their internal affairs, and on the other hand, we have external institutions which hold
the function of leading with external affairs regarding the states. Inside the internal and external institu-
tions, there are some representatives that have to lead those affairs.

- INTERNAL INSTITUTIONS
o HEAD OF STATE: Has the responsibility for the execution and enforcement of the laws cre-
ated by Congress.
o HEAD OF GOVERNMENT: Is responsible for carrying out negotiations with foreign leaders
and their governments.
o MINISTER OF FOREIGN AFFAIRS: Is responsible for the state's foreign policy and relations,
diplomacy, bilateral, and multilateral relations affairs as well as for providing support for a
country's citizens who are abroad.

- EXTERNAL INSTITUTIONS
o DIPLOMATIC MISSIONS: Is a group of diplomats representing one country that lives in an-
other country. They try to help their own country, encourage cooperation between nations,
and maintain peace.
o CONSULAR MISSIONS: They undertake administrative duties such as processing visas for
citizens of their host territory, as well as providing information and guidance about immi-
gration processes.
19.2 DIPLOMACY DEFINITION
They consist, inter alia, of representing the sending State in the receiving State (always by agreement of the
other state), protecting the interests of the sending State and its nationals, (ad-hoc missions: visits and meet-
ings) gathering, by lawful means, information about conditions and developments in the receiving State, and
reporting them to the government of the sending State, negotiating with the government of the receiving
State, and promoting friendly relations in all areas between both States.

19.3 FUNCTIONS
The functions of diplomatic missions are specified in Article 3 of the Vienna Convention. They consist on:
- Representing the sending State in the receiving State.
- Protecting the interests of the sending State and its nationals.
- Gathering, by lawful means, information about conditions and developments in the receiving State.
- Reporting them to the government of the sending State.
- Negotiating with the government of the receiving State.
- Promoting friendly relations in all areas between both States.
They have 4 functions:
• Representative: the personification of state, necessary for interaction.
• Communicative: this is how states communicate.
• Instrumental: this is how the state pursues its interests.
• Systematic: negotiation and peace are promoted as alternatives to the use of force and warfare.

51
19.4 MEMBERS OF THE MISSIONS
There are 3 categories inside the members of a missions<:
A. DIPLOMATIC AGENTS
The first category comprises ‘diplomatic agents’, such as the head of the mission or chargé d'affaires, and
members of his diplomatic staff – counsellors, attachés, secretaries. Provided they are not nationals or per-
manent residents of a receiving State they are entitled to complete immunity (in both official and private
acts) from criminal, civil and administrative jurisdiction, and from measures of execution except in three
cases.
B. FAMILIES OF DIPLOMATIC AGENTS
Have the same immunity as the diplomatic agents to ensure their safety. This immunity is also granted to
the family of a diplomatic agent which forms part of his household unless they are nationals of a receiving
State.
C. STAFF OF THE MISSION
They have formal accreditation to the receiving state, and they are dependent on the consent of the receiv-
ing state.
It is divided into two categories:

- ADMINISTRATIVE STAFF
This includes clerks, typists, translators, radio, and telephone operators etc. and their families which form
part of their household provided they are neither nationals nor permanent residents of the receiving State.
The second category does not enjoy immunity from civil and administrative jurisdiction in relation to acts
performed outside the course of their duties.

- SERVICE STAFF
This comprises members of the service staff such as butlers, maids, cooks, chauffeurs, porters, cleaners.
Provided they are not nationals or permanent residents of a receiving State, they enjoy immunity only from
the civil jurisdiction in
respect of acts performed in the course of their duties.

19.5 THE EXPLUSION OF DIPLOMATS

According to Article 9 of VCDR:
1. The receiving State may at any time and without having to explain its decision, notify the send-
ing State that the head of the mission or any member of the diplomatic staff of the mission is
persona non grata or that any other member of the staff of the mission is not acceptable. In
any such case, the sending State shall, as appropriate, either recall the person concerned or ter-
minate his functions with the mission. A person may be declared non-grata or not acceptable
before arriving in the territory of the receiving State.

There are 3 main reasons for which a diplomat may be declared persona non grata:
▪ The diplomat's personal behavior, such as the commission of a criminal act or anti-social conduct,
or an abuse of his diplomatic status such as when he acts as a spy or in any other manner endan-
gers the security and other interests of the receiving State.

52
 ▪ A receiving State may declare a diplomat persona non grata as a retaliation against a sending State
which has so declared one of its own diplomats. This practice is quite common.

▪ A receiving State is required to make a persona non grata declaration regarding diplomats of a
sending State to comply with a binding resolution of the UNSC. Often UNSC resolutions, as part of
sanctions imposed on a sending State, require the severance, or substantial reduction of diplomatic
relations with a State under sanctions.

2. If the sending State refuses or fails within a reasonable period to carry out its obligations under par-
agraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a
member of the mission.

According to Article 11 of VCDR:

In the absence of specific agreement as to the size of the mission, the receiving State may require that the
size of a mission be kept within limits considered by it to be reasonable and normal, having regard to cir-
cumstances and conditions in the receiving State and to the needs of the particular mission.

19.6 INVIOLABILITY OF THE MISSION AND IT PREMISES

Article 1 of the Vienna Convention defines premises of the mission as the buildings or parts of buildings and
the land ancillary thereto, irrespective of ownership, used for the purposes of the mission including the res-
idence of the head of the mission.

Article 22 of the VCDR states:

1. The house/premise of the mission shall be inviolable. The agents of the receiving State may not
enter them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the
houses/premises of the mission against any intrusion or damage and to prevent any disturbance of
the peace of the mission or impairment of its dignity.
3. The houses/premise of the mission, their furnishings and other property thereon and the means of
transport of the mission shall be immune from search, requisition, attachment, or execution.

Art. 24 states that the archives and documents of the mission shall be inviolable at any time and wherever
they may be.

*In the case of an emergency neither the emergency services can enter the embassy, only in the case in
which the ambassador gives them permission to it.

19.7 COMMUNICATION
According to Article 27 VCDR:
1. The receiving State shall permit and protect free communication on the part of the mission for all
official purposes. In communicating with the Government and the other missions and consulates of
the sending State, wherever situated, the mission may employ all appropriate means, including dip-
lomatic couriers and messages in code or cypher.
2. The official correspondence of the mission shall be inviolable. Official correspondence means all
correspondence relating to the mission and its functions.
3. The diplomatic bag shall not be opened or detained.
4. The packages constituting the diplomatic bag must bear visible external marks of their character and
may contain only diplomatic documents or articles intended for official use.

53
According to Article 40 VCDR:
Third States shall accord to official correspondence and other official communications in transit, including
messages in code or cypher, the same freedom and protection as is accorded by the receiving State.

19.8 INVIOLABILITY OF THE DIPLOMATIC AGENT

All diplomats, as well as members of their families forming part of their households, provided they are not
nationals or permanent residents of a receiving State, enjoy personal inviolability. A receiving State must
treat them with due respect and is also bound to ensure complete protection of all members of a foreign
mission and their families against physical violence, and attacks on their dignity and freedom.
Inviolability is extended to the private residence of a diplomat, his papers, correspondence, and his other
property.
o The private residence of a diplomatic agent shall enjoy the same inviolability and protec-
tion as the premises of the mission.
o His papers, correspondence and, except as provided in paragraph 3 of article 31, his prop-
erty, shall likewise enjoy inviolability.

19.9 IMMUNITY OF THE DIPLOMATIC AGENT

According to Article 31 VCDR, a diplomatic agent shall enjoy immunity from the criminal jurisdiction of the
receiving State. Realizing that the purpose of such privileges and immunities is not to benefit individuals but
to ensure the efficient performance of the functions of diplomatic missions as representing States. The dip-
lomatic agent shall also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
❖ A real action relating to private immovable property situated in the territory of the receiving State
unless he holds it on behalf of the sending State for the purposes of the mission.

❖ An action relating to succession in which the diplomatic agent is involved as executor, administrator,
heir or legatee as a private person and not on behalf of the sending State.

❖ An action relating to any professional or commercial activity exercised by the diplomatic agent in
the receiving State outside his official functions.

Although, a diplomatic agent is not obliged to give evidence as a witness. The immunity of a diplomatic
agent from the jurisdiction of the receiving State does not exempt him from the jurisdiction of the sending
State. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under Article
37 may be waived by the sending State.

According to Article 34 VCDR, a diplomatic agent shall be exempt from all dues and taxes, personal or real,
national, regional, or municipal except VAT and private commercial activities.

19.10 OBLIGATIONS THAT HAVE IMMUNITY

Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such privileges and
immunities to respect the laws and regulations of the receiving State. They also have a duty not to interfere
in the internal affairs of that State.

A diplomatic agent shall not in the receiving State practice for personal profit any professional or commercial
activity.

54
There are no sanctions to diplomatic agents as they have diplomatic immunity, but this doesn't mean that
there cannot be some effects such as pointing that person as a persona non grata or even negotiating with
the state some consequences for the actions as returning it to the origin state.

19.11 WAIVER OF IMMUNITY

Article 32 VCDR provides that it is for the sending State to waive immunity at its discretion and says that
waiver must always be expressed. The waiver by the head of a mission shall be deemed to be a waiver by the
State he represents. Such a waiver of immunity is that of the State and not of the diplomatic representatives
themselves.

19.12 CESSATION OF IMMUNITIES

Immunities and privileges normally cease at the moment when a diplomat leaves the receiving country, or
upon expiry of reasonable time for that diplomat to do so, even during an armed conflict. Therefore, the
termination of his functions in a receiving State does not coincide with the cessation of immunity. It extends
for a reasonable time to allow a diplomat to complete his arrangements and leave the receiving State.
In respect of the cessation of immunities, it is important to make a distinction between functional and per-
sonal immunity. First, functional immunity covers acts and transactions performed by a diplomat in his official
capacity. However, personal immunity covers all private activities of a diplomat performed during the period
of his mission in a receiving State but expires at the end of that period.

Therefore, if after the termination of his diplomatic functions and his subsequent return to his country, he
goes back to a receiving State as a private individual he may be accountable for his personal activities car-
ried out during his mission and may be arrested and brought to trial there.

Do you know…?
o What is diplomacy?
o How and why are diplomatic agents immune from the jurisdiction of the host state?
o What is the difference between inviolability and immunity?

THE CASE OF THE ASSAULT AND OCCUPATION OF THE UNITED STATES EMBASSY IN TEHRAN, IRAN

Towards the end of the 1970s, Iran was plagued by great political instability and turmoil as dissatisfaction
with the dictatorship of the US-backed Shah grew, with the ultimate consequence being an Islamic revolution
that brought Ayatollah Khomeini to power. On the 4th of November 1979, several hundred Iranian students
and other demonstrators assaulted and occupied the US embassy in Tehran by force, in protest at the admis-
sion of the deposed Shah of Iran into the US for medical treatment. The Iranian security forces did not take
action to prevent the occupation of the embassy, nor to address the situation afterwards. The demonstrators
seized archives and documents and held 52 US nationals as hostages, including diplomatic and consular staff.
Some of the US diplomats were not present in the embassy when the assault occurred but were brought
from their homes in Tehran to the occupied embassy and detained there, in some cases along with members
of their families.

By decree of 16th of November 1979, Ayatollah Khomeini expressly declared on behalf of his government
that the premises of the embassy and the hostages taken would remain under Iranian authority until the
Shah would be returned to Iran. The US nationals were accused of being spies and imprisoned at various

55
locations for more than one year. After failed attempts to negotiate the release of the hostages, on the 24th
of April 1980, the United States launched the military rescue operation “Eagle Claw”, involving several
transport and combat aircraft as well as special ground forces. At the first stage, the mission was plagued by
accidents and unforeseen obstacles that made it impossible for all the necessary helicopters to arrive at the
desert zone in central Iran, which the US had chosen as the launching area for the actual rescue mission into
Tehran. Also, the subsequent evacuation of troops and equipment was a fiasco as both dead soldiers and
aircraft had to be abandoned on Iranian soil. The hostages were released after a deal was brokered between
Iran and the United States.

Answer the following two questions, identifying the relevant articles of the Vienna Convention on Diplo-
matic Relations, where relevant.
1. Has Iran broken International Law? Which specific obligations? Discuss all possible breaches.
Yes, Iran did it.
- Art 22.2: The receiving State is under a special duty to take all appropriate steps to protect the premises
of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission
or impairment of its dignity.
- Art 24: The archives and documents of the mission shall be inviolable at any time and wherever they may
be.
- Art 29: The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or
detention. The receiving State shall treat him with due respect and shall take all appropriate steps to pre-
vent any attack on his person, freedom or dignity.)
- Art 30.1: The private residence of a diplomatic agent shall enjoy the same inviolability and protection as
the premises of the mission.
- Art 36.2: The personal baggage of a diplomatic agent shall be exempt from inspection unless there are
serious grounds for presuming that it contains articles not covered by the exemptions mentioned in para-
graph 1 of this article or articles the import or export of which is prohibited by the law or controlled by the
quarantine regulations of the receiving State. Such an inspection shall be conducted only in the presence of
the diplomatic agent or of his authorized representative.
- Art 37.1: The members of the family of a diplomatic agent forming part of his household shall, if they are
not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36. (The
family has been also detained)
- Art 37.2: Members of the administrative and technical staff of the mission, together with members of
their families forming part of their respective households, shall, if they are not nationals of or permanently
resident in the receiving State, enjoy the privileges and immunities specified in articles 29 to 35, except that
the immunity from civil and administrative jurisdiction of the receiving State specified in paragraph 1 of ar-
ticle 31 shall not extend to acts performed outside the course of their duties. They shall also enjoy the privi-
leges specified in Article 36, paragraph 1, in respect of articles imported at the time of first installation.

2. How does the decree of the 16th of November change the extent of Iran’s breach of International Law?
After this moment everything that happens is under the state's responsibility, so everything happening is
under the legitimacy of the state.

3. Has the United States broken international law? Which specific obligations? Which alternatives did the
US have for resolving their dispute with Iran? no, it didn´t They could try to negotiate, They could appeal
to the International Court of Justice and they could appeal to the UNSC and it to try to improve the situa-
tion. Peaceful resolution of conflicts.

56
20. CONSULAR RELATIONS AND STATE IM-
MUNITY
20.1 SPECIAL DIPLOMACY MISSIONS
Special missions are done in a limited time, with a geographical limitation and for specific issues. In addition,
the principle of mutual consent must be respected.
✓ Right to premises and inviolability of these.
✓ Limited inviolability in case of emergency.
✓ Duty to protect the premises (Receiving state) Inviolability of documents and communication Per-
sonal immunities.
✓ Inviolability of residence
✓ Diplomatic immunity
Conclusion: with few exceptions, like permanent diplomatic missions. Based on same functional theory

MULTILATERAL DIPLOMACY:
• Internal conferences
• Summitry, non-institutionalized meetings
• Immunities and privileges by host state according to special agreement
• International organizations:
- Similar to permanent bilateral missions, because they have the same customary norms apply, but
there is greater flexibility and variation.
- Host state determines immunities and privileges according to an agreement with IO.

20.2 CONSULAR RELATIONS:

Consuls are representatives of their States in another State, are not accorded the same degree of immunity
within the receiving State as that enjoyed by diplomatic agents. Their functions are varied and include the
protection of the interests of the sending State and its nationals, the development of economic and cultural
relations, the issuing of passports and visas, the registration of births, marriages and deaths, and the super-
vision of vessels and aircraft attributed to the sending State.
Consular relations are established by mutual consent, this means that reciprocity is not necessary.

Example: This means that even if State A establishes a diplomatic mission in State B, there is no obliga-
tion for State B to establish one in State A.

FUNCTIONS:

- To determine by mutual consent.

- No representation of the sending state.
- Promote friendly relations.
- Gather information.
- Consular protection.

57
CONDINTIONS
They also have different things to do, what is to say that they have to accomplish certain conditions:
- Coar assistance
- General defense of the interests of persons and businesses. Individual right that the consulate be informed in case of
arrest.
- Defend the interests of absent personas
- International judicial cooperation, this is because communication is done through the consulates
- Issuing passports to citizens and visas to foreigners and other administrative functions of the state: voting
- Control and inspection of ships and aircraft of its nationality
- Frequently it is the diplomatic missions that fulfil also the consular function (a consular section)

PRIVILEGES AND IMMUNITIES

We have to do a distinction between two types of consulates:

CONSULATES OF CAREER OFFICIALS

▪ Inviolability of houses if these are not used for other purposes and with the exception of emergencies.
▪ Obligation to protect (receiving state)
▪ Inviolability of communication: in principle like diplomacy, but possibility of sending back the diplomatic bag
to origin, if concrete suspicions

Persons have:

- Obligations to protect (receiving state)

- No inviolability of residence
- Immunity limited to official functions and does not include the family.
- Fiscal and customs exemptions

Article 41 VCDR provides that:

- Consular officers shall not be liable to arrest or detention pending trial, except in the case of grave crime and
pursuant to a decision by the competent judicial authority.
- Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or
liable to any other form of restriction on their personal freedom save in execution of a judicial decision of
final effect.
- If criminal proceedings are instituted against a consular officer, he must appear before the competent au-
thorities.
Does not include their families and they do not have need for protection as they are not representatives of a state,
even if they can ask for that protection. Immunity and protection afforded by customary law is maintained.

HONORARY CONSULATE (CITIZENS OF RECEI VING STATE)

An ordinary company that is official but that is not as important as the consultants. They have paper’s function. They
have immunities and privileges.
- Fewer immunities and privileges.
- No inviolability of premises, only of documents.
- Obligation to protect (receiving state).
- No personal immunity, but right to protect.

IMMUNITY OF HEAD OF STATE AND GOVERNMENT

Head of states and governments have the same immunity and privileges as the diplomats They have inviolability in
different aspects:
1. Personal immunity

58
 2. Residence immunity
3. Belongings immunity
4. Correspondence immunity
5. Immunity ratione personae: This is enjoyed by heads of State and other high-ranking officials while in office
and covers all acts official and private, but ends when the officials vacate the post or, earlier, if their State
waives it. Such immunity derived from the office that the individual concerned holds.
6. Immunity ratione materiae: All representatives of a State who are acting in that capacity enjoy immunity ra-
tione materiae for the acts so performed, even if they have acted ultra vires. Such immunity attaches to the
official act, not to the office of the individual concerned, and can therefore be relied upon by former officials
as well as incumbent officials (but see point 5). It may also be relied upon by non-State actors who have acted
on behalf of a State.

STATE AND STATES REPRESENTATIVES IMMUNITY

It is known that a court is not competent to decide a case in which a defendant is a foreign state. This is because of
sovereign equality and functionality, what is to say that there is not any state court beyond another one.

Even if a court is not competent to decide things about states' behaviors, there are limitations to the sovereignty of a
state done by PIL that basically limits its jurisdiction in a way in which states cannot do whatever they want. The main
legal and political justifications for the existence of State immunity are as follows:
• The principle of sovereign equality and independence. Since States are independent and equal, no State
should be subjected to the jurisdiction of another State without its consent. This is encompassed in the
maxim par in parem non-habet imperium – legal persons of equal standing cannot have their disputes
settled in the courts of one of them.
• The inability to enforce judgments of a forum State against a foreign State. Immunity remains absolute in
respect of acta de jure imperii, i.e., acts of a public and governmental nature, as opposed to acta jure
gestionis, i.e., private acts of the State such as commercial transactions. Any attempt to enforce a judg-
ment rendered against a foreign State, even if some assets of that State are within the forum, would not
only create tension between the two States and upset friendly relations but also be contrary to the princi-
ple of non-intervention.
• Entitlement of foreign sovereigns to immunity similar to that enjoyed by them in the municipal law of their
home State. This entitlement rests upon the historical proposition that a sovereign could not himself be
sued before his own municipal courts, so the sovereign of another State was similarly exempt from juris-
diction of the local law.

As from the last years of the twentieth century, State immunity is being challenged on three grounds:
• First, it is incompatible with the development of international criminal law as it shields heads of State and
other high-ranking officials from being accountable for grave human rights abuses before otherwise com-
petent courts.
• Second, the recognition by the international community that some rules of international law are of jus
cogens character entails that the prohibition of crimes having the character of jus cogens, such as geno-
cide, crimes against humanity, war crimes, torture, should prevail over the rules on State immunity which
do not enjoy the status of jus cogens.
• Third, it clashes with basic human rights such as the right access to a court, the right to a remedy and/or
the right to effective protection.

*A State can only act through its officials, acts of State officials are actually acts of the State itself and are attributable
to that State.

The immunity of the head of states does not necessarily lead to impunity (exemption from punishment) because it is a
procedural norm so alternatives can be found, but in practice, impunity is given in many cases.

In addition, the UN Convention on state immunity was created in 2004. This convention is not now in force, because
only a few states bound its consent, but it reflects custom. The convention concerned about civil proceedings, not
criminal ones because here there is absolute immunity and it generally has restrictive immunity.

59
It has no immunity in case of commercial transactions, contracts of employment, damage to property and personal
injuries. There are some exceptions to general rule of immunity from measures of enforcement:
- Consent.
- Property allocated to satisfy demands (implied consent)
- Property of non-official use.

Do you know…?
o When can actions of individuals be attributed to the state?
o What is the difference between direct and indirect international wrongful acts?
o What is a countermeasure and what conditions must it fulfil to be lawful?
o Which are the implications of diplomatic protection being a prerogative of the state?

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17. LAW OF THE SEA
17.1 LAW OF THE SEA. UNCLOS 1982

After 9 years of intermittent negotiations, UNCLOS III concluded

with the adoption of the United Nations Convention on the Law
of the Sea (LOSC). In order to achieve consensus on the territorial
sea, LOSC took several decisions:
• From horizontality to multidimensionality
• From right of movement to economic rights
• From a personal character to a territorial character

17.2 INTERNAL WATER: DELIMITATION AND LEGAL REGULATION

Internal waters are defined by the LOSC as all water landward from the baseline. They include rivers, lakes, canals, bays
or other internal waters that come from the sea as well as the water landward from fringing islands off the coast of a
State.

As a consequence of a States sovereignty over its internal waters, there is no general right of innocent passage through
those waters, unless:
- Where what is now enclosed as internal waters through the use of straight baselines was previously part of the
territorial sea.
- Where a foreign ship is in distress.

As internal waters form part of State territory, a foreign vessel entering them is normally subject to the full force of that
State's laws. Moreover, the economic exploitation is limited to the citizens of coastal states, only to them, and to anyone
else.
The maritime navigation established certain rights to the states:
- Right to refuse the entry of foreign ships, except in an emergency (no right of innocent passage)
- Right to establish conditions for access to ports.
- Tendency to permit free access to ports.
- The right to establish the jurisdiction of coastal state. There are 3 different situations in here:

a. FOREIGN WARSHIP OR SHIPS OPERATED BY A STATE FOR NON- COMMERCIAL PURPOSES.

Foreign warships or ships operated by a State solely for non-commercial purposes enjoy immunity from the
jurisdiction of a coastal State. The Court holds that under international law national ships of war, entering the
port of a friendly power open for their reception, are to be considered as exempted by the consent of that
power from its jurisdiction. The immunity of a warship may, however, be waived on the consent of the flag
State.

b. COMMERCIAL SHIPS

61
 A foreign ship, while in the internal waters of a coastal State, is subject not only to the jurisdiction of that State
but also to that of the State whose flag it flies. State practice shows that, based on comity, the port State will
not exercise jurisdiction over the internal affairs of the foreign vessel, but it will exercise jurisdiction over any
actions that may interfere with the peace and tranquility of the port.

c. SHIPS IN DISTRESS
A port state cannot seek to enforce its laws against a foreign ship that does not voluntarily enter its internal
waters but does so as a result of distress. Such ships enjoy some immunity from local laws and under the LOSC
are specifically exempted from certain rules regulating pollution.83 The immunity enjoyed by a ship entering
under distress is, however, restricted to laws breached because of force majeure.

17.3 THE TERRITORIAL SEA

The territorial sea refers to a band or belt of water immediately adjacent to the internal waters, the archipelagic waters
or the coast of a State. The territorial sea forms part of the State's territory and is subject to the sovereignty of that
State. Maritime territory is an essential part of land territory.

The State's sovereignty over the territorial sea covers not only the water column but extends to the seabed, the subsoil
below, and the airspace above. As a consequence of its sovereignty, only the coastal State has the right to appropriate
or exploit any of the natural resources of the territorial sea and its seabed and subsoil, and no foreign vessel or State
may do so without its consent.

With regard to the breadth of the territorial sea, Article 4 LOSC permits a State to acquire a territorial sea that is up to
12 nm in length. For a coastal State, that length is generally measured from its baseline, but where the State is an
archipelagic State, as defined by the LOSC, its territorial sea is measured from its archipelagic baselines.

INNOCENT PASSAGE
One of the most important rights of the territorial sea is the right of innocent passage. This right is
between state sovereignty and the common interests of free navigation. It stipulates that neither
permission nor consent is required to exercise this right, and no State can impose any charges as a
prerequisite of its exercise, nor can any State impose any requirement that would have the practical
effect of impairing or denying it.
The right of innocent passage applies to the navigation of a foreign vessel through the territorial sea
without entering internal waters. The LOSC provides that the passage must not only be continuous
and expeditious, but also that stopping and anchoring is only included where incidental to ordinary
navigation, or made necessary by force majeure or distress, or for the purpose of rendering human-
itarian assistance to third parties in danger or distress.

Although the territorial sea includes airspace above, the right of innocent passage does not extend
to flight. However, it does apply to underwater vessels such as submarines, when they are navi-
gating on the surface of the territorial sea and show their flag. Failure to abide by these require-
ments may lead to a request to depart territorial waters.

But there are some conditions that have to be accomplished to determine whether it is an innocent
passage or not. Innocent passage refers to passage that ‘is not prejudicial to the peace, good order
or security of the coastal state.

There is a list of activities that will render passage prejudicial to peace, good order or security:
- Threatening actions

62
 - Using force actions against the sovereignty, territorial integrity or political interdependence
of the state.
- Engaging in fishing activities
- Carrying out research and survey activities.
- Any other activity not having a direct behavior on passage which implies that the list is not
intended to be exhaustive.

Ships are not under jurisdiction of coastal states, except in certain specific situations but they have
to pursue innocent behavior and if not, consequences may occur. This is why the coastal state can
suspend the right of innocent passage for security reasons.

17.4 BASELINES

NORMAL BASELINE

Is the low water line along the coast as marked on large-scale charts officially recognized by the coastal state
for measuring the breadth of the territorial sea. Accordingly, it is determined using appropriate points along
the low water line of the coast. But this baseline is not suitable for all the coasts.

STRAIGHT BASELINE

As the normal baseline is not suitable for all coasts as its application can be very difficult where a coast is
deeply intended or fringed with islands, the straight baseline is used. This baseline consists of selecting ap-
propriate points on the low water mark and drawing straight lines between them.

BAYS (CALA)
The line of closure of bays, i.e., the line which connects two points of the coast which terminate two sides
of an indentation in the coast, is of great importance to any coastal State as it separates its internal waters
from its territorial sea. It constitutes the baseline from which the breadth of a coastal State's territorial sea
is measured.

RIVERS
If a river flows directly into the sea, a baseline shall be a straight line drawn across the mouth of the river
between points on the low water line of its banks.

STRAIGHT ARCHIPELAGIC BASELINE

Archipelagic baselines can only be drawn by States that have declared themselves to be archipelagic States.
This baseline joins the outermost points of the outermost island and drying reefs of the archipelago. Archi-
pelagic baselines enclose the archipelagic waters of an archipelagic State.
From them an archipelagic State measures the breadth of its territorial sea, contiguous zone, EEZ and conti-
nental shelf.

OTHER ISSUES

ISLANDS

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LOSC explicitly states that every island, regardless of size, has the same legal regulation as coasts so they can
claim a territorial sea, contiguous zone, EEZ and continental shelf.
Rock, on the other hand, cannot sustain human life only can claim territorial sea.

17.5 STRAITS
There are several definitions established for strait depending on the context and the utilization of the word:
- Geographically speaking, it is a narrowing of the sea that connects two parts of the High Seas.
- Functionally speaking is the territorial sea of special interest for navigation.
- Legally speaking, it is the territorial sea of special interest for navigation.

Until 1982, there was established only territorial sea and innocent passage. But this changed due to the UN-
CLOS negotiations. In these negotiations, the main concern was the possibility of coastal States to claim their
territorial waters up to 12 nm from the baseline. This meant that more than 200 international straits with a
width of less than 24 miles would become part of the territorial waters of coastal states.

TYPES OF STRAIS

2. Gibraltar: there is two non-territorial seas in each side.

3. Gulf of Aqaba: the seas after the strait are territorial seas. The need of navigating through is
different.
4. The strait of Messina: there is an alternative route. Functionally it is different from Gibraltar
because there is another route it can be taken.

17.6 CONTIGUOUS ZONE

The contiguous zone refers to the zone adjacent to the territorial sea over which a coastal State may exercise
limited jurisdiction.
The Geneva Convention on the Territorial Sea and Contiguous Zone defines the contiguous zone as a zone of
the high seas contiguous to the territorial sea where the coastal State may exercise the control necessary to
prevent and punish infringement of its customs, fiscal, immigration or sanitary regulations within its territory.

The contiguous zone does not have legal regulation nor sovereignty, but it has some functional competencies
of the state to impede violations of law and to make some short of regulations. A coastal State is only entitled
to punish and prevent infringement of its customs, fiscal, immigration and sanitary laws and regulations. Its
jurisdiction does not extend to crimes other than those that may have occurred therein.

*Pursuit solo si empieza en territorial waters.

17.7 EXCLUSIVE ECONOMIC ZONE (EEZ)

The EEZ is an area beyond and adjacent to the territorial sea. In this area, the coastal State enjoys certain
sovereign rights subject to the rights and freedoms accorded to all other States. It is established in a breath
of 200 nm.

It emerged primarily through the efforts of developing States seeking to exercise greater control over the
exploitation of economic resources offshore. It was developed in favor of principles of freedom.

A coastal State does not automatically acquire sovereign rights over the EEZ. The EEZ must be claimed. While
jurisdiction over the continental shelf arises from ‘the innateness of local authority over submarine terrain’,

64
there is no inherent quality attached to the EEZ that permits a coastal State to exercise rights over it without
first making a claim.

A coastal State does not exercise sovereignty over the EEZ but may instead acquire certain sovereign rights
over the resources contained therein. These rights extend not only to the living resources in the oceans, but
also to the resources of the seabed and its subsoil, and also to the airspace above, and are to be exercised
for the purpose of exploration, exploitation, conservation and management. A coastal State also has the right
to engage in other activities for the economic exploitation and exploration of the zone, such as the produc-
tion of energy from water currents, and winds.

A coastal State is not permitted to claim exclusive rights over the living resources therein but has preferential
fishing rights. This means that a coastal State cannot wholly exclude other States from fishing in its EEZ. A
coastal State is required to determine the allowable catch or the extent of fishing which will permit mainte-
nance or, if appropriate, restoration of its fisheries populations. However, a coastal State is granted exclusive
rights to non-living resources.

The LOSC confers jurisdiction on a coastal State in relation to:

- The establishment and use of artificial islands, installations and structures.
- Marine scientific research.
- The protection and preservation of the environment.
- Fishing rights of other states by agreement
- Other states have freedom of navigation, overflight, laying of cables and pipelines

The rights conferred by the EEZ do not entitle a coastal State to exercise criminal jurisdiction.

17.8 CONTINENTAL SHELF

It is the seabed that extends from the coast until the start of the continental slope. Moreover, UNCLOS says
that without geological continental shelf 200nm independently of depth (this must be claimed by the state)
and with geological continental shelf maximum 350nm and 100 nm beyond the depth of 2500 meters.

The delimitations are like in EEZ, this means that, the rights of a coastal State are exclusive in that no other
State may explore or exploit the natural resources of the continental shelf without its express consent. As an
extension of this exclusivity, only a coastal State can regulate or authorize any drilling for any purpose on the
continental shelf and is the same in the case of construct and authorize and regulate the construction of any
artificial islands, installations and structures. Marine research on the continental shelf also requires the con-
sent of the coastal State.

The LOSC emphasizes that the rights of a coastal State to the continental shelf must be exercised in a manner
that does not infringe or result in any unjustifiable interference with navigation and other rights and free-
doms of other states.

17.9 HIGH SEAS

These are all parts of the sea that are not included in the exclusive economic zone, in the territorial sea or
in the internal waters of a state.

It is based on the principle of the Freedom of the High seas which means that no State can subject any part
of the high seas to its sovereignty or prevent its access, use or exploitation by any other State, in other words
there is:

65
 • Freedom of navigation and overflight
• Freedom to lay cables and pipelines.
• Freedom of fishing
• Freedom of construction installations (artificial islands)
• Freedom of constructing research
• Respect for the rights of other states
The high seas have thus been recognized as res communis, common to all mankind, and res nullis, incapable
of ownership and, more recently, as the common heritage of mankind. Freedom of the high seas means that
not only can no State subject any part of the high seas to its sovereignty, but that all States, whether coastal
or landlocked, have a right to sail their ships there. It specifies that they shall enjoy freedom of transit through
transit States, although the terms and mode of the transit have to be agreed by bilateral, sub-regional or
regional agreements. It also guarantees equal treatment in maritime ports.

LOSC requires that there be a ‘genuine link’ between the ship and the State whose flag it flies. The require-
ment is not always observed. Many ships fly what are known as ‘flags of convenience’. They are registered in
States with which they have little to no material connection. This is because those States generally impose
lower taxes and less stringent regulations.
There are certain limits to the freedom of the High Seas:
o Piracy is an exception to the exclusive jurisdiction of the flag state. They can be:
o Private ends, illegitimate act of violence
o Acts committed outside the jurisdiction of any state

17.10 INTERNATIONAL SEABED

It is the seabed and subsoil outside the jurisdiction of coastal states. The Area’ is defined as ‘the seabed and
ocean floor and subsoil thereof, beyond the limits of natural jurisdiction. The deep seabed and subsoil of the
Area are part of the ‘common heritage of mankind.
• The Area is to be used exclusively for peaceful purposes and in accordance with the principles em-
bodied in the UN Charter and other rules of international law.
• No State can claim or exercise sovereignty or sovereign rights over it and no such claim shall be rec-
ognized.
• Rights to the Area are vested in mankind as a whole and it is on its behalf that the International
Seabed Authority (ISA), established to regulate the exploitation of resources on the seabed, is to act.
• No State or any other person, whether physical or juridical, can appropriate or exploit the resources
of the Area.
• Activities in the area are to be carried out for the benefit of mankind and any financial or other eco-
nomic benefit is to be equitably shared on a non-discriminatory basis.
• In an effort to ensure equity, the ISA may show special consideration for the interests and needs of
developing States by, inter alia, promoting the effective participation of developing States including
those that are landlocked and geographically disadvantaged.

Do you know…?
o What is the difference between internal waters and the territorial sea?
o Why is state sovereignty over the adjacent sea not absolute?
o What is the relevance of small islands and rocks for the delimination of the maritime zones?
o Why is transit passage different from innocent passage?
o How is law upheld on the High Seas?
o Which are the opposing interests in the delimitation of the EEZ?

66
 EXERCISE: CONFLICT OFF THE FRENCH COAST

The 11th of October 1990, a Spanish ship anchored 10 nautical miles off the French coast and stayed there
four days without notifying the French authorities of the reasons for this situation.
The 15th of October, a French patrol vessel approached the Spanish ship and enquired by radio for the rea-
sons of the presence of the Spanish ship. When there was no answer, the French vessel kept approaching
the Spanish ship and communicated by megaphone that they were going to board and inspect the ship. Con-
sequently, the Spanish ship weighed anchor and started moving towards international waters.
The French patrol vessels initiated the pursuit and repeatedly ordered the Spanish ship to stop by radio and
megaphone. The Spanish ship ignored the orders, but was eventually forced to stop some 250 nautical miles
off the coast, when the French patrol vessel fired several warning shots and threatened by megaphone to
use all necessary means to stop the Spanish vessel. Sailors of the French patrol vessel then proceeded to
board and inspect the Spanish ship.

Questions (ARGUE YOUR ANSWERS):

1. Was the continued presence of the Spanish ship off the French coast legitimate?
No, because there was a lack of notification from the Spanish ship to the French government.

2. Did the French patrol ship have the right to board the Spanish vessel while it was
anchored off the coast as it pretended to do?
Yes they did. This is because there wasn't an innocent passage, what is to say that the Spanish ship didn´t
pass through the French territorial sea without stopping, or that they stopped due to an emergency. They
anchored for four days and that's why they had the right to board the Spanish ship.
3. Could the French patrol ship legitimately pursue the Spanish ship and fire warning
shots at it to make it stop?

Yes they could. This is due to the right of hot pursuit. This right establishes that if the persecution starts on
the territorial sea of France, they have the right to continue it in international waters.

4. Was the boarding and inspection of the Spanish ship by French sailors in accordance
with international law?
Yes they could. This is due to the right of hot pursuit. This right establishes that if the persecution starts on
the territorial sea of France, they have the right to continue it in international waters.

5. What would have been the case if the Spanish ship had weighed anchor earlier and the
French patrol vessel had not reached and initiated the pursuit until the Spanish ship was already 20 miles
off the coast?
If there was a case in which the Spanish ship, whatever the reason is ,were to raise anchors and move away
from the 20 mn that established the sovereign space of France, then the sailors would not have the right to
continue the pursuit.

67
CASE ANALYSIS: CONFLICT IN THE STRAIT OF HORMUZ
DESCRIPTION OF EVENTS

On the 28th of April 2015, Iranian patrol boats approached the Maersk Tigris, a container ship flying the flag
of the Marshall Islands, while it was passing through Iranian territorial waters in the Strait of Hormuz. The
patrol boats fired several warning shots across the bow of the Maersk Tigris to make it stop and comply
with orders to change course. Eventually, Iranian officials boarded the container ship and brought it under
escort towards the Iranian port of Bandar Abbas, retaining it there. The Iranian explanation was that the
ship was seized because of a debt owed by the owner of the Maersk Tigris to Iran and that it had nothing to
do with the strategic importance and tense situation in the Strait of Hormuz.
The Strait of Hormuz is of great strategic importance, being located between Iran and Oman, and with a
significant percentage of the world's oil production being transported through the Strait. Therefore, several
countries have a near-permanent military presence in the Strait, most notably the United States, including
submarines and aircraft carriers. After the incident with the Maersk Tigris, the US Navy began escorting all
US ships through the Strait. In response, Iran has threatened to close the Strait to all traffic.

BACKGROUND INFORMATION ON THE LEGAL SITUATION:

Iran signed the UNCLOS in 1982, but never ratified it. Upon signature, Iran made the following statement:

Notwithstanding the intended character of the Convention being one of general

application and of law-making nature, certain of its provisions are merely products of quid pro quo which
do not necessarily purport to codify the existing customs or established usage (practice) regarded as having
an obligatory character. Therefore, it seems natural and in harmony with Article 34 of the 1969 Vienna Con-
vention on the Law of Treaties, that only states parties to the Law of the Sea Convention shall be entitled to
benefit from the contractual rights created therein.

Iran never ratified the treaty. In coherence herewith, Iran has consistently maintained its point of view,
both prior to and after the entry into force of the UNCLOS, including protesting the presence of foreign
warships in the Strait of Hormuz. When ratifying the UNCLOS, Oman made a similar reservation. None of
the states have taken action to prevent international traffic through the Strait following established traffic
lanes, except on very few occasions. The UNCLOS is largely a codification of customary international law,

68
with the right of innocent passage through the territorial sea of another state being firmly established.
However, there are doubts with respect to whether transit passage reflects customary international law.
For example, the point of view of the United States is contrary to Iran's:

…the United States…particularly rejects the assertions that the…right of transit passage through
straits used for international navigation, as articulated in the [LOS] Convention, are contractual rights and
not codification of existing customs or established usage. The regimes of…transit passage, as reflected in
the Convention, are clearly based on customary practice of long-standing and reflects the balance of rights
and interests among all States, regardless of whether they have signed or ratified the Convention… (Diplo-
matic Note of August 17, 1987, to the Democratic and Popular Republic of Algeria (intermediary for Iran))

QUESTIONS
1. Which legal regime would be applied to the Strait of Hormuz according to the UNCLOS?
It is Iranian international water. It is a transit passage.

2. Under the UNCLOS, did the Maersk Tigris have the right to pass through the Strait of Hormuz?
Yes, because it's an international straight line so international transit is applied.

3. In application of the UNCLOS, would Iran have the right to board and detain the Maersk Tigris?
No. Because there applies international right to transit passage

4. Can Iran legally close the Strait of Hormuz to international traffic as it has threatened to do?
No, they can't do anything in the international sea of Oman and because there is an omanian petrol station.
It can be closed only for security reasons.

5.Can US warships legally escort US commercial ships through the Strait? Under which conditions? Can
US submarines legally pass through the Strait submerged?
Yes, because it is an international straight line. But they can't use force.

6. According to Iran, does it have an international legal obligation to accept the transit passage regime?
No, because they say that it is customary law. But it doesn't apply to us.

7. According to the United States, does Iran have an international legal obligation to
accept the transit passage regime?
Yes, because in the US´s response to Iran's rejections, it says that transit passage through straits is a con-
tractual right.

8. Although there is no consensus on the theme among legal scholars, how would you argue for or
against Iran having an international legal obligation to accept the transit passage regime (choose one op-
tion)?

69
21.THE INTERNATIONAL WRONGFUL ACT
21.1 DEFINITION

Every State which is in breach of an obligation imposed upon it by international law must bear responsibility
for that breach. It is important to note that traditional rules on State responsibility have evolved. In particular:

▪ The development of human rights resulted in the establishment of a common international standard
of treatment of aliens, thus resolving the disagreement between supporters and opponents of the
‘national treatment’, and the ‘min mum international treatment’, standards.
▪ The importance of the exercise of diplomatic protection by a State, on behalf of its nationals injured
by a wrongful act of another State, has greatly diminished because individuals, as subjects of inter-
national law, have access to international courts and tribunals and thus able to make claims inde-
pendently of any espousal by the State of their nationality.
▪ As to corporations, two factors, first the settlement of disputes between States and foreign private
persons through arbitration, and second, the proliferation of Bilateral Investment Treaties (BITs), re-
sult in diplomatic protection being less relevant than hitherto. This applies not only to cases of ex-
propriation, but also to those cases where a State violates the international minimum standard of
treatment of aliens by its conduct in connection with investment contracts, commercial contracts
and loan contracts.
▪ The use of force in international relations has been banned and the principle of peaceful settlement
of international disputes has modified the manner in which an injured State is allowed to exercise its
right to reparation.
▪ The concept of aggravated responsibility has been introduced to deal with gross and systematic vio-
lations of jus cogens rules.

The UNGA recommended the 2001 DARSIWA to the attention of governments.

21.2 DIRECT AND INDIRECT WRONG

DIRECT WRONG

There can be two types of direct wrongs. A direct wrong occurs when one State is in direct breach of an ob-
ligation owed to another State. There are two categories of direct international wrong:

AGGRIEVED RESPONSIBILITY
Refers to the case when a State is in direct breach of jus cogens rules (committing a crime), and this in
breach of direct international community as a whole.

Article 19 identified some of these crimes as being:

- serious breaches of the law on peace and security.
- Serious breaches of the right to self-determination.
- Serious breaches of international duties on safeguarding human rights.
- Serious breaches of an obligation to protect the environment.

This is further emphasized by the right given to any State, whether injured or not, to enforce an erga omnes
obligation. Moreover, some obligations are imposed on all States:
- All States cooperate to bring the breach to an end through lawful means.
- All States not to recognise the situation created by such a breach.

70
- All States not to provide any aid or assistance to the delinquent State in maintaining the situation so cre-
ated.
Article 42(b)(ii) refers to the so-called ‘integral obligations’ which, ‘operate in an all-or-nothing fashion’. The
consequences of the breach of an ‘integral obligation’ are that in the event of such a breach any party,
other than the defaulting party, is entitled to suspend the operation of the whole treaty or part of it in re-
spect of all other parties to the treaty because its breach by a defaulting party radically changes the posi-
tion of every other party. In other words, the treaty is devoid of its substance, and its further performance
is purposeless.

ORDINARY RESPONSABILITY
There are different examples of direct wrongful acts by one state against another:

1. Breach of a treaty
2. Damage to state property
3. Failure to respect the territorial rights of other states
4. The unlawful arrest of a wanted criminal on the territory of another state
5. Illegal flights in the airspace of another state
6. The carrying out activities in the territorial waters of a state
7. By allowing toxic fumes to escape into the territory of another state
8. Insult to the other state

INDIRECT WRONGS
An injury to a citizen is an injury to the State.
The relationship between the individual and his State gives rise to two principles:
- The State is responsible for the acts of its citizens which its agents know or ought to
know and which cause harm to the legal interests of another State.
- The State has a legal interest in its citizens, and in protecting this interest, the State may call to account
those harming its citizens.

Much of the controversy regarding the treatment of aliens:

THE STANDARD OF NATIONAL TREATMENT :

The principle of national treatment has been favoured by the newer and developing States.
An alien is not entitled to seek the diplomatic protection of his national State and instead, in accord with
the standard of national treatment, seeks redress before local courts in the same way as nationals of the
relevant State.
The main justifications for granting aliens equality of treatment under the local law have been stated as fol-
lows:
- To give an alien a special status would be contrary to the principles of territorial
jurisdiction and equality of States.
- By residing in the particular State the alien is deemed to have submitted to both
the benefits and the burdens incidental to residence in that State, i.e. he takes
conditions as he finds them. This means, for example, that if a national of a State
does not receive compensation for expropriation, an alien will similarly have no
right to such compensation.
The national standard does not apply to every area of activity

71
THE INETRNATIONAL MINIMUM STANDARD:
The international minimum standard does not require that nationals and aliens are treated equally but en-
sures that there is a common international standard of treatment of aliens. The international minimum
standard, as defined by HRL (human rights law), is supported by the great majority of international tribu-
nals.

ADMISSION AND EXPULSION

The admission of aliens remains essentially in the jurisdiction of States. A State may refuse to admit aliens
or may impose conditions or restrictions upon their admission.

With regard to expulsion, treaties guarantee, in certain circumstances, not only a substantive right against
expulsion but also provide for procedural rights to ensure that expulsion is not administered in an arbitrary
manner.
It is important to emphasize that this is an absolute prohibition of expulsion in a situation where there are
substantial grounds to believe that the person in question will be in danger.

EXPROPIATION
A State may restrict or place conditions upon the acquisition of certain kinds of property by aliens. Expro-
priation, or the compulsory taking of private property by the State, has always been considered as a ground
for diplomatic intervention based on a breach of international law.

Western capital-exporting States have advocated an international minimum standard based on four re-
quirements:
- The requirement of non-discrimination, principle of good faith.
- The requirement that the expropriation must be for a public purpose.
- The requirement that expropriation must be adequately compensated.
- The requirement that expropriation must be carried out in accordance with due process of law.
- Principle of the permanent sovereignty over natural resources

DENIAL OF JUSTICE
It is submitted that denial of justice will occur, inter alia, in the following situations:

o Not react to claims made by aliens.

o When a trial does not proceed within a reasonable time, excessive or unjustified delays.
o Where due process guarantees are not respected.
o Sentences unacceptable for their content (unjust)

21.3 DIPLOMATIC PROTECTION

Espousal by a State of a claim by its nationals, whether natural or juristic persons, against another State, is
known as the exercise of diplomatic protection. Such a claim may be defeated by the respondent State on
the following grounds:

A. NON-COMPLIANCE WITH THE RULES REGARDING NATIONALITY OF A CLAIM

Nationality of the claim. Under the continuity rule, a claimant must be a national of the claimant
State at both the date of injury (known as the dies a quo) and the date of presentation of the claim

72
 (known as the dies ad quem). The 2006 DADP introduced some flexibility to the rules The rules on
the nationality of individuals differ from those on nationality of corporations and their shareholders:

a. INDIVIDUAL
- Where an injured person has nationality of both the claimant State and the respondent State, the
claimant State may exercise diplomatic protection if its nationality is predominant (i.e. under the
principle of effective nationality) both at the dies a quo (the date of injury) and the dies ad quem (the
date of the presentation of the claim).

- Where an injured person has a dual or multiple nationality, any State of nationality may exercise
diplomatic protection, separately or jointly against a State of which that person is not a national.
21.4 CIRCUSTANCES PRECLUDING WRONGFULNESS

• Consent of an injured state

• Self-defense
• Compliance with peremptory norms
• Countermeasures in respect of an internationally wrongful act
• Force majeure
• Distress
• Necessity

21.5 REPARATION FOR INJURY

Article 34 of the 2001 DARSIWA sets out the principle that a delinquent State must make full reparation for
injury caused by its commission of an internationally wrongful act. Reparation may take the form of restitu-
tion, compensation, or satisfaction, either separately or in combination.

• Restitution
• Compensation: with money
• Satisfaction: the state who broke the law apologize

CAIRE CLAIM (FRANCE V MEXICO): OBJECTIVE RESPONSIBILITY FACTS

Caire, a French national, was tortured and killed in Mexico by Mexican soldiers after they had demanded
money from him which he was unable to obtain. France, on his behalf, presented a claim against the Mexican
government before the Franco-Mexican Claims Commission.

HELD
The Commission found the Mexican government liable for the actions of its military personnel regardless of
the fact that they were acting without orders and against the wishes of the commanding officer. The Presi-
dent of the Franco-Mexican Claims Commission applied:

The doctrine of objective responsibility and explained its meaning in the following terms: the doctrine of the
‘objective responsibility’ of the state, that is the responsibility for the acts of the officials or organs of a state
… may devolve upon it even in the absence of any ‘fault’ of its own … The state also bears an international
responsibility for all acts committed by its officials or its organs which are delictual according to international
law, regardless of whether the official organ has acted within the limits of its competence or has exceeded
those limits … However, in order to justify the admission of this objective responsibility of the state for acts
committed by its officials or organs outside their competence, it is necessary that they should have acted, at

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least apparently, as authorized officials or organs, or that, in acting, they should have used powers or
measures appropriate to their official character.

HOME MISSIONARY SOCIETY CLAIM (UNITED STATES OF AMERICA V GREAT BRITAIN): SUBJEC-
TIVE RESPONSIBILITY

FACTS
The collection of a new tax imposed by Britain in 1898 on the natives of the Protectorate of Sierra Leone led
to serious and widespread revolt during which missions were attacked and either destroyed or damaged,
and some missionaries were murdered. On behalf of its nationals the US brought a claim against the UK.

HELD
The arbitral tribunal dismissed the claim. It stated that:

It is a well established principle of international law that no government can be held responsible for
the act of rebellious bodies of men committed in violation of its authority, where it is itself guilty of
no breach of good faith, or of no negligence in suppressing insurrection.

COMMENT
This statement has often been invoked by the supporters of the subjective doctrine as justifying its existence,
while its opponents argue that the case involved the specific topic of a State's responsibility for the acts of
rebels rather than establishing a general rule on a State's responsibility based on culpa.

MASSEY CASE (UNITED STATES OF AMERICA VS. MEXICO): ACTS OF STATE OFFICIALS
FACTS
A US national was murdered in Mexico by a Mexican named Saenz. Saenz was later arrested but escaped
from prison when the assistant warder allowed him to leave. The Mexican government argued that it was
not liable for this denial of justice because it stemmed from the misconduct of a minor official who was acting
in violation of Mexican law and his duty.

HELD
Commissioner Nielson stated that:
To attempt by some broad classification to make a distinction between some ‘minor’ or ‘petty’ offi-
cials and other kinds of officials must obviously at times involve practical difficulties. Irrespective of
the propriety of attempting to make any such distinction at all, it would seem that in reaching con-
clusions in any given case with respect to responsibility for acts of public servants, the most im-
portant considerations of which account must be taken are the character of the acts alleged to have
resulted in injury to persons or to property, or the nature of functions performed whenever a ques-
tion is raised as to their proper discharge.

NICARAGUA CASE (NICARAGUA VS. USA) (MERITS): EFFECTIVE CONTROL TEST

FACTS
In this case the question arose as to whether the acts of the Contras could be attributed to the US. In consid-
ering the matter the ICJ had to determine the relationship between the Contras19 and the US government.
The Court stated that it was not sufficient to establish that the US government-financed, organized, trained,
supplied and equipped the Contras as well as providing logistical assistance in terms of planning their opera-
tions.

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HELD
Despite the heavy subsidies and other support provided to them by the United States, there is no clear evi-
dence of the United States having actually exercised such a degree of control in all fields so as to justify
treating the contras as acting on its behalf … For this conduct to give rise to legal responsibility of the United
States, it would in principle have to be proved that the State had effective control of the military or paramil-
itary operations in the course of which the alleged violations were committed.

TADIC CASE: OVERALL CONTROL TEST

FACTS
The ‘overall test’ was applied by the Appeals Chamber of the International Criminal Tribunal for the Former
Yugoslavia (ICTY) in the Tadic Case 21 in which the Chamber criticized the ICJ, and held that with regard to
the Bosnian Serb armed forces, the control of the Federal Republic of Yugoslavia (FRY) was overall control
‘going beyond the mere financing and equipping of such forces and involving also participation in the plan-
ning and supervision of military operations’.

HELD
The Chamber stated that international law does not require that such control should extend to the issuance
of specific orders or instructions relating to single military actions. However, it is to be noted that the issue
dealt with by the Appeals Chamber was not the attribution of responsibility for acts of the Bosnian Serb
forces to the FRY, but the determination of whether the conflict was internal or international. The Chamber
decided that as the Serbian forces were under the control of the FRY the conflict was international and there-
fore the relevant applicable rules were rules of humanitarian law applicable in international armed conflicts.
CASE CONCERNING UNITED STATES DIPLOMATIC AND CONSULAR STAFF IN TEHERAN (UNITED STATES OF
AMÉRICA VS. IRAN): STATE ACKNOWLEDGES THE CONDUCT OF A PRIVATE INDIVIDUAL OR ENTITY

FACTS
Several hundred Iranian students and other demonstrators assaulted and occupied the US embassy in Tehran
by force, in protest at the admission of the deposed Shah of Iran into the US for medical treatment.

HELD
Iran, by adopting the acts of the revolutionary guards, became responsible for them. However, in respect of
the first phase of the taking of the US embassy and of the US hostages, which acts had been carried out by
the revolutionary guards, the Court was quite clear that even congratulatory and approving statements made
by the Iranian leadership did not have the effect of attributing the acts to the State. It was only when, on 17
November 1979, Ayatollah Khomeini, the then spiritual and de facto leader of Iran, issued a decree which
maintained the occupation of the US embassy and the detention of hostages until the US handed over the
Shah for trial in Iran that the acts were adopted by the State and therefore responsibility arose.

RAINBOW WARRIOR ARBITRATION (NEW ZEALAND V FRANCE): FORCE MAJEURE

FACTS
Two French members of the French Secret Service, who were apprehended by New Zealand after boarding
the Rainbow Warrior and placing explosive devices which, when they were detonated, caused extensive
damage to the vessel and also the death of one crew member, were tried under the law of New Zealand and
sentenced to 10 years’ imprisonment. The French government and the government of New Zealand accepted
the proposal of the Secretary General of the United Nations (UNS-G) which consisted of handing over the
two agents to the French authorities on the basis that they would be transferred immediately to the French
military base on the Island of Hao in French Polynesia and detained there for 3 years. France, once they were

75
handed over, without the consent of New Zealand and in breach of the above agreement, immediately re-
turned one of them, Major Mafart, to France. The French government justified its decision to repatriate him
on urgent medical reasons which, according to France, amounted to force majeure.

HELD
The French defence was rejected by the Arbitral Tribunal on the ground that the medical emergency did not
amount to ‘absolute and material impossibility’ which is a necessary requirement for a successful defence
based on force majeure.

EXERCISE ON STATE RESPONSIBILITY I

Which kinds of acts are imputable to the state giving rise to its international responsibility?
They can be three:
• - Acts of State officials.
• - Acts of private persons.
• - Acts of insurrectionaries.

Analyse the Draft Articles on State Responsibility for Internationally Wrongful Acts (Darsiwa) and identify
for which actors and in which circumstances we can impute their acts to the state.

Article 4: Conduct of organs of a State

1. The conduct of any State organ shall be considered an act of that State under international law, whether
the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the
organization of the State, and whatever its character as an organ of the Central Government or of a territorial
unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal law of the
State.

Article 5: Conduct of persons or entities exercising elements of governmental authority

The conduct of a person or entity which is not an organ of the State under Article 4 but which is empowered
by the law of that State to exercise elements of the governmental authority shall be considered an act of the
State under international law, provided the person or entity is acting in that capacity in the particular in-
stance.

Article 6: Conduct of organs placed at the Disposal of a State by another State.

The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the
former State under international law if the organ is acting in the exercise of elements of the governmental
authority of the State at whose disposal it is placed.

Article 7: Excess of authority or contravention of instructions.

The conduct of an organ of a State or of a person or entity empowered to exercise elements of the govern-
mental authority shall be considered an act of the State under international law if the organ, a person or
entity acts in that capacity, even if it exceeds its authority or contravenes instructions.

Article 8: Conduct directed or controlled by a State.

The conduct of a person or group of persons shall be considered an act of a State under international law if
the person or group of persons is in fact acting on the instructions of, or under the direction or control of,
that State in carrying out the conduct.

Article 9: Conduct carried out in the absence or default of the official authorities

76
The conduct of a person or group of persons shall be considered an act of a State under international law if
the person or group of persons is in fact exercising elements of governmental authority in the absence or
default of the official authorities and in circumstances such as to call for the exercise of those elements of
authority.

Article 10: Conduct of an insurrectional or other movement

1. The conduct of an insurrectional movement which becomes the new Government of a State shall be con-
sidered an act of that State under international law.

2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in part of
the territory of a pre-existing State or in a territory under its administration shall be considered an act of the
new State under international law.

3. This article is without prejudice to the attribution to a State of any conduct, however, related to that of
the movement concerned, which is to be considered an act of thatState by virtue of articles 4 to 9.

Article 11: Conduct acknowledged and adopted by a State as its own

Conduct which is not attributable to a State under the preceding articles shall nevertheless be considered an
act of that State under international law if and to the extent that the State acknowledges and adopts the
conduct in question as its own.

Cite the relevant article and give a concrete example of each case (real or made up). Art. 4 >>> When an
official, irrespective of its position, commits a wrongful act. This means that the State is responsible for the
acts of the organs and representatives of that State

Art. 5 >>> Discusses non-State organs

“The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered
by the law of that State to exercise elements of the governmental authority, provided the person or entity is
acting in that capacity in the particular instance”
Example: private security firm; empowered to make conducts which are normally the responsibility of the
police.

Art. 6 >>> Refers to organs of other states

“The conduct of an organ placed at the disposal of a State by another State if the organ is acting in the exer-
cise of elements of the governmental authority of the State at whose disposal it is placed.”
Example: If one State (the armie) acts on behalf of another state. NATO, when they are in Afghanistan soldiers
take orders from other countries.

Art. 7 >>> When the conduct of a person empowered to exercise elements of the governmental authority
acts in that capacity, even if it exceeds its authority or contravenes instructions.
This means when a state official or someone that works for the government commits an unlawful act.

Art. 8 >>> Refers to when a person’s conduct conducts are directed or controlled by a State Example: private
Russian companies operating in Ukraine, directed by the state but secretly. Art. 9 >>> Refers to the absence
or default.
When a person’s conduct is made because of the absence of an official authority.
Example: The government of Somalia controlled the city capital, but they had little power outside, that's why
someone has taken the responsibility of the rest of popular needs outside that controlled space.

Art. 11 >>> Refers to a conduct adopted by a State.

When a person’s conduct is acknowledged and adopted by a State. In reality, this is about state consent.

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22. STATE RESPONSABILITY
22.1 REAPARATION

The ideal reparation: cancel the injury caused (ejem: stop not complying with the treaty).

RESTITUTION

The restitution is a type of reparation which is called the re-establishment of the status quo ante but in re-
ality, is difficult in practice so there is an alternative which is a payment of an equivalent sum.

COMPRESATION

Compensation is a payment of a sum equivalent to the injury caused. There is a principle of causality:

• Not possible injury (ex: loss of market influence)

• But compensation for lost profit

SATISFACTION

When injury is not materially assessable: the honor and the dignity of the state, the state can demand satis-
faction, that is an official acknowledgement of the facts and wrongdoing, in other words an apology. They
could also ask for the punishment of the responsible officials or ask to take measures to prevent repetition.

22.2 SELF – PROTECTION

It is an action by the injured State and there are unilateral or multilateral institutionalized sanction. However,
self-protection is a question of power relations between states.

• The danger of a spiral action-reaction

• Solution or aggravation of the dispute
• Expression of weakness of Pill and the anarchy in international society

UNILATERAL SELF-PROTECTION

o Rupture of diplomatic relations: as a reaction to a behavior considered to by wrongful and damag-

ing to the state.
o Retorsion: an act as a response to a similar act that causes injury. Not internationally wrongful, but
unfriendly. No breach of obligation, but existing benefits are cancelled.
o Forms of retorsion:
- Persona non grata
- Modification of the terms of trade by one or several states
- Suspension of communications
o Countermeasures/reprisals: an act that is in itself wrongful (but wrongfulness excluded when justi-
fied) (ejem: if a state brokes a treaty the other states that are in the treaty they are not obliged to
comply with the treaty). But this must be necessary, proportional to the injury suffered, cannot
imply violations of jus cogens rules (no use of force), and it must have the principle of good faith

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 (only when other measure has proven ineffective, and should be reversible and direct at making
the other state comply).

MULTILATERAL SANCTIONS

o Procedure aimed at ensuring compliance with international norms.

o Collectively by states and international organization
o When gross violation of essential obligations
o Normally a package of sanctions
o Political, economic, military or combination of these
o The UNSC authorizes sanctions without the use of force and with the use of force.
o The problem with economic sanctions is that the ones who really pay them are the citizens.

EXERCISE ON STATE RESPONSIBILITY I

A British photojournalist was covering the violent protests of the Thai Red-Shirts Movement in Bangkok,
Thailand. Despite warnings given by the Thai Prime Minister to foreigners, especially journalists, the Brit-
ish photojournalist moved around the Thai capital to cover the events.

In the course of his coverage, he was killed with a stray bullet that was later identified as having come
from the ranks of the Red Shirts. After his death, his wife sought relief from Thai authorities but was
refused assistance.

A. Is there state responsibility on the part of Thailand?

It is an indirect international wrongful act because it does not affect a country but an individual.
Although there is not any state involvement in the action because it is a revolution started by the Thai
Red Shirts. The state has advised of the danger of the revolution and the journalists have gone anyway.
That's why the state is not responsible for the acts. But there is also the case of refusing help to the wife.
They refused to assist her. There is a denial of justice of the alien so the Thai state is responsible for it.

B. What is the appropriate reparation available to the victim’s family under international
law? Which actions would you recommend to the victim’s wife?
ICJ: NO BECAUSE ONLY STATE CAN APPLY TO IT.
Exhausting local remedies is the best way to appeal to the case because the injured person must exhaust
domestic remedies before a claim can be espoused by his national State. requirements to this require-
ment are set out in Article 15 of the 2006 DADP. Assuming that she is British, with the denial of justice
they have to appeal to diplomatic protection. If the woman is Thai, it is a domestic wrongful act. The
recompensation should be the repatriation of the body, the formal apology of the Thai government and
the economic compensation.

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REMEMBER:

Difference between a treaty and custom:

- Treaty: binding because of the express consent of the parties

- Custom: only becomes law when practice and intention are separately proved

Distinction between immunity ratione personae and ratione materiae.

- Immunity ratione personae is enjoyed by heads of State and some other high-ranking officials while in office
and covers all acts, official and private. It ends when the head of State or the official vacates the post.

- Immunity ratione materiae or subject matter or functional immunity protects all State officials from jurisdic-
tion of municipal courts of the forum State in respect of acts committed in their official capacities irrespective
of whether they are still occupying the post or have vacated it.

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