(these notes are a compilation of Jasmeet Gulati’s 2018 slides that I printed for my open-book final)

INTRODUCING INTERNATIONAL LAW

Defining PIL

As a Law of Nations:
Oppenheim “International Law is the name for the body of customary and conventional rules which are
considered legally binding by civilized states in their intercourse with each other.”
Hall ‘International Law consists of certain rules of conduct which modern civilized states regard as
binding on them in their relations with one another’.
Brierly ‘Law of Nations may be defined as body of rules & principles of action which are binding upon
civilized states in their relations with one another
Revised definition by Oppenheim, International law is the body of rules which are legally binding on
states in their intercourse with each other. The rules are primarily those which govern the relations of
states; but states are not the only subject of international law. International Organizations and to some
extent, also individuals may be subjects of rights conferred and duties imposed by international law.
Starke’s definition, International Law is 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 and which includes also-
(a) rules of law relating to the functioning of international institutions or organizations, their
relations with each other and their relations with states and individuals, and
(b) certain rules of law relating to individuals and non-state entities so far as the rights and duties
of such individuals or non-state entities are the concern of international community.
Fenwick ‘International law may be defined in broad terms as body of general principles and specific rules
which are binding upon the members of the international community in their mutual relations’.
Whiteman ‘International law is the standard of conduct, at a given time, for states and other entities,
subject thereto’.

Nature of International Law

⮚ Differentiating International Law with Municipal Law

- Subjects of International Law and Municipal Law
● Can states be the subjects of legal obligation?
⮚ Obligation and Sovereignty of states
o Whenever the word 'sovereign' appears in jurisprudence, there is a tendency to associate with
it the idea of a person above the law whose word is law for his inferiors or subjects.
o A sovereign state is one not subject to certain types of control, and its sovereignty is that area
of conduct in which it is autonomous.
⮚ Is International Law binding?

⮚ Is International Law merely a morality

o A rule may exist because it is convenient or necessary to have some clear fixed rule about
the subjects with which it is concerned, but not because any moral importance is attached
to the particular rule.

Defining Law

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Analytical School: Austin ‘Law is the command of the sovereign’.
o Law is the command enacted by sovereign legislative authority
o Command must be enforced by sovereign authority (command theory)
Historical School: Henry Maine Law existed even in the primitive society. There was no sovereign then.

Holland ‘International law is the vanishing point of jurisprudence’.

For Treaty Law: Principle of Pact Sunt Servanda

For customary law: 'States should behave as they customarily behave'.
Whether merely a positive morality:
o Rule of morality if by common consent of community it applies to conscience and to conscience
only
o Rule of law wherein by common consent of community it is eventually enforced by external
power.

Critical Analysis

By Historical School: Definition by Austin does not consider custom

o Laws not only observed by sanction – by habit of mind; practice of community
o Law is by the common consent of community
o Fails to account for customary rules of international law and common law of England
True law:
o Treaty law is enacted law
o International community exists
o May be breached- even laws of warfare are observed
o International Law part of law of land (E.g, US)
o UN charter based on true legality of International Law
o International legislations in the form of treaties
o Sanctions can be applied under UN charter
Security Council can take measures to enforce decisions of ICJ

Sanctions

CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND
ACTS OF AGGRESSION
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or
act of aggression and shall make recommendations, or decide what measures shall be taken in
accordance with Articles 41 and 42, to maintain or restore international peace and security.
Article 40
In order to prevent an aggravation of the situation, the Security Council may, before making the
recommendations or deciding upon the measures provided for in Article 39, call upon the parties
concerned to comply with such provisional measures as it deems necessary or desirable. Such
provisional measures shall be without prejudice to the rights, claims, or position of the parties
concerned. The Security Council shall duly take account of failure to comply with such provisional
measures.
Article 41

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 The Security Council may decide what measures not involving the use of armed force are to be
employed to give effect to its decisions, and it may call upon the Members of the United Nations to
apply such measures. These may include complete or partial interruption of economic relations and
of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance
of diplomatic relations.
Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or
have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary
to maintain or restore international peace and security. Such action may include demonstrations,
blockade, and other operations by air, sea, or land forces of Members of the United Nations.

1. Sanctions by States: Individually; by use of force in Self-defense (but proportionate force to be

used)
2. Collective Sanctions: UN charter Chapter-VII- economic and military
o Economic: South Rhodesia in 1966; South Africa in 1977; Iraq in 1990; Libya in 1992;
Yugoslavia in 1992; Rwanda in 1994; Sierra Leone in 1997
o Military: Korean crisis in 1950; Gulf crisis in 1990-91; Somalia in 1992; Rwanda in 1994

SOURCES OF INTERNATIONAL LAW

🠶 Sources means ‘Origin’- they are the procedure or method by which it is created

🠶 Sources of international law are those processes and instruments out of which the rules and
principles of international law are developed
🠶 The internationally accepted classification of sources of international law is formulated in Article
38 of the Statute of the International Court of Justice.
🠶 Article 38(1) of the statute of ICJ provides a reflection of the sources of international law

🠶 Article 38 did not expressly mention ‘sources' but it is usually invoked as sources of international
law.
🠶 Sources of international law can be characterized as ‘formal' and ‘material' sources, though the
characterisation is not by hierarchy but for clarification, therefore, Article 38(1)(a-c),that is,
conventions or treaties ,custom and general principles are formal sources whereas Article
38(1)(d) that is, judicial decisions and juristic teachings are ‘material sources'.
🠶 Formal sources confer upon rules an ‘obligatory character', while material sources comprise the
‘actual content of the rules‘
🠶 Article 38(1) of the Statute of the International Court of Justice is widely recognised as the most
authoritative and complete statement as to the sources of international law.
🠶 It provides that:

🠶 The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:
a) international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b) international custom, as evidence of a general practice accepted as law;
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 c) the general principles of law recognized by civilized nations;
d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of
law.

International Conventions

🠶 Article 38 (1) (a) international conventions, whether general or particular, establishing

rules expressly recognized by the contesting states;
🠶 Conventions- two kinds: General or Particular

🠶 Treaties defined in Article 2 of the VCLT 1969;

‘A treaty is an agreement whereby two or more states, establish or seek to establish
relationship between them governed by international law’.
🠶 Two kinds of Treaties: Law making Treaties & Treaty Contracts

🠶 Sources are with reference to Law Making Treaties; which are general or particular in nature

🠶 Treaties are modern, deliberate, express agreements and in some ways superior to customs

🠶 In North Sea Continental Shelf Cases, 1969 between Holland and Denmark; held that since West
Germany not a signatory; therefore it is not bound by the provisions.

International Custom

🠶 Article 38 (1)(b): International custom, as evidence of a general practice accepted as law;

Custom defined as:
o General Practice (State Practice): Antiquity/ long duration. Universality, Generality of Practice
o Accepted as Law: Opinio Juris
🠶 State Practice:
o Long Duration: Repetition, from ancient times, time immemorial; but Bin Cheng that repetition
not necessary (like sovereignty over air space and continental shelf)
o Uniformity and Consistency of Practice (Lotus case 1927- must be uniformly followed; Asylum
case 1950- Diplomatic Asylum not custom)
o Generality of Practice
🠶 Opinio Juris et necessitates- by French jurist Francois Geny; meaning legal obligation to act that
way

General Principles of Law

🠶 Article 38 (1) (c) the general principles of law recognized by civilized nations

🠶 Solves problem of non-liquet

🠶 G.P of law are relied for settlement of disputes mostly in relation to the procedures and evidences

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 🠶 Situations appearing in municipal systems; these are those rules which are repeated in states in
that kind of situation
🠶 Reparations to be made for unlawful act, Res Judicata, Estoppel, lifting of corporate veil

🠶 In Chorzow Factory Indemnity case 1928; reparations to be made; one who violates rules is liable
to pay reparation; in this case there was seizure of nitrate factory by Poland in Upper Silesia.
Permanent Court of International Justice declared that ‘it is a general conception of law that every
violation of an engagement involves an obligation to make reparation’.
The Court also regarded it as: a principle of international law that the reparation of a wrong may
consist in an indemnity corresponding to the damage which the nationals of the injured state have
suffered as a result of the act which is contrary to international law.
🠶 In Corfu Channel case 1949, circumstantial evidence to be taken into consideration

🠶 The question of res judicata was discussed in some detail in the Genocide Convention (Bosnia
and Herzegovina v. Serbia and Montenegro) case, where the issue focused on the meaning of the
1996 decision of the Court rejecting preliminary objections to jurisdiction. The Court emphasized
that the principle ‘signifies that the decisions of the Court are not only binding on the parties, but
are final, in the sense that they cannot be reopened by the parties as regards the issues that have
been determined, save by procedures, of an exceptional nature, specially laid down for that
purpose.
🠶 Principle of estoppel applied in Land, Island and Maritime Frontier Dispute and also in El
Salvador/ Honduras case (Application by Nicaragua for permission to intervene)
🠶 In Barcelona Traction case, lifting of corporate veil was applied from domestic law to
international law. The company was registered under the Canadian law in Spain, but 88%
shareholders were Belgians, when the company was declared bankrupt by a Spanish court. The
claim was brought by Belgium to protect the interests of its nationals who were shareholders in
the company. The principle of lifting of corporate veil from domestic law was applied under
international law.

Judicial Decisions and Juristic Works

🠶 Article 38 (1) (d): Subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law.
🠶 Subsidiary means for determinations, secondary sources

🠶 Article 59: Decisions are binding between parties only; therefore no precedents.

Other Works

🠶 Resolutions of International Organizations:

o In Nicaragua case, the court placed great reliance on UN Resolution 2625 (XXV), the
Declaration on Principles of International Law concerning Friendly Relations and Cooperation
among States
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 o In Nuclear Weapons Advisory Opinion, Court accepted Principle 21 of the Stockholm
Declaration 1972 and Principle 2 of the Rio Declaration 1992 have entered the corpus of
international law relating to the environment.
o In Gabcikovo-Nagymaros case, court accepted the principle of sustainable development
🠶 International Comity/ State Papers

🠶 Equity and Justice

o In Diversion of Water from the Meuse (1937), court decided on equitable use of international
rivers.
o Equity also applied in North Sea Continental Shelf cases

Hierarchy of Sources

🠶 Jurists- Pellet, however, notes that while there is no formal hierarchy as between conventions,
custom and general principles, the International Court uses them in successive order and ‘has
organized a kind of complementarity between them’. Dupuy, in his book argues that there is no
hierarchy of sources. The ILC Study on Fragmentation, however, agrees with writers proclaiming
that ‘treaties generally enjoy priority over custom and particular treaties over general treaties’,
🠶 As a general rule, that which is later in time will have priority. Treaties are usually formulated to
replace or codify existing custom, while treaties in turn may themselves fall out of use and be
replaced by new customary rules.
🠶 There is in addition a principle to the effect that a special rule prevails over a general rule (lex
specialis derogat legi generali), so that, for example, treaty rules between states as lex specialis
would have priority as against general rules of treaty or customary law between the same states,
although not if the general rule in question was one of jus cogens.

Importance of Customs:
🠶 Customs are dynamic process of law creation and important than treaties because of their
universal application
🠶 Customs are of value since they are activated by spontaneous behavior and mirrors contemporary
concerns of life.
🠶 Participation of all states encourages compliance

Customs diminishing:
🠶 International Law has to contest with massive increase in pace and variety of state activities and
come to terms with many different cultural and political traditions

TREATIES

■ Treaties are known by a variety of differing names- Conventions, International Agreements, Pacts,
General Acts, Charters, Statutes, Declarations and Covenants
■ The term refers to the creation of written agreements whereby the states participating bind
themselves legally to act in a particular way or to set up particular relations between themselves.

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 ■ Treaties are express agreements and are a form of substitute legislation undertaken by states.
■ Treaties may be concluded, or made, between states and international organisations, they are
primarily concerned with relations between states.
■ An International Convention on the Law of Treaties was signed in 1969 and came into force in
1980
■ Convention on Treaties between States and International Organisations was signed in 1986.
■ The 1969 Vienna Convention on the Law of Treaties partly reflects customary law and constitutes
the basic framework for any discussion of the nature and characteristics of treaties.
■ Certain provisions of the Convention may be regarded as reflective of customary international law,
such as the rules on interpretation, material breach and fundamental change of
circumstances.
■ The fundamental principle of treaty law is undoubtedly the proposition that treaties are binding
upon the parties and must be performed in good faith: called the Principle of Pacta Sunt Servanda
■ An Italian jurist Anzilotti, observed that the binding force of international treaty is on account of
the fundamental principle known as Pact Sunt Servanda. According to this principle, States are
bound to fulfil in good faith the obligations assumed by them under treaties.
■ The principle of Pacta Sunt Servanda was reaffirmed in Article 26 of the 1969 Convention, and
underlies every international agreement for, in the absence of a certain minimum belief that states
will perform their treaty obligations in good faith, there is no reason for countries to enter into
such obligations with each other.
■ A treaty is defined, for the purposes of the Convention, in Article 2 of the VCLT as:
‘an international agreement concluded between states in written form and governed by
international law, whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation’.
■ The same definition is given (substituting states and international organisations for states alone)
in the 1986 Convention on Treaties between States and International Organisations.
■ There are no specific requirements of form in international law for the existence of a treaty
although it is essential that the parties intend to create legal relations as between themselves by
means of their agreement.
■ In the Fisheries Jurisdiction case (1973), the ICJ made its observations regarding validity of
treaties concluded under coercion. The opinion of the court is hereby summarized:
1. Under the principles of contemporary international law, which found their expression in the
charter of the UN and the VCLT, a treaty concluded under the threat or use of force is void.
2. The allegation that a given treaty is concluded under coercion is an accusation of a very serious
nature, and it cannot be based on the grounds of a vague general charge, unfortified by
evidence in its support.
3. By reason of the seriousness of this accusation, the question whether a given treaty is vitiated
by coercion should be decided by an international body, preferably, the ICJ.

Formation of Treaties

1. Authorizing Persons on behalf of Contracting Parties: Such persons must produce what is
termed ‘full powers’ according to Article 7 of the Convention, before being accepted as capable of
representing their countries. ‘Full powers’ refers to documents certifying status from the
competent authorities of the state in question.
2. Negotiation and Adoption: The text of the agreement drawn up by the negotiators of the parties
has to be adopted and Article 9 provides that adoption in international conferences takes place by
the vote of two-thirds of the states present and voting, unless by the same majority it is decided
to apply a different rule. This procedure follows basically the practices recognised in the United

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 Nations General Assembly and carried out in the majority of contemporary conferences. An
increasing number of conventions are now adopted and opened for signature by means of UN
General Assembly resolutions, such as the 1966 International Covenants on Human Rights and the
1984 Convention against Torture, using normal Assembly voting procedures.
o The consent of the states parties to the treaty in question is a vital factor, since states may
be bound only by their consent. Treaties are in this sense contracts between states and if
they do not receive the consent of the various states, their provisions will not be binding
upon them. There are, however, a number of ways in which a state may express its consent
to an International agreement. It may be signaled, according to Article 11, by signature,
exchange of instruments constituting a treaty, ratification, acceptance, approval or
accession.
3. Signatures: A state may regard itself as having given its consent to the text of the treaty by
signature in defined circumstances noted by Article 12, that is, where the treaty provides that
signature shall have that effect, or where it is otherwise established that the negotiating states
were agreed that signature should have that effect.
o Although consent by ratification is probably the most popular of the methods adopted
in practice, consent by signature does retain some significance, especially in light of the fact
that to insist upon ratification in each case before a treaty becomes binding is likely to
burden the administrative machinery of government and result in long delays.
o Accordingly, provision is made for consent to be expressed by signature. This would be
appropriate for the more routine and less politicized treaties.
o In multilateral conventions, a special closing session will be held at which authorized
representatives will sign the treaty. However, where the convention is subject to
acceptance, approval or ratification, signature will in principle be a formality and will
mean no more than that state representatives have agreed upon an acceptable text, which
will be forwarded to their particular governments for the necessary decision as to
acceptance or rejection. However, signature also means that in cases pending ratification,
acceptance or approval, a state must refrain from acts which would defeat the object and
purpose of the treaty until such time as its intentions with regard to the treaty have been
made clear.
4. Ratification: The device of ratification by the competent authorities of the state is historically well
established and was originally devised to ensure that the representative did not exceed his
powers or instructions with regard to the making of a particular agreement.
o Article 14 of the 1969 Vienna Convention notes that ratification will express a state’s
consent to be bound by a treaty where the treaty so provides; it is otherwise established
that the negotiating states were agreed that ratification should be required; the
representative of the state has signed the treaty subject to ratification or the intention of
the state to sign the treaty.
5. Accession or Adhesion: Those states who have not signed the treaty may accept it later on. This is
called accession. A treaty becomes a law only after it has been ratified by the prescribed number of
state parties. Even after the prescribed number of state parties have signed, the other states may
also accept or adhere it- called adhesion.
6. Entry into Force: depends upon the provision of the treaty; some enter into force immediately
after signature, some needs ratification by prescribed number of states. VCLT 1969 itself came into
effect thirty days after the deposit of the thirty-fifth ratification and the Rome Statute for the
International Criminal Court required sixty ratifications
o A fundamental principle of international law, i.e. ‘pacta terties nec nocent nec prosunt’
means that only parties to a treaty are bound by that treaty.

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 7. Registration and Publication: Article 102 of the UN charter provides that the registration and
publication of every international treaty entered into by the members is essential. It is specifically
mentioned that if the treaty is not registered it cannot be invoked before any organ of the UN. The
object of this provision is to prevent the secret agreements between states.
8. Application and Enforcement: After a treaty is ratified, published and registered, it is applied
and enforced.

Reservation to a Treaty

■ A reservation is defined in Article 2 of the Convention as: ‘a unilateral statement, however phrased
or named, made by a state, when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty
in their application to that state’.
■ Article 2(1)d of the Vienna Convention on the Law of Treaties between States and International
Organisations, 1986 provides that a reservation means: ‘a unilateral statement, however phrased
or named, made by a state or by an international organisation when signing, ratifying, formally
confirming, accepting, approving or acceding to a treaty, whereby it purports to exclude or to
modify the legal effect of certain provisions of the treaty in their application to that state or to
that organization.
■ Where a state is satisfied with most of the terms of a treaty, but is unhappy about particular
provisions, it may, in certain circumstances, wish to refuse to accept or be bound by such
provisions, while consenting to the rest of the agreement. By the device of excluding certain
provisions, states may agree to be bound by a treaty which otherwise they might reject entirely.
■ The capacity of a state to make reservations to an international treaty illustrates the principle of
sovereignty of states, whereby a state may refuse its consent to particular provisions so that they
do not become binding upon it.
■ The effect of a reservation is simply to exclude the treaty provision to which the reservation has
been made from the terms of the treaty in force between the parties.
■ The general rule that became established was that reservations could only be made with the
consent of all the other states involved in the process.
■ This restrictive approach to reservations was not accepted by the International Court of Justice in
the Reservations to the Genocide Convention case (1951). This was an advisory opinion by the
Court, requested by the General Assembly after some states had made reservations to the 1948
Genocide Convention, which contained no clause permitting such reservations, and a number of
objections were made.
The Court held that: ‘a state which has made and maintained a reservation which has been
objected to by one or more parties to the Convention but not by others, can be regarded as being a
party to the Convention if the reservation is compatible with the object and purpose of the
Convention’.
■ By Article 19 of VCLT, reservations may be made when signing, ratifying, accepting, approving or
acceding to a treaty, but they cannot be made where the reservation is prohibited by the
treaty, or where the treaty provides that only specified reservations may be made and these do
not include the reservation in question, or where the reservation is not compatible with the object
and purpose of the treaty.

Contents of a Treaty

■ Preamble
■ Introduction

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 ■ Content
– Definition
– General Provisions
– Rules
– Authority (Optional)
– Technical Assistance (Optional)
■ Settlement of Disputes
■ Monitoring
■ Enforcement
■ Review
■ Obligations and Enforcement
■ Final Provisions
– Signature
– Ratification
– Accession
– Entry into Force
– Reservation
– Denunciation
– Amendment
– Depositary

Termination of Treaties

■ Extinction of either party to bilateral treaty

■ Outbreak of War (only peace treaties)
■ Material breach of bilateral treaty
■ Impossibility of Performance
■ Rebus sic stantibus (when the fundamental circumstance under which treaty was entered into
changed)
■ Expiration of Fixed Term
■ Denunciation
■ Jus Cogens (Emergence of new peremptory norm)
■ Examples: Qatar v. Bahrain 1994 & 2001; Advisory Opinion on Reservation to Genocide
Convention 1951

Consequences of Incompatible Reservations

■ Article 19(c) of the VCLT provides that a state may not formulate a reservation which is
incompatible with the object and purpose of the treaty. This provision reflects the view taken by
the International Court of Justice in the Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide.
■ Article 20(4) of the VCLT provides that, where a state makes a reservation to a treaty, any other
contracting state may object to that reservation and specify that the treaty will not enter into force
between the objecting and reserving states
■ Three Doctrines have been developed to deal with incompatible reservations:
1. Surgical Doctrine
2. Backlash Doctrine
3. Severability Doctrine

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 ■ The ‘surgical’ doctrine, involves acceptance of the state’s ratification except for in relation to those
parts of the treaty to which the reservation objects;
■ The ‘backlash’ doctrine, involves total rejection of the state’s ratification; and
■ The ‘severability’ doctrine, which involves acceptance of the state’s ratification, excluding
(severing) the incompatible reservation. It is argued here that, in many cases, taking a severability
approach would strengthen the modern international human rights regime, protecting both its
universality and integrity. (Reservations will not be considered in this case)

Grounds of Invalidity of Treaty

■ Internal Law challenges competence to conclude treaty

■ Restriction on Authority to express consent of State
■ Error
■ Fraud
■ Corruption of Representative of State
■ Coercion of Representative of State
■ Coercion of State by threat or use of force
■ Treaties conflicting with peremptory norm of general international law (jus cogens)

CUSTOMARY INTERNATIONAL LAW

Custom

• Certain rules of behaviour that emerge and prescribe what is permitted and what is not. Such
rules develop subconsciously within the group and are maintained by the members of the group
by social pressures.
• They are not written or codified, and survive ultimately because of what can be called an aura of
historical legitimacy.
• It is regarded as an authentic expression of the needs and values of the community at any given
time.
• Custom within contemporary legal systems, is cumbersome and unimportant and often of only
nostalgic value.
• In international law, it is a dynamic source of law in the light of the nature of the international
system and its lack of centralised government organs.
• The existence of customary rules can be deduced from the practice and behaviour of states.
• Has two essentials: State practice & Opinio Juris

State Practise

• The actual practice engaged in by states constitutes the first essential.

• There are a number of points to be considered concerning the nature of a particular practice by
states, including its duration, consistency, repetition and generality
– Duration: In international law there is no rigid time element and it will depend upon the
circumstances of the case and the nature of the usage in question. In certain fields, such as
air and space law, the rules have developed quickly.
– Consistency & Repetition: The basic rule as regards continuity and repetition was laid down
in the Asylum case decided by the International Court of Justice (ICJ) in 1950. The Court
declared that a customary rule must be ‘in accordance with a constant and uniform usage
practised by the States in question’.
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 • Asylum Case:
– The case concerned Haya de la Torre, a Peruvian, who was sought by his government after
an unsuccessful revolt. He was granted asylum by Colombia in its embassy in Lima, but
Peru refused to issue a safe conduct to permit Torre to leave the country. Colombia brought
the matter before the International Court of Justice and requested a decision recognizing
that it (Colombia) was competent to define Torre’s offence, as to whether it was criminal as
Peru maintained, or political, in which case asylum and a safe conduct could be allowed.
– The Court, in characterising the nature of a customary rule, held that it had to constitute the
expression of a right appertaining to one state (Colombia) and a duty incumbent upon
another (Peru). However, the Court felt that in the Asylum litigation, state practices had
been so uncertain and contradictory as not to amount to a ‘constant and uniform
usage’ regarding the unilateral qualification of the offence in question.
• Anglo-Norwegian Fisheries Case:
– The ICJ emphasised its view that some degree of uniformity amongst state practices was
essential before a custom could come into existence. The United Kingdom, in its arguments
against the Norwegian method of measuring the breadth of the territorial sea, referred to
an alleged rule of custom whereby a straight line may be drawn across bays of less than ten
miles from one projection to the other, which could then be regarded as the baseline for the
measurement of the territorial sea. The Court dismissed this by pointing out that the actual
practice of states did not justify the creation of any such custom. In other words, there had
been insufficient uniformity of behavior.
• Nicaragua v. US:
– The Court emphasized in the Nicaragua v. United States case that it was not necessary that
the practice in question had to be ‘in absolutely rigorous conformity’ with the purported
customary rule. The Court continued: In order to deduce the existence of customary rules,
the Court deems it sufficient that the conduct of states should, in general, be consistent
with such rules, and that instances of state conduct inconsistent with a given rule should
generally have been treated as breaches of that rule, not as indications of the recognition of
a new rule.
• Lotus Case:
– In the particular circumstances of the Lotus case the Permanent Court of International
Justice, laid down a high standard by declaring that abstention could only give rise to the
recognition of a custom if it was based on a conscious duty to abstain. In other words, states
had actually to be aware that they were not acting a particular way because they were
under a definite obligation not to act that way.
• It is how states behave in practice that forms the basis of customary law, but evidence of what a
state does can be obtained from numerous sources. Obvious examples include administrative acts,
legislation, decisions of courts and activities on the international stage, for example treaty-making,
etc.
• The obvious way to find out how countries are behaving is to read the newspapers, consult
historical records, listen to what governmental authorities are saying and peruse the many official
publications. There are also memoirs of various past leaders, official manuals on legal questions,
diplomatic interchanges and the opinions of national legal advisors. All these methods are valuable
in seeking to determine actual state practice
• ‘State practice covers any act or statements by a state from which views about customary law may
be inferred.

Opinio Juris

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 • This is the psychological factor, the belief by a state that behaved in a certain way that it was under
a legal obligation to act that way. It is known in legal terminology as opinio juris sive
necessitatis and was first formulated by the French writer Franc¸ois G´eny.
• It differentiates legal custom from social usage
• The opinio juris, or belief that a state activity is legally obligatory, is the factor which turns the
usage into a custom and renders it part of the rules of international law.
• States will behave a certain way because they are convinced it is binding upon them to do so.
• This approach was maintained by the Court in the Nicaragua case and express reference was
made to the North Sea Continental Shelf cases. The Court noted that: for a new customary rule to
be formed, not only must the acts concerned amount to a settled practice, but they must be
accompanied by the opinion juris sive necessitatis. Either the States taking such action or other
States in a position to react to it, must have behaved so that their conduct is evidence of a belief
that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for
such a belief, i.e. the existence of a subjective element, is implicit in the very notion of the opinio
juris sive necessitatis.
• The issue connected with the opinio juris is regarding emergence of new customary law- that if it
calls for behaviour in accordance with law, how can new customary rules be created since that
obviously requires action different from or contrary to what until then is regarded as law?
• Thus, one has to treat the matter in terms of a process whereby states behave in a certain way in
the belief that such behaviour is law or is becoming law. It will then depend upon how other states
react as to whether this process of legislation is accepted or rejected.
• Judge Tanaka, in his Dissenting Opinion in the North Sea Continental Shelf cases, remarked that
there was no other way than to ascertain the existence of opinio juris from the fact of the external
existence of a certain custom and its necessity felt in the international community.
• There has to be an aspect of legality about the behaviour and the acting state will have to confirm
that this is so, so that the international community can easily distinguish legal from non-legal
practices.
• The decision in the Anglo-Norwegian Fisheries case may appear to suggest that where a state
acts contrary to an established customary rule and other states accepts this, then that state is to be
treated as not bound by the original rule.
• Behaviour contrary to a custom contains within itself the seeds of a new rule and if it is endorsed
by other nations, the previous law will disappear and be replaced, or alternatively there could be a
period of time during which the two customs co-exist until one of them is generally accepted, as
was the position for many years with regard to the limits of the territorial sea

Regional or Local Custom

• Rules that have developed to bind only a set group of states, such as those in Latin America, or
indeed just two states.
• In the Asylum case, the International Court of Justice discussed the Colombian claim of a
regional or local custom peculiar to the Latin American states, which would validate its
position over the granting of asylum. The Court declared that the ‘party which relies on a custom
of this kind must prove that this custom is established in such a manner that it has become binding
on the other party’. It found that such a custom could not be proved because of uncertain and
contradictory evidence.
• In such cases, the standard of proof required, especially as regards the obligation accepted by the
party against whom the local custom is maintained, is higher than in cases where an ordinary or
general custom is alleged.

13
 • Such local customs therefore depend upon a particular activity by one state being accepted by
the other state (or states) as an expression of a legal obligation or right.
• In the Right of Passage over Indian Territory case, Portugal claimed that there existed a right of
passage over Indian territory as between the Portuguese enclaves, and this was upheld by the
International Court of Justice over India’s objections that no local custom could be established
between only two states. The Court declared that it was satisfied that there had in the past existed
a constant and uniform practice allowing free passage and that the ‘practice was accepted as law
by the parties and has given rise to a right and a correlative obligation.

Jus Cogens

• Rules of jus cogens are substantive rules recognised to be of a higher status.

• Article 53 of the Vienna Convention on the Law of Treaties, 1969, provides that a treaty will be
void ‘if, at the time of its conclusion, it conflicts with a peremptory norm of general international
law’.
• Further, by article 64, if a new peremptory norm of general international law emerges, any existing
treaty which is in conflict with that norm becomes void and terminates.
• This rule (jus cogens) will also apply in the context of customary rules so that no derogation would
be permitted to such norms by way of local or special custom.
• Such a peremptory norm is defined by the Convention as one ‘accepted and recognised by the
international community of states as a whole as a norm from which no derogation is permitted
and which can be modified only by a subsequent norm of general international law having the
same character’.
• The concept of jus cogens is based upon an acceptance of fundamental and superior values within
the system and in some respects is akin to the notion of public order or public policy in domestic
legal orders.

Erga Omnes

• An erga omnes obligation is an obligation that every state has toward the entire international
community as a whole. The nature of the rules creating erga omnes rules is such that any state has
the right to complain of a breach by another state of said rule, because every state has an interest
in the protection of the rules that generate erga omnes obligations. For example, a state does not
need to be directly or indirectly involved in a case of genocide in order to be able to complain
about it.
• The concept has primarily a procedural focus.
• ‘All states can be held to have a legal interest in their protection; they are obligations erga omnes’.
Examples of such obligations included the outlawing of aggression and of genocide and the
protection from slavery and racial discrimination
• The International Court in the East Timor case stressed that the right of peoples to
self-determination ‘has an erga omnes character’, while reiterating in the Genocide Convention
(Bosnia v. Serbia) case that ‘the rights and obligations enshrined in the Convention are rights and
obligations erga omnes’

JC + EO

• A Jus Cogens rule is described in the Vienna Convention on the law of Treaties as “…a norm
accepted and recognized by the international community of States as a whole as a norm from

14
 which no derogation is permitted and which can be modified only by a subsequent norm of
general international law having the same character.”
• A jus cogens rule creates an erga omnes obligation for states to comply with a rule. An erga
omnes obligation is therefore the consequence of a rule being characterized as jus cogens.

ADVISORY OPINION OF THE ICJ ON THE LEGALITY OF NUCLEAR WEAPONS

Background

🠶 The General Assembly of the United Nations asked the Court to provide its advisory opinion on the
following question
🠶 “Is the threat or use of nuclear weapons in any circumstances permitted under
international law?”
🠶 In 1993, two years previously, the World Health Organization had asked the Court a similar
question on the legality of the use nuclear weapons under international law. The Court
declined to answer because the Court held that the World Health Organization did not have
the competence to ask the Court that particular question.

Questions before the Court

The Court discussed two procedural questions:

(1) Did the Court have the competence to give an advisory opinion based on a request of the General
Assembly? In other words, did the General Assembly have the competence to ask the Court for an
advisory opinion on the above question?
(2) If yes, were there any reasons that would compel the Court to decline to exercise it’s jurisdiction?

The Court also discussed four substantive questions:

(1) Did treaty or customary law authorize the use of nuclear weapons?
(2) Did treaty or customary law contain a “comprehensive and universal” prohibition on the threat
and use of nuclear weapons?
(3) Should the threat or use of nuclear weapons be compatible with international humanitarian law
and other undertakings of the law?
(4) Will the threat or use of nuclear weapons be lawful in self defense in situations where the very
survival of the State is at stake?

Court’s Decision

o Did the Court have the jurisdiction to give a reply to the request of the General Assembly?
The Court concludes that it had the jurisdiction to respond to the question for the following reasons:
❖ Firstly, the Court says that it has the competence under Article 65 (1) of the Statute of the ICJ to
provide an advisory opinion, when it is requested by a “competent organ of the United Nations”.
❖ Secondly, the General Assembly is a “competent organ” because it is authorized by Article 96 (1) of
the United Nations Charter to request an advisory opinion from the Court.
❖ Thirdly, together with Articles 10, 11, and 13, Article 96(1) of the UN Charter gives the General
Assembly the competence to request an advisory opinion on “any legal question”.
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 The Court concludes that there are no “compelling reasons” to refuse to provide a response to the
advisory opinion.
❖ The Court agrees that even if it has the competence to give an opinion, it can still refuse to respond
to an advisory opinion based on the discretion it has under Article 65 (1) of the Statute.
❖ Some States argued that Court should use its discretion to refuse to give an opinion. This is
because, they argued, for example, that the question posed by the General Assembly was abstract,
any response would undermine progress already made in disarmament, and that in answering the
question posed the Court would be taking upon itself a law-making capacity.
❖ The Court confirms that it had previously never exercised its discretion under Article 65 (1) to
refuse to answer a question. The Court says that only “compelling reasons” could lead to such a
refusal and in this situation, there are no “compelling reasons” which would lead Court to refuse.

o Did customary or treaty law authorize the use of nuclear weapons?

o The Court concludes that neither customary law, nor treaty law, explicitly authorizes the use of
nuclear weapons .
o Yet, it highlights that explicit authorization is not required because the illegality on the threat or
use of nuclear weapons does not stem from the lack of specific authorization, but on a specifically
formulated prohibition

o Did treaty or customary law prohibit the threat and use of nuclear weapons?
o Court concludes that there is no comprehensive and universal prohibition on the threat or use of
nuclear weapons either in treat or customary law.
o In terms of treaty law, some States argued that the use of nuclear weapons would violate the right
to life and other treaty-based human rights, prohibition on genocide, and rules relating to the
protection of the environment. The Court says that none of these treaties provide a “universal and
comprehensive” prohibition on the use of nuclear weapons.
o Then, the Court says that the “most directly relevant applicable law” is the UN Charter provisions
relating to the use of force and those laws that govern armed conflict. However, it finds that both of
these legal regimes also do not expressly prohibit, nor permit, the use of nuclear weapons.
o In terms of customary law, the Court finds that the opinio juris on the prohibition of the use of
nuclear weapons differs amongst States, as reflected in the content and voting patterns of General
Assembly resolutions, their views on deterrence and the non use of nuclear weapons in the recent
past.
o The Court concludes that there is no comprehensive and universal prohibitions on the threat or
use of nuclear weapons under treaty law or customary law.

o If international law does not explicitly prohibit the threat or use of nuclear weapons, is their use
regulated under international law?
o Thus far, the Court has concluded that there are no provisions in international law that authorizes
or prohibits the threat or use of nuclear weapons by States. The Court now goes a step further to
examine if the threat or use of these weapons is regulated under international law.
o The Court finds as follows:
o UN Charter: Court had established that the UN Charter did not permit or prohibit the use any
type of weapons. However, it finds that for the a threat or use of force in self defense to be
lawful under Article 51 of the UN Charter, the use of nuclear weapons must be necessary and

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 proportionate to the armed attack against which self-defense is exercised. The Court says
that the use of nuclear weapons may be proportionate in certain circumstances
o International humanitarian law: The Court goes on to hold that even if the threat or use of
nuclear weapons is lawful under the UN Charter (in other words, when it is necessary and
proportionate), it must still meet the requirements of laws regulating armed conflicts,
including international humanitarian law and principles relating to neutrality.
o The Court finds that it cannot conclude that the recourse of nuclear weapons “would be illegal
in any circumstances or if the use of nuclear weapons was inherently and totally incompatible
with international humanitarian law.
o The Court also finds that it could not reach a conclusion on the legality or illegality of the use of
nuclear weapons in “an extreme case of self defense”. The Court also highlights the
“fundamental right of every State to survival”
o The Court didn’t elaborate on what would constitute an extreme case of self-defense nor
address whether a State having nuclear weapons (a nuclear State) can use it in the defense of
another non-nuclear State when that second State’s very existence is threatened.
o The Court finds that:
1. Articles 2(4), 42, and 51 of the UN Charter that relates to the legality on the use of force, is
silent on the specific weapons that can be used when using force.
2. International humanitarian law treaties (part of those laws governing armed conflict),
including the Hague Convention IV of 1907 and the Geneva Protocol of 1925 have been
understood in State practice, as not covering nuclear weapons. Similarly, other
humanitarian law treaties governing weapons of mass destruction, like the Biological and
Chemical Weapons Conventions, also do not contain prohibitions on the use of nuclear
weapons.
3. The Court also points out that those treaties that specifically relate to nuclear weapons only
limit its use, but does not support a general prohibition.
o The Court finds that the members of the international community are profoundly divided on
the matter of whether non-recourse to nuclear weapons over the past 50 years constitutes the
expression of opinio juris.
o Under these circumstances the Court does not consider itself able to find that there is such an
opinio juris… The emergence of a customary rule specifically prohibiting the use of nuclear
weapons as such is hampered by the continuing tensions between the nascent opinio juris on
the one hand, and the still strong adherence to the practice of deterrence on the other.

SUBJECTS OF INTERNATIONAL LAW

• Orthodox Positivist Doctrine that States are the only subjects of International Law. According to
Oppenheim, states only and exclusively are subjects of international law.
• Non-state entities such as native people were often ignored, in Island of Palmas case,
Eastern Greenland case
• Private individuals were not considered subjects of international law, no system of general
human rights at the international level existed. Protection of the person and property
occurred through diplomatic protection, state represented persons and property of its
nationals as was in Mavrommatis Palestine Concessions case of 1924 (The dispute was
initially between a private person (Mavrommatis, a Greek national)
and a State (Britain).Greece took up Mavrommatis’ case and filed it before the PCIJ,
alleging that Great Britain, through the Palestine Government,
had refused to recognize the concession in Jerusalem and Jaffa and accordingly
sought compensation. Britain imposed its preliminary objection and argued
17
 that Greece had no standing in this case. Greece argued that it is entitled to protect its
subjects such as Mavrommatis when they have been injured by acts
contrary to international law by another state.
th
• 20 century developments:
• Growth of international organizations
• Decolonization and break up of states like USSR, Yugoslavia, Czechoslovakia.
• Acknowledgement of personality of native peoples (in Western Sahara Advisory Opinion)
• Development of idea of individual and collective human rights (UDHR, ECHR, ICCPR,
ICESCR)
• Importance of non-state actors in many fields- MNCs, NGOs
• Kelsen’s view that only individuals are the subjects of international law; individuals are the
grundnorm.
• Modern view that States are the primary subjects of international law, but individuals,
international organizations and non-state entities are also subjects of international law.

State

• Salmond defines state as a community of people which has been established for some objectives
such as internal order and external security
• According to Oppenheim, existence of State is possible only when people of state have settled
under highest government authority and habitually follow its orders.
• Starke has pointed out that definition of state is not possible but it can be discussed by its essential
elements.

State and Statehood

• Article 1 of the Montevideo Convention on Rights and Duties of States, 1933 lays down the most
widely accepted formulation of the criteria of statehood in international law.
It provides that the state as an international person should possess the following qualifications:
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with other states.
• The Arbitration Commission of the European Conference on Yugoslavia in Opinion No. 1 declared
that ‘the state is commonly defined as a community which consists of a territory and a population
subject to an organised political authority’ and that ‘such a state is characterised by sovereignty’.

Criteria of Statehood

1. Permanent Population
2. Definite Territory (Disputed borders)
3. Government (Distinction between State and Government- state is a legal person, and it can exist
without a present government)- Govt. has to be a legitimate govt. according to international rules
and procedure. Could be some sort of coherent political structure and society.
4. Sovereignty- expresses internally the supremacy of the governmental institutions and externally
the supremacy of the state as a legal person.Judge Huber noted in the Island of Palmas case that
sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for
the inclusion of such portion in the territory of any particular state. It is a formal statement that

18
 the state is subject to no other sovereignty and is unaffected either by factual dependence upon
other states or by submission to the rules of international law.

Different kinds of States and Non-state entities

1. Confederation- European Union

2. Federal State- USA, Switzerland, India
3. Condominium- Sovereignty of England and France over New Hebrides. The territory became
independent on 30 July 1980 as the state of Vanuatu.
4. Vassal State- Tibet (was earlier a protectorate of China)
5. Protectorate- Bhutan

State Territory

• State Territory has been defined as that portion which is subjected to the sovereignty of a state
• There can be no state without a defined territory.
• Beyond inland waters, sovereignty of a coastal state extends to maritime belt, also called territorial
waters.
• Sovereignty is represented through the jurisdiction of a state on its territory/ territorial boundary
which also includes the territorial sea.

Modes of Acquisition of State Territory

1. Occupation- In Eastern Greenland Case (1933), PCIJ propounded two principles (Denmark and Norway
were contesting their sovereignty over Eastern Greenland):
(i) it is necessary for the occupation over the territory that there should be an intention to establish
sovereignty over the territory concerned
(ii) There should be some actual exercise of such authority
2. Prescription (Title by prescription also called acquisitive prescription)- State to fulfil following
conditions:
(i) State not to accept sovereignty of that portion by any other state
(ii) Possession to be peaceful and uninterrupted
(iii) Possession should be in public
(iv) Possession should be for a definite period
3. Accretion- New territory is added through natural causes; could also be by artificial means
4. Cession- Cession could be voluntary or may be under compulsion as a result of war. Cession shall be
considered valid only when sovereignty of a territory is transferred to another state. (Indian teen bigha
land to Bangladesh)
5. Annexation- Conquest
6. Lease- Island of Malta to Britain on lease
7. Pledge- Republic of Geneo pledged Island of Corsica to France
8. Plebiscite
9. Acquisition of territorial sovereignty by newly emerged states

Modes of Loss of State Territory

1. Cession
2. Operation of Nature
3. Subjugation
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 4. Prescription
5. Revolt
6. Dereliction (Renunciation)
7. Granting of independence to a colony by an Imperialist state

Recognition

• Recognition is a method of accepting certain factual situations and endowing them with legal
significance
• Institute of International Law defined Recognition as a free act by which one or more states
acknowledge the existence of a definite territory of a human society politically organized
independent of any other existing states and capable of observing obligations of international law
which they manifest through their intention to consider it a member of international community.
• Fenwick- through recognition, members of international community formally acknowledge that
the new state has acquired international personality
• Recognition of a state is an act by which another state acknowledges that the recognized state
possesses the essential conditions of statehood.
• Recognition as a criteria of statehood can de discussed under two theories-
(1) Constitutive (Hegel, Anzilloti, Oppenheim)
(2) Declaratory (Hall, Brierly, Pitt Corbett and Fischer)
• Modes of Recognition: Defacto and Dejure
• Consequences of Non-recognition:
1. Unrecognized state cannot sue
2. Not entitled to enter into diplomatic relations
3. No diplomatic immunities from legal processes in foreign states
4. Cant get property situated in a foreign state
• Implied and Express Recognition
• Individual and Collective Recognition

Rights and Duties of State

• Rights of a State
• Sovereignty and independence
• Sovereign equality of states
• Territorial jurisdiction
• Right to self-defence
• Duties of a State
• Not to resort to war
• To fulfil treaty obligations
• Duty of non-intervention
• Respect for HR and fundamental freedoms
• Ensure international peace
• Settle disputes by peaceful means

Self-Determination

• All peoples have the right to self-determination. By virtue of that right they freely determine their
political status and determine their own form of economic, social and cultural development.

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• Principle of Self-determination is embodied in the UN charter.
• Article 1(2) of the UN charter provides that the purpose of the UN is to base friendly
relations among nations on principle of self-determination, i.e. "To develop friendly
relations among nations based on respect for the principle of equal rights and
self-determination of peoples, and to take other appropriate measures to strengthen
universal peace”.
• Article 55 of the UN Charter, building upon Article 1, states that "peaceful and friendly
relations among nations based on respect for the principle" of self-determination are to be
developed”

• Resolution 1514 (XV), the Declaration on the Granting of Independence to Colonial Countries and
Peoples, adopted in 1960 by eighty-nine votes to none, with nine abstentions (also called the
Colonial Declaration), stressed:“All peoples have the right to self-determination; by virtue of that
right they freely determine their political status and freely pursue their economic, social and
cultural development”.
• GA Resolution 1514 further added to transfer all powers to the people of those territories, without
any conditions or reservations, in accordance with their freely expressed will and desire, without
any distinction as to race, creed or color, in order to enable them to enjoy complete independence
and freedom.
• The Declaration is supplemented by General Assembly Resolution 1541 (XV), Resolution 2621
(XXV) embodying the 1970 Programme of Action for the Full Implementation of the [1960]
Declaration,'" and more importantly Resolution 2625 (XXV) containing the 1970 Declaration on
Principles of International Law Concerning Friendly Relations and Co-operation among States
("1970 Declaration" or "International Law Principles Declaration").''
• According to GA Resolution 1541, adopted in 1960, colonial powers were instructed to allow for
self-government in their colonies either through the creation of independent state, autonomy
under an existing independent state, or full integration with another state, according to the will of
he colonized population.
• The 1970 Declaration reaffirms the principle of self-determination as a right, providing that "by
virtue of the principle of... Self-determination of peoples enshrined in the Charter, all peoples have
the right freely to determine, without external interference, their political status and to pursue
their economic, social and cultural development."'
• In 1966, the General Assembly adopted the International Covenants on Human Rights. Both
these Covenants have an identical first article, declaring that ‘all peoples have the right to
self-determination. By virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development’.
• Defining Self-determination: The principle of self-determination provides that the people of the
colonially defined territorial unit in question may freely determine their own political status. Such
determination may result in independence, integration with a neighbouring state, free association
with an independent state or any other political status freely decided upon by the people
concerned.
• Self-determination also has a role within the context of creation of statehood, reserving the
sovereignty and independence of states, in providing criteria for the resolution of disputes, and in
the area of the permanent sovereignty of states over natural resources.
• The principle of self-determination of peoples has given birth to a number of newly independent
States. It has served the decolonization process largely generated by the two World Wars.
• After the first world war, the breakup of the Ottoman Empire resulted in the independence of new
sovereigns such as Iraq, Syria, Jordan, Lebanon, Palestine and Saudi Arabia. The Austro-Hungarian
Empire dissolved into Yugoslavia, Hungary, Czechoslovakia and Austria.
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 • The end of second world war gave a major push to the principle of self-determination by way of
decolonization, resulting in independence from major European colonial powers of new
nation-States in virtually every part of the world
• The Court in the East Timor (Portugal v. Australia) case declared that Portugal’s assertion that
the right of peoples to self-determination, as it evolved from the Charter and from United Nations
practice, has an erga omnes character, is irreproachable.’
• In Namibia case, the Court emphasised that ‘the subsequent development of international law in
regard to non-self-governing territories as enshrined in the Charter of the United Nations made
the principle of self-determination applicable to all of them’.
• The Western Sahara case reaffirmed this point. The case arose out of the decolonisation of that
territory, controlled by Spain as the colonial power but subject to claims by Morocco and
Mauritania. The Court was asked for an opinion with regard to the legal ties between the territory
at that time and Morocco and the Mauritanian entity. The Court stressed that the request for an
opinion arose out of the consideration by the General Assembly of the decolonisation of Western
Sahara and that the right of the people of the territory to self-determination constituted a basic
assumption of the questions put to the Court.
• The Court concluded that the ties which had existed between the claimants and the territory
during the relevant period of the 1880s were not such as to affect the application of resolution
1514 (XV), the Colonial Declaration, in the decolonisation of the territory and in particular the
right to self-determination. In other words, it is clear that the Court regarded the principle of
self-determination as a legal one in the context of such territories
• The Court emphasised that the right of peoples to self-determination was ‘one of the essential
principles of contemporary international law.
• The issue of self-determination came before the Supreme Court of Canada in Reference Re
Secession of Quebec in 1998 in the form of three questions posed. The second question asked
whether there existed in international law a right to self-determination which would give Quebec
the right unilaterally to secede. The Court declared that the principle of self-determination ‘has
acquired a status beyond “convention” and is considered a general principle of international law’.

Aspects of Self Determibation

• Self-determination has two aspects-

• Internal self-determination and
• External self-determination
• Internal self-determination is the right of the people of a state to govern themselves without
outside interference.
• External self-determination is the right of peoples to determine their own political status and to be
free of alien domination, including formation of their own independent state. However,
independence is not the only possible outcome of an exercise of self-determination.

Examining Self Determination

• Who is and can be the "self'?

• What "determination" can be made under what circumstances?
• Does the principle of self-determination apply to any territorial unit of an existing State?
• Where the principle does apply, does it include the right to secede unilaterally from the parent
State?

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 • In international law, the right of self-determination that became recognized in the 1960s was
interpreted as the right of all colonial territories to become independent or to adopt any other
status they freely chose.
• Ethnic or other distinct groups within colonies did not have a right to separate themselves from
the "people" of the territory as a whole. Today, the right of groups to govern themselves is
increasingly intertwined with human rights norms, in particular the rights of minorities and
indigenous peoples.
• While no right to secession has yet been recognized under international law, it is possible that
such a right may be accepted in the future as an exceptional measure, if a distinct group of people
is systematically denied the right to participate in the government of the state or if individuals
within such a group suffer systematic and gross violations of human rights that make their
participation in that state impossible.

• The principle states that:

"If the majority (or we might demand a higher percentage) of the adult population of a geographic
area expresses its wish, for any reason, to separate from the territorial unit of which it is currently
a part, it has the right to do so."
• A modified version of this right, and one that would also fit a situation:
"If the majority of the adult population of a geographic area expresses its wish to separate from the
territorial unit of which it is currently a part because the government of the territorial unit
does not represent the whole people, it has the right to do so.”

Uti Possidetis Juris

• Uti possidetis (Latin for "as you possess") is a principle in international law that territory and
other property remains with its possessor at the end of a conflict, unless otherwise provided for
by treaty; if such a treaty does not include conditions regarding the possession of property and
territory taken during the war, then the principle of uti possidetis will prevail.
• Uti possidetis juris (UPJ) is a principle of customary international law that serves to preserve the
boundaries of colonies emerging as States.
• Originally applied to establish the boundaries of decolonized territories in Latin America, UPJ has
become a rule of wider application, notably in Africa.
• The policy behind the principle has been explained by the International Court of Justice in
the Frontier Dispute (Burkina Faso/Mali) Case- wherein a question pertaining to a border dispute
was tabled before the International Court of Justice by Burkina Faso and Mali, which got
independence in 1960 after decolonization. It was held that an obligation exists to respect
pre-existing international frontiers in the event of a state succession.

INTERNATIONAL ORGANIZATIONS

Historical Evolution

• The 19th century witnessed a considerable growth in international non-governmental associations,

such as the ICRC (founded in 1863) and the International Law Association (founded in 1873).
These private international unions demonstrated a wide-ranging community of interest on specific
topics, and an awareness that co-operation had to be international to be effective. Such unions
created the machinery for regular meetings and many established permanent secretariats.
• The work done by these organisations is of considerable value in influencing governmental
activities and stimulating world action.
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 • In addition, there developed during the course of the 19th century a series of public international
unions. These were functional associations linking together governmental departments or
administrations for specific purposes, and set up by multilateral treaties.
• In 1865 the International Telegraphic Union was set up with a permanent bureau or secretariat
and nine years later the Universal Postal Union was created. This combined a permanent bureau
with periodic conferences, with decisions being taken by majority vote.
• The latter half of the 19th century was marked by the proliferation of public international
unions, covering transportation, communications, health and economic co-operation. These
unions restricted themselves to dealing with specific areas and were not comprehensive, but they
introduced new ideas which paved the way for the universal organisations of the 20th century.
• International organisations (or institutions) have now become indispensable.
• In a globalised world they facilitate co-operation across state frontiers, in a wide range of subjects,
from peacekeeping and peace enforcement to environmental, economic and human rights
concerns.
• The innovation of the 20th century was, of course, the creation of the global, comprehensive
organisations of the League of Nations in 1919 and the United Nations in 1945.
• UN works in association with its specialised agencies. These are organisations established by
inter-governmental agreement and having wide international responsibilities in economic, social,
cultural and other fields that have been brought into relationship with the United Nations.
• Most of the specialised agencies have devised means whereby the decisions can be rendered
virtually binding upon members. For example- ILO (established in 1919 to protect and extend the
rights of workers), UNESCO (the UN educational, scientific and cultural organisation established to
further the increase and diffusion of knowledge by various activities, including technical assistance
and co-operative ventures with national governments) and the WHO (established in 1946 with the
aim of unifying the standards of health care).
• Although such institutions are not able to legislate in the usual sense, they are able to apply
pressures quite effectively to discourage non-compliance with recommendations or
conventions.
• The IBRD (the world bank) emerged from the Bretton Woods conference of 1944 to encourage
financial investment, and works in close liaison with the IMF, which aims to assist monetary
co-operation and increase world trade.
• A number of international economic arrangements and institutions (not being specialised
agencies) of increasing importance have been established, i.e. The GATT which later paved way for
WTO.
• The proliferation of regional institutions, linking together geographically and ideologically related
states, since the close of the second world war, has been impressive.

Defining IO

• International organisations have been defined in international treaties simply as

‘inter-governmental organisations’ in order to demonstrate that the key characteristic of such
groupings is that their membership comprises states.
• The ILC in Article 2 of its draft Articles on the responsibility of international organisations refers to
‘an organisation established by a treaty or other instrument governed by international law
and possessing its own legal personality’, while noting that international organisations ‘may
include as members, in addition to states, other entitites’.
• Amerasinghe refers to organisations ‘normally created by a treaty or convention to which
states are parties and the members of the organisation so created are generally states’ and
points to basic characteristics such as establishment by international agreement among states,

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 possession of a constitution, possession of organs separate from its members, establishment
under international law, and either exclusive or predominant membership of states or
governments.
• The public international organiations may have a wide-ranging, open or universal membership
(such as the UN and the specialised agencies) or may have a limited or closed membership (such
as the African Union).
• Organisations may have a wider or narrower range of functions, depending upon their
constitution, with the UN as a good example of the former and WHO as a good example of the
latter.
• Whether a grouping will be regarded as an international organization will depend essentially upon
whether it in fact possesses some or all of the criteria noted above.

Legal Personality

• When personality is established under international law, they become subjects of international
law and capable of enforcing rights and duties
• Not all arrangements by which two or more states co-operate will necessarily establish separate
legal personality. It was held by the ICJ in Nauru v. Australia that the arrangements under which
Australia, New Zealand and the UK became the joint ‘administering authority’ for Nauru in the
Trusteeship Agreement approved by the UN in 1947 did not establish a separate international
legal personality distinct from that of the states.
• The possession of international personality meant that the organization was a subject of
international law and capable of having international rights and duties and of enforcing them by
bringing international claims.
• Legal personality can be inferred from the objects and purposes of the international organization.
• In the Reparation for injuries suffered in the service of the United Nations case the court held
that the UN had international legal personality because this was indispensable in order to achieve
the purposes and principles specified in the charter. In other words, it was a necessary inference
from the functions and rights the organisation was exercising and enjoying. The court emphasised
that it had to be: acknowledged that its [i.e. UN’s] members, by entrusting certain functions to it,
with the duties and responsibilities, have clothed it with the competence required to enable those
functions to be effectively discharged.
• In the said case, the court examined the UN charter and subsequent relevant treaties and practice
to determine the constitutional nature of the UN and the extent of its powers and duties. It noted
the obligations of members towards the organisation, its ability to make international agreements
and the provisions of the charter contained in Articles 104 and 105, whereby the UN was to enjoy
such legal capacity, privileges and immunities in the territory of each member state as were
necessary for the fulfilment of its purposes.
• The court emphasised that: 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 recognised by
them alone.
• Article 104 of the UN charter itself provides that the UN ‘shall enjoy in the territory of each of its
members such legal capacity as may be necessary for the exercise of its functions and the
fulfilment of its purposes’.
• Most international organisations need to operate within particular states and thus require that
their personality be recognised not only within international law but also within particular
domestic law in order to be able to make and defend claims and generally to perform legal acts in
domestic law.

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 • All international legal persons will have some rights and duties (and by definition rights and duties
distinct from those of the members of the organisation), they will not all have the same capacities.
The question of how such rights and duties may be enforced or maintained will also depend upon
the circumstances. States are recognised as possessing the widest range of rights and duties, those
of international organisations are clearly circumscribed in terms of express powers laid down in
the constituent instruments or otherwise evolved through practice.
• International organisations are expressly created by states by formal decision as laid down in their
constituent instruments. The very nature, status and authority of such organisations will
therefore depend primarily upon the terms of the constituent instruments or constitutions under
which they are established.
• International organisations are unlike states that possess a general competence as subjects of
international law. They are governed by the principle of speciality, so that, as the International
Court has noted, ‘they are invested by the states which create them with powers, the limits of
which are a function of the common interests whose promotion those states entrust to them’
• The establishment of an international organization with international personality results in the
formation of a new legal person, separate and distinct from that of the states creating it.
• The ICJ noted in the Reparation case that ‘when an infringement occurs, the organisation should be
able to call upon the responsible state to remedy its default, and, in particular, to obtain from the
state reparation for the damage that the default may have caused’ and emphasised that there
existed an ‘undeniable right of the organization to demand that its members shall fulfil the
obligations entered into by them in the interest of the good working of the organization’.
• Responsibility is a necessary consequence of international personality and the resulting
possession of international rights and duties. Such rights and duties may flow from treaties, such
as headquarters agreements.

Individuals

• Individuals as a general rule lack standing to assert violations of international treaties

• In the Danzig Railway Officials (1928) case, the PCIJ emphasised that under international law,
treaties did not as such create direct rights and obligations for private individuals, although
particular treaties could provide for the adoption of individual rights and obligations enforceable
by the national courts where this was the intention of the contracting parties. In this case,
Poland acquired the Railway company under an international agreement. And in the said
agreement it agreed to provide facilities to the officials of the Railway company, which they later
refused and hence argued that international agreement is a kind of a treaty and individuals do not
possess rights under a treaty. This argument was rejected by the court.
• Under the provisions of the 1919 Peace treaties, it was possible for individuals to apply directly
to an international court in particular instances.
• Also, the tribunal created under the Upper Silesia Convention of 1922 decided that it was
competent to hear cases filed by the nationals of a state against that state.
• Other examples are European Convention on Human Rights, 1950; the Inter-American Convention
on Human Rights, 1969; the Optional Protocol to the ICCPR, 1966; the International Convention for
the Elimination of all forms of Racial Discrimination, 1965 and the Convention on the Settlement
of Investment Disputes, 1965.
• The rights of individuals in international law have evolved significantly in the post-1945 era.
• Those committing piracy or slave trading have long been regarded as guilty of crimes against
international society bearing direct responsibility, for which they may be punished by
international tribunals or by any state at all.

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 • ‘International law imposes duties and liabilities upon individuals as well as upon states’ as ‘crimes
against international law are committed by men, not by abstract entities, and only by punishing
individuals who commit such crimes can the provisions of international law be enforced’- as
propounded by the Nuremberg and Tokyo Tribunal
• The Genocide Convention of 1948 called for prosecutions by either domestic courts or ‘an
international penal tribunal’.
• Individual responsibility has also been confirmed with regard to grave breaches of the four 1949
Geneva Red Cross Conventions and 1977 Additional Protocols I and II dealing with armed
conflicts
• International Convention on the Suppression and Punishment of the Crime of Apartheid of 1973
declared apartheid to be an international crime involving direct individual criminal responsibility

Positions of Individuals under IL

• Individuals are considered as subjects of international law.

• The importance of individuals under international law can be highlighted as under-
• Pirates as enemies of mankind and responsibility of states to apprehend and punish them
• Conduct of foreigners to some extent regulated under international law
• War criminals punished under international law
• Espionage considered crime under international law
• Under certain treaties, individuals can claim compensation/ damages against the state.
• The UN charter given a place of importance to rights of individuals.
• The international human rights law developed for the protection of rights of the individuals
• Asylum and Extradition deal with individuals but are covered under international law

ASYLUM

• The word "asylum" is the Latin counterpart of the Greek word "asylon," which means freedom
from seizure. Historically, asylum has been regarded as a place of refuge where one could be free
from the reach of a pursuer.
• “The practice of asylum is as old as humanity itself'
• Asylum means shelter and active protection extended to political refugee on his request.
• Asylum consists of
1. Shelter more than temporary refuge
2. Degree of active protection

Three Faces of Right to Asylum

1. The Right of a State to Grant Asylum:

o The right of a state to grant asylum is well established in international law. It follows from
the principle that every sovereign state is deemed to have exclusive control over its
territory and hence over persons present in its territory. One of the implications of this
generally recognized rule is that every sovereign state has the right to grant or deny asylum
to persons located within its boundaries.'
o Declaration on Territorial Asylum adopted by the General Assembly of the United Nations
in 1967 provides in Article 1(1) that, “Asylum granted by a State, in the exercise of its
sovereignty, to persons entitled to invoke Article 14 of the Universal Declaration of Human
Rights,... shall be respected by all other States."' Further, Article 1(3) of this Declaration

27
 vests the state of asylum with the authority "to evaluate the grounds for the grant of
asylum.'
o Convention on Territorial Asylum adopted by the Organization of American States in
1954, stipulates in Article 1 that, "every State has the right, in the exercise of its sovereignty,
to admit into its territory such persons as it deems advisable, without, through the exercise
of this right, giving rise to complaint by any other State.‘
o In 1977, the Council of Europe adopted a Declaration on Territorial Asylum and in Article
2, it reaffirms the right of states to grant asylum.

2. The Right of an Individual to Seek Asylum:

o The second aspect of the right of asylum is the right of an individual to seek asylum. This is
an individual right that an asylum-seeker has vis-a-vis his state of origin.
o Article 13(2) of the UDHR proclaims that, "everyone has the right to leave any country,
including his own”. With the adoption of the ICCPR, the right of an individual to leave his
country became written law binding on the states parties to the Covenant.' Article 12(2) of
the Covenant states that, "everyone shall be free to leave any country, including his own."
o European Convention for the Protection of Human Rights and Fundamental Freedoms"
proclaims that, "everyone shall be free to leave any country, including his own. ' Similarly,
the American Convention on Human Rights' stipulates in Article 22(2) that, "every person
has the right to leave any country freely, including his own.

3. The Right of an Individual to be Granted Asylum:

o The third component right under the umbrella of the right of asylum is the right of an
individual to be granted asylum. In international law today, an individual has no right to
asylum enforceable vis-d-vis the state of refuge.
o Article 14(1) of the UDHR proclaims the right of an individual "to seek and to enjoy in other
countries asylum from persecution." Scholars agree that this provision merely affords the
individual a right to seek asylum, not a right to receive it.
o States should normally refrain from measures such as rejection at frontier of persons
seeking asylum as provided by UN Declaration on Territorial Asylum adopted by G.A. in
1967

Types of Asylum

1. Territorial Asylum: IN own territory. It is an attribute of territorial sovereignty of the state. Asylum to
be respected by other states, once given, it can not be rejected or asylee cannot be returned or expelled
which endangers his life.
2. Extra-territorial Asylum: It is for temporary period, there will be binding local laws and this could be
in Foreign Embassies, consulates, premises of international institutions, warships.

EXTRADITION

o Delivery of criminals;
o surrender/ handing over of fugitives.
o Originates from the social need to punish criminals.
o Oppenheim defines it as delivery of an accused or convicted individual to the state on whose territory
it is alleged to have committed or to have been convicted of a crime, by the state on whose territory
the alleged criminal happens to be for the time being.
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o Basis is:
o A Treaty
o Reciprocity
o Duty of each state to punish criminal or return the criminal.
o No general duty to extradite unless there is a treaty and a request

Purpose of Extradition

1. Suppression of crime
2. Warning to criminals that they cannot escape
3. Interest of territorial state
4. Based on reciprocity
5. Achievement of international cooperation
6. Evidence more freely available in territory of commission of offence

Essential Conditions for Granting Extradition:

1. Non-extradition of political criminals: Began with French revolution of 1789, consideration of

humanity, fear that they wont be treated fairly, not dangerous to other state
o Re Castioni 1891, Swiss govt. asked Castioni from the UK, he murdered member of state council
of canton of Ticinio. There was political dissatisfaction prevailing.
o Re Munier 1894, Anarchist, two explosions in Paris café and barracks. Fled to UK, not a political
offence.
2. Not allowed for military criminals
3. Not allowed for religious criminals
4. Rule of Specialty
o U.S. v. Rauscher, 1886; US sought extradition from UK on ground of murder of a fellow servant
in American ship but was being tried for hurt. US Supreme Court rejected it.
5. Rule of Double Criminality
6. Prima facie case
7. Accused need not be in the state (when crime was committed) which seeks extradition- Mobarak
Ali Ahmed v. State of Bombay, 1957 SC
8. States don’t extradite own citizens generally.

Cases:
Savarkar (1911): Indian revolutionary apprehended by French officials, handed over to the British
officials under wrong impression. Extradition was not allowed
Sucha Singh: Murdered the CM of Punjab- Mr. Pratap Singh Kairon, extradition from Nepal
Dharam Teja: embezzlement, fled to Ivory Coast- no treaty, later to UK, extradited under treaty
Nadeem’s case: Accused in murder case of Mr. Gulshan Kumar

STATE SUCCESSION

Introduction

🠶 The 1978 Vienna Convention on Succession of States in Respect of Treaties defines state
succession as

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“the replacement of one state by another in the responsibility for the international relations of
territory” (Article 2 (1)(b)).
🠶 Decolonization, unification, and separation are the possible occurrences of state succession.

✔ Decolonization is the accession to independence of a non-metropolitan territory.

✔ Unification of states is the merger of two or more states into a new entity. The
predecessor states usually disappear; if not, one of them continues to exist and the case is
referred to as absorption.
✔ Separation is the creation of the successor state(s) while the predecessor state continues
to exist. Dismemberment is akin to separation, but all states disappear and two or more
states are created.
🠶 The issue of state succession can arise in a number of defined circumstances, for example,
decolonisation of all or part of an existing territorial unit, dismemberment of an existing state,
secession, annexation and merger.
🠶 Succession is merger or absorption of one state by another state or states. State succession is
distinguished from govt. succession. When succession takes place then a state loses itself fully or a
part of its territory while in case of govt. succession only the organization of a govt. or
constitutional structure changes.
🠶 Succession in respect of treaties is the most prevalent field of state succession, and the Vienna
Convention on Succession of States in Respect of Treaties is dedicated to this issue.
🠶 There are two relevant Conventions, the Vienna Convention on Succession of States in Respect of
Treaties, 1978, which entered into force in 1996, and the Vienna Convention on Succession of
States in Respect of State Property, Archives and Debts, 1983, which is not yet in force.
However, many of the provisions contained in these Conventions reflect existing international law.
🠶 Succession to State Responsibility aims to hold the successor state responsible for its predecessor
wrongs.
🠶 The rule of state succession was incorporated from the Roman Law by Grotius. In Roman law
when a person dies his rights and duties are succeeded by his successor.
🠶 A state may lose part of its territory, or it may lose all of it. Loss of territory may result in the
enlargement of one or more states. When a succession situation arises, the point of legal interest is
the effect on the international rights and obligations of the state or states concerned.
🠶 Despite attempts to assimilate Roman law, views regarding the continuity of the legal personality
in the estate which falls by inheritance, could not be sustained in the light of state interests and
practice.
🠶 The opposing doctrine, which basically denied any transmission of rights, obligations and
property interests between the predecessor and successor sovereigns, arose in the heyday of
positivism in the nineteenth century.
🠶 It manifested itself again with the rise of the decolonisation process in the form of the ‘clean slate’
principle, under which new states acquired sovereignty free from encumbrances created by
the predecessor sovereign.
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 🠶 In many cases, succession related problems are dealt with by treaties, whether multilateral
treaties, for example, the Treaty of St Germain, 1919, which resolved some succession questions
relating to the dissolution of the Austro-Hungarian Empire, or bilateral agreements as between, for
instance, colonial power and new state, which, however, would not bind third states. The system of
devolution agreements signed by the colonial power with the successor, newly decolonised state,
was used by, for example, the UK, France and the Netherlands.
🠶 The German Federal Supreme Court noted in the Espionage Prosecution case that ‘the problem of
state succession is one of the most disputed areas of international law’.
🠶 The international aspects of succession are governed through the rules of customary international
law.

Kinds of Succession

🠶 State succession are of two types (1) Universal Succession (2) Partial Succession

🠶 Universal Succession: If the legal identity of a community is completely destroyed there is said to
be universal succession of states. Universal succession takes place when a state is completely
absorbed by another, either through subjugation or through voluntary merger. Universal
succession takes place under the following circumstances:
(a) When the territory of a state is forcibly annexed by other state.
(b) When a state voluntary merges into one or several states.
(c) When one state is divided into several states and several states are formed.
🠶 Partial Succession: When as a result of civil war or war of liberation, a part of state breaks off
and takes up an independent position. Partial succession takes place under the following
circumstances:
(a) When a part of the state revolts and after achieving freedom becomes a separate
international person.
(b) When a part of state is ceded to another state.
(c) When a state accepts the suzerainty or becomes a protectorate of another state.

Rights and Duties Arising Out of State Succession

🠶 When a state takes the place of another state following rights and duties arise.
(1) Political Rights and Duties: No Succession takes place in respect of political duties and rights.
The succession state is not bound by the treaties of peace or neutrality entered into by the extinct
state.
(2) Local rights and duties: In respect of land, rivers, roads, railways etc., the succeeding state
succeeds the rights and duties of the former state.
(3) Debts: It depends on the discretion of succeeding state whether to pay or not to pay the public
debts of the former state.
(4) Nationality: The nationals of the former state lose their nationality at the extinction of the
state and becomes the nationals of new state.
(5) Laws: As far as the law of the former states are concerned, civil law continues until it is
changed by the succeeding state.
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 (6) Public funds and public property: The successor state takes over the public funds and public
property of the predecessor state.
🠶 The relevant date of succession is the date at which the successor state replaces the predecessor
state in the responsibility for the international relations of the territory to which the
succession relates. This is invariably the date of independence.
🠶 Where a new entity emerges, one has to decide whether it is a totally separate creature from its
predecessor, or whether it is a continuation of it in a slightly different form. For example, it seems
to be accepted that India is the same legal entity as British India and Pakistan is a totally new state.
🠶 Yugoslavia was generally regarded as the successor state to Serbia, and Israel as a completely
different being from British mandated Palestine
🠶 Cession or secession of territory from an existing state will not affect the continuity of the latter
state, even though its territorial dimensions and population have been diminished. Pakistan after
the independence of Bangladesh is a good example of this. In such a case, the existing state
remains in being, complete with the rights and duties incumbent upon it, save for those specifically
tied to the ceded or seceded territory.

USSR

🠶 Where, however, a state is dismembered so that all of its territory falls within the territory of two
or more states, these rights and duties will be allocated as between the successor states.
🠶 Upon the demise of the USSR, the Russian Federation took the position that it was the continuation
of that state. This was asserted particularly with regard to membership of the UN.
🠶 Of great importance was the Decision of the Council of Heads of State of the Commonwealth of
Independent States on 21 December 1991 supporting Russia’s continuance of the membership of
the USSR in the UN, including permanent membership of the Security Council, and other
international organisations.
🠶 Although not all of the instruments produced by the Commonwealth of Independent States at the
end of 1991 were strictly consistent with the continuity principle, it is clear that Russia’s claim to
be the continuation of the USSR (albeit within different borders of course) was supported by the
other former Republics and was accepted by international practice
🠶 https://www.youtube.com/watch?v=EMF7mgycg9M

Baltic States

🠶 A rather special situation arose with respect to the Baltic states (Estonia, Latvia and Lithuania),
which became independent after the First World War, but were annexed by the Soviet Union in
1940. This annexation had been refused recognition by some states and accepted de facto but not
de jure by some others.
🠶 The Baltic states declared their independence in August 1991. The European Community adopted
a Declaration on 27 August 1991 welcoming ‘the restoration of the sovereignty and independence

32
 of the Baltic states which they lost in 1941’. The United States recognised the restoration of the
independence of the Baltic states on 4 September 1991.
🠶 The implication of this internationally accepted restoration of independence would appear to be
that these states do not constitute successor states to the former USSR and would therefore be
free of such rights and obligations as would be consequential upon such succession

SFRY

🠶 The issue of Yugoslavia has been more complicated and tragic. The collapse of the Socialist Federal
Republic of Yugoslavia (the SFRY) took place over several months as the various constituent
republics proclaimed independence. The process was regarded as having been completed in the
view of the Arbitration Commission on Yugoslavia by the time of its Opinion No. 8 issued on 4 July
1992.
🠶 The Commission noted that a referendum had been held in Bosnia and Herzegovina in February
and March 1992 producing a majority in favour of independence, while Serbia and Montenegro
had established ‘a new state, the “Federal Republic of Yugoslavia”’ on 27 April 1992. The
Commission noted that the common federal bodies of the SFRY had ceased to function, while
Slovenia, Croatia and Bosnia had been recognised by the member states of the European
Community and other states and had been admitted to membership of the UN. The conclusion was
that the former SFRY had ceased to exist. This was particularly reaffirmed in Opinion No. 10.
🠶 Nevertheless, the Federal Republic of Yugoslavia (Serbia and Montenegro) continued to maintain
that it constituted not a new state, but the continuation of the former SFRY. This claim was
opposed by the other former republics of the SFRY and by the international community
🠶 The Security Council, for example, in Resolution 777 (1992) declared that ‘the state formerly
known as the Socialist Federal Republic of Yugoslavia has ceased to exist’ and that ‘the Federal
Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the
membership of the former Socialist Federal Republic of Yugoslavia in the United Nations’.
However, the Yugoslav position changed in 2000 and it requested admission to the UN as a new
member. The question as to the legal status of Yugoslavia as between 1992 and 2000 remained a
source of some controversy, since its admission to the UN in 2000 could not operate retroactively.
🠶 The International Court in 2003 described this situation as sui generis and fraught with legal
difficulties, but in its judgment in the series of cases brought by Yugoslavia against NATO members
following the Kosovo conflict in 1999, the Court concluded that Yugoslavia had been a member of
the UN (and thus a party to the Statute of the Court) from 1 November 2000 and that the sui
generis status of that state could not have amounted to membership of the UN. Accordingly, while
in 1996 the Court decided that Yugoslavia could appear before it in the Genocide Convention
(Bosnia v. Serbia) case, it held in 2003 that the situation as to Yugoslavia’s status was sui generis
and not without legal difficulty but finally decided in 2004 that Yugoslavia could not bring an
action against NATO states as it had not been a member of the UN and thus a party to the
Statute in 1999. In its decision on the merits in the Genocide Convention case in 2007, the Court
noted that its decision of 1996 constituted res judicata and could not be re-opened in the light of
its subsequent rulings
🠶 State succession also covers the situation of unification. One method of unification is by the
creation of a totally new state, such as the merger of the Yemen Arab Republic and the People’s
33
 Democratic Republic of Yemen. Under the agreement between the two states of 22 April 1990 the
establishment of the Republic of Yemen was accomplished by way of a merger of the two existing
states into a new entity with a new name.
🠶 Unification may also be achieved by the absorption of one state by another in circumstances
where the former simply disappears and the latter continues, albeit with increased territory and
population. Such was the case with Germany.
🠶 Following the conclusion of the Second World War, Germany was divided into the US, USSR, UK and
French zones of occupation and a special Berlin area not forming part of any zone. Supreme
authority was exercised initially by the Commanders-in-Chief of the Armed Forces of the Four
Allied Powers and subsequently by the three Allied High Commissioners in Bonn, with parallel
developments occurring in the Soviet zone.
🠶 The Convention on Relations between the Three Powers and the Federal Republic of Germany
(FRG), which came into force in 1955, terminated the occupation regime and abolished the Allied
High Commission. The Three Allied Powers retained, however, their rights and obligations with
regard to Berlin and relating to ‘Germany as a whole, including the reunification of Germany and a
peace settlement’. Recognition of the German Democratic Republic (GDR) was on the same basis,
i.e. as a sovereign state having full authority over internal and external affairs subject to the rights
and responsibilities of the Four Powers in respect of Berlin and Germany as a whole. Accordingly, it
was accepted that in some sense Germany as a whole continued to exist as a state in international
law.

Germany

🠶 On 18 May 1990 a treaty between the two German states was signed establishing a Monetary,
Economic and Social Union. In essence this integrated the GDR into the FRG economic system, with
the Deutsche Mark becoming legal tender in the GDR and with the Bundesbank becoming the
central bank for the GDR as well as for the FRG. On 31 August 1990, a second treaty was signed
between the two German states which provided for unification on 3 October 1990 by the
accession of the GDR under article 23 of the Basic Law of the Federal Republic. The Treaty
between the Federal Republic of Germany and the German Democratic Republic of 31 August 1990
clearly provided that the latter (GDR) was simply assimilated into the former (FRG). Article 1
of the Treaty stipulated that, ‘upon the accession of the German Democratic Republic to the
Federal Republic of Germany in accordance with article 23 of the Basic Law taking effect on 3
October 1990, the L¨ander of Brandenburg, Mecklenburg- Western Pomerania, Saxony,
Saxony-Anhalt and Thuringia shall become L¨ander of the Federal Republic of Germany’
🠶 In other words, the view taken by the parties directly concerned and accepted by the international
community demonstrates acceptance of the unification as one of the continuity of the Federal
Republic of Germany and the disappearance or extinction of the German Democratic
Republic.
🠶 The principle of succession to colonial borders was underlined by the International Court in the
Burkina Faso/Mali case. The extension of the principle of uti possidetis from decolonization to the
creation of new states out of existing independent states is supported by international practice,
taking effect as the transformation of administrative boundaries into international boundaries
generally.

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 🠶 This principle regarding the continuity of borders in the absence of consent to the contrary is
reinforced by other principles of international law, such as the provision enshrined in Article 62(2)
of the Vienna Convention on the Law of Treaties, which stipulates that a fundamental change in
circumstances may not be invoked as a ground for terminating or withdrawing from a treaty that
establishes a boundary. In addition, Article 11 of the Vienna Convention on Succession to Treaties,
although in terminology which is cautious and negative, specifies that
🠶 A succession of States does not as such affect:
(a) a boundary established by treaty; or
(b) obligations and rights established by a treaty and relating to the regime of a boundary.
🠶 The International Court dealt with succession to boundary treaties generally in the Libya/Chad
case, where it was declared that ‘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 emphasised by the Court’. More particularly, the Court emphasised that ‘a boundary
established by treaty thus achieves a permanence which the treaty itself does not
necessarily enjoy. The treaty can cease to be in force without in any way affecting the
continuance of the boundary.

Succession to Treaties Generally

🠶 Practice seems to suggest ‘a tendency’ or ‘a general inclination’ to succession to ‘some categories of

multilateral treaties’ or to ‘certain multilateral conventions’ However, this ‘modern-classical’
approach is difficult to sustain as a general rule of comprehensive applicability. One simply has to
examine particular factual situations, take note of the claims made by the relevant states and mark
the reactions of third states. In the case of bilateral treaties, the starting-point is from a rather
different perspective.
🠶 In such cases, the importance of the individual contractual party is more evident, since only two
states are involved and the treaty is thus more clearly reciprocal in nature. Accordingly, the
presumption is one of non-succession, depending upon all the particular circumstances of the
case. Practice with regard to the US, Panama, Belgium and Finland supports the ‘clean slate’
approach.

Absorption and Merger

🠶 Where one state is absorbed by another and no new state is created (such as the 1990 accession to
the Federal Republic of Germany of the L¨ander of the German Democratic Republic), the former
becomes extinct whereas the latter simply continues albeit in an enlarged form. The basic
situation is that the treaties of the former, certainly in so far as they may be deemed
‘political’, die with the state concerned, although territorial treaties defining the boundaries
of the entity absorbed will continue to define such boundaries. However, treaties of the
absorbing state continue and will extend to the territory of the extinguished state. These principles
are, of course, subject to contrary intention expressed by the parties in question.
🠶 Article 31(1) of the Vienna Convention on Succession to Treaties provides that where two or more
states unite and form one successor state, treaties continue in force unless the successor state and
the other state party or states parties otherwise agree or it appears that this would be
35
 incompatible with the object and purpose of the treaty or would radically change the conditions
for its operation.
🠶 Article 31(2) provides that such treaties would apply only in respect of the part of the territory of
the successor state in respect of which the treaty was in force at the date of the succession of
states.

Cession of Territory from One State to Another

🠶 When part of the territory of one state becomes part of the territory of another state, the general
rule is that the treaties of the former cease to apply to the territory while the treaties of the latter
extend to the territory.
🠶 Article 15 of the Vienna Convention on Succession of States to Treaties, dealing with this
‘moving-frontiers’ rule, provides for this, with the proviso that where it appears from the treaty
concerned or is otherwise established that the application of the treaty to the territory would be
incompatible with the object and purpose of the treaty or would radically change the condition for
its operation, this extension should not happen.
🠶 When, for example, the US annexed Hawaii in 1898, its treaties were extended to the islands and
Belgium was informed that US–Belgium commercial agreements were thenceforth to be applied to
Hawaii also.

Secession from an existing state to form a new state or states

🠶 The factual situations out of which a separation or dismemberment takes place are many and
varied. They range from a break-up of a previously created entity into its previous constituent
elements, as in the 1961 dissolution of the United Arab Republic into the pre-1958 states of Egypt
and Syria
🠶 Where there is a separation or secession from an independent state which continues, in order to
create a new state, the former continues as a state, albeit territorially reduced, with its
international rights and obligations intact. With regard to the seceding territory itself, the
leading view appears to be that the newly created state will commence international life free
from the treaty rights and obligations applicable to its former sovereign. Reasons for this
include the important point that it is difficult to maintain as a rule of general application that
states that have not signed particular treaties are bound by them.
🠶 When Belgium seceded from the Netherlands in 1830, it was deemed to start international life
with ‘a clean slate’ and the same approach was adopted with regard to the secession of Cuba from
Spain in 1898 and that of Panama from Colombia in 1903. Similarly, when Finland seceded from
the Russian Empire after the First World War, the view taken by the UK and the US was that
Finland was not bound by the existing Russian treaties dealing with the territory.

🠶 Any treaty which applied only to part of the territory of the predecessor state which has become a
successor state will continue in force in respect of the latter only (successor). Article 35 provides
that existing treaties remain in force after the succession in respect of the remaining territory,
unless the parties otherwise agree or it is established that the treaty related only to the territory

36
 which has separated from the predecessor state or it appears from the treaty or is otherwise
established that the application of the treaty in respect of the predecessor state would be
incompatible with the object and purpose of the treaty or would radically change the conditions
for its operation.

STATE JURISDICTION

Jurisdiction

■ Power of a state to affect, people, property and circumstances

■ Legal Competence which a state enjoy over its territory
■ Closely linked with territory
■ Prescriptive and Enforcement Jurisdiction- these are concurrent and exclusive
■ Civil and Criminal
■ Broadly it may be divided into Territorial and Extra-territorial Jurisdiction
■ Can be Prescriptive and Enforcement

Basis of Jurisdiction

■ Territoriality Principle
■ Nationality Principle/ Active Personality Principle
■ Passive Personality Principle
■ Protective Principle
■ Universality principle

Territoriality Principle

■ Principle of domestic jurisdiction

– Not interfere in other’s affairs
– Setting rules for grant of nationality
■ Nottebohm Case, It was held by the ICJ that the state can make law for rules of
acquisition of nationality, but diplomatic protection is covered under international
law
– Circumstances when aliens may enter
– International law limits and reduces extent of domestic jurisdiction; domestic jurisdiction is
being eroded- examples being reaffirmed under Article 2(7); South Africa’s domestic policy of
apartheid has been condemned; G.A. Resolution of self-determination, Human Rights
violations
■ Domestic jurisdiction can be understood as- legislative jurisdiction (only to make binding laws);
executive jurisdiction (state to act only within borders, cant enforce laws on foreign territory) and
judicial jurisdiction (try cases within the country, even where foreign element/ factor is present)
■ Territorial Jurisdiction can be based on subjective territorial principle and objective territorial
principle
■ State to prosecute offences on their soil
■ Responsibility of state to maintain law and order
■ Convenience is the major factor, also because witnesses are present
■ Lockerbie case
– On December 21, 1988, a bomb exploded in the cargo hold of Pan Am Flight 103, killing all
259 passengers and crew, as well as eleven residents of the town of Lockerbie where the
37
 wreckage of the Boeing 747 crashed 31,000 feet below. Though neither country had an
extradition treaty with Libya, the United States and United Kingdom both demanded that
Libya immediately surrender Al-Meghrahi and Fhimah to them for trial. Libya refused to
comply with the United States and United Kingdom demands.
– Libya filed a case in the ICJ against US/ UK. Before the ICJ, Libya claimed that it had not signed
any extradition treaty with the UK and the US, and that, subsequently and in conformity with
the 1971 Montreal Convention (Articles 5 and 7), which requires a State to establish its own
jurisdiction over alleged offenders present in its territory and in the event of their
non-extradition, only Libyan authorities had jurisdiction to try their own citizens.
– Later in1994, Libya proposed trial before a Scottish court, provided it sat in a neutral country
such as the Netherlands. At first, the United States and United Kingdom rejected the offer,
believing it to be merely a propaganda ploy. During the next few years, however, it became
increasingly clear that, despite sanctions, the two Libyans would not be surrendered for
trial. Finally, in August 1998, the British Government of Tony Blair persuaded the United
States to agree to Libya's plan. On April 6, 1999, Al-Megrahi and Fhimah arrived at in the
Netherlands. Later that day, pursuant to Security Council Resolution 1192 (1998), the U.N.
sanctions were suspended when Secretary-General Kofi Annan communicated formally to the
Security Council the successful handover of the two accused.
■ Lotus case (France v. Turkey, 1927)- Principle of constructive presence
■ Immunities from Territorial Jurisdiction-
– Diplomatic Agents (Ex Petroff case of 1971, decided by Australian SC when explosives were
thrown on Russian Chancery)
– Foreign Embassies
– Foreign Sovereigns (Schooner Exchange v. McFaddon of 1812- French naval vessel in
Philadelphia for repair, possession was sought on grounds that it was US ship seized by France
on High seas in 1810. Held that vessel is exempt from jurisdiction; Mighell v. Sultan of Johore
of 1894, Parliament Belge of 1880- Belgian mail vessel also being used for commercial
purpose, collided with British ship, sought compensation, but no jurisdiction)
– Property of Foreign Sovereign (Schooner Exchange case)
– Foreign Troops/ Armed forces
– Foreign warships and their crew
– International Organizations (Convention on Privileges and Immunities of UN 1947)

Nationality Principle

■ Nationality can be attained by-

– By birth
– By descent
– By Naturalization
– By Marriage (not now)
■ Certain advantages are attached to the nationals-
– Obtaining valid passport to travel
– Right to vote
– Right to various Govt. jobs
■ States not to mistreat nationals of other states- can’t be forced to serve in their armed forces
■ Nationality of ships under Article 91 of UNCLOS 1982
■ Nationality of aircrafts under Article 17 of CCCA 1944
■ Nottebohm’s case (Liechtenstein v. Guatemala, 1955)

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 ■ Nottebohm (P), was born in Germany in 1881, lived in Guatemala (D) for 34 years, retaining his
German citizenship and family and business ties with it. He however applied for Liechtenstein (P)
citizenship (in 1939) a month after the outbreak of World War II. Nottebohm (P) had no ties with
Liechtenstein but intended to remain in Guatemala. The naturalization application was approved
by Liechtenstein and impliedly waived its three-year. After this approval, Nottebohm (P) travelled
to Liechtenstein and upon his return to Guatemala (D), he was refused entry because he was
deemed to be a German citizen. His Liechtenstein citizenship was not honored.
■ Liechtenstein (P) thereby filed a suit before the International Court to compel Guatemala (D) to
recognize him as one of its national. Guatemala (D) challenged the validity of Nottebohm’s (P)
citizenship, the right of Liechtenstein (P) to bring the action and alleged its belief that Nottebohm
(P) remained a German national.
■ ICJ held that nationality was a legal manifestation of the link between person and state granting
nationality and recognition that person was more closely connected with that state than with any
other state
■ The court agreed with Guatemala and held that claims by Lichtenstein were inadmissible.
Although the Court stated that it is the sovereign right of all states to determine its own citizens
and criteria for becoming one in municipal law, such a process would have to be scrutinized on the
international plain in questions of diplomatic protection. The Court upheld the principle of
effective nationality, where the national must prove a meaningful connection to the state in
question. This principle was previously applied only in cases of dual nationality to determine
which nationality should be used in a given case. However, Nottebohm had forfeited his German
nationality and thus only had the nationality of Liechtenstein.

Passive Personality Principle

■ Jurisdiction to try individuals for offence committed abroad but have affected or will affect
nationals of the state
■ Cutting case of 1886
– Cutting, a US national published defamatory statement against Mexican in Texas, arrested in
Mexico
■ US v. Yunis (No. 2) of 1988
– Lebanese citizen Yunis, hijacked Jordanian airliner, arrested in international waters by the US
officials

Protective Principle

■ States may exercise jurisdiction over alien committed act abroad which is deemed prejudicial to
the security of the particular state concerned.
■ Joyce v. Director, Public Prosecutor, 1946
– Born in US, in 1933 acquired British passport on basis of having being born in Ireland. In
1939, shifted to Germany and started working for German radio. After 2nd world war, UK tried
him for treason. Whether UK had jurisdiction? It was held that he owed allegiance to crown,
and it was his breach of duty
■ Abdul Cader v. Union of India, 1977 Madras HC
– Petitioner was carrying on smuggling from outside the country, never entered India,
jurisdiction was held over the crime

Universality Principle

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 ■ Each and every state has jurisdiction over such crimes, Offensive to international community
■ Piracy- may punish if apprehended on high seas
■ Crimes against humanity, war crimes, genocide and crimes against peace
■ Eichmann case of 1961 (Attorney-General of the Government of Israel v. Adolf Eichmann)
– Adolf Eichmann (defendant) was a German Nazi officer involved in the internment and
extermination of Jewish people during World War II. When the war ended, Eichmann
escaped to Argentina, where years later, he was kidnapped by Israeli officers and forcibly
brought to Israel for trial for war-crime charges. Eichmann challenged the Israeli court’s
jurisdiction, arguing that the court was not empowered to adjudicate the case against
Eichmann because his illegal kidnapping by Israeli agents violated international law. The
attorney general of Israel (plaintiff) contended that the legality of the means of arrest and
of the transfer of a fugitive were not relevant jurisdictional issues for the court to address.
Additionally, at the time of Eichmann’s seizure, Argentina complained to the United Nations
Security Council (Security Council), alleging a violation of Argentina’s sovereignty by
Israel’s actions. The Security Council issued a Resolution, recognizing that Israel’s conduct
would disrupt international relations if the conduct were permitted in the future, and
requesting that Argentina and Israel reach an agreement on the settlement of the dispute.
As a result, before Eichmann’s indictment, Argentina and Israel settled the issue, with
Argentina clearing Israel of responsibility for any violations related to Eichmann’s
kidnapping. The Supreme Court of Israel then considered Eichmann’s challenge to Israel’s
jurisdiction.
– The judges found Eichmann guilty as charged and sentenced him to death. His execution by
hanging took place at 1:00 a.m. on June 1, 1962. Eichmann's body was cremated. The ashes
were scattered over the Mediterranean Sea, beyond Israel's territorial waters but not
beyond Israeli identity and Jewish consciousness.
– http://www.history.com/topics/world-war-ii/nazi-party/videos/adolf-eichmann-on-trial

STATE RESPONSIBILITY

⚫ Sovereign has no obligation under Law.

⚫ But States have obligations under International Law (vis-à-vis other states)

⚫ A breach of an international obligation gives rise to a requirement for reparation

⚫ State Responsibility concerning International duties is a legal responsibility because it arises out
of treaties, customs (basically international law)
⚫ State cannot abolish or create international law

⚫ The rules of international law as to state responsibility concerns the circumstances in which and
principles whereby injured state becomes entitled to redress for damage suffered.

Traditional View
⚫ Limited to the obligation to make reparation

⚫ Responsibility only if damages/ injury occurs

Present View

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Notion of Responsibility modified
⚫ Elimination of damage as a condition for engagement of responsibility for breach

Question of Fault

⚫ The principle of objective responsibility (the ‘risk’ theory) maintains that the liability of the state
is strict. Once an unlawful act has taken place, which has caused injury and which has been
committed by an agent of the state, that state will be responsible in international law to the state
suffering the damage irrespective of good or bad faith.
⚫ The subjective responsibility concept (the ‘fault’ theory) emphasises that an element of
intentional (dolus) or negligent (culpa) conduct on the part of the person concerned is necessary
before his state can be rendered liable for any injury caused.
⚫ Majority opinion of international community is in the objective responsibility (strict liability)

The laws of state responsibility are the principles governing when and how a state is held responsible for
a breach of an international obligation.
⚫ Laws of State Responsibility include-
(1) the conditions for an act to qualify as internationally wrongful, (Breach)
(2) the circumstances under which actions of officials, private individuals and other entities
may be attributed to the state, (Attribution)
(3) general defences to liability (Defences) and
(4) the consequences of liability. (Remedies)

Cases Determining SR

⚫ Chorzow Factory (Indemnity) Case 1928 PCIJ: PCIJ observed that it is a principle of international
law and even a general conception of law that any breach of an engagement involves an obligation
to make reparation.
⚫ Corfu Channel Case 1949 ICJ: ICJ held that Albania was responsible for explosions and observed
“These grave omissions involve the international responsibility of Albania” and “… there is a duty
upon Albania to pay compensation to the UK”.

⚫ State responsibility during wars…. Article 3 of the Hague Convention 1907…. If belligerent state
violates rules of war, it shall be responsible for payment of compensation and it is responsible
for the acts committed by persons of armed forces.

Development of Rules of State Responsibility

⚫ Hague Convention 1907

⚫ Hague Conference of 1930 (League’s 1930 Codification Conference- reached Agreement on

Imputation)

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 ⚫ ILC’s attention in 1948 to codify rules…. ILC appointed First Rapporteur in 1955… but his work
was abandoned… second rapporteur in 1969 upto 1980 Prof. Ago made an attempt to codify rules
and established the basic organisational structure of what would become the Draft Articles. Third
Rapporteur worked from 1980-1986 on definition of injured state. Fourth Rapporteur worked on
this from 1988- 1996. In 1997, ILC appointed Prof. Crawford as a Special Rapporteur from 1998-
2001 and he undertook second reading of the draft before which it was finally submitted and
adopted.
⚫ ILC Draft Articles was then divided into four parts, 59 articles-

⚫ Part I- Origin of International Responsibility – determining grounds and circumstances under

which state may be held to have committed an international wrongful act which is a source of
international responsibility and elements of internationally wrongful acts, defences
⚫ Part II- content, form and degrees of international responsibility, determination of
consequences that a wrongful act of a state has under international law (reparative and
punitive consequences of international wrongful act)- consequences
⚫ Part III- settlement of disputes and implementation

⚫ Part IV- Final provisions

⚫ ILC Articles on Responsibility of States for Internationally Wrongful Acts 2001

⚫ Article 1 Responsibility of States for Internationally wrongful acts

⚫ Article 2 Elements of Internationally wrongful acts of a state

⚫ When conduct consisting of an act or commission is:

o attributable to state under international law
o Constitutes a breach of international obligation of the state

Elements of internationally wrongful act

(1) Attribution- Before a state can be held responsible for any action, it is necessary to prove a causal
connection between the injury and an official act or omission attributable to the state alleged
to be in breach of its obligations. The state is responsible for all actions of its officials and organs,
even if the organ or official is formally independent and even if the organ or official is acting ultra
vires.
(2) Breach-The act of the state must constitute a breach of an obligation of the state under
international law. (The obligation arises out of a treaty or a customary international law)

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.
In the Genocide Convention (Bosnia v. Serbia) case, it was regarded as ‘one of the cornerstones of the
law of state responsibility, that the conduct of any state organ is to be considered an act of the state under
42
international law, and therefore gives rise to the responsibility of the state if it constitutes a breach of an
obligation of the state’.
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
governmental authority shall be considered an act of the State under international law if the organ,
person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.
Inter-American Court of Human Rights in Velásquez Rodríguez case held:
This conclusion [of a breach of the Convention] is independent of whether the organ or official has
contravened provisions of internal law or overstepped the limits of his authority: under international law
a State is responsible for the acts of its agents undertaken in their official capacity and for their omissions,
even when those agents act outside the sphere of their authority or violate internal law.
Rule also confirmed in Article 91 of AP I to GC

⚫ An unlawful act may be imputed to the state even where it was beyond the legal capacity of the
official involved, providing, as Verzijl noted in the Caire case, that the officials ‘have acted at least to
all appearances as competent officials or organs or they must have used powers or methods
appropriate to their official capacity’.
⚫ In the Sandline case, the Tribunal emphasised that, ‘It is a clearly established principle of
international law that acts of a state will be regarded as such even if they are ultra vires or
unlawful under the internal law of the state

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
considered 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 that State by virtue of articles 4 to 9.
Article 10 deals with the special case of attribution to a State of conduct of an insurrectional or other
movement which subsequently becomes the new Government of the State or succeeds in establishing a
new State.

Article 41 Particular consequences of a serious breach of an obligation under this chapter

1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning
of Article 40.
2. No State shall recognize as lawful a situation created by a serious breach within the meaning of Article
40, nor render aid or assistance in maintaining that situation.
3. This article is without prejudice to the other consequences referred to in this Part and to such further
consequences that a breach to which this chapter applies may entail under international law.
Art. 40 refers to serious breach by a State of an obligation arising under a peremptory norm of general
international law

Article 48. Invocation of responsibility by a State other than an injured State

1. Any State other than an injured State is entitled to invoke the responsibility of another State in
accordance with paragraph 2 if:
(a) the obligation breached is owed to a group of States including that State, and is established for the
protection of a collective interest of the group; or
43
(b) the obligation breached is owed to the international community as a whole.
2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State:
(a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in
accordance with article 30; and
(b) performance of the obligation of reparation in accordance with the preceding articles, in the interest
of the injured State or of the beneficiaries of the obligation breached.
3. The requirements for the invocation of responsibility by an injured State under articles 43, 44 and 45
apply to an invocation of responsibility by a State entitled to do so under paragraph 1.

Kinds of SR

⚫ Original Responsibility- for work of its govt.

(state is in direct breach of legal obligations binding on it under international law)
⚫ Vicarious Responsibility- for citizens and work of its agents.(State’s responsibility is limited to
preventive measures- to secure that wrongdoer makes suitable reparation and if necessary to
punish him- these preventive and remedial obligations of state in vicarious responsibility is an
obligation- breach of which states bears direct responsibility)

Consequences of SR

1. International Delinquency (Any injury to another state committed by Head of State in violation of
international legal duty… is a wrongful act committed by a state which is not a breach of a purely
contractual obligation… may include ordinary breaches of treaty obligations, unjustified
intervention)
2. Responsibility for injury to Aliens (Duty to exercise due diligence)
o For acts of private individuals
o For acts of mob-violence
o US Diplomatic and Consular Staff in Tehran 1980…. ICJ held that militants became agents of the
state
o Reparations for Injuries Suffered in the Service of UN 1949… Count Bernadotte and a French
observer to mediate in conflict between Arabs and Jews in Palestine (State’s responsibility
towards the International Organizations)
3. For acts of insurgents
o Calvo Doctrine … Calvo of Argentina… no responsibility for losses suffered by foreigners/
aliens during civil war
4. State Responsibility for acts of Govt. organs (where officials have acted out of their powers and
jurisdiction)
5. State Responsibility for acts with foreigners- (No international responsibility… only local
remedies)
6. State Responsibility for Breach of Treaty or Contractual Obligations
7. State Responsibility for Expropriation of Foreign Property (Appropriate compensation in
accordance with rules in force in state provided no inequality)
8. Liability for the Acts of Multinational Corporations
o For Hazardous wastes
o For Environment (right of each state to regulate and supervise the activities of TNCs within its
national jurisdiction and to take measures to ensure that such activities complies with its laws,
rules and regulations)

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Defences to State Liability

1. Consent (Article 20)

2. Counter-measure in respect of internationally wrongful act (Article 49 to 52)- Article 49 provides
that an injured state may only take counter-measures against a state responsible for the wrongful
act in order to induce the latter to comply with the obligations consequent upon the wrongful act.
3. Force majeure (Article 23)… Rainbow warrior case between France and New Zealand, The issue of
force majeure was raised by France in the Rainbow Warrior arbitration in 1990. It was argued that
one of the French agents repatriated to France without the consent of New Zealand had to be so
moved as a result of medical factors which amounted to force majeure. The Tribunal, however,
stressed that the test of applicability of this doctrine was one of ‘absolute and material
impossibility’ and a circumstance rendering performance of an obligation more difficult or
burdensome did not constitute a case of force majeure…. Force majeure has long been accepted as
precluding wrongfulness, although the standard of proof is high. In the Serbian Loans case, for
example, the Court declined to accept the claim that the First World War had made it impossible
for Serbia to repay a loan.
4. 4. Distress (Article 24)- The difference between distress and force majeure is that in the former
case there is an element of choice.
5. 5. State of necessity (Article 25)- Article 25 provides that necessity may not be invoked unless the
act was the only means for the state to safeguard an essential interest against a ‘grave and
imminent peril’ and the act does not seriously impair an essential interest of the other state or
states or of the international community as a whole
6. Self-defence (Article 21)

Consequences of Breach (Internationally wrongful act)

(1) Cessation and non-repetition (Article 30)- The state responsible for the internationally
wrongful act is under an obligation to cease that act, if it is continuing, and to offer appropriate
assurances and guarantees of non-repetition if circumstances so require.
(2) Reparation (Article 31)- includes restitution, compensation and satisfaction (Art. 34, 35, 36 &
37)- Article 34 provides that full reparation for the injury caused by the internationally wrongful
act shall take the form of restitution, compensation and satisfaction, either singly or in
combination.
(1) Restitution in kind is the obvious method of performing the reparation, since it aims
to re-establish the situation which existed before the wrongful act was committed.
(2) Punitive or exemplary damages go beyond the concept of reparation as such and were
indeed held in Vel´asquez Rodrigu´ez v. Honduras (Compensation) to be a principle ‘not
applicable in international law at this time’. Compensation is usually assessed on the
basis of the ‘fair market value’ of the property lost, although the method used to
calculate this may depend upon the type of property involved.
(3) Satisfaction constitutes a third form of reparation. This relates to non-monetary
compensation and would include official apologies, the punishment of guilty minor
officials or the formal acknowledgement of the unlawful character of an act.
o The Tribunal in the Rainbow Warrior arbitration pointed to the long-established practice of states
and international courts of using satisfaction as a remedy for the breach of an international
obligation, particularly where moral or legal damage had been done directly to the state. In the
circumstances of the case, it concluded that the public condemnation of France for its breaches of
treaty obligations to New Zealand made by the Tribunal constituted ‘appropriate satisfaction’

45
 o Article 37 of the ILC Articles provides that a state responsible for a wrongful act is obliged to give
satisfaction for the injury thereby caused in so far as it cannot be made good by restitution or
compensation. Satisfaction may consist of an acknowledgement of the breach, an expression
of regret, a formal apology or another appropriate modality. An example of such another
modality might be an assurance or guarantee of non-repetition.

INTERACTION BETWEEN DOMESTIC AND INTERNATIONAL LAW

• With advancement of communications and role played by international law in effecting national
laws, there is an increasing interpenetration of international law and domestic law across a
number of fields, such as human rights, environmental and international investment law, where
at the least the same topic is subject to regulation at both the domestic and the international level
(and indeed the regional level in the case of the European Union)
• There are cases where the same situation comes before both national and international courts,
which may refer to each other’s decisions in a complex process of interaction. For example, the
failure of the US to allow imprisoned foreign nationals access to consular assistance in violation of
the Vienna Convention on Consular Relations, 1963 was the subject of case-law before the
International Court of Justice, the Inter-American Court of Human Rights and US courts, while
there is a growing tendency for domestic courts to be used to address violations of international
law.
• The State practices pertaining to incorporation of International Law into municipal law have been
explained by two schools of thought.
• The schools of law on the relationship between international law and national laws (municipal
laws) are - Monist and Dualist.

Monist

• Monistic theory was propounded in the Eighteenth century and was put forward by two German
scholars Moser (1701- 1785) and Martens (1756- 1821). According to this doctrine, there
exists only one set of legal system that is the domestic legal order. This theory was further
developed by Kelsen, an Austrian jurist.
• This approach does not distinguish between International Law from national law of states.
• Accordingly, rules of International Law does not need to be transformed into national/ municipal
law through any further national legislation and the rules of International Law can be applied as
such by municipal courts. The rules of International Law including those in the treaty
automatically become effective and incorporated in the Municipal law as soon as the State ratifies
a treaty.
• The monists are united in accepting a unitary view of law as a whole and are opposed to the strict
division posited by the positivists.
• Kelsen emphasises the unity of the entire legal order upon the basis of the predominance of
international law by declaring that it is the basic norm of the international legal order which is
the ultimate reason of validity of the national legal orders too.
• In a monist state, the court can declare any national rule of law invalid if it contradicts with the
international rule of law and thus establishes superiority/ supremacy of International Law
even within the municipal sphere.
• The Netherlands and Germany are the examples of states having monist approach. Many States
expressly accept International Law as part of their domestic law while others do not accept so.
• Where International Law becomes incorporated in a State’s domestic law without the need for
specific legislation, those parts of it, which are sufficiently explicit to be enforceable by the

46
 domestic courts, are known as ‘self executing’. Some States provide by their Constitutions that
certain provisions of International Law shall be self-executing. For example, the Constitution of the
U.S.A., provides that international treaties are part of the law of the land. Other countries have
gone even further by not only making International Law self executing, but assigning to it a rank in
the domestic hierarchy superior to all prior and subsequent legislation. Examples of this are
France and Germany. But there are other States that do not accept any International Law as
self-executing, or so accept it in part, for example United Kingdom (U.K.), and these States are
dualistic.

Dualist School

• According to dualist theory, International Law and municipal laws are two distinct, separate and
self-contained legal systems. And so, International Law would not as such form part of the national
law of the state.
• In such a state, legislature must pass law to give effect to the treaty since ratification of a treaty by
the concerned state does not result in automatic incorporation in domestic legal system. This view
was propounded by German scholar Triepel in 1899, and further developed by Italian jurist
Anzilotti. This theory represents that International Law has different character from that of
national law.
• This theory is supported by the positivists. One expression of the positivist–dualist position has
been the doctrine of transformation.
• According to dualist school of thought, the municipal courts shall apply municipal law in case of a
conflict between International Law and municipal law. Therefore, municipal law has primacy
over International Law according to this theory.
• The U.K. follows dualist pattern. In Britain, International Law becomes part of law of land only
when it is accepted in national law through legislation. A treaty has no effect in municipal law until
an Act of Parliament is passed to give effect to it.
• International Law does not determine which point of view is to be preferred. It is left to the
discretion of the states to decide according to their legal traditions and national structure.
• India, more closely, follows the dualist pattern, which is also evident from the provisions of the
Constitution.
• In the case of State of West Bengal v. Kesoram Industries Ltd. & others (AIR 2005 SC 46 at para
494), a five judge Constitutional Bench of Supreme Court observed: “It is true that the doctrine of
Monism as prevailing in the European Countries does not prevail in India. The Doctrine of Dualism
is applicable. But, where the municipal law does not limit the extent of the statute, even if India is
not a signatory to the relevant International Treaty or covenant, the Supreme Court in a large
number of cases interpreted the Statutes keeping in view the same”.

Third Approach

• A third approach, being somewhat a modification of the dualist position and formulated by
Fitzmaurice and Rousseau amongst others, the framework tied to reality.
• This approach begins by denying that any common field of operation exists as between
international law and municipal law by which one system is superior or inferior to the other. Each
order is supreme in its own sphere.
• Just as one cannot talk in terms of the supremacy of French law over English law, but only of two
distinct legal systems each operating within its own field, so it is possible to treat international law
and municipal law in the same way. They are both the legal element contained within the domestic
and international systems respectively, and they exist within different juridical orders.

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 • Article 27 of the Vienna Convention on the Law of Treaties, 1969 lays down that in so far as
treaties are concerned, a party may not invoke the provisions of its internal law as justification for
its failure to carry out an international agreement.
• In the Polish Nationals in Danzig case, the Court declared that ‘a State cannot adduce as against
another State its own constitution with a view to evading obligations incumbent upon it under
international law or treaties in force’.
• The Court underlined this approach in the Avena case (2004) noting that ‘The rights guaranteed
under the Vienna Convention are treaty rights which the US has undertaken to comply with in
relation to the individual concerned, irrespective of the due process rights under the US
constitutional law. The Court took a step further in that case, which also concerned the failure to
allow foreign prisoners access to the consular officials of their state in breach of the Vienna
Convention on Consular Relations, declaring that ‘the remedy to make good these violations
should consist in an obligation on the US to permit review and reconsideration of these nationals’
cases by the US courts . . . with a view to ascertaining whether in each case the violation of Article
36 committed by the competent authorities caused actual prejudice to the defendant in the
process of administration of criminal justice’
• In contrast, in the Serbian Loans case of 1929 when the crucial issues turned upon the
interpretation of internal law, and that the rules of international law in a strict sense were not at
issue then. The court turned to municipal law concepts where it was found necessary in the
circumstances
• There is indeed a clear trend towards the increasing penetration of international legal rules within
domestic systems coupled with the exercise of an ever-wider jurisdiction with regard to matters
having an international dimension by domestic courts. This has led to a blurring of the
distinction between the two previously maintained autonomous zones of international and
domestic law, a re-evaluation of the role of international legal rules and a greater preparedness
by domestic tribunals to analyse the actions of their governments in the light of international law.
• The domestic courts may often have to determine the meaning of an international rule that is
relevant for a case before them.

Role of Judiciary in India in Implementing Treaty Obligations

• The courts in India have played an important role in overcoming the challenges in implementing
the provisions of treaty/ covenants to protect the rights of its citizens.
• Courts in India, in certain cases, refused to implement treaty provisions in municipal courts
without any legislation to that effect.
• But at the same time, it has upheld the provisions of human rights treaties and given effect to those
provisions where there is no contradictory municipal law. Judiciary has played an important role
over the years in realizing certain provisions of international conventions and protecting the rights
of its citizens by basing its decisions on international legal principles.
• In Xavier v. Canara Bank Limited (1969), the issue that came up before the Kerala High Court
was whether the provisions of International Covenants to which India is a party become part of
Corpus Juris of India. More specifically, whether Article 11 of the ICCPR 1966, which provides that
no one shall be imprisoned on the ground of inability to fulfil a contractual obligation, has become
part of Municipal law of the country, consequently conferring right to remedial action at the
instance of an aggrieved individual.
• The Court held that ‘The remedy for breaches of International Law in general is not found in the
courts of the state because International Law per se or proprio vigore has not the force or
authority of civil law, till actual legislation is undertaken'. It further observed that although the
UDHR sets a common standard of achievement for all peoples and all nations but individual

48
 citizens cannot complain about their breach in municipal courts even if the country
concerning has adopted the covenants and ratified the Optional Protocol. The court also stated
that the basic human rights enshrined in the International Covenants may at best inform judicial
institutions and inspire legislative action within member states but apart from such deep
reverence, remedial action at the instance of an aggrieved individual is beyond the area of judicial
authority.
• In the case of J.G. Verghese v. Bank of Cochin (1980), the Hon'ble Supreme Court also dealt with
the matter concerning effect of International Law and its enforceability at the instance of
individuals within the state (India). The apex court observed that the positive commitment of the
state parties ignites legislative action at home but does not automatically make the covenant an
enforceable part of law in India.
• Also in Magnabhai Ishwarbhai Patel v. Union of India, the Constitutional Bench of Supreme
Court held that the effect of Article 253 is that if a treaty, agreement or convention with a foreign
state deals with a subject within the competence of State Legislature, the Parliament alone has the
power to make laws to implement the treaty, agreement or convention or any decision made at any
international conference, association or other body.
• Further, in 2005, the apex court in the case of State of West Bengal v. Kesoram Industries
Limited, held that a Treaty entered into by India cannot become law of the land and it cannot be
implemented unless Parliament passes a law as mentioned under Article 253. These observations
of the Supreme Court in the above mentioned cases, only reflect the dualistic theory according to
which a treaty becomes a law of the land only after its transformation into that law by the
legislative process
• The common law countries which are following dualist pattern, requires the Act of Parliament to
transform treaty into the national legislation. But at the same time, the common law countries
maintain that the rules of international customary law are part of municipal law only if they
are not inconsistent with municipal law.
• The apex court in India has also followed this rule. In the case of People's Union for Civil Liberties
v. Union of India (1997), the Supreme Court severely regulated telephone tapping which is
permitted under Section 5(2) of the Telegraph Act. The court took into consideration the right to
privacy implicit in Article 21 and recognized by Article 12 of the UDHR 1948, and Article 17 of the
ICCPR 1966. It further held that the rules of customary International Law which are not contrary
to the municipal law shall be deemed to be incorporated in the domestic law. We have seen a shift
in the approach of the Supreme Court, as in earlier cases, the Hon'ble court held that a treaty
entered into by India cannot become law of the land but in the later case of People's Union for Civil
Liberties, the court observed that the rules of Customary International Law shall be deemed to
form part of municipal law provided it is not in contradiction to the enacted law.
• The positive approach of the Supreme Court, towards acceptability of the principles of
International Law is further heightened in the case of Vellore Citizens Welfare Forum v. Union of
India and others (1996). The Hon'ble court upheld the validity of principles of 'sustainable
development', 'polluter pays' and 'precautionary principle'. It held that 'once these principles are
accepted as part of the Customary International Law, there would be no difficulty in accepting
them as part of the domestic law. It is almost accepted proposition of law that the rules of
Customary International Law which are not contrary to the municipal law shall be deemed to have
been incorporated in the domestic law and shall be followed by the Courts of Law'.
• In Gramophone Company of India Limited v. Birendra Bahadur Pandey (1984), the Supreme
Court observed that the comity of nations requires that the rules of International Law may be
accommodated in the municipal law even without express legislative sanctions provided they do
not run in conflict with the Acts of Parliament.

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• The Supreme Court has played a very important role in implementing treaty obligations in the case
of Vishaka and others v State of Rajasthan and others (1997). It is a landmark judgment
wherein the apex court while promulgating the guidelines on women's sexual harassment has held
that 'in the absence of domestic law occupying the field, to formulate effective measures to check
the evil of sexual harassment of working women at all work places, the contents of international
conventions and norms are significant for the purpose of interpretation of the guarantee of gender
equality, right to work with human dignity in Article 14, 15, 19 (1)(g) and 21 of the Constitution
and the safeguards against sexual harassment implicit therein. Any international convention not
inconsistent with the fundamental rights and in harmony with its spirit must be read into these
provisions to enlarge the meaning and content thereof, to promote the object of the constitutional
guarantee'.
• The court further observed that it is now an accepted rule of judicial construction that regard must
be had to the international conventions and norms for construing domestic law where there is
inconsistency between them and there is a void in the domestic law. The court referred to its own
decision in case of Nilabati Behera v. State of Orissa and others (1993). The court in this case
observed that there is no reason why these international conventions and norms cannot be used
for construing the fundamental rights expressly guaranteed in the Constitution of India.
• In Gita Hariharan v. Reserve Bank of India (1999), while interpreting the right of guardianship
of mother while father was alive (under the Hindu Minority and Guardianship) Act 1956, the
Convention on the Elimination of All Forms of Discrimination against Women was again relied on.
• Also, denying maternity benefit to some of the women employees of Municipal Corporation of
Delhi was held invalid by the SC relying on Maternity Benefit Act, 1951 read alongwith Article 11
of the above mentioned Convention in the case of Municipal Corporation of Delhi v. Female
Workers (2000)
• In a recent judgment of 2014 on recognizing transgenders as third gender and enforcing their
rights guaranteed in the Constitution as citizens of this country, the Supreme Court referred to the
provisions of international conventions. In this case titled as National Legal Services Authority v.
Union of India and others (2014), the Hon'ble Court observed that generally, a legislation is
required for implementing the international covenants, unlike the position in the USA where the
rules of International Law are applied by the municipal courts based on the theory of their implied
adoption by the state, as a part of its own municipal law. The apex court, while referring to the
Indian position with respect to the implementation of international treaty obligations into the
municipal legal system, observed that such a 'supremacy clause', as is adopted by the US, is absent
in our Constitution. Courts in India would apply the rules of International Law according to
the principles of Comity of Nations, unless they are overridden by clear rules of domestic
law.
• The court held in the later case that the covenants which India has ratified can be used by the
municipal courts as an aid to the interpretation of statutes by applying the doctrine of
harmonization. And therefore, if the Indian law is not in conflict with the international covenants,
particularly relating to human rights, to which India is a party, the domestic court can apply those
principles in Indian conditions. In the present case, the rights of transgenders and their protection
against discrimination were brought to surface and the Supreme Court gave due regard to
international conventions (Article 1, 3 and 5 of UDHR, Article 6 and 7 of ICCPR) and norms for the
protection of rights of transgender community. The court highlighted the significance of
International Conventions and the rights covered under these conventions for the third gender.
The court also referred to United Nations Convention Against Torture and Other Cruel Inhuman
and Degrading Treatment or Punishment, which deals with protection of individuals and groups
made vulnerable by discrimination or marginalization.

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 • The court, while interpreting Article 51 read alongwith Article 253 of the Constitution of India,
held that if the Parliament has made any legislation which is in conflict with International Law,
then Indian courts are bound to give effect to the Indian law. However, in the absence of contrary
legislation, municipal courts in India would respect the rules of International Law. Therefore, the
Indian commitment to International Treaty obligations under Constitution of India is defined
under Article 51(c); which although is only a Directive Principles of State Policy, yet the power of
Parliament under Article 253, to enact laws for implementing the treaty obligations is an
important provision in this direction.

SELF -DEFENCE

Exceptions to PROHIBITION OF USE OF FORCE

• According to the UN charter, there is general prohibition on the use of force. In order for force to be
legitimate, it must fall within one of the accepted exceptions.
• These are essentially:
• The Right to self-defence under Article 51 of charter
• Enforcement action mandated by the United Nations Security Council under Chapter VII of
UN charter.
• Use of force in extreme humanitarian need is still questionable.

Self Defence

• The traditional definition of the right of self-defence in customary international law arose out of
the Caroline case of 1837
• This dispute revolved around an incident in 1837 in which British subjects seized and
destroyed a vessel in an American port. This had taken place because the Caroline had been
supplying groups of American nationals, who had been conducting raids into Canadian
territory.
• After the incident, the US Secretary of State laid down the essentials of self-defence. There
had to exist ‘a necessity of self-defence, instant, overwhelming, leaving no choice of
means, and no moment for deliberation’.
• Not only were such conditions necessary before self-defence became legitimate, but the
action taken in pursuance of it must not be unreasonable or excessive, ‘since the act,
justified by the necessity of self-defence, must be limited by that necessity, and kept clearly
within it’.
• These principles were accepted by the British government at that time and are accepted as part of
customary international law.
• According to Article 51 of the UN charter,
• Nothing in the present Charter shall impair the inherent right of individual or collective
self-defence if an armed attack occurs against a member of the United Nations, until the Security
Council has taken the measures necessary to maintain international peace and security. Measures
taken by members in the exercise of this right of self-defence shall be immediately reported to the
Security Council and shall not in any way affect the authority and responsibility of the Security
Council under the present Charter to take at any time such action as it deems necessary in order to
maintain or restore international peace and security.
• The International Court of Justice in the Nicaragua case, however, clearly established that the right
of self-defence existed as an inherent right under customary international law as well as under the
UN Charter.

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 • It was stressed that:
• Article 51 of the Charter is only meaningful on the basis that there is a ‘natural’ or ‘inherent’ right
of self-defence and it is hard to see how this can be other than of a customary nature, even if its
present content has been confirmed and influenced by the Charter . . . It cannot, therefore, be held
that article 51 is a provision which ‘subsumes and supervenes’ customary international law.
• In order to be able to resort to force in self-defence, a state has to be able to demonstrate that it
has been the victim of an armed attack and it bears the burden of proof.
• Whether use of force in self-defence can be used against non-state entities?
• On 7 October 2001, the US notified the Security Council that it was exercising its right of
self-defence in taking action in Afghanistan against the Al-Qaeda organisation deemed responsible
for the 11 September attacks and the Taliban regime in that country which was accused of
providing bases for the organization.
• A further issue is whether a right to anticipatory or pre-emptive self-defence exists. The
concept of anticipatory self-defence is of particular relevance in the light of modern weaponry that
can launch an attack with tremendous speed, which may allow the target state little time to react
to the armed assault before its successful conclusion, particularly if that state is geographically
small.
• A preemptive strike embarked upon too early might constitute an aggression.
• The concepts of necessity and proportionality are at the heart of self defence in international law.
• In the Advisory Opinion of the ICJ to the General Assembly on the Legality of the Threat or Use of
Nuclear Weapons it was emphasised that ‘[t]he submission of the exercise of the right of
self-defence to the conditions of necessity and proportionality is a rule of customary international
law’. Quite what will be necessary and proportionate will depend on the circumstances of the case.
• Whether right can be exercised to protect citizens abroad?

Collective Self-Defence

• Article 51 of the United Nations Charter recognises the right of both individual and collective
self-defence.
• Under Article 51, the right of self-defence ceases once the Security Council has taken measures
necessary to maintain international peace and security.
• Organisations such as NATO and the Warsaw Pact were established after the Second World War,
specifically based upon the right of collective self-defence under article 51. By such agreements, an
attack upon one party is treated as an attack upon all.
• The Court stressed in Nicaragua case that the right to collective self-defence was established in
customary law but added that the exercise of that right depended upon both
• a prior declaration by the state concerned that it was the victim of an armed attack and
• a request by the victim state for assistance.
• The invasion of Kuwait by Iraq on 2 August 1990 raised the issue of collective self-defence in the
context of the response of the states allied in the coalition to end that conquest and occupation.
The Kuwaiti government in exile appealed for assistance from other states.
• Whether Intervention can be allowed?

Humanitarian intervention

• It has been argued that intervention in order to protect the lives of persons situated within a
particular state and not necessarily nationals of the intervening state is permissible in strictly
defined situations.

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 • Practice has been in general unfavourable to the concept, primarily because it might be used to
justify interventions by more forceful states into the territories of weaker states.
• The use of Western troops was justified to secure a safe haven in northern Iraq after the Gulf War
because it was taken in pursuance of the customary international law principle of humanitarian
intervention in an extreme situation.
• Security Council resolution 688 (1991) condemned the widespread repression by Iraq of its Kurd
and Shia populations and, citing this, the US, UK and France proclaimed ‘no-fly zones’ in the north
and south of the country. There was no express authorisation from the UN. It was argued by the UK
that the no-fly zones were ‘justified under international law in response to a situation of
overwhelming humanitarian necessity’.
• The Kosovo crisis of 1999 raised squarely the issue of humanitarian intervention. The justification
for the NATO bombing campaign, acting out of area and without UN authorisation, in support of
the repressed ethnic Albanian population of that province of Yugoslavia, was that of humanitarian
necessity.
• It can be concluded that the doctrine of humanitarian intervention in a crisis situation was invoked
and not condemned by the UN, but it received meagre support.
• One variant of the principle of humanitarian intervention is the contention that intervention in
order to restore democracy is permitted as such under international law. One of the grounds given
for the US intervention in Panama in December 1989 was the restoration of democracy.
• External military intervention for human protection purposes has been controversial both when it
has happened – as in Somalia, Bosnia and Kosovo – and when it has failed to happen, as in Rwanda.
• The issue is ensuring that coercive interventions are effective for some; for others, questions about
legality, process and the possible misuse of precedent loom much larger.
• More recently, there has been extensive consideration of the ‘responsibility to protect’ as a
composite concept comprising the responsibilities to prevent catastrophic situations, to react
immediately when they do occur and to rebuild afterwards.
• Government of Canada, together with a group of major foundations, announced at the General
Assembly in September 2000 the establishment of the International Commission on Intervention
and State Sovereignty (ICISS).
• Its central theme, reflected in the title, is “The Responsibility to Protect”, the idea that sovereign
states have a responsibility to protect their own citizens from avoidable catastrophe – from mass
murder and rape, from starvation – but that when they are unwilling or unable to do so, that
responsibility must be borne by the broader community of states.

Responsibility to Protect

• Basic Principles
A. State sovereignty implies responsibility, and the primary responsibility for the protection of its
people lies with the state itself.
B. Where a population is suffering serious harm, as a result of internal war, insurgency, repression
or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of
non-intervention yields to the international responsibility to protect
• The responsibility to protect embraces three specific responsibilities:
A. The responsibility to prevent: to address both the root causes and direct causes of internal
conflict and other man-made crises putting populations at risk.
B. The responsibility to react: to respond to situations of compelling human need with
appropriate measures, which may include coercive measures like sanctions and international
prosecution, and in extreme cases military intervention.

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 C. The responsibility to rebuild: to provide, particularly after a military intervention, full
assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the
intervention was designed to halt or avert.
• The Just Cause Threshold: Military intervention for human protection purposes is an exceptional
and extraordinary measure. To be warranted, there must be serious and irreparable harm
occurring to human beings, or imminently likely to occur, of the following kind:
A. large scale loss of life, actual or apprehended, with genocidal intent or not, which is the
product either of deliberate state action, or state neglect or inability to act, or a failed state
situation; or
B. large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced
expulsion, acts of terror or rape.
• The Precautionary Principles: to be followed by the intervening state:
A. Right intention: The primary purpose of the intervention, whatever other motives intervening
states may have, must be to halt or avert human suffering. Right intention is better assured with
multilateral operations, clearly supported by regional opinion and the victims concerned.
B. Last resort: Military intervention can only be justified when every non-military option for the
prevention or peaceful resolution of the crisis has been explored, with reasonable grounds for
believing lesser measures would not have succeeded.
C. Proportional means: The scale, duration and intensity of the planned military intervention
should be the minimum necessary to secure the defined human protection objective.
D. Reasonable prospects: There must be a reasonable chance of success in halting or averting the
suffering which has justified the intervention, with the consequences of action not likely to be
worse than the consequences of inaction.
• Right Authority
A. There is no better or more appropriate body than the United Nations Security Council to
authorize military intervention for human protection purposes. The task is not to find alternatives
to the Security Council as a source of authority, but to make the Security Council work better than
it has.
B. Security Council authorization should in all cases be sought prior to any military intervention
action being carried out. Those calling for an intervention should formally request such
authorization, or have the Council raise the matter on its own initiative, or have the
Secretary-General raise it under Article 99 of the UN Charter.
C. The Security Council should deal promptly with any request for authority to intervene where
there are allegations of large scale loss of human life or ethnic cleansing. It should in this context
seek adequate verification of facts or conditions on the ground that might support a military
intervention.
D. The Permanent Five members of the Security Council should agree not to apply their veto
power, in matters where their vital state interests are not involved, to obstruct the passage of
resolutions authorizing military intervention for human protection purposes for which there is
otherwise majority support.
E. If the Security Council rejects a proposal or fails to deal with it in a reasonable time, alternative
options are:
• I. consideration of the matter by the General Assembly in Emergency Special Session under the
“Uniting for Peace” procedure; and
• II. action within area of jurisdiction by regional or sub-regional organizations under Chapter VIII
of the Charter, subject to their seeking subsequent authorization from the Security Council.
F. The Security Council should take into account in all its deliberations that, if it fails to discharge
its responsibility to protect in conscience-shocking situations crying out for action, concerned

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 states may not rule out other means to meet the gravity and urgency of that situation – and that
the stature and credibility of the United Nations may suffer thereby.

Enforcement action by security council under chapter vii

Article 39: The Security Council shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in
accordance with Articles 41 and 42, to maintain or restore international peace and security.
Article 40: In order to prevent an aggravation of the situation, the Security Council may, before making
the recommendations or deciding upon the measures provided for in Article 39, call upon the parties
concerned to comply with such provisional measures as it deems necessary or desirable. Such
provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned.
The Security Council shall duly take account of failure to comply with such provisional measures.
Article 41: The Security Council may decide what measures not involving the use of armed force are to be
employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply
such measures. These may include complete or partial interruption of economic relations and of rail,
sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic
relations.
Article 42: Should the Security Council consider that measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be
necessary to maintain or restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United
Nations.
• Whenever the Council ascertains “the existence of any threats to the peace, breaches of the peace
or acts of aggression”, Chapter VII presents its members with an exception to the general
prohibition of the use of force encompassed in Art 2(4) of the Charter.
• By passing binding resolutions under Chapter VII, the Council is entitled to authorize economic
and diplomatic sanctions or the use of military force in order to reinstate international peace and
security.

JUS AD BELLUM AND JUS IN BELLO

Two Perspectives of War

◼ Reasons you fight- Jus ad bellum

◼ How you fight- Jus in bello

Jus Ad Bellum

◼ Jus ad bellum refers to the conditions under which States may resort to war or to the use of armed
force in general.
◼ Jus ad bellum is the right to resort to war

◼ Jus (or ius) ad bellum is the title given to the branch of law that defines the legitimate reasons a
state may engage in war.

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 ◼ Jus ad Bellum governs the pre-engagement conduct of states and non-state actors that are
considering whether to engage in war and armed conflict. It is concerned with the justification of
and limits to the use of force.
◼ The principal legal source of jus ad bellum derives from the Charter of the United Nations, which
declares-
◼ Article 2(4) “All members shall refrain in their international relations from the threat or the
use of force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the purposes of the United Nations”; and
◼ Article 51: “Nothing in the present Charter shall impair the inherent right of individual or
collective self-defense if an armed attack occurs against a Member of the United Nations.”
◼ The ius ad bellum (law on the use of force) or ius contra bellum (law on the prevention of war)
seeks to limit resort to force between States. Under the UN Charter, States must refrain from the
threat or use of force against the territorial integrity or political independence of another state
(Art. 2, para. 4). Exceptions to this principle are provided in case of self-defence or following a
decision adopted by the UN Security Council under chapter VII of the UN Charter.

Prohibiting Use of Force

◼ In 1919, the Covenant of the League of Nations and, in 1928, the Treaty of Paris (the
Briand-Kellogg Pact) sought to outlaw war.
◼ The adoption of the United Nations Charter in 1945 confirmed the trend: "The members of
the Organization shall abstain, in their international relations, from resorting to the threat or use
of force ..." However, the UN Charter upholds States' right to individual or collective self-defence in
response to aggression by another State (or group of States). The UN Security Council, acting
on the basis of Chapter VII of the Charter, may also decide to resort to the collective use of force in
response to a threat to the peace, a breach of the peace or an act of aggression.
◼ The legality of the use of armed force in international relations is determined solely under jus
ad bellum.
◼ Article 39: The Security Council shall determine the existence of any threat to the peace, breach of
the peace, or act of aggression and shall make recommendations, or decide what measures shall be
taken in accordance with Articles 41 and 42, to maintain or restore international peace and
security.
◼ Article 40: In order to prevent an aggravation of the situation, the Security Council may, before
making the recommendations or deciding upon the measures provided for in Article 39, call upon
the parties concerned to comply with such provisional measures as it deems necessary or
desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of
the parties concerned. The Security Council shall duly take account of failure to comply with such
provisional measures.
◼ Article 41: The Security Council may decide what measures not involving the use of armed force
are to be employed to give effect to its decisions, and it may call upon the Members of the United
Nations to apply such measures. These may include complete or partial interruption of economic
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 relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the
severance of diplomatic relations.
◼ Article 42: Should the Security Council consider that measures provided for in Article 41 would
be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as
may be necessary to maintain or restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of Members of the
United Nations.

Jus in Bello

◼ Jus in bello is the set of laws that come into effect once a war has begun.

◼ Its purpose is to regulate how wars are fought, without prejudice to the reasons of how or why
they had begun.
◼ Jus in bello is the body of legal norms governing battle and occupation - the "conduct of individuals
and units toward combatants, non-combatants, property, and the environment." Violations are
punishable under customary international law and international legal instruments.
◼ A party engaged in a war that could easily be defined as unjust (for example, Iraq’s aggressive
invasion of Kuwait in 1990) would still have to adhere to certain rules during the prosecution of
the war, as would the side committed to righting the initial injustice.
◼ This branch of law relies on-

◼ customary law, based on recognized practices of war,

◼ treaty laws, such as- the Hague law and the Geneva Law

◼ Hague Regulations of 1899 and 1907, which set out the rules for conduct of
hostilities.
◼ Four Geneva Conventions of 1949, which protect —the sick and wounded (First);
the shipwrecked (Second); prisoners of war (Third); and civilians in the hands of an
adverse party and, to a limited extent, all civilians in the territories of the countries
in conflict (Fourth)—and
◼ Additional Protocols of 1977, which define key terms such as combatants, contain
detailed provisions to protect non-combatants, medical transports, and civil defense,
and prohibit practices such as indiscriminate attack.
◼ Jus in bello regulates the conduct of parties engaged in an armed conflict.

◼ IHL is synonymous with jus in bello; it seeks to minimize suffering in armed conflicts, notably by
protecting and assisting all victims of armed conflict to the greatest extent possible.
◼ International humanitarian law, or jus in bello, is the law that governs the way in which warfare is
conducted.
◼ IHL is purely humanitarian, seeking to limit the suffering caused. It is independent from questions
about the justification or reasons for war, or its prevention, covered by jus ad bellum.
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 ◼ The purpose of international humanitarian law is to limit the suffering caused by war by
protecting and assisting its victims as far as possible.
◼ The law therefore addresses the reality of a conflict without considering the reasons for or legality
of resorting to force.
◼ It regulates only those aspects of the conflict which are of humanitarian concern. It is what is
known as jus in bello (law in war). Its provisions apply to the warring parties irrespective of the
reasons for the conflict and whether or not the cause upheld by either party is just.
◼ IHL is intended to protect victims of armed conflicts regardless of party affiliation.

◼ That is why jus in bello must remain independent of jus ad bellum.

DISPUTE SETTLEMENT

Law on DS

General rule is that States are free to resolve their disputes by peaceful means in any way they
decide
Article 1 (1): UN charter (Purposes of UN)
🠶 To maintain international peace and security, and to that end: to take effective collective measures
for the prevention and removal of threats to the peace, and for the suppression of acts of
aggression or other breaches of the peace, and to bring about by peaceful means, and in
conformity with the principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the peace;
Article 2 (3): Principles of UN
🠶 All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.
Article 2(4): Principles of UN
🠶 All Members shall refrain in their international relations from the threat or use of force against
the territorial integrity or political independence of any state, or in any other manner inconsistent
with the Purposes of the United Nations.
Article 33, UN charter : Pacific Settlement of Disputes
🠶 Article 33
The parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their own choice.
The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such
means.

Negotiations

🠶 Simplest And Most Utilized Form

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🠶 No third Party involvement is there

🠶 Its active means of settlement

🠶 Negotiation is normally the precursor to other settlement procedures as the parties decide
amongst themselves how best to resolve their differences
🠶 Negotiations are the most satisfactory means to resolve disputes since the parties are so directly
engaged.
🠶 Negotiation includes-

🠶 Consultation, and

🠶 Exchange Of Views

🠶 In Mavrommatis Concessions Case, PCIJ observed that Negotiation is the chief method by which
states settle their disputes, whether these arise out of their state interests or in respect of claims
by their nationals, and held that ‘before a dispute can be made the subject of an action at law, its
subject-matter should have been defined by diplomatic negotiations’.
🠶 It further observed in the international sphere and in the sense of international law, negotiation is
the legal and orderly administrative process by which governments, in the exercise of their
unquestionable powers, conduct their relations with one another and discuss, adjust and settle,
their differences.
🠶 The court held that Article 26 (League of Nations) does not make it a condition to the jurisdiction
of the court that there should have been negotiations with a view to settling the dispute between
the two powers.
🠶 The court held in the North Sea Continental Shelf (1969) cases that: The parties are under an
obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go
through a formal process of negotiation as a sort of prior condition . . . they are under an obligation
so to conduct themselves that the negotiations are meaningful, which will not be the
case when either of them insists upon its own position without contemplating any modification of
it.
🠶 In the Lac Lanoux Arbitration case (1957), it was stated that ‘consultations and negotiations
between the two states must be genuine, must comply with the rules of good faith and must not
be mere formalities’.
🠶 Where the parties are under an obligation to negotiate: In Railway Traffic between Lithuania
and Poland case (PCIJ, 1931), the Permanent Court held that they are under an obligation ‘not
only to enter into negotiations but also to pursue them as far as possible with a view to
concluding agreements though they are not obliged to reach agreement.
🠶 No general rule of international law that requires Negotiations be exhausted before settlement by
other procedures-
o Nicaragua v. US (1984)
o Aegean Sea (1978) between Greece and Turkey on Continental Shelf
o Case concerning Land and Maritime Boundary between Cameroon and Nigeria (1998)
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 🠶 Negotiations referred to in various treaties, as
o An obligation of prior consultation before an action is taken
o Preliminary to resort to other means of settlement
🠶 Some treaties make it obligatory to carry out negotiation, consultation or exchange of views
o Agreement Governing the Activities of States on the Moon and other Celestial Bodies, 1979
o UNCLOS, 1982
o Antarctic Treaty, 1959
🠶 An obligation to enter into Negotiations can be imposed by judicial decisions-
o North Sea Continental Shelf Cases (1969)
o Fisheries Jurisdiction case (1974)- states can mutually agree in a case
🠶 Negotiations may be bilateral and multi-lateral

🠶 Negotiations through permanent commissions

o Canada-US International Joint Commission (as a forum for negotiation as well as quasi-judicial
settlement of disputes)
o Also established between Finland-Norway-USSR Agreement 1959 concerning Lake Inari
🠶 Parties free to negotiation on any term but Jus Cogens

🠶 Meaningful Negotiations have taken place between:

o India & Pakistan in 1976 in Simla Conference
o India and Sri Lanka in 1974 in boundary dispute
o India and Bangladesh in 1977 in Farraka barrage Issue
o US and Iran in 1988 in Aerial Incident case

Inquiry and Fact Finding

🠶 Investigation or elucidation of facts

🠶 Impartial investigation for ascertaining the facts

🠶 If the dispute is factual one, inquiry can resolve it

🠶 If dispute involves legal content, inquiry can help settle the matter

🠶 Hague Convention for Pacific Settlement of Disputes, 1907 defines Inquiry in its Article 9: Inquiry
is to facilitate a solution of disputes by elucidating the facts by means of an impartial &
conscientious investigation.
🠶 Convention provides for International Commission of Inquiry

🠶 The provisions relating to Inquiry in the Hague Convention 1899 (Articles 9 to 14) were expanded
in the Hague Convention of 1907 (Articles 9 to 36) to include more detailed procedural provisions.
🠶 The incident of the destruction of the US Battleship Maine in 1898, which precipitated the
American–Spanish war, gave an impetus to the evolution of inquiry as an important ‘safety valve’
mechanism.

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 🠶 In this Maine case, on February 15, 1898, the American battleship Maine exploded while sitting in
the Havana harbor, killing two officers and 250 enlisted men. Fourteen of the injured later died,
bringing the death toll to 266. A naval board of inquiry concluded that the blast was caused by
a mine placed outside the ship. Release of the board’s report led many to accuse Spain of sabotage,
helping to build public support for war.

🠶 Inquiry was most successfully used in the Dogger Bank Incident of 1904, where Russian naval
ships fired on British fishing boats in the belief that they were hostile Japanese torpedo craft, the
Hague provisions were put into effect and the report of the international inquiry commission
contributed to a peaceful settlement of the issue. This encouraged an elaboration of the technique
by the 1907 Hague Conference and a wave of support for the procedure.
The Commission of Inquiry consisted of four naval officers of the UK, Russian, French and American fleets,
plus a fifth member chosen by the other four (in the event an Austro-Hungarian). It was required to
examine all the circumstances, particularly with regard to responsibility and blame. It was found that
there was no justification for the Russian attack. In the event, both sides accepted the report and the sum
of £65,000 was paid by Russia to the UK.
In the Letelier and Moffit case, which arose out of assassination of Orlando Letelier and Ronni Moffit in
Washington DC in 1976, it was alleged that the assassinations were the work of Chilean intelligence
officers. While denying responsibility, Chile was prepared to make an ex-gratia payment equivalent to the
amount that would have been payable had its liability been established. A commission was established
under the Bryan treaties, a US–Chile commission, in order to determine the amount of compensation to
be paid by Chile to the US in respect of an assassination alleged to have been carried out by it. The
incident was settled on the basis of the Commission’s report.
🠶 The United States concluded 48 bilateral treaties between 1913-1940 with provisions in each one
of them for the creation of a permanent inquiry commission. These agreements were known as the
‘Bryan Treaties’.

🠶 International Organizations have used this inquiry and fact finding commissions to settle the
disputes.
🠶 League of Nations used it in 7 seven cases, including:

🠶 Aaland Islands dispute between Finland and Sweden in 1921

🠶 Mosul case between Great Britain and Turkey

🠶 Organs of United Nations have used it:

🠶 SC sent fact-finding commission to Seychelles in 1981, to investigate involvement of

mercenaries in an invasion
🠶 SG investigated the use of chemical weapons in the Gulf War between Iran and Iraq in 1984

🠶 GA passed a Resolution on fact-finding in 1963

🠶 GA further adopted a Declaration on Fact-finding by the UN on Dec. 9, 1991: The

Declaration defines Fact-finding as any activity designed to obtain detailed knowledge of
the relevant facts of any dispute or situation which the competent UN organs need in order

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 to exercise effectively their functions in relation to the maintenance of international peace
and security.
🠶 The Declaration emphasizes that the SC, GA and the SG may employ fact-finding missions.

Mediation and Good Offices

🠶 Third Party Intervention

🠶 Good Offices: consists of action taken by a third party to bring about, or initiate or cause to be
continued, negotiations, without the third party actively participating in the discussion of the
dispute.
🠶 In good offices, there is no active participation

🠶 Mediation: is the participation of a third state or states, a disinterested individual or an organ of

UN with the disputing states in an attempt to reconcile the claims of the contending parties and to
advance proposals aimed at a compromise solution.
🠶 In mediation, mediator takes active steps of its own.

🠶 Mediation and Good offices are very similar, often used as synonyms.

🠶 Hague Conventions 1899 & 1907 treat both similar

🠶 In UN charter, no mention of good offices

🠶 Pact of Bogota 1948, both treated as distinct

🠶 Manila Declaration 1982, both treated as different

🠶 Joint Mediation took place in Chacowar between Bolivia and Paraguay (1935-37); by Argentina,
Brazil, Chile, Peru, US and Uruguay
🠶 Individual Mediation by the Pope took place in Beagle Channel Dispute between Chile and
Argentina (1984) over ownership of certain islands.
🠶 In Falkland Islands war between UK and Argentina in 1982, UN Secretary General offered his
Good offices and US Secretary of State Alexander Haig, offered to mediate
🠶 Good Offices of UN in

🠶 Indonesia (1947)

🠶 Palestine (1966)

🠶 Secretary General in

🠶 Cyprus (1964)

🠶 Kampuchea (1989)

🠶 Afghanistan (1988)

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 🠶 Other cases:

🠶 India and Pakistan over Rann of Kutch in 1955- by UK

🠶 India and Pakistan dispute over Kashmir in 1965- by USSR

🠶 US and Iran over Hostage Crisis in 1980- by Algeria

🠶 Mediation & Good Offices require consent and cooperation of both the states

🠶 Proposals are not binding

🠶 The process aims at persuading the parties to a dispute to reach satisfactory terms for its
termination by themselves.
🠶 Provisions for settling the dispute are not prescribed.

Conciliation

🠶 Conciliation combines characteristics of both- Inquiry and Mediation

🠶 The process of conciliation involves a third-party investigation of the basis of the dispute and the
submission of a report embodying suggestions for a settlement.
🠶 Referred to a Person or a Commission

🠶 Involves impartial elucidation of facts & put forward proposals for settlement; having no binding
character of an award or a judgement
🠶 Conciliation is described as ‘Intervention in the settlement of an international dispute by a body
having no political authority of its own, but enjoying the confidence of the parties to the dispute
with the task of investigating every aspect of the dispute and of proposing a solution which is not
binding on the parties’.
🠶 The period between the world wars was the heyday for conciliation commissions.

🠶 Conciliation commissions provided for in number of treaties-

❑ France- Switzerland Agreement of 1925

❑ Geneva General Act for the Pacific Settlement of Disputes 1928 (revised in 1949)

❑ Pact of Bagota 1948

❑ European Convention for the Peaceful Settlement of Disputes 1957

❑ Protocol to the Charter of Organization of African Unity 1964

🠶 Provisions of Conciliation mentioned in-

❑ Vienna Convention on the Law of Treaties1969

❑ Succession of States in Respect of Treaties 1978

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 ❑ UN Convention on the Law of the Sea 1982

🠶 Stages of Conciliation Procedure:

1. Composition of Commission: Its either, one, or three or five (always odd in numbers)
2. Initiation of the process: either by mutual consent or ad-hoc basis (where conciliation is
compulsory)
3. Rules of Procedure and Methods of work: Commission decides its own rules of procedure
4. Duration and Termination of Conciliation: According to 1982 UNCLOS, "the conciliation
proceedings are terminated when a settlement has been reached, when the parties have accepted
or one party has rejected the recommendations of the report by written notification addressed to
the Secretary-General of the UN, or when a period of three months has expired from the date of
transmission of the report to the parties”.

🠶 Disputes settled by Conciliation Commission

🠶 Chaco war (1929)

🠶 Franco-Siamese Border case (1947: in accordance with the 1928 General Act)

🠶 Belgian Danish dispute concerning Danish ships evacuated from Antwerp (1952)

🠶 Disputes between France and Italy: France and Switzerland (1955)

🠶 Norwegian-Icelandic dispute giving rise to Jay Mayen Award (1981): This is an important
case as it discussed the role of conciliation commission in dispute settlement. The
Commission, in this case, observed that although it is not bound by the rules of law, but it
may take them into account in its report. It further said that Conciliation Commission shall
not act as a court of law. Its function is to make recommendations which will lead to
acceptable and equitable solution of the problems involved. But it did take into account
state practice and decisions of the court in North Sea Continental Shelf cases.
🠶 In 1980, UNCITRAL adopted Conciliation rules for disputes arising out of international commercial
relations.
🠶 In 1990, G.A. adopted and circulated draft rules for Conciliation of disputes between States. These
rules deal with- initiation of conciliation proceedings; number of conciliators; appointment of
conciliators and provisions relating to conduct of conciliation proceedings.
🠶 In 1995, UN Model Rules for the Conciliation of Disputes Between States were adopted

🠶 In 1996, Permanent Court of Arbitration adopted Optional Rules for Conciliation, which may be
used by states making use of its facilities.
🠶 In 2002, Optional Rules for Conciliation of Disputes Relating to Natural Resources and the
Environment adopted by the Permanent Court Of Arbitration

Arbitration

🠶 The procedure of arbitration grew to some extent out of the processes of diplomatic settlement

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 🠶 It represents an advance towards a developed international legal system.

🠶 In its modern form, it emerged with the Jay Treaty, 1794 between Britain and America, which
provided for the establishment of mixed commissions to solve legal disputes between the parties.
🠶 The procedure was successfully used in the Alabama Claims Arbitration, 1872 between the two
countries, which resulted in the UK having to pay compensation for the damage caused by a
Confederate warship built in the UK. This success stimulated further arbitrations, for example the
Behring Sea and British Guiana and Venezuela Boundary arbitrations at the close of the
nineteenth century
🠶 The 1899 Hague Convention for the Pacific Settlement of Disputes included a number of provisions
on international arbitration, followed by 1907 Hague Convention on Pacific Settlement of Disputes
🠶 The Convention defined Arbitration as ‘the settlement of differences between states by judges of
their own choice and on the basis of respect for law’
🠶 International arbitration is considered to be the most effective and equitable manner of dispute
settlement, where diplomacy had failed.

Meaning and Scope of Arbitration

🠶 Arbitration is the name given to the determination of difference between states (or between a
state and a non-state entity) through a legal decision of one or more arbitrators and an umpire; or
of a tribunal other than the ICJ or other permanent tribunal
🠶 Arbitration may be concerned with matter- such as

🠶 boundary, or

🠶 May be concerned with the claims of nationals against the other state (Iran-US Claims
Tribunal created in 1981)
🠶 Arbitration may be ad-hoc or institutionalized:

🠶 Ad-hoc Arbitration- is for the settlement of a particular dispute

🠶 Institutionalized arbitration- for the settlement of class of disputes e.g. ICSID

Permanent Court of Arbitration

🠶 Permanent Court of Arbitration (PCA) was established by the 1899 Hague Convention for the
Pacific Settlement of International Disputes.
🠶 The most concrete achievement of the 1899 Conference was the establishment of the PCA as the
first global mechanism for the settlement of disputes between states.
🠶 Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in
the interpretation or application of International Conventions” arbitration is the “most effective,

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 and at the same time the most equitable, means of settling disputes which diplomacy has failed to
settle”.
🠶 Further, Article 20 of the 1899 Convention formally established the PCA, stating: [w]ith the object
of facilitating an immediate recourse to arbitration for international differences which it has not
been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent
Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the
parties, in accordance with the rules of procedure inserted in the present Convention.
🠶 The 1899 Convention was revised at the second Hague Peace Conference in 1907.

🠶 It is not really a court since it is not composed of a fixed body of judges. It consists of a panel of
persons, nominated by the contracting states (each one nominating a maximum of four),
comprising individuals ‘of known competency in questions of international law, of the highest
moral reputation and disposed to accept the duties of an arbitrator’.
🠶 Where contracting states wish to go to arbitration, they are entitled to choose the members of the
tribunal from the panel. Thus, it is in essence machinery facilitating the establishment of arbitral
tribunals.
🠶 The PCA consists of an International Bureau, which acts as the registry of the Court and keeps its
records, and a Permanent Administrative Council, exercising administrative control over the
Bureau
🠶 Between 1900 and 1932, some 20 disputes went through the PCA procedure.

🠶 Recently the PCA has started to play an increasingly important role, so much so that an element of
‘institutionalisation’ of arbitration has been detected by some writers.
🠶 It has provided facilities in, for example,
Eritrea–Yemen arbitration
Eritrea–Ethiopia Boundary Commission and Claims Commission
Larsen v. Hawaiian Kingdom arbitration.
Mox arbitration between the UK and Ireland
Saluka Investments v. Czech Republic.

Arbitral Tribunals

🠶 States are not obliged to submit a dispute to arbitration, in the absence of their consent: consent
may be expressed in arbitration treaties, in which the contracting states agree to submit certain
kinds of disputes that may arise between them to arbitration, or in specific provisions of general
treaties, which provide for disputes with regard to the treaty to be submitted to arbitration
(Arbitration Agreement)
🠶 Arbitration tribunals may be composed in different ways, either a single arbitrator or a collegiate
body.
🠶 In collegiate body, each party will appoint an equal number of arbitrators with the chairman or
umpire being appointed by either the parties or the arbitrators already nominated.

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 🠶 Under the PCA system and in the absence of agreement to the contrary, each party selects two
arbitrators from the panel, only one of whom may be a national of the state. These arbitrators
then choose an umpire, but if they fail to do so, this task will be left to a third party, nominated by
agreement. If this also fails to produce a result, then it is by the draw of lots.

Law Applicable

🠶 Agreements sometimes specify that the decisions should be reached in accordance with ‘law and
equity’ and this means that the general principles of justice common to legal systems should be
taken into account as well as the provisions of international law.
🠶 General principles may also be considered

🠶 Article 28 of the 1928 General Act for the Pacific Settlement of International Disputes, as revised in
1949, provides that where nothing is laid down in the arbitration agreement as to the law
applicable to the merits of the case, the tribunal should apply the substantive rules as laid down in
Article 38 of the Statute of the International Court of Justice (Sources of International Law)

Cases

🠶 The Rann of Kutch case (1971)

🠶 the Anglo-French Continental Shelf (1978)

🠶 The Beagle Channel case (1977)

🠶 the Taba case (1988)

🠶 Eritrea–Yemen arbitration

🠶 The Eritrea–Ethiopia boundary delimitation case (2007)

🠶 The Barbados v. Trinidad and Tobago maritime delimitation case (2006)

🠶 Guyana v. Suriname maritime delimitation case (2007)

Comparison with ICJ

🠶 The states themselves choose the arbitrators, lay down the applicable law and rules of
procedure, as well as set the timetable.
🠶 The states involved may wish for the proceedings to be confidential, something which is not
achievable in the International Court with its public oral hearings and publication of written
proceedings.
🠶 The parties pay all the costs of the arbitration, including the fees due to the registrar and
arbitrators, while in the International Court, the judges and members of the registry are paid by
the UN

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 🠶 Arbitration may be the appropriate mechanism to utilise as between states and international
institutions, since only states may appear before the ICJ in contentious proceedings
🠶 Arbitration is an extremely useful process where some technical expertise is required, or where
greater flexibility and speed than is available before the International Court is desired

Procedure for Arbitration under PCA

🠶 Article 51 – 85 of the 1907 Hague Convention deals with Arbitration Procedure

🠶 The Rules deal with compromise and its settlement, number of arbitrators, and the seat and
language of arbitration
🠶 Procedure is divided into two phases-

🠶 Pleadings and

🠶 Oral Discussions

🠶 The rules further provide for majority voting, reasoned decision, effect of award, interpretation
and revision.
Mixed Arbitration

🠶 Mixed Arbitrations are remarkable developments in international dispute settlement procedures

🠶 Mixed Arbitrations are arbitrations taking place between States, on one hand and non-state
entities usually corporations (and sometimes individuals) on the other.
🠶 Two most striking examples of tribunals set up for mixed arbitration are-

🠶 International Centre for Settlement of Investment Disputes (ICSID)

🠶 Iran-US Claims Tribunal

ICJ

🠶 Also called the World Court, created in 1945 by the statute of ICJ

🠶 It is the principal judicial organ of the UN as under Article 92 of the UN charter, world’s only
permanent court to settle disputes between states
🠶 Successor to PCIJ (1922)

🠶 Article 93, charter- provides that two classes of states may become parties to the statute of the
court, i.e.
🠶 All members of the UN, ipso facto parties to the Statute

🠶 Non-members, on conditions determined in case of each state by the GA on

recommendation of the SC
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 🠶 Article 35, statute- court is open to

🠶 All parties to statute

🠶 Other states, subject to the conditions laid down by SC (Albania allowed to participate in
Corfu Channel case, Italy in Monetary Gold case, Federal Republic of Germany in North Sea
Continental Shelf cases)

Organization of the Court

🠶 The ICJ is composed of fifteen members elected:

🠶 Regardless of nationality,

🠶 High moral character,

🠶 Who either possesses the qualification required in their respective countries for
appointment to the highest judicial offices, or are juris consults of recognised
competence in international law.
🠶 The members of the Court are elected by the General Assembly and Security Council (voting
separately) from a list of qualified persons drawn up by the national groups of the Permanent
Court of Arbitration, or by specially appointed national groups in the case of UN members that are
not represented in the PCA.
🠶 Candidates must obtain an absolute majority of votes in both the Assembly and the Council, and no
two successful applicants may be of the same nationality.
🠶 The elections are staggered and take place once every three years, with respect to five judges each
time. The members of the Court are elected for nine years and may be re-elected (Article 13 of the
statute)
🠶 There has to be representation of the main forms of civilisation and of the principal legal systems
of the world (Article 9 of the Statute): 5 western (US, France, Germany, the Netherlands, UK), 3
African, 3 Asian, 2 eastern European and 2 Latin American

🠶 No member may exercise any political or administrative function or engage in any other
professional occupation. No member may act as agent, advocate, or counsel in any case and no
member may participate in the decision of any case in which he has previously taken part as agent,
advocate or counsel for one of the parties, or as a member of a national or international court, or of
a commission of inquiry, or in any other capacity.
🠶 The Court elects a president and vice-president for a three-year term which can be renewed, and it
is situated at The Hague
🠶 Chambers- Article 26 permits the creation of Chambers composed of three or more members as
the Court may determine for -
🠶 dealing with particular categories of cases (From July 1993 to deal with Environment Law
cases) or
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 🠶 Ad-hoc chambers to deal with a particular case. Or

🠶 Chamber to hear a case by way of summary procedure

Jurisdiction of the Court

🠶 Only states may be parties in cases before the court (Article 34, Statute). This precludes
individuals and corporations.
🠶 The fundamental rule regarding jurisdiction is that it depends on consent; the parties must have
voluntarily conferred jurisdiction on the court
🠶 The methods of conferring jurisdiction are set out under Article 36 of the Statute. It provides that
the jurisdiction of the court comprises all cases which the parties refer to it and all matters
specially provided for in the charter of the UN or in treaties and conventions in force.
🠶 The jurisdiction of the International Court falls into two distinct parts: its capacity to decide
disputes between states, and its capacity to give advisory opinions when requested so to do by
particular qualified entities
🠶 Two kinds of Jurisdiction-

🠶 Contentious cases

🠶 Advisory Opinion

Contentious Jurisdiction

🠶 Contentious Jurisdiction is either-

🠶 Voluntary under Article 36 (1); or

🠶 Optional (Compulsory) under Article 36(2)

🠶 When court decides case on basis of consent of disputing parties, jurisdiction of court is called
contentious jurisdiction. Consent may be given under Article 36 of the statute.
🠶 Article 36(1)- Jurisdiction of Court comprises cases which-
(1) Parties refer to it: Ad-hoc Jurisdiction
(2) Matters provided for in the UN charter- Voluntary Obligatory
(3) By Treaties and Conventions in force- Compromissory Clause
(4) State may make unilateral declaration accepting compulsory jurisdiction of court over future
disputes- Optional Clause Jurisdiction ( provided under Article 36 (2))
🠶 In contentious cases, the court-

🠶 Determines its own jurisdiction

🠶 Indicates interim/ provisional measures of protection

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 🠶 Allows intervention by 3rd state having interest of legal nature which may be affected by
decision in the case
🠶 Judicial settlement under various treaties-

🠶 Barcelona Traction case under Spanish- Belgian Commercial Treaty, 1927

🠶 Fisheries Jurisdiction case under Exchange of Notes concerning fisheries between UK and
Germany
🠶 Nicaragua v. US under Treaty of Friendship, Navigation and Commerce, 1956

🠶 Imp. Cases:

🠶 Corfu Channel case (UK v Albania, 1949)

🠶 Peru v. Columbia (Asylum case)

🠶 Right of Passage over Indian Territory (India v Portugal, 1957)

🠶 US v Iran (Hostages case)

🠶 Nicaragua v. US, 1984

Optional Clause Jurisdiction

🠶 It is optional for states to make jurisdiction compulsory. The state parties may declare it at any
time that they recognize as compulsory (without special agreement) in relation to any other state
accepting same obligation, the jurisdiction of court in all legal disputes concerning-
(i) interpretation of treaty
(ii) any question of international law
(iii) existence of any fact which if established would constitute breach of international obligation
(iv) nature and extent of reparation to be made for breach of international obligation
🠶 Reservations could be made under Article 36 (3)
(i) unconditionally
(ii) on condition of reciprocity

Advisory Jurisdiction

🠶 Article 65 of the statute

🠶 Not binding

🠶 Given on legal question

🠶 At request of GA or SC; or organs/ agencies of UN if authorized by GA on legal question

🠶 Article 96 (1) of the UN charter empowers GA or SC to do

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 🠶 Article 96 (2) of the UN charter allows organs of UN and specialized agencies to request an opinion
if they have been authorized by GA to do so and legal question arises within the scope of their
activities

Judgement of Court

🠶 Article 59 of the statute- Decision of the court is binding between the parties and in respect of
that particular case
If judgement is not unanimous, court decides on majority
🠶 Article 60- Judgment is final, without appeal but must state reasons and names of the judges

🠶 Article 94(1) charter- All members of UN to comply with judgement of the court

🠶 Article 94(2) charter- SC empowered by charter to make recommendations or decide measures to

be taken to give effect to the judgment

Dispute Settlement Under WTO

🠶 Dispute settlement is the central pillar of the multilateral trading system, and the WTO’s unique
contribution to the stability of the global economy. Without a means of settling disputes, the
rules-based system would be less effective because the rules could not be enforced. The system is
based on clearly-defined rules, with timetables for completing a case. First rulings are made by a
panel and endorsed (or rejected) by the WTO’s full membership. Appeals based on points of law
are possible.
🠶 However, the point is not to pass judgement. The priority is to settle disputes, through
consultations if possible. By January 2008, only about 136 of the nearly 369 cases had reached the
full panel process. Most of the rest have either been notified as settled “out of court” or remain in a
prolonged consultation phase — some since 1995.

Principles: equitable, fast, effective, mutually acceptable

🠶 WTO members have agreed that if they believe fellow-members are violating trade rules, they will
use the multilateral system of settling disputes instead of taking action unilaterally.
🠶 A dispute arises when one country adopts a trade policy measure or takes some action that one or
more fellow-WTO members considers to be infringing the WTO agreements. A third group of
countries can declare that they have an interest in the case and enjoy some rights.
🠶 A procedure for settling disputes existed under the old GATT, but it had no fixed timetables, rulings
were easier to block, and many cases dragged on for a long time inconclusively.
🠶 The Uruguay Round agreement introduced a more structured process with more clearly defined
stages in the procedure. It introduced greater discipline for the length of time a case should take to
be settled, with flexible deadlines set in various stages of the procedure.

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 🠶 The agreement emphasizes that prompt settlement is essential if the WTO is to function effectively.
It sets out in considerable detail the procedures and the timetable to be followed in resolving
disputes.
🠶 If a case runs its full course to a first ruling, it should not normally take more than about one year
— 15 months if the case is appealed. The agreed time limits are flexible, and if the case is
considered urgent (e.g. if perishable goods are involved), it is accelerated as much as possible.
🠶 Although much of the procedure does resemble a court or tribunal, the preferred solution is for the
countries concerned to discuss their problems and settle the dispute by themselves.
🠶 The first stage is therefore consultations between the governments concerned, and even when
the case has progressed to other stages, consultation and mediation are still always possible.

Time-table for Dispute Settlement

🠶 Settling disputes is the responsibility of the Dispute Settlement Body (the General Council in
another guise), which consists of all WTO members. The Dispute Settlement Body has the sole
authority to establish “panels” of experts to consider the case, and to accept or reject the panels’
findings or the results of an appeal.
🠶 It monitors the implementation of the rulings and recommendations, and has the power to
authorize retaliation when a country does not comply with a ruling.
🠶 First stage: consultation (up to 60 days). Before taking any other actions the countries in
dispute have to talk to each other to see if they can settle their differences by themselves. If that
fails, they can also ask the WTO director-general to mediate or try to help in any other way.
🠶 Second stage: the panel (up to 45 days for a panel to be appointed, plus 6 months for the
panel to conclude). If consultations fail, the complaining country can ask for a panel to be
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 appointed. The country “in the dock” can block the creation of a panel once, but when the Dispute
Settlement Body meets for a second time, the appointment can no longer be blocked (unless there
is a consensus against appointing the panel).
🠶 Officially, the panel is helping the Dispute Settlement Body make rulings or recommendations. But
because the panel’s report can only be rejected by consensus in the Dispute Settlement Body, its
conclusions are difficult to overturn. The panel’s findings have to be based on the agreements
cited.
🠶 The panel’s final report should normally be given to the parties to the dispute within six months.
In cases of urgency, including those concerning perishable goods, the deadline is shortened to
three months.
🠶 The main stages of the working of the panel are:

🠶 Before the first hearing: each side in the dispute presents its case in writing to the panel.

🠶 First hearing: the complaining country (or countries), the responding country, and those that
have announced they have an interest in the dispute, make their case at the panel’s first hearing
🠶 Rebuttals & Second Hearing: the countries involved submit written rebuttals and present oral
arguments at the panel’s second meeting.
🠶 Experts: if one side raises scientific or other technical matters, the panel may consult experts or
appoint an expert review group to prepare an advisory report.
🠶 First draft: the panel submits the descriptive (factual and argument) sections of its report to the
two sides, giving them two weeks to comment. This report does not include findings and
conclusions.
🠶 Interim report: The panel then submits an interim report, including its findings and conclusions,
to the two sides, giving them one week to ask for a review.
🠶 Review: The period of review must not exceed two weeks. During that time, the panel may hold
additional meetings with the two sides.
🠶 Final report: A final report is submitted to the two sides and three weeks later, it is circulated to
all WTO members. If the panel decides that the disputed trade measure does violate a WTO
agreement or an obligation, it recommends that the measure be made to conform with WTO rules.
The panel may suggest how this could be done
🠶 The report becomes a ruling: The report becomes the Dispute Settlement Body’s ruling or
recommendation within 60 days unless a consensus rejects it. Both sides can appeal the report.
🠶 The DSB’s jurisdiction is compulsory and exclusive with respect to the covered agreements.

🠶 Consisting of the WTO Members, the DSB oversees the adjudication of trade disputes and the
implementation of any recommendations. It operates via reverse consensus, with the blocking of
a recommendation only possible if every member of the DSB objects.
🠶 A panel is a quasi-judicial body responsible for initially hearing a dispute and assessing the
conformity of a Member’s challenged measure or policy with the covered agreements.

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 🠶 Panels are ordinarily composed of three experts selected ad hoc by the DSB.

🠶 A party dissatisfied with a panel decision may resort to the Appellate Body, which will rule after 60
to 90 days. The Appellate Body comprises seven members appointed for a four-year term,
renewable once, of which any three will hear an appeal. It has the power to uphold, modify or
reverse any of the legal conclusions reached by the panel, though not determinations of fact.
🠶 So far almost 70 percent of panel reports have been appealed

Appeals

🠶 Either side can appeal a panel’s ruling. Sometimes both sides do so. Appeals have to be based on
points of law such as legal interpretation — they cannot reexamine existing evidence or examine
new issues.
🠶 Each appeal is heard by three members of a permanent seven-member Appellate Body set up by
the Dispute Settlement Body and broadly representing the range of WTO membership. Members of
the Appellate Body have four-year terms. They have to be individuals with recognized standing in
the field of law and international trade, not affiliated with any government.
🠶 The appeal can uphold, modify or reverse the panel’s legal findings and conclusions. Normally
appeals should not last more than 60 days, with an absolute maximum of 90 days.
🠶 The Dispute Settlement Body has to accept or reject the appeals report within 30 days — and
rejection is only possible by consensus.

Panels

🠶 Panels are like tribunals. But unlike in a normal tribunal, the panelists are usually chosen in
consultation with the countries in dispute. Only if the two sides cannot agree does the WTO
director-general appoint them.
🠶 Panels consist of three (possibly five) experts from different countries who examine the evidence
and decide who is right and who is wrong. The panel’s report is passed to the Dispute Settlement
Body, which can only reject the report by consensus.
🠶 Panelists for each case may be chosen from an indicative list of well-qualified candidates
nominated by WTO Members, although others may be considered as well, including those who
have formerly served as panelist. Panelists serve in their individual capacities. They cannot
receive instructions from any government. The indicative list is maintained by the Secretariat and
periodically revised according to any modifications or additions submitted by Members.

🠶 International Criminal Court been set up

🠶 Nuremberg Tribunal & Tokyo Tribunal

🠶 ICTY

🠶 ICTR
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 🠶 Hybrid Tribunals

🠶 ICC

INTERNATIONAL CRIMINAL LAW AND INTERNATIONAL CRIMINAL COURT

Historical Development of ICL

• Setting up of International Military Tribunal at Nuremberg

• Setting up of International Military Tribunal at Tokyo
• Establishment of International Criminal Tribunal for former Yugoslavia
• Establishment of International Criminal Tribunal for Rwanda

International Crimes

• Crimes Against Humanity

• Crimes Against Peace
• War Crimes
(Concept of Universal Jurisdiction and overlapping International Criminal Jurisdiction)

Establishment of the ICC

• The International Criminal Court (ICC) is the first ever permanent, treaty based international
criminal court established to promote the rule of law and ensure that the gravest international
crimes do not go unpunished.

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 • The ICC was established by the Rome Statute of the International Criminal Court on July, 17, 1998
when 120 states participating in the “United Nations Diplomatic Conference of Plenipotentiaries
on the Establishment of the International Criminal Court” adopted the Statute.
• The Rome Statute (the Statute) sets out the Court’s jurisdiction, structure and its functions
• The 60th instrument of ratification was deposited with the Secretary General on April 11, 2002.
And the Statute was entered into force on July 1, 2002.
• Anyone who commits any of the crime under the Statute and within the jurisdiction of the court
after July 1, 2002 will be liable for prosecution by the Court (temporal jurisdcition)

Jurisdiction

The court has four kinds of jurisdiction-

• Subject-matter Jurisdiction
• Temporal Jurisdiction
• Territorial Jurisdiction
• Personal Jurisdiction

Rome Statute

The Rome Statute of the International Criminal Court consists of the Preamble and 128 Articles. The
statute is divided into 13 Parts.
• Part I – Establishment of the Court (Articles 1- 4)
• Part II – Jurisdiction, Admissibility and Applicable Law (Articles 5 – 21)
• Part III – General Principles of Criminal Law (Articles 22 – 33)
• Part IV – Composition and Administration of the Court (Articles 34 – 52)
• Part V – Investigation and Prosecution (Articles 53 – 61)
• Part VI – The Trial (Articles 62 – 76)
• Part VII – The Penalties (Articles 77 – 80)
• Part VIII – Appeal and Revision (Articles 81 – 85)
• Part IX – International Cooperation and Judicial Assistance (Articles 86 – 102)
• Part X – Enforcement (Articles 103 – 111)
• Part XI – Assembly of State Parties (Article 112)
• Part XII – Financing (Articles 113 – 118)
• Part XIII – Final Clause (Articles 119 – 128)

Establishment of the Court

Article 1: The Court

An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution
and shall have the power to exercise its jurisdiction over persons for the most serious crimes of
international concern, as referred to in this Statute, and shall be complementary to national criminal
jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this
Statute.

Subject-Matter Jurisdiction

Crimes within the jurisdiction of the Court

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The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international
community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the
following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.

Other International Crimes not Covered under the ICC

• International Drug Trafficking

• International Terrorism
• Human Trafficking
• International Money- Laundering
• Arms Trafficking
• Cyber Crimes and Cyber terrorism
• Use of Nuclear Weapons
• Willful Damage to Environment

Genocide

For the purpose of this Statute, "genocide" means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction
in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Crimes Against Humanity

For the purpose of this Statute, "crime against humanity" means any of the following acts when
committed as part of a widespread or systematic attack directed against any civilian population, with
knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of
international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form
of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural,
religious, gender as defined in paragraph 3, or other grounds that are universally recognized as
impermissible under international law, in connection with any act referred to in this paragraph or any
crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;

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(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to
body or to mental or physical health

War Crimes

For the purpose of this Statute, "war crimes" means:

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against
persons or property protected under the provisions of the relevant Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and
carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile
Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular
trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the
established framework of international law
(c) In the case of an armed conflict not of an international character, serious violations of article 3
common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed
against persons taking no active part in the hostilities, including members of armed forces who have laid
down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment
and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating and degrading
treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of executions without previous judgement
pronounced by a regularly constituted court, affording all judicial guarantees which are
generally recognized as indispensable.
(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to
situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or
other acts of a similar nature.
(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international
character, within the established framework of international law,

Crime of Aggression

1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or
execution, by a person in a position effectively to exercise control over or to direct the political or military
action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest
violation of the Charter of the United Nations.
2. For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the
sovereignty, territorial integrity or political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations.

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Triggering Mechanism of ICC

Article 13 is very important with respect to jurisdiction of the court. It provides that the court shall
exercise jurisdiction in following three situations-
1. When a situation is referred to the Prosecutor by a State Party, in which one or more of such
crimes appears to have been committed in accordance with article 14;
2. When a situation is referred to the Prosecutor by the Security Council acting under Chapter VII of
the Charter of the United Nations in which one or more of such crimes appears to have been
committed; or
3. The Prosecutor initiates an investigation, proprio motu or otherwise under Article 15, in respect
of such a crime

Powers of Referral

• By any Member State,

• The United Nations Security Council or
• Individuals through the office of the prosecutor

Referrals

• Referrals by State parties- Republic of Uganda, the Democratic Republic of Congo, the Central
African Republic Situation
• Referrals by Security Council- Darfur (Sudan), a situation in Libyan Arab Jamahiriya
• Proprio motu by Prosecutor- Situation in Kenya
(Ivory Coast- President’s request to Prosecutor to initiate investigation)
[In selecting cases, the Prosecutor will consider gravity, admissibility and interests of justice, and then
analyze the situation.]

Security Council’s Power of Referral under Art. 13

The Security Council has the power to refer the situation to the Prosecutor under Article 13 (b), in case
of-
• threat to the peace,
• breach of the peace or
• act of aggression.
[even if there is a referral by the SC under Article 13 (b), the Court still retains power to determine
whether the case is admissible or not. ]

Security Council’s Power of Deferral under Art. 16

Article 16 of the Statute provides

‘no investigation or prosecution may be commenced or proceeded with under this statute for a period of
twelve months after the Security Council in a resolution adopted under Chapter VII of the charter of the UN,
has requested the court to that effect; that request may be renewed by the Council under the same
conditions’.

Power of Deferral

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 • The provision on deferral by the SC is deemed to negatively frustrate the ICC’s powers.
• The SC, under Article 16, may request the ICC not to investigate or proceed with prosecution when
it feels that the judicial action or threat of it might defeat council’s efforts to maintain international
peace and justice pursuant to UN charter.
• The provision only mentions deferring of investigation or prosecution on the request by the SC.
• Article 16 further implies that the SC resolution may not only prevent (or defer) the start of the
investigation but once initiated (or started) it may also stop the investigation or prosecution that is
already going on.

First Deferral by SC under Art. 16: Resolution 1422

• On July 12, 2002 the Security Council adopted resolution 1422 under Article 16 of the Rome
Statute.
• The Resolution paralyzed the International Criminal Court’s jurisdiction over US soldiers’
participating in the peacekeeping operations in Bosnia and Herzegovina.
• The original draft resolution intended to protect only the U.S. forces, but due to widespread
criticism against the U.S., the Council adopted the current resolution protecting not only the U.S
soldiers but also non-member countries of the Rome Treaty from lawsuits under the ICC statute
• Resolution 1422 exempts “current or former officials or personnel from a contributing [non-party
state] to the Rome Statute from standing trial before the ICC for a renewal one year period
beginning July 1, 2002”
• The SC seems to have abused the provision under Article 16 by adopting resolution 1422
• Article 16 does not limit the number of times a deferral request may be renewed, which could be
read literally to permit infinite renewals.
• SC Resolution was renewed on June 12, 2003 as Resolution 1487.

Admissibility

• Any issues of admissibility are intrinsically linked to jurisdiction (both overlap sometimes)
[Based on principle of complementarity]

Grounds of Admissibility

Article 17(1) of the Rome Statute 1998 states grounds of admissibility as follows:
“...the Court shall determine that a case is inadmissible where:
a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is
unwilling or unable genuinely to carry out the investigation or prosecution;
b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to
prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the
State genuinely to prosecute.
• Further, Article 17 clarify that determinations of admissibility are to be made by the court with an
independent assessment as the sole arbiter when it says ‘’the court shall determine’’ and
• The main rule and starting place for admissibility issue is that the court must first be convinced
that it can exercise jurisdiction over the case in question as entrenched in the statute, once it
satisfy itself that it has jurisdiction over the matter, then it can also by its own motion determine
the admissibility of the case.
• Question of admissibility has to be considered both before investigation opens into a situation by
the prosecutor, before he chooses a case to prosecute and during confirmation hearing in Pre-trial
chambers the court shall consider.’’

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 • Where there are challenges, it has been argued that, the inadmissibility of such cases is rebuttable
and can be admissible under three conditions which are;
• ‘’the state unwillingness or unable genuinely to carry out investigation or prosecution’’,
• “inability of the state to prosecute’’ and
• where the person has been tried but the proceedings deemed to be for the purpose of ‘’shielding
the person concern from criminal liability.’’
• Furthermore, given the Prosecutor’s obligation under Art.18 to notify all States with jurisdiction
upon the commencement of an investigation, in order that they may seek a
• deferral of that investigation while they undertake national proceedings, in a situation
• where no such request has been forthcoming, it can be submitted that such States with jurisdiction
over the case at hand have resolved to support the admissibility of the case before the ICC
complementary jurisdiction.
Applicable Law under Article 21

1. The Statute, Elements of crime and its Rules of Procedure and Evidence
2. Applicable treaties and principles and rules of international law, including the established
principles of the international law of armed conflict
3. General principles of law derived by the court from national laws of legal systems of the
world including national laws of states that would normally exercise jurisdiction over the
crime, provided that those principles are not inconsistent with statute and with
international law and internationally recognized norms and standards.
4. The court may apply principles and rules of law as interpreted in previous decisions.
5. The application and interpretation of law must be consistent with internationally
recognized human rights and be without any adverse distinction found on grounds of
gender, age, race, colour, language, religion or belief, political or other opinion, national,
ethnic or social origin, wealth, birth or other status.

General Principles of Criminal Law

• Nullum Crimen Sine Lege

• Nulla Poena Sine Lege
• Non-retroactivity ratione personae
• Principle of Individual Criminal Responsibility
• Command Responsibility for International Crimes

Composition of the Court

Article 34 of the Statute provides for the organs of the court as under-
• The Presidency (One President, Two Vice-presidents)
• An Appeals Division, a Trial Division and a Pre-Trial Division (Total 18 judges)
• The Office of the Prosecutor
• The Registry

INTERNATIONAL CRIMINAL TRIBUNALS

Historical Evolution

• International Military Tribunal at Nuremberg: NT

• International Military Tribunal at Far-East (Tokyo): TT

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• International Criminal Tribunal for former Yugoslavia: ICTY
• International Criminal Tribunal for Rwanda: ICTR

Need for International Military Tribunals- NT & TT

o The World War II resulted in large-scale destruction, devastation, mass murders, genocide, rape,
and innocent killings, where all rules, principles and laws of humanity were dishonored and
violated.
o The situation was as if there was no law and all chaos in the international justice system.
o The need in the real sense was to set up tribunals for prosecuting those who were liable for such
mass destruction and innocent killings, murder, mutilation and rape. It was further required to
deter future criminals and set an example so that no such holocaust happens ever again.
o No treaty law for prosecution of international crimes existed then. There was customary
international law that made war crimes punishable. A new category of international crimes called
‘crimes against humanity’ was identified, but there was no international machinery to try such
persons responsible for committing war crimes and crimes against humanity.
o Therefore the need was felt to establish international military tribunals at those places where the
destruction was at the optimum.

Nuremberg Tribunal

o It was the first time that the crimes against humanity were prosecuted at the IMT.
o On June 26, 1945 representatives of the Governments of Great Britain, France, Soviet Union and
the US, met in London to decide on a common cause of action with respect to the trial of the major
European war criminals.
o They signed the Agreement for the Prosecution and Punishment of the Major War Criminals of the
European Axis on August 8, 1945. The Agreement was accompanied by the charter of International
Military Tribunal (also called the London charter), which conferred jurisdiction on the
International Military Tribunal at Nuremberg.
o It was decided that one judge and one alternate judge would be appointed from each prosecuting
state. On the whole it had four permanent judges and four alternate judges appointed by each of
the powers and the prosecutors were also appointed by the four powers.
o The Nuremberg Tribunal had jurisdiction to try and punish those who were guilty of war crimes,
crimes against peace and crimes against humanity.
o The trial of the main accused started on November 20, 1945. The tribunal delivered its judgment
on September 30, 1946, whereby it acquitted three accused, sentenced to death twelve accused,
awarded imprisonment for life to three accused and awarded imprisonment for various terms to
four accused.
o The Nuremberg Trials prosecuted nineteen major war criminals. Although many infamous Nazi
leaders were brought to justice because of the Nuremberg Trials, several other escaped trial and
punishment by taking their own lives. Hitler, also shot himself in his underground bunker.
o The jurisdiction of the Nuremberg Tribunal, under its Statute, was restricted to only these three
categories of crimes, i.e. crimes against peace, war crimes and crimes against humanity. Almost on
the same legal principles and around the same time when the Nuremberg Tribunal was
established, another tribunal was established to try those accused of the same kind of offences in
the Far East.
o Since the crimes against humanity were not known earlier and were new, the legitimacy of
jurisdiction of the tribunal was questioned on the principle of nullum crimen sine lege and nulla

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 peona sine lege, i.e. there can be no crime without pre-existing law and no punishment without
law, respectively.
o The arguments regarding the illegality of tribunals were refuted in the judgment and it was
observed by the tribunal that killing, torture and humiliating innocent people are acts condemned
by the value judgments of all civilized men, and are punishable by every civilized municipal legal
system.

Tokyo Tribunal

o The International Military Tribunal for the Far- East (Tokyo Tribunal) was set up in Japan by the
US Supreme Commander- in- Chief, General Douglas MacArthur, to try war criminals of Japan on
the same legal principles as those of German war criminals.
o The tribunal was established by the victorious states pursuant to the Potsdam Declaration of July
20, 1945. The charter of the Tokyo Tribunal was approved on January 19, 1946. The trial
commenced on June 4, 1946 in Tokyo
o The Tokyo Tribunal followed the reasoning of the Nuremberg Tribunal in applying its own charter.
The jurisdiction of the tribunal covered crimes against peace, war crimes and crimes against
humanity.
o There were eleven judges under the President-ship of Sir William Web of Australia. They were
from different states, nominated by the allied states but appointed by MacArthur.
o The trial was conducted against twenty-eight accused. Out of the remaining, two died during the
pendency of proceedings and one was discharged from proceedings due to his mental
incompetency. Out of them, seven were sentenced to death.
o The judgment was pronounced in November 1948 after conducting about 818 sessions. Former
Prime Minister Hideki Tojo and twentyfour other perpetrators were prosecuted under the
category of crimes against peace.
o The Tokyo Tribunal was selective as compared to Nuremberg Tribunal.

Critical Analysis of IMTs

• Victor’s justice
• Based on Pact of Paris- which had no sanctions, violated nulla peona sine lege
• Violated nulla crimen sine lege
• One sided trial
• Individual criminal responsibility under international law a new principle individuals then were not
subjects of international law
• No appellate process

Contributions

• Developed the principle of individual criminal responsibility

• Developed new category of international crimes- crimes against humanity
• IMTs applied rules of international law
• Later led to proposals for permanent international criminal court

ICTY

Establishment of ICTY

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 o • The late 1980s and early 1990s witnessed dramatic political and social change across eastern
Europe and the Soviet Union with the collapse of thevmajority of communist systems and
resurgence of nationalism.
o • In Yugoslavia – a series of economic and political crises led ultimately to the violent break up of
the country.
o • In the early 1990s, a brief flare up of hostilities in Slovenia was followed by brutal conflicts in
Croatia and Bosnia and Herzegovina, followed by armed conflicts in Kosovo and the Former
Yugoslav Republic of Macedonia (FYROM).
o • The United Nations took note of the situation in Sept. 1991 and urged parties to the conflict to
abide by international law. Thousands were injured and killed and hundreds of thousands were
displaced. Reports about massacres of thousands of civilians, rape and torture in detention camps,
terrible scenes from cities under siege and the suffering of hundreds of thousands expelled from
their homes, moved
o the UN in late 1992 to establish a Commission of Experts to examine the situation on the ground.
o • In its report, the Commission documented horrific crimes and provided the Secretary-General
with evidence of grave breaches of the Geneva Conventions and other violations of international
humanitarian law.
o • Its findings led the Security Council to establish an international tribunal for persons responsible
for these crimes in order to stop the violence and safeguard international peace and security.
o The International Criminal Tribunal for the Former Yugoslavia (ICTY) was set up by the United
Nations Security Council in 1993, pursuant to Resolution 808 of February 1993 and Resolution
827 of May 1993.
o This resolution contained the Statute of the ICTY which determined the Tribunal’s jurisdiction and
organisational structure, as well as the criminal procedure in general terms.
o This was the first war crimes court established by the UN and the first international war crimes
tribunal since the Nuremberg and Tokyo tribunals. The ICTY was established under Chapter VII of
the UN charter under which the Security Council has the power to take enforcement action when
there is a threat to international peace and security.
o The ethnic cleansing in the former Yugoslavia was considered to be a threat to international peace
and security and hence the Security Council took the said action.
o The ICTY was adopted by the Security Council in 1993 to prosecute persons responsible for
serious violations of International Humanitarian Law committed in the territory of former
Yugoslavia since 1991.

Jurisdiction of ICTY

ICTY has jurisdiction over following category of crimes:

• grave breaches of the Geneva Conventions of 1949
• violations of laws and customs of war;
• genocide; and
• crimes against humanity which form part of customary international law.

o The ICTY is composed of sixteen judges elected in 1993 who are expert in criminal law, human
rights, civil liberties protection and it also includes senior judicial officers. A pool of twenty-seven
ad litem judges was appointed in 2001 to reduce the backlog.
o It has the Prosecutor, who is an independent organ of the ICTY and is responsible for the
investigation and prosecution of persons responsible for these offences. There is no trial in
absentia. Penalties are limited only to imprisonment and no capital punishment can be awarded.

85
 o The ICTY considers itself to be the first truly international tribunal, established by the UN to
determine individual criminal responsibility under the international humanitarian law.
o ICTY could actually be said to be the first International Tribunal of its kind.
o ICTY has indicted 161 individuals, proceedings against 126 have been completed, out of which 5
have been acquitted. 48 accused have been sentenced, 36 cases terminated and 11 cases
transferred to local courts.
o The detention facilities of the ICTY are in the Hague. The best facilities are provided in the
detention, so much so that it is known as Hague Hilton.
o The former Yugoslavian and Serbian President Slobodan Milosevic’s trial was an important trial. It
has been considered to rival that of Nuremberg in terms of history and legal significance.
o Apart from Milosevic’s trial, Tadic’s trial was epoch making in the sense that it established the
legality and legitimacy of the ICTY. The legal standing of ICTY was challenged in Tadic’s case.

Contributions of ICTY

• Trial in absentia is not possible.

• There is no possibility of imposing death penalty.
• The longest sentence imposed was for 46 years in case of Prosecutor v. Radislav Krstic (2000).
• The Victims and Witnesses Section was created to provide counseling, not only regarding the legal
rights but also to give psychological help and support and to recommend protective measures where
required. The Section has mainly dealt with female victims of rape and sexual assault.
• There is also Defense Counsel Unit and a Judicial Support Services Unit.
• It can undoubtedly be said that ICTY has in a major way contributed to the development of the
international criminal law.

ICTR

• The International Criminal Tribunal for Rwanda (ICTR) was established by the Security Council
Resolution 955 of November 8, 1994.
• It was set up in response to massive killings and atrocities in Rwanda between January 1, 1994 and
December 31, 1994.
• The victims were mainly from Tutsi ethnic group and the perpetrators from the Hutu ethnic group.
• The provisions in ICTR statute are similar to that of ICTY statute regarding the organization of tribunal,
investigation and preparation of indictment, review of indictment, rights of the accused, penalties such as
no provision for death penalty, appellate proceedings and judicial assistance.
• Like the ICTY, the ICTR has a Witnesses and Victims Support Section. The tribunal consists of fourteen
judges.
• The subject matter jurisdiction of ICTR is different from that of ICTY because the conflict was
non-international one.
• The offences covered are-
• genocide,
• crimes against humanity and
• violations of Common Article 3 of 1949 Geneva Conventions and of Additional Protocol II.

The legality of the establishment of the ICTR was challenged in case of Prosecutor v. Kanyabashi
(Jurisdiction). The challenge was rejected with ICTR ruling that the internal conflict in Rwanda was a
threat to international peace and security and UN Security Council was justified to invoke the competence
under chapter VII of UN Charter for setting up of the ICTR. The chamber reasoned that chapter VII of the
UN charter was the legitimate source of its creation and that the right to a fair trial was guaranteed
86
adequately by the ICTR statute and ICTR’s rules of procedure and evidence. It was held that the Security
Council’s extension of international obligations and criminal responsibilities directly to individuals in
situations of internal armed conflict was ‘an important innovation of International Law’ which was
justified only by the seriousness, enormity and severity of that conflict.

• The ICTR has indicted political, military and media leaders as well as senior governmental
administrators; thereby strengthening the recently evolved international criminal law.
• There are 42 completed cases, 17 appeals are pending and 10 acquittals done. Two detainees died
before the judgment and three cases have been transferred to national jurisdiction.
• A former Prime Minister and two other ministers are among those in custody. One of them was the first
woman to be charged with war crimes before an international criminal court. In January 2003, the
Security Council appointed twenty-three ad litem judges to the ICTR to speed up the proceedings. The
ICTR is a step further in the growth of international criminal law.

87
 Introduction Public International Law

1. WHAT IS PUBLIC INTERNATIONAL LAW?

International law comprises a system of rules and principles that govern the
international relations between sovereign states and other institutional subjects of
international law such as the United Nations, the Arab League and the African Union.
It operates alongside international diplomacy, politics and economics.

2. WHAT IS MEANT BY THE TERM “SOVEREIGNITY”?

Sovereignty is the exclusive right to exercise supreme political authority over a defined
territory (land, airspace and certain maritime areas such as the territorial sea) and the
people within that territory. No other State can have formal political authority within
that State. Therefore, sovereignty is closely associated with the concept of political
independence.

During the period of Western colonial expansion new territories and islands were
subject to claims of sovereignty by discovery and occupation. Sovereignty could also
be transferred to another State by conquest (use of force) or by cession where the
sovereignty over the territory would be ceded by treaty from one State to another.
Since a State has sovereignty over its territory, the entry into its territory by the armed
forces of another State without consent is a prima facie breach of international law.
Among the attributes of sovereignty is the right to exclude foreigners from entering the
territory, which is traditionally referred to as the right to exclude aliens.
Since a State has sovereignty within its territorial sea (with some exceptions such as
the right of innocent passage ), it has the exclusive authority to exercise police power
within its territory sea. For example, if foreign ships are attacked by “pirates” in the
territorial sea of a State, the only State that can exercise police power and arrest the
pirates in the territorial sea is the coastal State.
3. WHAT ARE THE SOURCES OF INTERNATIONAL LAW?

The sources for international law have been enumerated in Article 38(1) of the Statute
of the International Court of Justice. It provides that while the court is making its

1
decision, it has to keep in mind that international law stems from the following areas,
since it is obliged to make decisions “in accordance with international law”.

(a) International conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;
(b) International custom, as evidence of a general practice accepted as law;
(c) The general principles of law recognized by civilized nations;
(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.

Keeping this Article in mind, let us take a detailed look at the different ways in which
International Law is generated:

1. Customary Law: The principle of Customary Law basically dictates that a dispute
should be resolved by referring to the Customs of the land, so that the customary
practices of different nations are respected and adhered to. However, the threshold for
proving a law as customary is quite high, since it should have “evidence of a general
practice accepted as law”. In order to reach that threshold, the court must consider both
the “material facts” and the “opinio juris” of states.
· Material facts: This is concerned with the way in which the Customary law is applied
in the Country concerned. The duration for which the practice has subsisted, its
consistency, the repetition of its use and the generality of the practice are all considered
subjectively in determining the authenticity and applicability of a customary practice.
However, each of those standards are exclusive to each other, and as reiterated by
different Courts in several cases, all of them need not be fulfilled in each case in order
to determine the validity of the practice. In some cases, like the Continental Shelf case,
the Judges relied more on ideas of Justice and Equality more that the other factors.
· Opinio Juris: This is concerned more with the Jurisprudence of the country whose
custom is being considered. Basically, this requirement is to ensure that even if a
practice is customary, the Country carrying out that practice must have been
consciously enforcing/ allowing that practice. This has been seen in the Lotus case,
where France was arguing that since countries had abstained from instituting criminal

2
proceedings in the past for the matter that was in question, that is now the customary
practice. However, the Court held that since there was no clear evidence that the
abstention was consciously made, it could not be held to be customary law.
Thus, customary law has two criteria – There should be clear evidence of the practice
in question being followed, and there should also be evidence to show that the country
in question was consciously following it.

2. Treaties: This is another source for international law which plays a very big role.
This is because the term treaty means and includes Conventions, International
Agreements, Pacts, General Acts, Charters, Statutes, Declarations as well as
Covenants. There are two kinds of treaties:
· Law making treaties: These treaties are ones that are intended to have general
relevance as to the position of law in particular fields. They are agreements by some or
several states whereby they debate about different fields in international law so as to
broaden the scope and to give clarity to a particular subject. It is considered as a source
of law since it reflects the view of several states concerning particular topics. The
Genocide convention and the Antarctic Treaty are examples of this kind of a treaty.
· Treaty contracts: These are basically agreements between two countries, which are
in the nature of a contract between two parties; they are enforceable, and pertain mostly
only to the contracting parties. However, it can be regarded as a source of law in certain
situations. For example, if a series of treaties between two or three countries all have
the same underlying principle, then that principle can be regarded as the custom of the
land.

3. General principles of law: Another source of law mentioned in Article 38 are

general principles of law. This is a very important requirement as a source of law,since
International law is not always very specific or developed. Therefore, general principles
of law would be very helpful in determining international law, since there is already
strong proof of its validity and its usage. Onesuch principle that was brought out in the
Genocide convention was the principle of Res Judicata, which was used to ensure that
decisions of international courts are final and binding. Another such principle is that of
pacta sunt servanda, which means that international agreements are binding on the
parties who enter into them. Thus, they are a very important source of law.

3
4. Principles of Equity: Equity is a very important source if international law, since
it allows courts to sometimes look past the customary laws in order to make an equitable
decision. This was observed in the Continental Sea Shelf case, where the Court looked
past the Customary drawing of nautical lines and instead looked at the most equitable
and just option available.
5. Judicial decisions: Article 38, mentioned above, lists judicial decisions as a
subsidiary method of determining law. Further, Article 59 says that judicial decisions
will have no binding power of precedent. However, judges sometimes interpret a whole
concept that is then used by others as the binding law onpoint. In this way, it can be
used as a source of law. For example, in the Fisheries case, which set out the criteria
for determination of baselines for the measurement of territorial sea. This decision was
later used by the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone.
6. Writers: Writers also play a big part of determining sources of law since renowned
work on jurisprudence often cited by States in their presentation of claims, national law
officials, the various international judicial and arbitral bodies, and the judges of
municipal courts.

3. WHAT IS THE SIGNIFICANCE OF ARTICLE 2(7) OF THE UN CHARTER?

Nothing contained in the present Charter shall authorize the United Nations to intervene
in matters which are essentially within the domestic jurisdiction of any state or shall
require the Members to submit such matters to settlement under the present Charter;
but this principle shall not prejudice the application of enforcement measures under
Chapter Vll.
It is principle of non-intervention of the United Nations in internal affairs of States
under Article 2 (7) of the Charter

4. WHAT IS THE DIFFERENCE BETWEEN INTERNATIONAL LAW AND NATIONAL

LAW?

National law is concerned primarily with the legal rights and duties of legal persons
(individuals and companies) within a body politic – the state or similar territorial entity.
National law commonly is derived from a legal superior (e.g. a parliament or person
with legislative power), recognised as legally competent by the society to whom the

4
law is addressed (e.g. in a constitution), and in situations where the governing power
has both the authority and practical competence to make and enforce that law.
International law comprises a system of rules and principles that govern the
international relations between sovereign states and other institutional subjects of
international law such as the United Nations, the Arab League and the African Union
It is concerned with the rights and duties of the states themselves. In their relations
with each other, there is no relationship of legal superiority. States are legal equals and
the legal system, which regulates their actions between themselves, must reflect this.
International law is a legal system must facilitate the interaction of these legal equals
rather than control or compel that national law exerts over its subjects

5. HOW WOULD YOU RESPOND TO THE CLAIM THAT PIL IS NOT REALLY LAW?
Of course, PIL is a law, when think about what ‘law’ is, and what its purpose is, there
is not one measure and not one perfect model. PIL might be more prescriptive and less
permissive however, that does not mean that it ceases to be law. The story of
international law and the international legal system, like so many other legal systems,
is one of achievement and disappointment. So, in much the same way that we would
not suggest that the law of the UK is somehow ‘not law’ because it is currently proving
impossible to control cross-border internet crime, it does not necessarily follow that
international law should be dismissed as a system of law because there are international
actors that seem determined to ignore it.

International law comprises a system of rules and principles that govern the
international relations between sovereign states and other institutional subjects of
international law such as the United Nations, the Arab League and the African Union.
The rules of international law are created primarily by states, either for their own
purposes or as a means of facilitating and controlling the activities of other actors on
the international plane.
Rules of international law cover almost every facet of inter-state and international
activity. There are laws regulating the use of the sea, outer space and Antarctica. There
are rules governing international telecommunications, postal services, the carriage of
goods and passengers by air and the transfer of money. International law is a primary

5
tool for the conduct of international trade.
It is concerned with nationality, extradition, the use of armed force, human rights,
protection of the environment,
the dignity of the individual and the security of nations.
In short, there is very little that is done in the international arena that is not regulated
by international law.
International law is the vital mechanism without which an interdependent world could
not function. In this sense, international law facilitates the functioning of the
international community, of which we are all a part and on which we all depend.
Modern international law also seeks to control states by inhibiting or directing their
conduct both in their relations with other states (e.g. the law prohibiting the use of
armed force to settle disputes) and in relation to individuals, both individuals of other
states (e.g. issues concerning the exercise of criminal jurisdiction) and its own nationals
(e.g. the law of human rights).
Nevertheless, there have been incidents in International Law where a state may decide
to forfeit legality in favour of self-interest, expediency or ‘humanity’, like the denial of
procedural and substantive rights to those being held in detention by the USA at
Guantanamo Bay during the Bush Presidency, which constituted a violation of the
international law of human rights worthy. However, these incidents should be
contrasted to
(1) the successful UN-led efforts to bring self-determination and then independence
to East Timor in 2002,
(2) the groundbreaking establishment and operation of the International Criminal
Court responsible for prosecuting individuals for violation of fundamental international
human rights,
(3) the protection of civilian populations during the Libyan civil war of 2011 and
(4) the continuing impact of the International Court of Justice in regulating states’
use of the world’s oceans and their natural resources.

The members of the international community recognise that there exists a body of rules
binding upon them as law. States believe international law exists. When Iraq invaded
Kuwait in 1990, or earlier when Tanzania invaded Uganda in 1978/79, the great
majority of states regarded the action as ‘unlawful’, not merely ‘immoral’ or
‘unacceptable’.

6
(a) International law is practised on a daily basis in the Foreign Offi ces, national courts
and other governmental organs of states, as well as in international organisations such
as the United Nations and the Organisation of American States. These organisations
and their members accept that they are ‘legally bound’ to behave in a certain way and
will pursue claims against each other alleging a ‘breach’ of international law.
(b The States –the most important of the subjects of international law – do not claim
that they are above the law or that international law does not bind them. When Iraq
invaded Kuwait it did not claim that the law prohibiting armed force did not apply to it
or was irrelevant. Rather, Iraq argued that international law ‘justified’ its action; in
other words, that it was ‘legal’ by reference to some other rule of international law.
This is powerful evidence that states follow rules of international law as a matter of
obligation, not simply as a matter of choice or morality. If this were not so, there would
be no need for states to justify their action in legal terms when they departed from a
legal norm.
(c) The majority of international legal rules are consistently obeyed. Of course, there
will be occasions when the law is ignored or flouted, just as there will be murder and
theft in national law. The occasions when a state disregards its treaty or customary law
obligations are but a small fraction of the occasions on which those obligations are
observed.
(d) It is a function of all legal systems to resolve disputed questions of fact and law.
International law does this and, because it cannot not be called a law because it only
has a limited number of developed legal institutions.
The well-established European Court of Human Rights, the War Crimes Tribunals for
Bosnia, Rwanda and Somalia and the International Criminal Court are good examples.
It is sometimes said that international law is not "true" law becaus eit is not generally
enforceable. For example, no formal enforcement action taken against the USA after
its illegal invasion of Grenada and no formal condemnation of Israel for invading
Lebanon in 2006. Unlike national legal systems, were it is assumed that the law will be
enforced. However, this argument could be considered as flawed as the system of law
does not depend on the chances of effective enforcement. Secondly, it is not true that
international law is not enforceable or effective.
While international law has never been wholly dependent on a system of
institutionalised enforcement, the absence of a ‘police force’ or compulsory court of

7
general competence does not mean that international law is impotent.

It would be a mistake to conclude that international law is a perfect system. There is

much that could be reformed and enhanced. There is a general lack of institutions; the
content of the rules of international law can be uncertain; states may elect to ignore
international law when their vital interests are at stake; states are able to violate basic
rules, such as the prohibition of violence without fear of being coerced.

6. WHAT ARE THE SOURCES OF INTERNATIONAL LAW?

Article 38(1) of the Statute of the International Court of Justice is widely recognized as
the most authoritative and complete statement as to the sources of International Law.
The sources of International law can be divided into 2 main categories, primary sources
and secondary sources.
(a) International conventions, whether general or particular, establishing rules
expressly recognized by the contesting states;
(b) International custom, as evidence of a general practice accepted as law;
(c) The general principles of law recognized by civilized nations;
(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations (academic writers), as subsidiary
means for the determination of rules of law.
Custom should constitute evidence of a general practice accepted as law. Thus, there
are 2 basic elements which make-up a custom, the first element is the actual behaviour
of states and the second element is the psychological or subjective belief that such
behaviour is law. They are also referred to as the actual practice of states or material
fact and the opinion juris of states.
In the Asylum case, the ICJ declined to order Peru to comply with a customary rule as
the court felt that the custom in question was not a ‘constant and uniform usage
practiced by the States in question'. For it to be custom, the Court held that the custom
must have led to a right for one state and a duty upon the other state. In this case,
Colombia had granted asylum to Haya De La Torre, a Peruvian, however, Peru refused
to issue a safe conduct to permit Torre to leave the country. The custom in question
failed to meet the criteria of a ‘ constant and uniform usage practiced by the States in

8
question’ as it was a regional custom pertaining only to Latin America.
In the Anglo-Norwegian Fisheries case, the court refused to hold a particular method
of measuring the breadth of the territorial sea as it felt that the actual practices of states
did not justify the creation of such a custom. That is, there was ‘insufficient uniformity
of behavior.’

7. WHAT IS THE INTERNATIONAL COURT OF JUSTICE (ICJ)?

The International Court of Justice (ICJ) is the principal judicial organ of the United
Nations (UN). It was established in June 1945 by the Charter of the United Nations
and began work in April 1946.
The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six
principal organs of the United Nations, it is the only one not located in New York
(United States of America).
The Court’s role is to settle, in accordance with international law, legal disputes
submitted to it by States and to give advisory opinions on legal questions referred to it
by authorized United Nations organs and specialized agencies.
The Court is composed of 15 judges, who are elected for terms of office of nine years
by the United Nations General Assembly and the Security Council. It is assisted by a
Registry, its administrative organ. Its official languages are English and French.

Jus ad bellum (Latin for "right to war") is a set of criteria that are to be consulted before
engaging in war, in order to determine whether entering into war is permissible; that is,
whether it is a just war.
Jus in bello, concerns with whether a war is conducted justly (regardless of whether
the initiation of hostilities was just).

8. WHAT ARE THE SOURCES OF INTERNATIONAL LAW? ARE MUNICIPAL LEGAL

SYSTEMS OBLIGED TO RECOGNIZE THESE SOURCES WHILE EXERCISING A) DOMESTIC

JURISDICTION, B) EXTRATERRITORIAL JURISDICTION? ELUCIDATE WITH CASE LAWS

AND EXAMPLES.

9
The sources for international law have been enumerated in Article 38(1) of the Statute
of the International Court of Justice. It provides that while the court is making its
decision, it has to keep in mind that international law stems from the following areas,
since it is obliged to make decisions “in accordance with international law”:

(a) International conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;
(b) International custom, as evidence of a general practice accepted as law;
(c) The general principles of law recognized by civilized nations;
(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the
most highly qualified publicists of the various nations, as subsidiary means for the
determination of rules of law.

Keeping this Article in mind, let us take a detailed look at the different ways in
whichInternational Law is generated:

1. Customary Law: The principle of Customary Law basically dictates that a dispute
should be resolved by referring to the Customs of the land, so that the customary
practices of different nations are respected and adhered to. However, the threshold for
proving a law as customary is quite high, since it should have “evidence of a general
practice accepted as law”. In order to reach that threshold, the court must consider both
the “material facts” and the “opinio juris” of states.
· Material facts: This is concerned with the way in which the Customary law is
applied in the Country concerned. The duration for which the practice has subsisted, its
consistency, the repetition of its use and the generality of the practice are all considered
subjectively in determining the authenticity and applicability of a customary practice.
However, each of those standards are exclusive to each other, and as reiterated by
different Courts in several cases, all of them need not be fulfilled in each case in order
to determine the validity of the practice. In some cases, like the Continental Shelf case,
the Judges relied more on ideas of Justice and Equality more that the other factors.
· Opinio Juris: This is concerned more with the Jurisprudence of the country whose
custom is being considered. Basically, this requirement is to ensure that even if a
practice is customary, the Country carrying out that practice must have been

10
consciously enforcing/ allowing that practice. This has been seen in the Lotus case,
where France was arguing that since countries had abstained from instituting criminal
proceedings in the past for the matter that was in question, that is now the customary
practice. However, the Court held that since there was no clear evidence that the
abstention was consciously made, it could not be held to be customary law.
Thus, customary law has two criteria – There should be clear evidence of the practice
in question being followed, and there should also be evidence to show that thecountry
in question was consciously following it.

2. Treaties: This is another source for international law which plays a very big role.
This is because the term treaty means and includes Conventions, International
Agreements, Pacts, General Acts, Charters, Statutes, Declarations as well as
Covenants. There are two kinds of treaties:
· Law making treaties: These treaties are ones that are intended to have general
relevance as to the position of law in particular fields. They are agreements by some or
several states whereby they debate about different fields in international law so as to
broaden the scope and to give clarity to a particular subject. It is considered as a source
of law since it reflects the view of several states concerning particular topics. The
Genocide convention and the Antarctic Treaty are examples of this kind of a treaty.
· Treaty contracts: These are basically agreements between two countries, which are
in the nature of a contract between two parties; they are enforceable, and pertain mostly
only to the contracting parties. However, it can be regarded as a source of law in certain
situations. For example, if a series of treaties between two or three countries all have
the same underlying principle, then that principle can be regarded as the custom of the
land.

3. General principles of law: Another source of law mentioned in Article 38 are

general principles of law. This is a very important requirement as a source of law,since
International law is not always very specific or developed. Therefore, general principles
of law would be very helpful in determining international law, since there is already
strong proof of its validity and its usage. Onesuch principle that was brought out in the
Genocide convention was the principle of Res Judicata, which was used to ensure that
decisions of international courts are final and binding. Another such principle is that of

11
pacta sunt servanda, which means that international agreements are binding on the
parties who enter into them. Thus, they are a very important source of law.
4. Principles of Equity: Equity is a very important source if international law, since
itallows courts to sometimes look past the customary laws in order to make anequitable
decision. This was observed in the Continental Sea Shelf case, where the Court looked
past the Customary drawing of nautical lines and instead looked at the most equitable
and just option available.
5. Judicial decisions: Article 38, mentioned above, lists judicial decisions as a
subsidiary method of determining law. Further, Article 59 says that judicial decisions
will have no binding power of precedent. However, judges sometimes interpret a whole
concept that is then used by others as the binding law onpoint. In this way, it can be
used as a source of law. For example, in the Fisheries case, which set out the criteria
for determination of baselines for the measurement of territorial sea. This decision was
later used by the 1958 Geneva Convention on the Territorial Sea and Contiguous Zone.
6. Writers: Writers also play a big part of determining sources of law since renowned
work on jurisprudence often cited by States in their presentation of claims, national law
officials, the various international judicial and arbitral bodies, and the judges of
municipal courts.
Article 38 (1) of Statute of International Court of Justice is the most comprehensive
legislation for the sources of international law. The Article is segregated into two
distinct sources. The primary source which recognizes international conventions,
customs and general principles of law as exclusive law creating processes and the
secondary source which establishes judicial decisions and academic writings as law
determining agencies. However, the article is silent about the peremptory norm (jus
cogens) which is the fundamental principle of international law.
CUSTOMS
The essence of custom is that there should be evidence to the fact that the general
practice should be adhered to as law. Thus, the basic elements that constitute a custom
are the material facts (the behavior of states) and the subjective belief (opinion juris)
that the behavior of states amounts to law.
For determining the material facts, the International Court of Justice has opined that
customary rule sought to be acknowledged as law has to be in accordance with a
constant and uniform usage practiced by the state and observed in the Anglo-Norwegian

12
 Fisheries case that, some degree of uniformity amongst state practices was essential
before a custom would be recognized as law. However, in Nicaragua v. United States,
the court expounded further that such uniformity of state practice as prescribed in the
Anglo-Norwegian Fisheries case need not be in absolute rigorous conformity.
As far as the subjective belief is concerned, the Court of International Justice in the
Lotus case discussed when state practice would constitute customary law. The court
was of the opinion that, although jurisdiction for crimes committed on the high seas
were tried in those states whose flag the ship hoisted it was elucidated that state practice
was to abstain from holding the criminal trial in states other than the ones whose flag
the ship hoisted and that there was no obligation to do the same. Hence, without the
essential ingredient of obligation, state practice remained a mere practice and was not
recognized as customary law.
INTERNATIONAL CONVENTIONS
Are written instruments by virtue of which states bind themselves together legally and
establish a relation between themselves. Parties to the instrument are obligated to carry
out the conditions and arrangements that are agreed upon. The obligatory nature is
based on the international law principle of pacta sunt servanda (agreements are
binding).
International Conventions are divided into: law making treaties and treaty contracts.
Law making Like a contract, law making treaties set down a series of propositions that establish new
treaties v.
treaty of rules and guidelines for future international conduct and are binding on all members of
contracts the contract. In contrast, treaty contracts, are not law making instruments in themselves
as they are between a limited numbers of states.
GENERAL PRINCIPLES OF LAW
Where the law is non liquet the judges deduce a rule by drawing an analogy from the
existing rules to guide the legal system and fill the lacunae in law.
PEREMPTORY NORM (jus cogens)
Fundamental principles of International law are accepted in the international
community of states as a norm from which derogation is impermissible. Some instances
of these norms are outlawing of genocide and protection from slavery.

b).The broader issue that needs to be addressed is whether municipal legal systems are
obliged to take into account these sources of law while exercising jurisdiction.

13
DOMESTIC JURISDICTION
Owing to the sovereign nature of states, there is a presumption that states should be
supreme within their own internal territorial frontier and other states should not
interfere in its domestic affairs. However, influence of international law can be realized
now, in areas of exclusive jurisdiction of states. For instance, treatment given to a
national of a country has to now be in conformity to international human rights
regulations. The Anglo-Norwegian Fisheries case, discusses the limit on exercise of
domestic jurisdiction, where it was stressed that, although the costal state was
competent to act on its territorial water unilaterally, the validity of its action with
regards to other states depends upon international law.

EXTRATERRITORIAL JURISDICTION
States exercise universal jurisdiction/extraterritorial jurisdiction where, the crimes
committed are of universal concern and each State has an interest to prosecute such
crime. The validity of extraterritorial jurisdiction is derived from jus cogens. In the
Pinochet case, the House of Lords, prosecuted the head of Chile on the grounds of
torture committed by him and invoked universal jurisdiction. However, diplomatic
immunity, can be seen as an exception to rule of universal jurisdiction. In the Belgian
Arrest Warrant case, where the Belgian court issued an arrest warrant against the
Foreign minister of Congo for inciting racial hatred. The International Court of Justice
was of the opinion that Belgium had failed to respect the immunity enjoyed by the
foreign minister under international law. The arrest of the Minister of Foreign Affairs
in an international state would have prevented him or her from exercising functions of
office.

1. a) Assess the concept of customary law through the Nicaragua Merits Case,
Nuclear Weapons Case and the Anglo Norwegian Fisheries case.
b) If you were to redraft Article 38 of the ICJ Statute, how would you embark on it?

Customary Law, which is based on state practice and opinion juris, at many instances
creates uncertainty as to establish certain state practice, holding the value of law. The
jurisprudence evolved on this issue has made an attempt to address some of these issues.

14
 ANGLO NORWEGIAN FISHERIES CASE
This case came before the International Court of Justice to decide whether Norway’s
method of drawing a baseline to measure its territorial sea was legal and in conformity
with existing state practice in customary law.
The court dealt with this issue by observing that although the ten-mile rule was adopted
by certain states in their national law and treaties, other states did not adhere to this
rule. Thus, the ten-mile rule did not acquire the authority of a general rule of
international law.
Norway from 1869, had followed, without contention from other states, certain methods
of delimitation that it considered a part of its legal framework. The method had both
the elements of state practice and opinion juris enough to establish it as customary law
and no objection by other states to such state practice was enough to indicate that the
method was not ‘contrary to international law’.

NICARAGUA CASE
In this case which involved military and paramilitary activities conducted by, or with
the aid of, United States against Nicaragua, the important issues of customary law dealt
by the International Court of Justice were –
i.The competence of ICJ to give its decision based on customary law in the face of
existing Vandenberg convention.
ii.The connection between customary law and treaty law.
iii.Elements of customary law.
iv.Prohibition of use of force as being a jus cogens norm.

COMPETENCE OF ICJ TO DECIDE THE CASE

While dealing with the first issue, the court was of the opinion that multilateral treaty
reservations did not preclude the Courts from determining cases relying on customary
international law. The Court reasoned that customary international law and treaty law
existed independent of each other.
CONNECTION BETWEEN CUSTOMARY LAW AND TREATY LAW
Addressing the second issue the United States raised the contention that when treaty
law supervened customary law when both the sources of law contained the same

15
content. Their rational behind the argument was that, principles which existed in the
UN Charter ruled out the possibility of existence of similar rules in customary law,
either because such rules were incorporated in the Charter or because customary rules
were influenced by adoption of rules with similar content.
In response to this contention, the court disagreeing with the United States observed
that although principles of customary law are codified into treaties, both the sources of
law coexist, this is an essential element, for when a treaty ceases to apply to members
the customary law prevails and continues to bind members. To assert this principle the
Court relied on the North Sea Continental Shelf Case which laid down the same
principle of coexistence of customary law and treaty law. The court further elucidated
that Article 51 which did not provide for ‘inherent right’ of self-defense in case of
armed conflict, and self-defense not being a part of treaty law, did not disable states
from invoking such a right. It was therefore not feasible to view treaty law as
supervening customary international law. The Court concluded by stating:
“The essential consideration is that both the Charter and the customary international
law flow from a common fundamental principle outlawing the use of force in
international relations. The differences which may exist between the specific content
of each are not, in the Court’s view, such, as to cause a judgment confined to the field
of customary international law to be ineffective or inappropriate.”
ELEMENTS OF CUSTOMARY INTERNATIONAL LAW
To deal with this issue the court expounded that both the subjective element (opinion
juris) and the objective element (state practice) would be considered as essential
elements for the formation of customary law. The court further elucidated that, for a
practice to be established as customary law it was not necessary for it to be in absolute
rigorous conformity with the rule. The practice had to be generally consistent with the
rule. In cases where state conduct was inconsistent with the rule, the breach would not
be treated as recognition of new rule but as a breach of the existing rule.
PROHIBITION OF USE OF FORCE (jus cogens)
The court held that prohibition on use of force could be found in customary
international law as jus cogens norm, which could also be found in Article 2 (4) of the
UN Charter which prohibits the threat or use of force against another State.

16
b) Article 38 being one of the most extensive articles on sources of law has two
drawbacks:
i) It does not state that treaty law and customary law coexist; and
ii) There is no provision for jus cogens being norms which are binding on all members
of the world.
Thus, if the article had to go under a redraft, these amendments would be crucial to give
further meaning to the Article.

Statehood, Recognition & the Relationship between International and National

law

In the international legal system, no entity can impose international law upon a state.
States are the primary actors in PIL and the concepts of state “sovereignty” and
“statehood” are at the heart of the international legal system. No one can impose
international law upon states. States must themselves give their consent to be bound by
international law (usually through the ratification of international treaties). The only
exception to this rule is customary international law (to be examined in week 5). PIL
is, therefore, traditionally a state centric discipline. Although we will see, “non-state
actors” (NSA) are playing an increasingly important role in PIL
Recognition of a state or govt, is a legal acknowledgment of a factual state of affairs.
Since recognition is a political act, it is reserved to the executive branch of the
government.
Recognition - 2 theories
1)Constitutive theory - act of recognition by other states that creates a new state and
endows it with legal personality and not the process by which it actually obtained
independence.
A shortfall of this theory is that if a state does not recognise a state, then that state would
not be bound by international law, rules of non-aggression and non-intervention etc.
USA did not recognise the Peoples Republic of China for a long time. This theory of
recognition is imp. when a terrorist sets up a state, the new entity of govt. will be
insecure and it is in this context that recognition plays a vital role. Another factor which
supprots the constitutive interpretation of recognition is teh practice n many states
whereby an unrecognised state or govt. cannot claim rights available to recognised state

17
or govt. before the municipal courts.
2)Declaratory theory - Recognition is merely an acceptance by states of an already
existing situation. A new state will acquire capacity in international law not by virtue
of the consent of others but by virtue of a particular factual situation.
The factors which the US looks into for recognising a state are:
1)effective control over a clearly defined territory and population
2)an organised govt. administration of that territory
3)capacity to act effectively to conduct foreign relations & fuflfil international
obligations
4) whether it is recognised by other states of teh international community

eg:Kosovo declared independance in 2008. USA, UK and majority of EU states

recognised it, however, states such as Russia, Serbia, Spain and Greece did not
recognise it. For those who recognised it - Kosovo will be entitled to all th privileges
and responsibilities of statehood in the international community and within the legal
systems of recognising states.

Recognising Governments – Diff from recognising states, the recognition will be

relevant only where the chane in government is unconstitutional.
1)Effective control of a new govt. over the territory of the state - imp guideline to decide
whether to extend recognition or not (The doctrine of effective control)
- a state does not cease to be an international legal person because its govt. is
overthrown.
- sometimes, as in the case of a new state, it would require the recognition of both the
state and the govt., in this case, if the govt. is recognised, then it automatically means
that the state is also recognized but the vice versa does not follow.
- if the government is unrecognised - then there is no exchange of diplomatic envoy.
-Tobar Doctrine - if a govt. has come into power by extra-constitutional means, that
state should not be recognised till the people accept the government.
- lately, states such as UK, France, Belgium, adopted the stand of not distinguishing the
recognition of state and govt.
- De facto / de jure recognition
- de facto -recognition involves a hesitant assessment of the situation, an attitude of

18
wait and see. does not involve the exchange of diplomatic relations.
- de jure - the recognising state accepts that the effective control displayed by the govt.
is permanent and firmly rooted and no legal reasons detracting fro this
eg: UK recognised the Soviet govt de facto in 1921 and de jure in 1924.
- Pre mature recognition
when a state recognises an emerging state, i.e. before it has effectively control over its
territory.
eg: the recognition of Croatia by European community in 1992 was premature
-Recognition can be over due too - i.e when recognition is given long after the criteria
of statehood has been satisfied.

Implied Recognition
- Recognition does not always need to be express, i.e. in an open, unambiguous and
formal communication. It coudl be implied too.

Conditional Recognition
-The practice of making the recognition subject to fulfillment of certain conditions.

Collective Recognition
- When states decide to extend recognition collectively.
- membership to the UN constitutes powerful evidence of statehood, however it does
not mean all the members of the UN recognises this new state, the states have reserved
the right to extend recognition to their own executive authorities and they need not
delegate it to any international institution.

- Recognition once given can be withdrawn. it is easier to withdraw de facto

recognition. However, de jure can also be withdrawn. UK and France withdrew their
recognition to Cambodia in 1979.

- Non - recognition
The doctrine of non recognition states that under certain conditions, a factual situation
will not be recognised because of strong reservations as to the morality or legality of
the actions that have been adopted in order to bring about the factual situation. This

19
doctrine is reinforced by the principle legal rights cannot be derived from an illegal
situation.
Doctrine of domestic jurisdiction
This constitutes a legal prohibition on interference within the internal mechanisms of
an entity and emphasizes the supremacy of a state within its own frontiers.
2 methods by which a new entity may gain its independence as a new state:
1)constitutional means, that is by agreement with the former controlling administration
in an orderly devolution of power.
Burma became a state by a legislation passed by Burmese-United Kingdom agreement
and treaty and by Burma Independence Act of 1947.
2)non constitutional methods - usually by force, against the will of the previous
sovereign.

There are 5 modes of acquisition:

1) Occupation of terra nullius
2) Prescription
3) Cession
4) Accretion
5) Subjugation (or conquest)

ACQUISITION
There are 5 common modes of acquisition. They are:
1. Occupation of terra nullius;
2. Prescription;
3. Cession;
4. Accretion; and
5. Subjugation (or conquest)

These are further divided into original and derivative modes.

Boundary treaties and boundary awards
Boundary treaties, whereby either additional territory is acquired or lost or uncertain
boundaries are clarified by agreement between the states concerned, constitute a root
of title in themselves. They constitute a special kind of treaty in that they establish an
objective territorial regime valid erga omnes.

20
Accordingly, many boundary disputes in fact revolve around the question of treaty
interpretation. It is accepted that a treaty should be interpreted in the light of
Articles 31 and 32 of the Vienna Convention on the Law of Treaties, 1969, ‘in good
faith, in accordance with the ordinary meaning to be given to its terms in their
context and in the light of its object and purpose’. Essentially the aim is to find the
‘common will’ of the parties, a concept which includes consideration of the
subsequent conduct of the parties. Since many of the boundary treaties that need to be
interpreted long pre-date the coming into force of the Vienna Convention, the problem
of the applicability of its provisions has arisen. Courts have taken the view that the
Convention in this respect at least represents customary international law, thus
apparently obviating the problem.

In interpreting a boundary treaty, in particular in seeking to resolve ambiguities, the

subsequent practice of the parties will be relevant. Even where such subsequent
practice cannot in the circumstances constitute an authoritative interpretation of
the treaty, it may be deemed to ‘be useful’ in the process of specifying the frontier in
question. However, where the boundary line as specified in the pertinent instrument is
clear, it cannot be changed by a court in the process of interpreting delimitation
provisions.

Like boundary treaties, boundary awards may also constitute roots or sources of
legal title to territory. A decision by the International Court or arbitral tribunal
allocating title to a particular territory or determining the boundary line as between two
states will constitute establishment or confirmation of title that will be binding upon the
parties themselves and for all practical purposes upon all states in the absence of
maintained protest.

ACCRETION

This describes the geographical process by which new land is formed and becomes
attached to existing land, as for example the creation of islands in a river mouth or the
change in direction of a boundary river leaving dry land where it had formerly flowed.

21
Where new land comes into being within the territory of a state, it forms part of the
territory of the state and there is no problem. As regards a change in the course of a
river forming a boundary, a different situation is created, depending whether it is
imperceptible and slight or a violent shift (avulsion). In the latter case, the general rule
is that the boundary stays at the same point along the original river bed.1 However,
where a gradual move has taken place the boundary may be shifted.2

CESSION

This involves the peaceful transfer of territory from one sovereign to another (with the
intention that sovereignty should pass) and has often taken place within the framework
of a peace treaty following a war.

Because cession has the effect of replacing one sovereign by another over a particular
piece of territory, the acquiring state cannot possess more rights over the land than its
predecessor had. This is an important point, so that where a third state has certain rights,
for example, of passage over the territory, the new sovereign must respect them. The
rights of the territorial sovereign are derived from a previous sovereign, who could not,
therefore, dispose of more than he had. This contrasts with, for example, accretion
which is treated as an original title, there having been no previous legal sovereign over
the land.

The Island of Palmas case3 emphasised this point. It concerned a dispute between the
United States and the Netherlands. The claims of the United States were based on an
1898 treaty with Spain, which involved the cession of the island. It was emphasised by
the arbitrator and accepted by the parties that Spain could not thereby convey to the
Americans greater rights than it itself possessed. The basis of cession lies in the
intention of the relevant parties to transfer sovereignty over the territory in question.
Without this, it cannot legally operate.

1 See e.g. Georgia v. South Carolina 111 L.Ed.2d 309, 334; 91 ILR, pp. 439, 458. See also the Land, Island and
Maritime Frontier Dispute (El Salvador/Honduras), ICJ Reports, 1992, pp. 351, 546.
2 ICJ Reports, 1992, pp. 351, 546.
3 2 RIAA, p. 829 (1928); 4 AD, p. 103.

22
Although instances of cession usually occur in an agreement following the conclusion
of hostilities, it can be accomplished in other circumstances, such as the purchase of
Alaska by the United States in 1867 from Russia or the sale by Denmark of territories
in the West Indies in 1916 to the United States. It may also appear in exchanges of
territories or pure gifts of territory.

CONQUEST AND THE USE OF FORCE

How far a title based on force can be regarded as a valid, legal right recognisable by
other states and enforceable within the international system is a crucial question. Ethical
considerations are relevant and the principle that an illegal act cannot give birth to a
right in law is well established in municipal law and is an essential component of an
orderly society.

Conquest, the act of defeating an opponent and occupying all or part of its territory,
does not of itself constitute a basis of title to the land. Conquest, of course, may result
from a legal or an illegal use of force. By the Kellogg–Briand Pact of 1928, war was
outlawed as an instrument of national policy, and by article 2(4) of the United Nations
Charter all member states must refrain from the threat or use of force against the
territorial integrity or political independence of any state. However, force will be
legitimate when exercised in self-defence.

The Nuremberg War Crimes Tribunal after the Second World War, in discussing the
various purported German annexations of 1939 and 1940, firmly declared that
annexations taking place before the conclusion of a war were ineffective and invalid in
international law. It is, however, clear today that the acquisition of territory by force
alone is illegal under international law. This may be stated in view of article 2(4) of the
UN Charter and other practice. Security Council resolution 242, for example,
emphasised the ‘inadmissibility of the acquisition of territory by war’, while the 1970
Declaration of Principles of International Law adopted by the UN General Assembly
provides that: the territory of a state shall not be the object of acquisition by another
state resulting from the threat or use of force. No territorial acquisition resulting from
the threat or use of force shall be recognised as legal.

23
In Security Council resolution 662 (1990), adopted unanimously, the Council decided
that the declared Iraqi annexation of Kuwait ‘under any form and whatever pretext has
no legal validity and is considered null and void’. All states and institutions were called
upon not to recognise the annexation and to refrain from actions, which might be
interpreted as indirect recognition. Acquisition of territory following an armed conflict
would require further action of an international nature in addition to domestic
legislation to annex. Such further necessary action would be in the form either of a
treaty of cession by the former sovereign or of international recognition.

THE EXERCISE OF EFFECTIVE CONTROL

Occupation is a method of acquiring territory which belongs to no one (terra nullius)

and which may be acquired by a state in certain situations. The occupation must be by
a state and not by private individuals, it must be effective and it must be intended as a
claim of sovereignty over the area. It relates primarily to uninhabited territories and
islands, but may also apply to certain inhabited lands.

The issue was raised in the Western Sahara case before the International Court of
Justice. The question was asked as to whether the territory in question had been terra
nullius at the time of colonisation. It was emphasised by the Court that the concept of
terra nullius was a legal term of art used in connection with the mode of acquisition of
territory known as ‘occupation’. The latter mode was defined legally as an original
means of peaceably acquiring sovereignty over territory otherwise than by cession
or succession. In an important statement, the Court unambiguously asserted that the
state practice of the relevant period (i.e. the period of colonisation) indicated that
territories inhabited by tribes or peoples having a social and political organisation
were not regarded as terrae nullius.

Prescription is a mode of establishing title to territory which is not terra nullius and
which has been obtained either unlawfully or in circumstances wherein the legality of
the acquisition cannot be demonstrated. It reflects the need for stability felt within the
international system by recognising that territory in the possession of a state for a long

24
period of time and uncontested cannot be taken away from that state without serious
consequences for the international order.

Prescription differs from occupation in that it relates to territory which has previously
been under the sovereignty of a state. In spite of this, both concepts are similar in that
they may require evidence of sovereign acts by a state over a period of time. And
although distinct in theory, in practice these concepts are often indistinct since
sovereignty over an area may lapse and give rise to doubts whether abandonment has
taken place, rendering the territory terra nullius.

Acquiescence in the case of prescription, whether express or implied from all the
relevant circumstances, is essential, whereas in the case of occupation it is merely an
evidential point reinforcing the existence of an effective occupation, but not
constituting the essence of the legal claim.

There is a third mode of theoretical classification that has been outlined by De Visscher
who attempted to render it more consonant with practical realities by the introduction
of the concept of historical consolidation. This idea is founded on proven long use,
which reflects a complex of interests and relations resulting in the acquisition of
territory (including parts of the sea). Historical consolidation may apply to terra nullius
as well as to territories previously occupied. Thus it can be distinguished from
prescription. It differs from occupation in that the concept has relevance to the
acquisition of parts of the sea, as well as of land. And it may be brought into existence
not only by acquiescence and consent, but also by the absence of protest over a
reasonable period by relevant states.

After the Anglo-Norwegian Fisheries case, it was found that De Visscher’s

classification failed to take into account of the distinction between the acquisition of
territory in accordance with the rules of international law, and acquisition of territory
as a permitted exception to internationally accepted legal principles. Effectiveness,
therefore, rather than consolidation would be the appropriate term. Both occupation and
prescription rely primarily upon effective possession and control. The element of time
is here also relevant as it affects the effectiveness of control.

25
INTERTEMPORAL LAW

One question that arises is the problem of changing conditions related to particular
principles of international law, in other words the relevant time period at which to
ascertain the legal rights and obligations in question. The general rule in such
circumstances is that in a dispute the claim or situation in question (or relevant treaty,
for example) has to be examined according to the conditions and rules in existence at
the time it was made and not at a later date.

Critical Date

In certain situations there may exist a determining moment at which it might be inferred
that the rights of the parties have crystallised so that acts after that date cannot alter the
legal position. Such a moment might be the date of a particular treaty where its
provisions are at issue or the date of occupation of territory.

The concept of a critical date is of especial relevance with regard to the doctrine of uti
possidetis, which posits that a new state has the boundaries of the predecessor entity,
so that the moment of independence itself is invariably the critical date.
SOVEREIGN ACTIVITIES

The exercise of effective authority is the crucial element to determine acquisition and
title.
However, control, although needing to be effective, does not necessarily have to
amount to possession and settlement of all of the territory claimed. Precisely what acts
of sovereignty are necessary to found title will depend in each instance upon all the
relevant circumstances of the case, including the nature of the territory involved, the
amount of opposition (if any) that such acts on the part of the claimant state have
aroused, and international reaction.

Indeed in international law many titles will be deemed to exist not as absolute but as
relative concepts. The state succeeding in its claim for sovereignty over terra nullius

26
over the claims of other states will in most cases have proved not an absolute title, but
one relatively better than that maintained by competing states and one that may take
into account issues such as geography and international responses.

In the Island of Palmas arbitration the dispute concerned sovereignty over a particular
island in the Pacific. The United States declared that, since by a treaty of 1898 Spain
had ceded to it all Spanish rights possessed in that region and since that included the
island discovered by Spain, the United States of America therefore had a good title. The
Netherlands, on the other hand, claimed the territory on the basis of the exercise of
various rights of sovereignty over it since the seventeenth century. The arbitrator, Max
Huber, in a judgment which discussed the whole nature of territorial sovereignty,
dismissed the American claims derived from the Spanish discovery as not effective to
found title.4 Huber declared that the Netherlands possessed sovereignty on the basis of
‘the actual continuous and peaceful display of state functions’ evidenced by various
administrative acts performed over the centuries. 5 It was also emphasised that
manifestations of territorial sovereignty may assume different forms, according to
conditions of time and place. Indeed, ‘the intermittence and discontinuity compatible
with the maintenance of the right necessarily differ according as inhabited or
uninhabited regions are involved’. Additionally, geographical factors were relevant.6

The Clipperton Island arbitration concerned a dispute between France and Mexico over
an uninhabited island. The arbitrator emphasised that the actual, and not the nominal,
taking of possession was a necessary condition of occupation, but noted that such taking
of possession may be undertaken in different ways depending upon the nature of the
territory concerned. In this case, a proclamation of sovereignty by a French naval
officer later published in Honolulu was deemed sufficient to create a valid title.
Relevant to this decision was the weakness of the Mexican claims to the guano-rich
island, as well as the uninhabited and inhospitable nature of the territory.

In the Eastern Greenland case before the Permanent Court of International Justice, both
Norway and Denmark claimed sovereignty over Eastern Greenland. Denmark had

4 p. 846
5 pp. 867–71.
6 p. 840.

27
colonies in other parts of Greenland and had granted concessions in the uninhabited
Eastern sector. In addition, it proclaimed that all treaties and legislation regarding
Greenland covered the territory as a whole, as for example its establishment of the
width of the territorial sea, and it sought to have its title to all of the territory recognised
by other states. The Court felt that these acts were sufficient upon which to base a good
title and were superior to various Norwegian actions such as the wintering of
expeditions and the erection of a wireless station in Eastern Greenland, against which
Denmark had protested. It is also to be noted that it was not until 1931 that Norway
actually claimed the territory.

Such activity in establishing a claim to territory must be performed by the state in the
exercise of sovereign powers or by individuals whose actions are subsequently ratified
by their state, or by corporations or companies permitted by the state to engage in such
operations and thus performed on behalf of the sovereign. Another relevant factor,
although one of uncertain strength, is the requirement of the intention by the state in
performing various activities to assert claim in its sovereign capacity. This point was
stressed in the Eastern Greenland case,7 but appears not to have been considered as of
first importance in the Island of Palmas case.

THE ROLE OF SUBSEQUENT CONDUCT

Subsequent conduct may be relevant in a number of ways: first, as a method of

determining the true interpretation of the relevant boundary instrument in the sense of
the intention of the parties; secondly, as a method of resolving an uncertain disposition
or situation, for example, whether a particular area did or did not fall within the colonial
territory in question for purposes of determining the uti possidetis line or thirdly, as a
method of modifying such an instrument or pre-existing arrangement.

Note: Recognition, acquiescence and estoppel flow, to some extent, from the principles
of good faith and equity.

7 p. 95.

28
While, of course, the consent of a ceding state to the cession is essential, the attitude
adopted by other states is purely peripheral and will not affect the legality of the
transaction. Similarly, in cases of the acquisition of title over terra nullius, the
acquiescence of other states is not strictly relevant although of useful evidential effect.
However, where two or more states have asserted competing claims, the role of consent
by third parties is much enhanced. In the Eastern Greenland case, the Court noted that
Denmark was entitled to rely upon treaties made with other states (apart from Norway)
in so far as these were evidence of recognition of Danish sovereignty over all of
Greenland.

The leading case on estoppel is the Temple of Preah Vihear which concerned a border
dispute between Cambodia and Thailand. The frontier was the subject of a treaty in
1904 between Thailand and France (as sovereign over French Indo-China which
included Cambodia) which provided for a delimitation commission. The border was
duly surveyed but was ambiguous as to the siting of the Preah Vihear temple area.
Thailand called for a map from the French authorities and this placed the area within
Cambodia. The Thai government accepted the map and asked for further copies.8 A
number of other incidents took place, including a visit by a Thai prince to the temple
area for an official reception with the French flag clearly flying there, which convinced
the International Court that Thailand had tacitly accepted French sovereignty over the
disputed area.9 In other words, Thailand was estopped by its conduct from claiming that
it contested the frontier in the temple area. However, it is to be noted that estoppel in
that case was one element in a complexity of relevant principles which included
prescription and treaty interpretation. The case also seemed to show that in situations
of uncertainty and ambiguity, the doctrines of acquiescence and estoppel come into
their own, but it would not appear correct to refer to estoppel as a rule of substantive
law.

SUMMARY

8 pp. 6, 23; 33 ILR, pp. 48, 62.

9 ICJ Reports, 1962, pp. 30–2; 33 ILR, p. 68.

29
Apart from the modes of acquisition that rely purely on the consent of the state and the
consequences of sovereignty (cession or accretion), the method of acquiring additional
territory is by the sovereign exercise of effective control. Both occupation and
prescription are primarily based upon effective possession and, although the time
element is a factor in prescription, this in fact is really concerned with the effectiveness
of control.
The principle of effective control applies in different ways to different situations, but
its essence is that ‘the continuous and peaceful display of territorial sovereignty . . . is
as good as title’.10 Such control has to be deliberate sovereign action, but what will
amount to effectiveness is relative and will depend upon, for example, the geographical
nature of the region, the existence or not of competing claims and other relevant factors,
such as international reaction.

Effectiveness has also a temporal as well as a spatial dimension as the doctrine of

intertemporal law has emphasised, while clearly the public or open nature of the control
is essential. The acquiescence of a party directly involved is also a very important factor
in providing evidence of the effectiveness of control. Effectiveness is related to the
international system as a whole, so that mere possession by force is not the sole
determinant of title. This factor also emphasises and justifies the role played by
recognition.

Bilateral recognition is important as evidence of effective control and should be

regarded as part of that principle. International recognition, however, involves not only
a means of creating rules of international law in terms of practice and consent of states,
but may validate situations of dubious origin. A series of recognitions may possibly
validate an unlawful acquisition of territory and could similarly prevent effective
control from ever hardening into title. The significance of UN recognition is self-
evident, so that the UN Security Council itself could adopt a binding resolution ending
a territorial dispute by determining the boundary in question. Sovereign territory may
not only be acquired, it may also be lost in ways that essentially mirror the modes of
acquisition. Territory may be lost by express declaration or conduct such as a treaty of
cession or acceptance of secession; by loss of territory by erosion or natural geographic

10 Judge Huber, Island of Palmas case, 2 RIAA, pp. 829, 839 (1928); 4 AD, p. 103.

30
activity or by acquiescence through prescription. Further, territory may be abandoned,
but in order for this to operate both the physical act of abandonment and the intention
to surrender title are required.

1. UNDER INTERNATIONAL LAW WHAT IS THE DEFINITION OF A STATE?

For a unit to be regarded as a state under international law it must conform with the
legal conditions as to settled population, a definable area of land and the capacity to
enter into legal relations.
Under traditional international law, until one has a state one cannot talk in terms of title
to the territory, because there does not exist any legal person capable of holding the
legal title. So to discover the process of acquisition of title to territory, one has to first
point to an established state.

2. WHAT DID THE ICJ DECIDE ABOUT THE LEGALITY OF THE UNILATERAL

DECLARATION OF INDEPENDENCE BY KOSOVO? DO YOU BELIEVE THAT THE ICJ’S

DECISION SOLVED THE PROBLEM OF WHETHER KOSOVO IS A STATE UNDER

INTERNATIONAL LAW?

Accordance with International Law of the Unilateral Declaration of Independence In

Respect of Kosovo was a request for an advisory opinion referred to the International
Court of Justice by the UN General Assembly regarding the 2008 Kosovo declaration
of independence. The territory of Kosovo is the subject of a dispute between Serbia and
the Republic of Kosovo established by the declaration. This was the first case regarding
a unilateral declaration of independence to be brought before the court.

The court delivered its advisory opinion on 22 July 2010; by a vote of 10 to 4, it declared
that "the adoption of the declaration of independence of the 17 February 2008 did not
violate general international law because
(1) international law contains no 'prohibition on declarations of independence'":

31
[2] nor did the adoption of the declaration of independence violate UN Security Council
Resolution 1244, since this did not describe Kosovo's final status, nor had the Security
Council reserved for itself the decision on final status.

There were many reactions to the decision, with most countries which already recognise
Kosovo hailing the decision and saying it was "unique" and does not set a precedent;
while many countries which do not recognise Kosovo said they would not be doing so
as the ruling could set a precedent of endorsing secession in other places.

3. WHO ARE NON-STATE ACTORS AND HOW HAVE THEY AFFECTED THE

EVOLUTION OF PIL?

1. The concept of non-state actors is generally understood as including any entity

that is not actually a state, often used to refer to armed groups, terrorists, civil society,
religious groups or corporations. It is occasionally used to encompass inter-
governmental organizations.
In the context of post-conflict peacebuilding, the expression "non-state actor" is used
to refer to a range of armed groups that operate beyond state control.
It could be defined as an actor on the international stage other than a sovereign state.
Armed non-state actors' (NSAs) are defined as 'armed groups that operate beyond state
control'. It includes, but is not limited to, the following group:
-rebel opposition groups (groups with a stated incompatibility with the govt, generally
concerning the control of govt or the control of territory)
-local militias
- vigilantes
-warlords
-civil defence forces and paramilitary groups
-private companies that provide military and security services
Certain international treaties such as (UN Convention against corruption, The
Contonou Agreement) oblige states to cooperate with relevant NSA. In the Cotonou
Agreement, the parties are to inform and involve NSA while forming policies and
strategies,they are to even provide financial resources under certain conditions, etc.
Even treaties in human rights involve NSA's.

32
Problems of engaging non-state actors
1)The open-ended nature of the term defies a restrictive definition and gives rise to
misunderstandings and tensions. Corporations find themselves branded in the same
category as rebel groups, UN with the paramilitaries.
2)There is fear that engaging with NSA's will legitimize the group and dilute the power
of the state
3)International system needs to remain state-centric and by working with NSAs, it
involves swimming against the tide!
NSA's are instrumental in generating soft law and they are also influential in
accelerating the political process to motivate states to create hard law. (through
lobbying efforts, informational campaigns and coordinating action among various
organization.
NSA represent interests different than those of state actors and they are primarily
accountable to different to people. They represent different interests and thereby reduce
the perceived democratic deficit. NSA's are also participants to international
negotiations. Though the states conduct the negotiation, NGA play a variety of
influential roles.

Basic Principles of PIL II:

State Responsibility, the International Court of Justice & Diplomatic Privileges
& Immunities

1. FROM WHAT ARE STATES IMMUNE?

The principle of sovereign equality of States requires that the official representatives of
one State should not be subject to the jurisdiction of another State. For example, the
law of the sea provides that warships are subject only to the jurisdiction of the flag
State. Even if warships commit acts contrary to the right of innocent passage or the
laws and regulations of the coastal State, the coastal State’s only remedy is to escort
the offending warship out of the territorial sea.
The principle of State immunity or sovereign immunity provides that foreign sovereigns
enjoy immunity from the jurisdiction of other States.
Sovereign immunity, or state immunity, is a principle of customary international law,
by virtue of which one sovereign state cannot be sued before the courts of another

33
sovereign state without its consent. Put in another way, a sovereign state is exempt from
the jurisdiction of foreign national courts. Thus, the question of immunity is at the same
time a question of jurisdiction: only when the court already has jurisdiction will it
become meaningful to speak of immunity or exemption from it. For this reason,
sovereign immunity is also referred to as “jurisdictional immunity” or “immunity from
jurisdiction.” Because different types of legal proceedings may be brought against
foreign states, sometimes courts find it necessary to refer to jurisdictional immunities
of states.

The principle of diplomatic immunity provides that the diplomatic agents of the sending
State have complete immunity from the criminal jurisdiction of the receiving State.
Since this immunity belongs to the sending State and not to the diplomat, it can be
waived by the sending State.
Also, the receiving State has the right to expel any diplomatic agent from its country
by declaring them persona non grata . The premises of an embassy or diplomatic
mission as well as its records and archives are also inviolable. The authorities of the
receiving State cannot enter a foreign embassy without the express permission of the
head of mission, even in the case of an emergency.
2. WHAT DIPLOMATIC PRIVILEGES DO STATES AND CERTAIN STATE
REPRESENTATIVES HAVE?

The Vienna Convention on Diplomatic Relations 1961, codified the existing laws and
established other laws on diplomatic privileges and immunity.
1) A 22 of the Vienna convention declares the premises of the mission to be
inviolable and agents of the receiving state are not to enter them without the consent
of the mission.
2) A 27 provides that the receiving state shall permit and protect free communication
on behalf of the mission for all official purposes.
3) The diplomatic bag cannot be opened or detained and that 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.
4) A 23 - grants a general exception from taxation in respect of the mission premises
is posited.

34
5) Archives and documents of the diplomatic mission are also inviolable
6) A 29- the person of a diplomatic agent is inviolable (he cannot be detained or
arrested) However, in exceptional cases, a diplomat may be arrested or detained on
the basis of self-defense or in the interests of protecting human life.
7) A 30(1) provides for the inviolability of the pvt residence of a diplomatic agent
8) A 30(2) provides inviolability for the diplomat's papers, correspondence and
property
9) Diplomatic agents enjoy complete immunity from the criminal jurisdiction of the
receiving state
10) Diplomats are also immune from civil and administrative jurisdiction of the state
in which they are serving. except in 3 cases
(1) where the action relates to pvt immovable prop. Situated within the host state
(unless for mission purposes)
(2) litigation relating to succession matters in which he is involved as a private
person
(3) w.r.t unofficial professional or commercial activity engaged in by the agent
11) Diplomatic person are immune from all taxes except indirect taxes
12) Family members of the diplomatic agent forming part of his household would
enjoy the priviledges and immunities stated in A 29-36, if they are not nationals of the
receiving state.
The only remedy the host state has when a diplomat commits an offence, is to declare
him persona non grata under article 9.

3. DO SITTING HEADS OF STATE HAVE DIPLOMATIC IMMUNITY FROM SOME OR

ALL ACTS? WHAT DO THE PINOCHET AND DRC V. BELGIUM CASES INDICATE ABOUT

DIPLOMATIC IMMUNITY?

4. WHO OR WHAT CAN BE HELD RESPONSIBLE FOR A VIOLATION OF PIL?

35
5. UNDER WHAT CIRCUMSTANCES, IF ANY, COULD THE ACTS OF AN INDIVIDUAL,
OR INDIVIDUALS, GIVE RISE TO STATE RESPONSIBILITY?

State responsibility - whenever one state commits an internationally unlawful act

against another state, international responsibility is established between the two.
International Law Commission has worked on this, Article 1 of ILC's articles on state
responsibility reiterates the rule.
The essential characteristics of responsibilty hinge upon certain basic factors:
1)the existence of an international legal obligation in force between 2 particular states
2)an act or omission must occur which violates the obligation which is imputable to
the state responsibilty
3)this unlawful act or omission resulted in loss or damage

It is international law that determines what constitutes an internationally unlawful act,

irrespective of any provisions of municipal law.

The state's responsibility is strict, i.e. it follows the principle of objective

responsibility. It does not matter if teh act was done in good or bad faith, once injury
has been caused by an agent of teh state, the state would be responsible.

The doctrine of imputability - if there exists a link between the state and the person or
persons actually committing the unlawful act or omission, then the state is
responsible.

In the Genocide Convention (Bosnia v. Serbia) case - which is regarded as ' one of the
cornerstones of the law of state responsibility, it was held that the conduct of any state
organ is to be considered an act of the state under international law and therefore
gives rise to the responsibility of the state if it constitutes a breach of an obligation of
the state.

The state would be responsible even if it's agent or organ acted beyond their scope of
authority. (I.E. even if an act is ultra vires, the state would still be responsible)

36
the conduct of a person or a group of persons would be considered as an act of the
state under international law if the conduct of a person or group of persons shall be
considered as an act of the state was if it exercising elements of authority.

The general principle is on non - liability for acts of mob violence, insurrections and
civil wars but state has to show due diligence.
If a state comes to power after some acts of violence, once it comes to power it will be
responsible.
Circumstances precluding wrongfulness
1)Countermeasures -
Lawful countermeasures must be in response to a prior wrongful act and taken in
light of refusal to remedy it, directed against the state committing the wrongful act
and proportionate.
The injured state must call upon the responsible state to fulfill its obligations and
notify that state of any decision to take countermeasures and should offer to negotiate.

2)Force Majeure - accepted as precluding wrongfulness although the standard of

proof is high. The emphasis, therefore, is upon the happening of an event that takes
place without the state being able to do anything to rectify the event or avert its
consequences. Test of applicability was of "absolute and material impossibility".

Consequences of internationally wrongful acts:

1) Cessation - The state responsible for the internationally wrongful act is under an
obligation to cease the act, if it is continuing, and to offer appropriate assurances and
guarantees if non-repetition if circumstances so require.
2)Reparation - Remedying the breach of an international obligation for which the
state concerned is responsible,

When there is a breach of a jus cogens - it is considered as an "international crime". -

is committed by a state when it commits an internationally wrongful act which
constitutes a breach of an international obligation that is considered to be a
fundamental interest to the international community.

37
All other internationally wrongful acts are termed as international delicts.

A state could be responsible for failing to provide diplomatic protection and

nationality claims. A state is under a duty to protect its nationals and it may take u[
their claims against other states too.

Customary international law provides that before international proceedings are

instituted or claims or representations made, the remedies provided by the local state
should have been exhausted. (The exhaustion of local remedies)

6. WHAT DOES THE GENOCIDE CASE TELL US ABOUT STATE RESPONSIBILITY?

7. WHAT IS THE JURISDICTION OF THE INTERNATIONAL COURT OF JUSTICE
(ICJ)?
8. ARE ICJ DECISIONS BINDING UPON STATES?
9. CAN ANY OTHER ENTITIES EXCEPT FOR STAES GO BEFORE THE ICJ?

10. HOW DOES THE CONCEPT OF EXTRADITION WEAVE INTO IMMUNITY?

Pinochet Case (Extracts)

A former head of state only has immunity with regard to his acts as a head of state but
not with regard to acts which fall outside his role as head of state. A head of state may
be treated as the state itself and entitled to the same immunities.
A former head of state cannot have immunity for acts of murder committed outside
his own territory. International law recognizes crimes against humanity and the
Torture Convention says that no circumstances can be invoked as justification for
torture. Therefore it cannot be a part of the function of a head of state under
international law to commit those crimes.

There is general agreement between the parties as to the rules of statutory immunity
and the rationale which underlies them. The issue is whether international law grants
state immunity in relation to the international crime of torture and, if so, whether the
Republic of Chile is entitled to claim such immunity even though Chile, Spain and the
United Kingdom are all parties to the Torture Convention and therefore

38
“contractually” bound to give effect to its provisions from 8 December 1988 at the
latest.
CURRENT HEAD OF STATE
It is a basic principle of international law that one sovereign state (the forum state)
does not adjudicate on the conduct of a foreign state. The foreign state is entitled to
procedural immunity from the processes of the forum state. This immunity extends to
both criminal and civil liability. State immunity probably grew from the historical
immunity of the person of the monarch. In any event, such personal immunity of the
head of state persists to the present day: the head of state is entitled to the same
immunity as the state itself. The diplomatic representative of the foreign state in the
forum state is also afforded the same immunity in recognition of the dignity of the
state which he represents. This immunity enjoyed by a head of state in power and an
ambassador in post is a complete immunity attaching to the person of the head of state
or ambassador and rendering him immune from all actions or prosecutions whether or
not they relate to matters done for the benefit of the state. Such immunity is said to be
granted ratione personae.
FORMER HEAD OF STATE
What then when the ambassador leaves his post or the head of state is deposed? The
position of the ambassador is covered by the Vienna Convention on Diplomatic
Relations (1961). After providing for immunity from arrest (article 29) and from
criminal and civil jurisdiction (article 31), article 39(1) provides that the ambassador’s
privileges shall be enjoyed from the moment he takes up post; and paragraph (2)
provides:
“When the functions of a person enjoying privileges and immunities have come to an
end, such privileges and immunities shall normally cease at the moment when he
leaves the country, or on expiry of a reasonable period in which to do so, but shall
subsist until that time, even in case of armed conflict. However, with respect to acts
performed by such a person in the exercise of his functions as a member of the
mission, immunity shall continue to subsist.”
The continuing partial immunity of the ambassador after leaving post is of a different
kind from that enjoyed ratione personae while he was in post. Since he is no longer
the representative of the foreign state he merits no particular privileges or immunities
as a person. However in order to preserve the integrity of the activities of the foreign

39
state during the period when he was ambassador, it is necessary to provide that
immunity is afforded to his official acts during his tenure in post. If this were not done
the sovereign immunity of the state could be evaded by calling in question acts done
during the previous ambassador’s time. Accordingly under article 39(2) the
ambassador, like any other official of the state, enjoys immunity in relation to his
official acts done while he was an official. This limited immunity, ratione materiae, is
to be contrasted with the former immunity ratione personae which gave complete
immunity to all activities whether public or private.
In my judgment at common law a former head of state enjoys similar immunities,
ratione materiae, once he ceases to be head of state. He too loses immunity ratione
personae on ceasing to be head of state: see Sir Arthur Watts Q.C., Hague Lectures,
“The Legal Position in International Law of Heads of States, Heads of Government
and Foreign Ministers” 1994-III 247 Recueil des cours, p. 88 and the cases there
cited. He can be sued on his private obligations: Ex-King Farouk of Egypt v.
Christian Dior (1957) 24 I.L.R. 228; Jimenez v. Aristeguieta (1962) 311 F.2d 547. As
ex-head of state he cannot be sued in respect of acts performed whilst head of state in
his public capacity: Hatch v. Baez (1876) 7 Hun 596. Thus, at common law, the
position of the former ambassador and the former head of state appears to be much
the same: both enjoy immunity for acts done in performance of their respective
functions whilst in office.
The question then which has to be answered is whether the alleged organisation of
state torture by Senator Pinochet (if proved) would constitute an act committed by
Senator Pinochet as part of his official functions as head of state. It is not enough to
say that it cannot be part of the functions of the head of state to commit a crime.
Actions which are criminal under the local law can still have been done officially and
therefore give rise to immunity ratione materiae. The case needs to be analysed more
closely.
Can it be said that the commission of a crime which is an international crime against
humanity and jus cogens is an act done in an official capacity on behalf of the state? I
believe there to be strong ground for saying that the implementation of torture as
defined by the Torture Convention cannot be a state function. This is the view taken
by Sir Arthur Watts Q.C. in his Hague Lecture who said, at p. 82: [*204]

40
“While generally international law … does not directly involve obligations on
individuals personally, that is not always appropriate, particularly for acts of such
seriousness that they constitute not merely international wrongs (in the broad sense of
a civil wrong) but rather international crimes which offend against the public order of
the international community. States are artificial legal persons: they can only act
through the institutions and agencies of the state, which means, ultimately, through its
officials and other individuals acting on behalf of the state. For international conduct
which is so serious as to be tainted with criminality to be regarded as attributable only
to the impersonal state and not to the individuals who ordered or perpetrated it is both
unrealistic and offensive to common notions of justice. The idea that individuals who
commit international crimes are internationally accountable for them has now become
an accepted part of international law. Problems in this area – such as the non-
existence of any standing international tribunal to have jurisdiction over such crimes,
and the lack of agreement as to what acts are internationally criminal for this purpose
– have not affected the general acceptance of the principle of individual responsibility
for international criminal conduct.”
Later he said, at p. 84: “It can no longer be doubted that as a matter of general
customary international law a head of state will personally be liable to be called to
account if there is sufficient evidence that he authorised or perpetrated such serious
international crimes.”
It can be objected that Sir Arthur was looking at those cases where the international
community has established an international tribunal in relation to which the regulating
document expressly makes the head of state subject to the tribunal’s jurisdiction: see,
for example, the Nuremberg Charter, article 7; the Statute of the International
Criminal Tribunal for Former Yugoslavia; the Statute of the International Criminal
Tribunal for Rwanda and the Statute of the International Criminal Court. It is true that
in these cases it is expressly said that the head of state or former head of state is
subject to the court’s jurisdiction. But those are cases in which a new court with no
existing jurisdiction is being established. The jurisdiction being established by the
Torture Convention and the Hostages Convention is one where existing domestic
courts of all the countries are being authorised and required to take jurisdiction
internationally. The question is whether, in this new type of jurisdiction, the only

41
possible view is that those made subject to the jurisdiction of each of the state courts
of the world in relation to torture are not entitled to claim immunity.
I have doubts whether, before the coming into force of the Torture Convention, the
existence of the international crime of torture as jus cogens was enough to justify the
conclusion that the organisation of state torture could not rank for immunity purposes
as performance of an official function. At that stage there was no international
tribunal to punish torture and no general jurisdiction to permit or require its
punishment in domestic courts. Not until there was some form of universal
jurisdiction for the punishment of the crime of torture could it really be talked about
as a fully constituted international crime. But in my judgment [*205] the Torture
Convention did provide what was missing: a worldwide universal jurisdiction.
Further, it required all member states to ban and outlaw torture: article 2. How can it
be for international law purposes an official function to do something which
international law itself prohibits and criminalises? Thirdly, an essential feature of the
international crime of torture is that it must be committed “by or with the acquiesence
of a public official or other person acting in an official capacity.” As a result all
defendants in torture cases will be state officials. Yet, if the former head of state has
immunity, the man most responsible will escape liability while his inferiors (the
chiefs of police, junior army officers) who carried out his orders will be liable. I find
it impossible to accept that this was the intention.
Finally, and to my mind decisively, if the implementation of a torture regime is a
public function giving rise to immunity ratione materiae, this produces bizarre results.
Immunity ratione materiae applies not only to ex-heads of state and ex-ambassadors
but to all state officials who have been involved in carrying out the functions of the
state. Such immunity is necessary in order to prevent state immunity being
circumvented by prosecuting or suing the official who, for example, actually carried
out the torture when a claim against the head of state would be precluded by the
doctrine of immunity. If that applied to the present case, and if the implementation of
the torture regime is to be treated as official business sufficient to found an immunity
for the former head of state, it must also be official business sufficient to justify
immunity for his inferiors who actually did the torturing. Under the Convention the
international crime of torture can only be committed by an official or someone in an
official capacity. They would all be entitled to immunity. It would follow that there

42
can be no case outside Chile in which a successful prosecution for torture can be
brought unless the State of Chile is prepared to waive its right to its officials’
immunity. Therefore the whole elaborate structure of universal jurisdiction over
torture committed by officials is rendered abortive and one of the main objectives of
the Torture Convention – to provide a system under which there is no safe haven for
torturers – will have been frustrated. In my judgment all these factors together
demonstrate that the notion of continued immunity for ex-heads of state is
inconsistent with the provisions of the Torture Convention.
For these reasons in my judgment if, as alleged, Senator Pinochet organised and
authorised torture after 8 December 1988, he was not acting in any capacity which
gives rise to immunity ratione materiae because such actions were contrary to
international law, Chile had agreed to outlaw such conduct and Chile had agreed with
the other parties to the Torture Convention that all signatory states should have
jurisdiction to try official torture (as defined in the Convention) even if such torture
were committed in Chile.
As to the charges of murder and conspiracy to murder, no one has advanced any
reason why the ordinary rules of immunity should not apply and Senator Pinochet is
entitled to such immunity.
For these reasons, I would allow the appeal so as to permit the extradition proceedings
to proceed on the allegation that torture in pursuance of a conspiracy to commit
torture, including the single act of [*206] torture which is alleged in charge 30, was
being committed by Senator Pinochet after 8 December 1988 when he lost his
immunity.
Regina v. Bartle, Bow Street Stipendiary Magistrate and Commissioner of Police, Ex
parte Pinochet

Procedural History:
Appeal from arrest and extradition order.

Overview:
-Pinochet (D) claimed that he could not be extradited because he was not guilty of any
crime under English law. An English magistrate issued an arrest warrant for Pinochet
(D), the former head of state of Chile, at the request of a Spanish investigating judge

43
for extradition.
-The House of Lords found that Pinochet (D) could not claim immunity in regard to
torture that had been made a universal crime by the International Convention Against
Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment of 1984.
-Pinochet (D) claimed torture was not strictly an international crime in the highest
sense.

Issue:
Is torture an international crime?

Rule:
Yes, torture is an international crime.

Analysis:
The Torture Convention created an exception to the otherwise applicable immunity of
present and former heads of state from criminal process. Pinochet (D) ultimately was
found to be too sick to stand trial. He was allowed to return to Chile.

Outcome:
-Torture is an international crime. The Torture Convention was agreed not to create
an international crime that had not previously existed but to provide an international
system under which the international criminal-the torturer-could find no safe haven.
-All state parties are required to prohibit torture on their territory and to take
jurisdiction over any alleged offender who is found within their territory.
-Torture is to be treated as an extraditable offense and will be considered to have been
committed not only in the place where it occurred but also in the state where either
the alleged offender or victim is a national.

Any state may exercise universal jurisdiction over crimes against humanity

A number of crimes against humanity (such as the practice of systematic or widespread

killings, torture, forced disappearances, and arbitrary detention ) have been the subject

44
of international conventions and are recognized by international customary law.

These crimes against humanity are subject to universal jurisdiction.

This principle has been established since the International Military Tribunal of
Nüremberg and its Judgment.

Crimes against humanity and the norms which regulate them form part of jus cogens
(fundamental norms) and as such are peremptory norms of general international law
which as recognized in the Vienna Convention of the Law of Treaties (1969) cannot be
modified or revoked by treaty or national law.

The rules regulating crimes against humanity - no immunity under international

law
Those responsible for crimes against humanity cannot invoke immunity or special
privileges as a means of avoiding legal proceedings a principle established within the
Statute of Nüremberg International Military Tribunal (Article 7).
The United Nations General Assembly reaffirmed the principles articulated in the
Nüremberg Charter and Judgment in its Resolution 95 (I) of 11 December 1946. (The
UN International Law Commission reaffirmed the principles established by the
Nüremberg Tribunal by which international law may impose duties on individuals
directly without any interposition of internal law)
Whether or not crimes against humanity have been codified in the internal laws of a
state does not exempt a state from conducting judicial investigations into crimes against
humanity since these are already codified under international law.
Sovereign immunity is an important exception to the general rule of territorial
jurisdiction, and is probably one of the oldest rules of public international law.
The rationale behind this doctrine is stated by Chief Justice Marshall in the case of The
Schooner exchange v. McFaddon. The idea is that sovereigns, even while exercising
their absolute immunity from any prosecution and freedom from prosecution, in the
event of more interaction between states, and the growing community of international
law, there can be an arrangement where such a right to immunity could be waived by
the sovereign in question.

45
While earlier, it was afforded to the person of the sovereign to whom allegiance was
due, it now applies to the legal construct of the state as well. Arrest Warrant case-
Immunities granted to persons as officials of state not granted for their personal benefit,
but to ensure the effective performance of their functions on behalf of their respective
states. (para 53)
2 kinds of immunity from jurisdiction: ratione personae( status of person) and ratione
materiae ( inherently sovereign nature of conduct) In the former, immunity lasts as
long as the office or status lasts while the latter, the immunity exists for all time till the
state is in existence.
Also known as functional immunity and personal immunity.
Functional immunity: Protects certain senior officials (chiefs of state, prime ministers,
foreign ministers, etc…) from prosecution in other countries for acts committed within
the context of their official duties. This immunity is justified under customary
international law by the fact that the actions of such persons are "act of state”.
Functional immunity is linked to a position rather than a specific person. When a state
is engaged in trade, those acts are not immune, things like bank lending is not a
functional aspect of the state, thus no immunity. This immunity is permanent, which
means that an official who has this protection can never be brought to justice even after
she has left her post, but will only end if the state itself ceases to exist. For example, in
November 2007, a French prosecutor refused to indict the former United States
Secretary of Defense, Donald Rumsfeld for crimes allegedly committed during the
2003 invasion of Iraq because he was still protected by functional immunity.
However, a person benefiting from functional immunity may be brought before a court
for acts committed in his personal capacity. For example, an official accused of having
stolen funds would not be protected by functional immunity because her acts were
outside of her official duties and cannot be attributed to the state. It is now generally
recognized that immunity does not protect state actors from prosecution in international
courts for the most serious international crimes (war crimes, crimes against humanity,
torture and genocide). This is because such acts can never be considered as part of a
state’s legitimate function so that they may not be imputed to it. This defence has been
disavowed by the Nuremberg Charter (article 7), the Genocide Convention (article 4),
the Statute of the International Criminal Tribunal for the former Yugoslavia (article

46
7(2)), the Statute of the International Criminal Tribunal for Rwanda (article 6(2)) and
the Rome Statute of the International Criminal Court (article 27).
In one of the most famous decisions cited in favour of a limited application of functional
immunity, the House of Lords held on November 25, 1998 that Augusto Pinochet,
former president of Chile, could not benefit from functional immunity for “international
crimes”. (pinochet case – crime=torture)
Personal Immunity: Absolute, individual and temporary. This form of immunity
protects certain senior officials (heads of State, diplomatic agents, ministers of foreign
affairs, etc.) from all law suits while they are in office. This immunity is justified on
the basis that such officials and diplomats require a certain amount of independence to
be able to effectively exercise their functions. In June 2002, the International Court of
Justice affirmed that absolute immunity of the DRC’s Minister for Foreign Affairs in
the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the
Congo v. Belgium). The Court held that an arrest warrant could not be issued against a
sitting minister of foreign affairs because he had to be able to travel freely in order to
fulfill his mission. Contrasting this decision with the Pinochet case highlights the
difference between functional and personal immunity. Even though functional
immunity cannot be invoked in an international court in the case of the most serious
international crimes, Yerodia was protected by his personal immunity as long as he
exercised the function of minister of foreign affairs. (case- al basheer’s case, sudhanese
president, arrest warrant for international crimes committed, he was the president of
Sudhan when the warrant was issued)
The Prosecutor v. Omar Al Bashir, International Criminal Court (ICC), case no.
02/05-01/09 – ask someone for a case summary!

Brief Fact Summary. following the genocide of Bosnia Muslims, a suit was brought
against Serbia and Montenegro (D) by Bosnia and Herzegovina (P).

Synopsis of Rule of Law. the obligation under the Genocide Convention binds the
contracting parties to the Convention not to commit, through their organs or persons
or groups whose conduct is attributable to them, genocide and the other acts
enumerated in Article II.
Facts. A suit was brought against the Federal Republic of Yugoslavia (Serbia and

47
Montenegro) (D) under the Genocide Convention by Bosnia and Herzegovina (P).
The plaintiffs alleged that Serbia (D) contravened the Convention by committing
genocide against Bosnia’s (P) Muslim population. The International Court of Justice
in this first part of the case threw more light on the provisions of the Genocide
Convention, including the undertaking to “prevent and punish” genocide in Article I,
the definition of genocide in Article II, and the phase “responsibility of a State for
genocide” in Article IX. (See Chapter 8, pages 54-55 for additional facts in this case).

Issue. are the obligation under the Genocide Convention binding on the contracting
parties and do they prevent the parties from committing, through their organs or persons
or groups whose conducts are attributable to them, genocide and other acts enumerated
in Article II?
Held. yes. The obligation under the Genocide Convention binds the contracting parties
to the Convention not to commit, through their organs or persons or group whose
conduct is attributable to them, genocide and other acts enumerated in Article II. The
obligation imposed on the parties is dependent on the ordinary meaning of the terms of
the Convention, read in context and in light of the Convention’s object and purpose.
Resorting to supplementary means of interpretation, including the Convention’s
preparatory work and the circumstances of its conclusion are the means of resolving
the confusions associated to terms, context and purpose. The parties under the
Convention are under an obligation not to commit genocide themselves. This
obligation is not imposed expressly by the Convention but the effect of Article II is to
prohibit states from committing genocide themselves. The logic behind the Convention
is that the prohibition follows from the fact that the Article categorizes genocide as an
international law crime and by agreeing to such a categorization, the parties must
logically undertake not to commit the act described. It also follows from the expressly
stated obligation to prevent the commission of acts of genocide. Serbia (D) further
postulated that the drafting history of the Convention shows that the states are not
directly responsible under the Convention for acts of genocide, but heat states have civil
responsibility to prevent and punish genocide committed by individuals. The drafting
history also throws more light on the fact the Chairman of the Sixth Committee believed
that Article IX as modified provided for state responsibility for genocide.

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The ICJ ruled on 2 February 2007 that genocide was committed in
Srebrenica (as also found by the ICTY Appeals Chamber in the Krstic
case, see below). Serbia was not found responsible for the genocide, as
the Bosnian Serb generals were not acting as state agents and did not
receive explicit instructions from Serbia. The Court also ruled that
Serbia was not complicit at that time as it did not know that a genocide
had been perpetuated.
Nevertheless, Serbia was found to be breaching its obligations under the
Convention on the Prevention and Punishment of the Crime of Genocide
by failing to prevent the 1995 genocide in Srebrenica, and by failing to
punish those responsible. Serbia’s failure to transfer Ratko Mladic to the
ICTY was held to amount to a continuing violation of the Genocide
Convention, and the Court ordered Serbia fully to cooperate with the
Tribunal.

Week 4
The Law of Treaties

1. WHAT IS THE FUNCTION OF A TREATY IN PIL?

1) In the absence of a world govt., the treaties lay down the standards that international
agents are bound to observe in their relations. They create and impose certain
international cooperative structures.
2)Treaties come in many varieties, some constitute international organisations such as
the UN, others might regulate particular areas of international law such as the law of
sea, and some others might be purely commercial such an an agreement about the sale
of oil, or about student exchanges between the two states etc.
3)They help in regulating international relations. It is the law of treaties, which is a
body of international legal principles, that regulate, at the most general level, questions
about conclusion, validity, interpretation and practical application of all such
international agreements.
4) Treaties facilitate international cooperation. International trade is a product of
treaties.
Treaties help to secure collective international goods like international peace and

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security, by allowing states to agree common standards of conduct. eg: refrain to use
armed force in their international relations etc
Treaties help in securing commercial bargains ( called synallagmatic treaties)

2. WHAT IS; A) A COVENANT? B) A PROTOCOL? C) A CONVENTION? D) A TREATY?

A covenant, protocol, convention are all different names given for a treaty.

c) Charter - The term charter is used for particularly formal and solemn
instruments such as the treaty founding an international organisation like the UN
(the charter of the United Nations).

a) Protocol - It is a term used for an additional legal instrument that

complements and add to a treaty. A protocol may be any topic relevant to the
original treaty and is used either to further address something in the original
treaty, address a new or emerging concern or add a procedure for the
operation and enforcement of the treaty - such as adding an individual
complaints procedure.

c) Convention - It is a formal agreement between states. The generic term

convention is thus synonymous with the generic term treaty. Conventions are
normally open for participation by the international community as a whole, or by
a large no: of states. ( Convention on the Rights of The child adopted by the
general assembly of the UN in 1989 etc)

d) Treaties are agreements governed by international law and concluded primarily

between states. A treaty is legally binding and parties to an international treaty are able
to hold each other accountable for breaches. Agreements between states and Pvt..
individuals or corporations and agreements that states have decided that should not be
governed by international law are not treaties.

3. WHO MAKES INTERNATIONAL TREATIES? HOW ARE THEY MADE?

A person who is entitled to represent states makes treaties. This person needs to produce

50
'full powers' (i.e. an official document designating that person as a representative).
Alternatively, certain officials are considered as representing their state without
needing to produce full powers. These are: Heads of State or government and ministers
of foreign affairs, heads of diplomatic missions and representatives of international
organizations and conferences etc. The are five stages in the making of a treaty.
1)Negotiation - No prescribed mode of negotiation. The states enjoy considerable
freedom to use their bargaining power to achieve a desirable effort. This does not mean
that the states are free to wield their negotiation power. The use of threats of armed
force or fraud in negotiation may make the treaty invalid.

2)Adoption - This is the stage when the content of the treaty is finalized and states
begin to consider their position towards it.

3)Authentication -

4)Expression of consent to be bound -

some sort of express consent needs to be made. A signature or ratification, acceptance,
exchange of instruments etc.

5)Entry into force -

This is the final stage in the making of any treaty. The treaty's entry into force makes
the treaty binding between states that have expressed such consent.

4. UNDER PIL WHICH ENTITIES ARE ABLE TO ENTER INTO A TREATY?

5. WHAT IS THE DIFFERENCE BETWEEN A UNILATERAL AND MULTILATERAL TREATY?

A unilateral treaty between 2 states are called bilateral treaty. Treaties between 2 or
more states are called multilateral treaties.
A unilateral treaty is a treaty meant for a single state. Usually done through reservation
i.e. by excluding or modifying the legal effect of certain provisions of the treaty in their
application to that state.

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6. WHAT IS MEANT BY THE TERM PACTA SUNT SERVANDA?

Pacta sunt servanda means that treaties should be in good faith.

7. WHAT IS THE DIFFERENCE BETWEEN SIGNATURE AND RATIFICATION OF A

TREATY?

Signature and ratification are both methods of adoption, authentication and expression
of consent to be bound of treaties. A signature is simple and direct method of expression
of consent where as ratification involves the submission of the treaty for approval to
the constitutionally competent branch of government.

8. HOW ARE TREATY PROVISIONS INTERPRETED?

VCLT provides 2 interpretive rules
1) 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
2)Interpreters may have recourse to the preparatory materials of a treaty (such as earlier
drafts or records of negotiation) and the circumstances of its conclusion when the
application of the basic principle is required to pay for peacekeeping costs as part of
their normal contributions to the UN budget.

9. WHAT IS A “RESERVATION”? WHEN MAY A STATE LAWFULLY ENTER A

RESERVATION?

Reservation is a unilateral statement made by a state with the intention to exclude or

modify the legal effect of certain provisions of the treaty in their application to that
state.
A state can lawfully enter a reservation when while signing, ratifying, accepting,
approving or acceding to a treaty. The states may formulate reservations to a treaty
except when (1) the treaty prohibits them (2) the reservation is not amongst those
allowed by the treaty and (2) when reservation is incompatible with the 'object and
purpose' of the treaty.

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10. WHAT EFFECT DOES A RESERVATION HAVE UPON STATE OBLIGATIONS TO A
TREATY?

If the object and purpose of a treaty, or the limited no: of negotiating states suggests
that preserving the integrity of the treaty is essential then the reserving state can only
become party to that treaty if the reservation is accepted by all other parties. In other
cases, the VCLT lays down 5 rules,
1) If a state accepts the reservation, then the reserving state and the accepting state can
consider each other as parties to the treaty minus the reserved provisions
2) Just because a state objected to reservation does not mean that the states cannot be
parties to the treaty, unless the latter clearly states an intention to the contrary.
3) if an objecting state has not expressed a clear intention not to become a treaty partner
with the reserving state, then the provisions to which the reservation relates will not
apply as between the objecting state and the reserving state.
4) a reservation and the expression of consent it is attached to become effective as soon
as one other state has accepted the reservation
5)states are deemed to have accepted a reservation if they do not raise an objection to
it within 12 months from the date the reservation was notified to them.

11. WHAT IS THE PROCEDURE UNDER THE VCLT FOR CHALLENGING A

RESERVATION?

12. HOW MAY A STATE LEGALLY JUSTIFY NON-ADHERENCE TO AN

INTERNATIONAL TREATY OBLIGATION?

A State may declare its expression of consent to be bound by a treaty invalid in the
following situations:
1) when such consent was expressed in violation of its internal law regarding
competence to conclude treaties but only when the violation was manifest and
concerned a rule of internal law of fundamental importance. ( normally, a constitutional
law)
2) when that state's consent was based on an error relating to a fact or situation which
assumed by that state to exist at the time the treaty was concluded, except when that

53
state contributed to its own error or the circumstances were such as to put it on notice
of a possible error.
3)when consent has been induced by the fraudulent conduct of another negotiating
state, or by corruption of a state's representative by another negotiating state.
4) when consent has been induced by the coercion of that state or its representatives by
another negotiating state
5) when the treaty conflicts with a peremptory norm of international law (jus cogens).

13. CAN STATES WITHDRAW FROM A TREATY ONCE THEY HAVE RATIFIED IT?

WHAT DOES THE VCLT SAY?

States may lawfully terminate or suspend a valid treaty under certain conditions.
1) a treaty will terminate once it has achieved its objectives
2) if the treaty had provided that certain events or dates will entail termination or
suspension.
3)when all parties agree to terminate or suspend it
4)if the treaty does not provide for a right to terminate or suspend, the states cannot
invoke it unless it is established that parties implicitly intended to allow it.
5)when there is a material breach by one party, the party has the right to
terminate/suspend the whole treaty or to terminate/suspend it only in relation to the
breaching party.
6) states can terminate a treaty when its performance has become impossible

15. WHAT IS AN OBLIGATION ERGA OMNES? IN WHICH CASES DID THE ICJ SPEAK
OF OBLIGATIONS ERGA OMNES? WHAT ARE THE IMPLICATIONS OF FINDING THAT A
PARTICULAR OBLIGATION HAS THE CHARACTER OF AN ERGA OMNES RULE?

16. IS IT POSSIBLE FOR STATES TO MAKE RESERVATIONS IN RESPECT OF

INTERNATIONAL HUMAN RIGHTS LAW TREATIES? WHAT DO THE GENOCIDE AND THE
RAWLE KENNEDY CASES TELL US ABOUT RESERVATIONS TO HUMAN RIGHTS

TREATIES?

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17. WHAT IS THE TEST TO DETERMINE WHETHER A PARTICULAR RESERVATION IS
LAWFUL OR NOT? IS THERE ANY INTERNATIONAL BODY THAT HAS THE JURISDICTION

TO “SEVER” AN UNLAWFUL RESERVATION?

RESERVATIONS TO THE CONVENTION ON THE PREVENTION AND

PUNISHMENT OF THE CRIME OF GENOCIDE – ICJ Advisory Opinion

"I. Can the reserving State be regarded as being a party to the Convention while
still maintaining its reservation if the reservation is objected to by one or more of
the parties to the Convention but not by others?

a State which has made and maintained a reservation which has been objected to
by one or more of the parties to the Convention but not by others, can be
regarded as being a party to the Convention if the reservation is compatible with
the object and purpose of the Convention; otherwise, that State cannot be
regarded as being a party to the Convention.

"II. If the answer to question I is in the affirmative, what is the effect of the
reservation as between the reserving State and:
(a) The parties which object to the reservation?
(b) Those which accept it?

(a) if a party to the Convention objects to a reservation which it considers to be

incompatible with the object and purpose of the Convention, it can in fact
consider that the reserving State is not a party to the Convention;

(b) if, on the other hand, a party accept the reservation as being compatible with
the object and purpose of the Convention, it can in fact consider that the
reserving State is a party to the Convention;

"III. What would be the legal effect as regards the answer to question I if an
objection to a reservation is made:

55
(a) By a signatory which has not yet ratified?
(b) By a State entitled to sign or accede but which has not yet done so?"

a) an objection to a reservation made by a signatory State which has not yet

ratified the Convention can have the legal effect indicated in the reply to
Question I only upon ratification. Until that moment it merely serves as a notice
to the other State of the eventual attitude of the signatory State;
(b) an objection to a reservation made by a State which is entitled to sign or
accede but which has not yet done so is without legal effect.
.
The first question refers to whether a State which has made a reservation can,
while maintaining it, be regarded as a party to the Convention on Genocide,
when some of the parties object to the reservation.

In the absence of an article in the Convention providing for reservations, one

cannot infer that they are prohibited.

In the absence of any express provisions on the subject, to determine the

possibility of making reservations as well as their effects, one must consider their
character, their purpose, their provisions, their mode of preparation and adoption.

The preparation of the Convention on Genocide shows that an undertaking was

reached within the General Assembly on the faculty to make reservations and
that it is permitted to conclude therefrom that States, becoming parties to the
Convention, gave their assent thereto.

What is the character of the reservations which may be made and the objections
which may be raised thereto?

The solution must be found in the special characteristics of the Convention on

Genocide. The principles underlying the Convention are recognised by civilised
nations as binding on States even without any conventional obligation.

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It was intended that the Convention would be universal in scope.
Its purpose is purely humanitarian and civilising.
The contracting States do not have any individual advantages or disadvantages
nor interests of their own, but merely a common interest.

This leads to the conclusion that the object and purpose of the Convention imply
that it was the intention of the General Assembly and of the States which adopted
it, that as many States as possible should participate.

This purpose would be defeated if an objection to a minor reservation should

produce complete exclusion from the Convention.

On the other hand, the contracting parties could not have intended to sacrifice the
very object of the Convention in favour of a vague desire to secure as many
participants as possible.

It follows that the compatibility of the reservation and the object and the
purpose of the Convention is the criterion to determine the attitude of the State
which makes the reservation and of the State which objects.

Consequently, question I, on account of its abstract character, cannot be given an

absolute answer. The appraisal of a reservation and the effect of objections
depend upon the circumstances of each individual case.

The Court then examined question II by which it was requested to say what was
the effect of a reservation as between the reserving State and the parties which
object to it and those which accept it.

No State can be bound by a reservation to which it has not consented, and

therefore each State, on the basis of its individual appraisals of the reservations,
within the limits of the criterion of the object and purpose stated above, will or
will not consider the reserving State to be a party to the Convention.

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In the ordinary course of events, assent will only affect the relationship between
the two States. It might aim, however, at the complete exclusion from the
Convention in a case where it was expressed by the adoption of a position on the
jurisdictional plane: certain parties might consider the assent as incompatible
with the purpose of the Convention, and might wish to settle the dispute either by
special agreement or by the procedure laid down in the Convention itself.
The disadvantages which result from this possible divergence of views are real.
They could have been remedied by an article on reservations. They are mitigated
by the common duty of the contracting States to be guided in their judgment by
the compatibility or incompatibility of the reservation with the object and
purpose of the Convention. It must clearly be assumed that the contracting States
are desirous of preserving intact at least what is essential to the object of the
Convention.

The Court finally turned to question III concerning the effect of an objection
made by a State entitled to sign and ratify but which had not yet done so, or by a
State which has signed but has not yet ratified.

In the former case, it would be inconceivable that a State possessing no rights

under the Convention could exclude another State. The case of the signatory
States is more favourable. They have taken certain steps necessary for the
exercise of the right of being a party. This provisional status confers upon them a
right to formulate as a precautionary measure objections which have themselves
a provisional character. If signature is followed by ratification, the objection
becomes final. Otherwise, it disappears. Therefore, the objection does not have
an immediate legal effect but expresses and proclaims the attitude of each
signatory State on becoming a party.

Week 5
Customary International Law & Other Sources of PIL

1. What is CIL?

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CIL is a system of rules and it is derived from the observable practice of states.

2. What are the constituent elements of CIL? What elements did the ICJ set out in
detail in the Nicaragua Merits Case?

The two constituent elements of CIL are called: state practice and opinio juris. In
the North Sea Continental Shelf case (which concerned a dispute between
Germany v. Netherlands & Denmark) the ICJ held that in order for a practice to
be a CIL, the act concerned must not only be a settled practice but they must be
carried out because of a belief that this practice is obligatory by the existence of a
rule of law requiring it.

3. What kind of acts can be considered to constitute state practice? Give some
examples.

4. Does state practice require absolute conformity with a rule? What has the ICJ
stated in this regard?

5. What does the term opinio iuris actually mean?

6. Is there such a thing as a “persistent objector” in PIL? Which case(s) has the
ICJ referred to the concept of the persistent objector? Why would international
human rights lawyers have a problem with this concept?

Yes, there is a theory called persistent objector theory. This theory claims that
states have an 'opt-out' option, i.e. an individual state which objects to a rule
persistently and from the very beginning will not be bound by that rule, even if it
becomes part of CIL

7. What is meant by the term “regional custom”? Can you identify a rule of
“regional custom”?

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8. What approach does the ICJ follow when attempting to identify the creation,
change and modification of CIL?

9. Who is bound by CIL?

10. What is the relationship between treaty law and CIL? What has the ICJ said
about this relationship and in which particular cases?

Treaties can become custom, customary rules can be codified into treaties, and
sometimes a single rule can have force simultaneously both treaty and customary
law.

11. What does the term jus cogens mean? What is the value of determining that a
rule has the status of jus cogens?

Jus cogens are higher-order, non-derogable norms; they have the power to annul
international laws that are contrary.

12. What is an obligation erga omnes? In which cases did the ICJ speak of
obligations erga omnes? What are the implications of finding that a particular
obligation has the character of an erga omnes rule?

14. What is “instant custom”?

Week 6
Jurisdiction, International Adjudication & Tribunals

Jurisdiction is the government’s general power to exercise authority over all

persons and entities within its territory. Jurisdiction is closely related to, and stems
from, the principle of state sovereignty and sovereign equality and independence
of states from non-interference in its internal affairs.
Jurisdiction covers
(1) the state legislature’s right to create, amend or repeal legislation: we called this

60
prescriptive jurisdiction (legislative powers),
(2) the state’s right to enforce this legislation through, for example, the police
and public prosecutors, by investigating a crime and arresting a suspect: we called
this enforcement jurisdiction (executive powers), and
(3) the ability of national courts, tribunals and other bodies or persons exercising
judicial functions to hear and decide on matters: adjudicative jurisdiction.

Prescriptive and Enforcement Jurisdiction: Territorial and Extraterritorial

Application
A State has unlimited prescriptive jurisdiction: this means that the legislature can
create, amend or repeal legislation covering any subject or any person, irrespective
of the person’s nationality or location. The ICJ stated that “In these circumstances
all that can be required of a State is that it should not overstep the limits which
international law places upon its jurisdiction; within these limits, its title to exercise
jurisdiction rests in its sovereignty (para 47 of the Lotus case).”
At the same time, international law does not allow a state to enforce its legislation
outside its territory without an international agreement or a rule of customary
international law permitting the state to do so.
For example, state A’s law says: adultery is an offence that is punishable by death.
This law is enforceable in the territory of state A; but, state A cannot enforce that
law in state B even against a citizen of state A. This means, for example, that state
A cannot investigate the crime or arrest the accused in state B’s territory
without state B’s consent.
The 2 Principles of the Lotus Case

1. This brings us to the first principle in the Lotus case – A State

cannot exercise its power in any form in the territory of another State; unless,
unless an international treaty or customary law permits it to do so.
2. The second principle of the Lotus case: within its territory, a State may
exercise its jurisdiction, on any matter, even if there is no specific rule of
international law permitting it to do so. In these instances, States have a wide
measure of discretion, which is only limited by the prohibitive rules of
international law.

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In this case, the crime was committed abroad, neither the person who committed
the crime, nor the victims, were nationals of that State. Universal jurisdiction
enables a person to be tried before a national court even when there is no link to
the State. Under this principle, jurisdiction is exercised on the basis that the crime
committed is so serious and of universal concern that each State has an interest to
prosecute. In other words, these crimes are punishable by any State.
Universal jurisdiction is a developing concept in international law and its scope,
method of application and extend of application is controversial. Universal
jurisdiction was exercised in:
▪ the Pinochet Case, House of Lords in UK exercised universal jurisdiction
on the basis that Pinochet was responsible for acts of torture at the time he was the
head of State in Chile.

▪ Public international law is the body of rules that is legally binding on

States in their interactions with other States, individuals, organizations and other
entities. It covers a range of activities; such as, diplomatic relations, conduct of
war, trade, human rights and sharing of oceanic resources

▪ Traditionally, international law regulated interactions between States. For

example, it determined how a State should treat foreign diplomats who are in its
country or when a State should declare war against another State.
International law sets out legal obligations, responsibilities and rights of one State
against another. This aspect of international law is based on sovereign equality. In
other words, each State is a sovereign and each State is equal and independent of
all other States. This means that when international law regulates the relations
between States, it applies equally to all States.

▪ International law also regulates relations between States and non-State

actors; for example, individuals, international organizations and multinational
companies. In the case of individuals, international law gives each individual
certain rights. For example, international human rights law gives the individual a
right not to be tortured. This means that a government cannot torture even someone
they deem a terrorist to obtain information. International law also imposes on

62
States certain obligations and responsibilities to protect individuals. For example,
when States are at war, one State cannot target and kill innocent civilians of another
State.
It important to remember that international law is not stagnant. It is evolving.
International law covers diverse subjects and has multiple fields of application. For
example, we find that international law applies, inter alia, to: initiation of wars
(laws relating to use of force); conduct of war (humanitarian law); diplomatic
relations (diplomatic law); trade and investment; treatment of people (human rights
law); ocean resources (law of the sea); protecting the environment (environmental
law), space law, and to certain crimes (international criminal law).

Subjects of international law are States and non- State actors like individuals and
international organizations. Some argue that international non-governmental
organizations and multinational companies also fall into the category of subjects
of international law.

HOW DO WE DETERMINE IF AN ENTITY IS A SUBJECT OF

INTERNATIONAL LAW?
▪ An entity is a subject of international law if it has “international legal
personality”. In other words, subjects must have rights, powers and duties under
international law and they should be able to exercise those rights, powers and
duties. The rights, powers and duties of different subjects change according to their
status and functions. For example, an individual has the right of freedom from
torture under international law and States have a duty under international law not
to torture individuals or to send them to a country where there is a likelihood of
that person being tortured. This right is a right under treaty law, for example, the
International Covenant on Civil and Political Rights and under customary
international law. The Convention against Torture and Cruel, Inhuman and
Degrading Treatment places obligations on States not to torture and to extradite or
prosecute those who torture.
▪ Legal personality also includes the capacity to enforce one’s own rights
and to compel other subjects to perform their duties under international law. For
example, this means that a subject of international law should be able to:

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(1) bring claims before international and national courts and tribunals to enforce
their rights, for example, the International Court of Justice.
(2) have the ability or power to come into agreements that are binding under
international law, for example, treaties:
(3) enjoy immunity from the jurisdiction of foreign courts; for example, immunity
for acts of State.
(4) be subject to obligations under international law (Dixon).
Remember that all subjects of international law do not have the same rights, duties
and capacities. For an example, a diplomat has immunity before foreign courts
because he is an agent of the sending State.

Week 8
The Law of International Organisations
Certain Expenses Concerning U.S. Military Operations Against Libya
The question of certain expenses of the United Nations (Article 17, paragraph
2, of the Charter) had been put to the Court for an advisory opinion by a
resolution adopted by the General Assembly of the United Nations of 20
December 1961.
By nine votes to five the Court declared that the expenditures authorized in certain
General Assembly resolutions enumerated in the request for opinion, relating to
the United Nations operations in the Congo and in the Middle East undertaken in
pursuance of Security Council and General Assembly resolutions likewise
enumerated in the request were "expenses of the Organization" within the meaning
of Article 17, paragraph 2, of the Charter of the United Nations.
In its canonical Certain Expenses advisory opinion of 1962, the International Court
of Justice made clear that military activity carried out by member states in the
context of peace keeping operations in the Congo and along the Suez authorized
by the General Assembly amounted to United Nations activities, which were
therefore to be treated as expenses of the United Nations, funded from member
contributions. France and the Soviet Union objected to U.N. involvement in
peacekeeping in the Middle East and Congo, but they could not legally withhold

64
their required contributions to the United Nations on account of those
objections. United Nations skeptics might retort that even though the I.C.J. is the
judicial arm of the United Nations, the U.N. has no concrete power to enforce an
advisory opinion, and even I.C.J. judgments cannot be enforced against a
recalcitrant state absent a Security Council Resolution authorizing sanctions
against that non-complying state. And yet both France and the Soviet Union
eventually paid the money they had withheld from the U.N. in protest against U.N.
action in the Suez and Congo, much as the United States finally paid its assessed
contributions after much protest against U.N. policies in the late 1970s, the 1980s,
1990s and 2000s.

Difference relating to the Immunity from Legal Process of a Special

Rapporteur of the Commission on Human Rights,
ICJ Advisory Opinion, 1999

He is an expert under S 22(b)

He spoke in the course of performing his mission. He had a right to be immune. It
case where A VI, S 22 of the general convention to special rapporteurs. It could
have applied.
Malayasia had a legal obligation. It violated A 105 of the UN charter as it failed to
inform its court of the psiition taken by the secretary-general. According to the
well-estabished rule of international law, the conduct of any organ of a state must
be regarded as an act of that State. Malaysia did not comply with the above
mentioned obligation.
The International Law Commission was established by the United Nations
General Assembly in 1948 for the "promotion of the progressive development of
international law and its codification. On November 21, 1947, the UN General
Assembly passed Resolution 174, which provided for the creation of an
"International Law Commission" in order to fulfill the obligations of the Charter.
• Promoting the codification of international law.
• Solving problems within both public and private international law.

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The Commission consists of 34 members elected by the General Assembly.
Members act as individuals and not as officials representing their respective states.
One venue of action for the commission in the codification of principles of
international law is when requested to do so by the General Assembly. In that case,
the commission appoints one of its members as Special Rapporteur on that subject
and prepares a plan of work regarding the issue in question. Governments are
requested to submit to the commission their written opinions on the issue in
question, as specified in the plan of work. The rapporteur then writes a report of
his or her recommendations on the subject under discussion and the report must be
approved by the rest of the commission as well as by the UN Secretary-General
before it becomes an official commission document. The commission then
reconsiders the report after receiving additional written opinions from
governments, and the report is being submitted to the General Assembly for
approval.
Another venue of action is when the commission is requested either by a
government, an inter-governmental organization or a UN agency to draft proposals
for international conventions on various issues. In that case, the commission
formulates a plan of work and receives written opinions from governments on the
issue in question. The final draft is also submitted to the General Assembly.
The United Nations (UN) is an intergovernmental organization established on 24
October 1945 to promote international co-operation. A replacement for the
ineffective League of Nations, the organization was created following the Second
World War to prevent another such conflict. At its founding, the UN had 51
member states; there are now 193. The UN Headquarters is situated in Manhattan,
New York City and enjoys extraterritoriality. Further main offices are situated in
Geneva, Nairobi and Vienna. The organization is financed by assessed and
voluntary contributions from its member states. Its objectives include maintaining
international peace and security, promoting human rights, fostering social and
economic development, protecting the environment, and providing humanitarian
aid in cases of famine, natural disaster, and armed conflict. The UN has six
principal organs: the General Assembly (the main deliberative assembly); the
Security Council (for deciding certain resolutions for peace and security); the
Economic and Social Council (ECOSOC) (for promoting international economic

66
and social co-operation and development); the Secretariat (for providing studies,
information, and facilities needed by the UN); the International Court of Justice
(the primary judicial organ); and the United Nations Trusteeship Council (inactive
since 1994). The UN Charter outlines the rules for membership:

1. Membership in the United Nations is open to all other peace-loving states

that accept the obligations contained in the present Charter and, in the judgment of
the Organization, are able and willing to carry out these obligations.
2. The admission of any such state to membership in the United Nations will
be effected by a decision of the General Assembly upon the recommendation of
the Security Council. Chapter II, Article 4
The UN Charter outlines the rules for membership:
1. Membership in the United Nations is open to all other peace-loving states
that accept the obligations contained in the present Charter and, in the judgment of
the Organization, are able and willing to carry out these obligations.
2. The admission of any such state to membership in the United Nations will
be effected by a decision of the General Assembly upon the recommendation of
the Security Council. Chapter II, Article 4
The Maastricht Treaty established the European Union under its current name in
1993.

The EU has developed a single market through a standardised system of laws that
apply in all member states. Within the Schengen Area, passport controls have been
abolished.[17] EU policies aim to ensure the free movement of people, goods,
services, and capital,[18] enact legislation in justice and home affairs, and maintain
common policies on trade,[19] agriculture,[20] fisheries, and regional development.[21]
The monetary union was established in 1999 and came into full force in 2002. It is
currently composed of 18 member states that use the euro as their legal tender. EU
member states retain all powers not explicitly handed to the European Union. In
some areas the EU enjoys exclusive competence. These are areas in which member
states have renounced any capacity to enact legislation. In other areas the EU and
its member states share the competence to legislate. While both can legislate,
member states can only legislate to the extent to which the EU has not. In other

67
policy areas the EU can only co-ordinate, support and supplement member state
action but cannot enact legislation with the aim of harmonising national laws.
The International Committee of the Red Cross (ICRC) is a humanitarian
institution based in Geneva, Switzerland and a three-time Nobel Prize Laureate.
States parties (signatories) to the four Geneva Conventions of 1949 and their
Additional Protocols of 1977 (Protocol I, Protocol II) and 2005, have given the
ICRC a mandate to protect victims of international and internal armed conflicts.
Such victims include war wounded, prisoners, refugees, civilians, and other non-
combatants.[3]
The ICRC is part of the International Red Cross and Red Crescent Movement along
with the International Federation of Red Cross and Red Crescent Societies (IFRC)
and 189 National Societies.[4] It is the oldest and most honoured organization
within the Movement and one of the most widely recognized organizations in the
world, having won three Nobel Peace Prizes in 1917, 1944, and 1963. All
payments to the ICRC are voluntary and are received as donations based on two
types of appeals issued by the Committee: an annual Headquarters Appeal to cover
its internal costs and Emergency Appeals for its individual missions.
The World Trade Organization (WTO) is an organization that intends to
supervise and liberalize international trade. The organization officially
commenced on 1 January 1995 under the Marrakech Agreement, replacing the
General Agreement on Tariffs and Trade (GATT), which commenced in 1947.[5]
The organization deals with regulation of trade between participating countries; it
provides a framework for negotiating and formalizing trade agreements, and a
dispute resolution process aimed at enforcing participant's adherence to WTO
agreements, which are signed by representatives of member governments[6]:fol.9–10
and ratified by their parliaments.[7] Most of the issues that the WTO focuses on
derive from previous trade negotiations, especially from the Uruguay Round.
WTO's current Director-General is Roberto Azevêdo,[11][12] who leads a staff of
over 600 people in Geneva, Switzerland.[13] A trade facilitation agreement known
as the Bali Package was reached by all members on 7 December 2013, the first
comprehensive agreement in the organization's history.[14][ The process of
becoming a WTO member is unique to each applicant country, and the terms of
accession are dependent upon the country's stage of economic development and

68
current trade regime.[61] The process takes about five years, on average, but it can
last more if the country is less than fully committed to the process or if political
issues interfere. The shortest accession negotiation was that of the Kyrgyz
Republic, while the longest was that of Russia, which, having first applied to join
GATT in 1993, was approved for membership in December 2011 and became a
WTO member on 22 August 2012. The WTO has 159 members and 25 observer
governments.[69] In addition to states, the European Union is a member. WTO
members do not have to be full sovereign nation-members. Instead, they must be
a customs territory with full autonomy in the conduct of their external commercial
relations. Thus Hong Kong has been a member since 1995 (as "Hong Kong, China"
since 1997) predating the People's Republic of China, which joined in 2001 after
15 years of negotiations.

Week 11
The Collective Security System and the Use of Force Under International
Law

One of the primary goals of the UN, according to Article 1(1) of the UN Charter,
is to maintain international peace and security. In order to achieve this aim, Article
2(4) contains a prohibition on the use of force. A system of collective sanctions
against any offending State that resorts to the use of force protects this prohibition.
These sanctions are found in Articles 39-51 of the UN Charter.
PROVISIONS RELATING TO THE USE OF FORCE: THE PROHIBITION
AND THE EXCEPTIONS
Article 1(1) of the UN Charter says that one of the purposes of the Charter is to:
To maintain international peace and security, and to that end: to take effective
collective measures for the prevention and removal of (1) threats to the peace,
and for the (2) suppression of acts of aggression or (3) other breaches of the
peace, and to bring about by peaceful means… adjustment or settlement of
international disputes or situations which might lead to a breach of the peace
In order to maintain international peace and security and to prevent future wars:
(1) Article 2(3) places an obligation on member States to settle their disputes

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peacefully.
All Members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered.
(2) Article 2(4) prohibits member States from using force in their international
relations.
All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or
in any other manner inconsistent with the Purposes of the United Nations.
▪ In Nicaragua v USA, ICJ held that the prohibition on the use of force is
covered by treaty law (that is the UN Charter), by customary international law and
the prohibition was a Jus Cogens norm.
In the 1970 Declaration on Principles of International Law concerning Friendly
Relations there is: (1) a general prohibition on the threat or use of force, (2) duty
to refrain from “organizing, instigating, assisting or participating in acts of civil
strife or terrorist acts in another State or acquiescing in organized activities within
its territory” when these acts involve the threat or use of force against another State.
(3) The prohibition is safeguarded by a system of collective sanctions against any
offending State that uses force. This is found in Articles 39-51 of the UN Charter.
3.1. Articles 39, 40 and 41 operate to offer sanctions against a member State that
has threaten or used force in a way that it amounts to a threat to or breach of peace
or an act of aggression. Article 39 says:
The Security Council shall determine the existence of any threat to the peace,
breach of the peace, or act of aggression and shall make recommendations, or
decide what measures shall be taken in accordance with Articles 41 and 42, to
maintain or restore international peace and security.
Article 41 allows the Security Council to impose sanctions (trade and economic
sanctions, arms embargoes):
The Security Council may decide what measures not involving the use of armed
force are to be employed to give effect to its decisions, and it may call upon the
Members of the United Nations to apply such measures. These may include
complete or partial interruption of economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of communication, and the severance of
diplomatic relations.

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3.2. Article 42 gives the Security Council the power to authorize the use necessary
force to maintain international peace and security. Because the Security Council
does not have a military force of its own, the Security Council authorizes member
States to use force.
The Security Council] may take such action by air, sea, or land forces as may be
necessary to maintain or restore international peace and security.
3.3. Article 51 provides for a member State to use force in self defense when there
is an armed attack against that State
Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken measures necessary to maintain
international peace and security…

The only exceptions to the prohibition on the use of force in the UN Charter are
found in Articles 42 and 51 of the UN Charter (provisions in Article 53(1) and 107
are not relevant addition to this, States have invoked customary international law
of self defense and humanitarian intervention (for example in the 11 day NATO
bombing of Kosovo) and implicit authorization under SC Resolutions (for
example, NATO bombing of Kosovo and US invasion of Iraq) as a justification to
use force against another State.

Article 2(4) of the UN Charter provides:

All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity (TI) or political independence (PI) of any state,
or in any other manner inconsistent with the Purposes of the United Nations
The following acts can be considered as a “threat” to use force:
(1) military exercises on the border;
(2) hostile statements of future invasions
Use of force can be seen in:
(1) direct force: cross border shooting or military incursions;
(2) indirect force: States are prohibited from organizing, assisting, instigating or
participating in civil strife or terrorist acts against another State or acquiescing in
organized activities when these activities are threaten or use force against another

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State. For example, arming and training of rebels amount to use of force, while
funding the rebels will not (Nicaragua case).

The chart shows the procedure to be followed when a state uses force against
another state.

Article 24 of the Charter says the primary responsibility of maintaining

international peace and security is with the Security Council. The Security
Council can take measures that are binding on member States. Article 25 says:
The Members of the United Nations agree to accept and carry out the decisions
of the Security Council in accordance with the present Charter.
The General Assembly (GA) cannot take measures that are binding on States.
GA cannot make recommendations on a dispute or situation when the Security
Council is discussing it (Article 12 of the Charter). Article 10 says:
The General Assembly may discuss any questions or any matters within the
scope of the present Charter or relating to the powers and functions of any organs
provided for in the present Charter, and, except as provided in Article 12, may
make recommendations to the Members of the United Nations or to the Security
Council or to both on any such questions or matters.
In the Palestinian Wall Case, the ICJ held that the Security Council’s authority
to maintain international peace and security was ‘primary’ but not ‘exclusive’.The
GA, under the Uniting for Peace Resolution, can discuss and make
recommendations on matters even when the Security Council is discussing them.
Under this Resolution, the GA (1) referred the Palestinian Wall Case to the ICJ for
an Advisory Opinion and (2) sent a Peacekeeping force to Egypt after the Suez

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canal crisis in 1956 (even though the SC was simultaniously discussing these
matters).

Collective use of force is the use of force following Security Council

authorization.Under Article 53 of the Charter SC can also authorize regional
organizations such as NATO, OAS, OAU to take enforcement measures. E.g.: In
1995, SC authorized NATO to take ‘all necessary measures’ to oversee the General
Framework Agreement for Peace in Bosnia and Herzegovina.

->1st exception to this general prohibition of use of force - Article 42 gives the
Security Council the power to authorize the use necessary force to maintain
international peace and security.
->2nd exception : right of self defence
Right of self defence (SD) can be both individual self defence (victim State
against the aggressor State) and collective (victim State + friendly States against
the aggressor State). The right to self defence is found in treaty law (UN charter)
and in CIL. Self defence that takes place without SC authorization is a type of
unilateral use of force (we learnt that this would be called collective use of
force, if SC authorizes the use of force, ).
Article 51 provides for a member State to use force in self defense when there is
an armed attack against that State:
Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the
United Nations, until the Security Council (SC) has taken measures necessary
to maintain international peace and security. Measures taken by Members in the
exercise of this right of self-defence shall be immediately reported to the SC…
What is an armed attack and who can carry out an armed attack?
In Nicaragua case ICJ says an armed attack is: (1) action by regular State armed
forces across an international border; (2) armed groups, irregular forces and
mercenaries when (a) they are “sent by or on behalf of a State” to carry out an
armed attack against another State and (b) the attack is of such gravity so that it
amounts to an armed attack if it was conducted by regular armed forces of a State
(The Court referred to Article 3(g) of the GA Resolution on the Definition of

73
Aggression and said this reflected CIL). Note that State “B” does not have a right
of SD against State “A”: even if rebels carried out an armed attack against State
“B”; unless, these rebels was sent by or on behalf of another State (State “A”).
What is not an armed attack according to the ICJ in the Nicaragua case?
If State “A” supplies of weapons and logistical to a rebel group, which the rebel
groups use to attack State “B” – can the supply of weapons and logistical support
be considered as an armed attack by State “A” against the State “B”? In Nicaragua
Case the court said NO. The Court said this may amount to a threat or use of force
or intervention in the affairs of another State but it was not an armed attack. This
means that State B does not have the right of SD against State “A” under Article
51 of the Charter because an armed attack has not occurred.
- Mere frontier incidents are not “armed attacks” if the necessary “scale and
effects” are not there.
- When can a State use force in SD according to Article 51?
- An armed attack has to have occurred against a member State
- SD is only available against the aggressor State (the one who carried out or on
whose behalf an armed attack was carried out) by the victim State (subject of the
attack).
- The only way a third State will have a right of SD against the aggressor State is
if the victim State asks for the help of the third State (we call this collective self
defense).(Nicaragua case)
- Any use of force in SD must be necessary and proportionate to the armed attack.
(Nicaragua case & advisory opinion of the ICJ on the legality of the threat or use
of force)
- A State that uses force in SD must immediately inform the SC and this State can
use force only until the SC steps in.

- In addition to the treaty right of SD, some argue that there is also a CIL right to
SD. They argue that the Charter never intended to restrict the CIL right of SD
(which is more wider than the right under A. 51) and that the reference to the
“inherent right” of SD in Article 51 brings in the CIL right of SD into Article 5.

- CIL right of SD

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A State can use SD when its (1) necessary: that is to say that the threat or use of
force is instant, overwhelming, leaving no choice (no alternatives) and no moment
of deliberation and (2) proportionate to the threat or use of force. (This position
was formulated after the Caroline Incident that took place in 1837 when the British
sank a ship with insurgents in American territory and after British citizen was
charged for sinking the ship.)
Under CIL a State use SD:
-When an armed attack occurred
-In anticipation of an armed attack or threat to State security: consider what we did
on the recent US attack on Iraq based on the alleged existence of nuclear weapons
(WMD). This was justified by US as “anticipatory SD” (this is also called
“preemptory self defense)
- In response to an attack or threat of attack against State interests (nationals and
property of the State).
- where the “attack” doesn’t involve the use of force and involves, instead,
economic aggression that is instant and overwhelming.
The Caroline incident is generally regarded as the reference point for any
discussion on self-defence, as well as the criteria governing its use. In 1837, US
Secretary of State Daniel Webster articulated a definition of self-defence, which
evolved into customary international law. Webster’s definition followed what has
come to be known as the Caroline incident. The Caroline was a US steamboat
attempting to transport supplies to Canadian insurgents. A British force
interrupted the Caroline’s voyage, shot at it, set it on fire and let it wash over
Niagara Falls. Webster said that Britain’s act did not qualify as self-defence
because self-defence is only justified “if the necessity of that self-defence is
instant, overwhelming, and leaving no choice of means, and no moment for
deliberation.” This incident is important primarily for the following reasons:
First, to limit self-defence to situations where the threat is real, the response is
essential and proportional, and peaceful means have been exhausted. Article 51
further narrowed self-defence, permitting it only in case of an armed attack.
Second, it laid down the general framework for exercising self-defence, including
anticipatory self-defence. Acceptance by British and American governments of

75
self-defence as relevant in situations of necessity in anticipation of a threat of
attack which was ‘instant, overwhelming, leaving no choice of means and no
moment for deliberation’ clearly indicates that anticipatory self-defence formed
part of traditional customary law. Third, reference to this general framework by
the Nuremberg and Tokyo Tribunals demonstrate that they were still considered
customary law, as the Charter was being framed.
As most authorities accept this as a given and since there is no evidence that the
Caroline framework has been replaced by conventional law, we can safely assume
that ‘Caroline’ still forms part of the customary law relating to self-defence. This,
then permits States to respond to a threat and infringe on the territorial sovereignty
of another nation when: (i) it is acting in self-defence, (ii) the attack is substantial,
(iii) the offending nation is unable to prevent further attacks and (iv) the attack is
widespread and imminent
‘necessity’ in Webster’s formulation denotes something instant, imminent and
choice of means and no moment for deliberation” they destroyed the American
boat Caroline , which had carried supplies to Canadian excessive, since the act
justified by the necessity of self-defence must be limited by group of British
soldiers entered the United States from Canada, their aim being to immediate, these
two elements have been joined by a third, that of imminence. In early nineteenth
century Canada, which, at the time, was still under British rule, anti-British attacks
were being conducted throughout the country. In 1837, a small insurgents in the
north. The Caroline was set alight and left to drift down river, at invoking the right
of self-defence, arguing that the Caroline would continue to least one American
being killed in the process. The British justified their actions by right to self-
defence, either in anticipation or otherwise, would therefore be valid Secretary of
State Daniel Webster set out the basic elements of the right, stating stated further
that the use of force should not involve “anything unreasonable or supply the
Canadian rebels otherwise. Accepting this explanation, the then American that
necessity and kept clearly within it” .The customary that there should be a
“necessity of self-defence, instant, overwhelming, leaving no when the
requirements of necessity and proportionality are fulfilled.

In the Nicaragua case, the Court stated, that “the Charter itself testifies to the

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existence of the right of collective self-defence in customary international law”
and that “the exception to the prohibition of force constituted by the right of
individual or collective self-defence [is] already a matter of customa ry
international law” .While the Court remained silent on the issue of pre-emptive
or anticipatory self-defence, its comments are still evidence that Webster’s
formulation of the customary law rules (which permit anticipatory self-defence)
are still valid in international law. A right to anticipatory self-defence may
therefore arise under the Caroline elements, despite being precluded by Article
51.

3 possible interpretations of the right to self defense

1)strict interpretation
- for a state to be bale to use the right to self-defence, an armed attack must
actually occur.
-> bomb must hit the ground
2)2nd interpretation (pre-emptive self -defense)
-An armed attack might not have happened, but all the evidence shows that it will
occur and waiting for it would be too costly.
3)3rd interpretation
-They believe the notion of pre-emptive self-defence includes the right to defend
themselves against potential threats too.

Force used should be proportional too. you cannot destroy a village for a
destruction of a sea vessel.

Drones are battle field weapons which serve as launch vehicles for delivering
bombs and missiles. they are weapons for military operations.
Since they are battle field weapons , laws which govern the use of drones are the
legal regime govenring the military force. There are 3 main components -
1)Jus ad bellum - the laws which govern the initial resort to military force. This is
the UN charter. Charter lays down a general prohibition, use of military force
should be the last resort. Could be used only for the exceptions i.e. for the use of
self defence or with the security council's authorization. principles of necessity and

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proportionality.
2)Jus in bello - it governs the conduct of armed force
3)Human rights law that apply at all times (jus cogens)

A tarket killing can

only be something other than an extrajudicial execution—that is, a murder—if
• It takes place in an armed conflict;
• The armed conflict is an act of self-defense within the meaning of the UN
Charter, and
• It is also an armed conflict within the meaning of IHL; and finally,
• Even if it is an armed conflict under IHL, the circumstances must not permit
application of international human rights law, which would require an attempt to
arrest rather than targeting to kill.

Because
1. Describe the main features of the collective security system envisaged by
the UN Charter.

2. What is the role of the UN Security Council?

3. What is the role of the UN General Assembly?

4. Article 2(4) of the UN Charter prohibits the use of force in international

relations. Are there any exceptions to this general prohibition?

5. Under what circumstances may states lawfully use self-defense? Is there a

difference between the treaty law and CIL relating to self-defense?
6. What are the preconditions for an act of self-defense to be lawful? What
famous dictum was set out in the Caroline case?

7. Is anticipatory self-defense lawful? Explain it in the context of the drone

warfare in Pakistan and the death of Anwar al-awlaki as a US citizen.

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 8. Is the use of nuclear weapons lawful? What did the ICJ rule in the Nuclear
Weapons Advisory Opinion?

9. What is “humanitarian intervention”? Is it a lawful exception to Article

2(4)? Should it be? What do you think of the opinion of the ICJ as set out in the
Preliminary objections in the Legality of the Use of Force (Serbia and Montenegro
v. Belgium)?

10. Discuss the legality of the following interventions:

- The 1971 Bangladesh war and India’s ‘self-defense’
- The US intervention into Nicaragua 1979-1980?
- The NATO intervention in Kosovo (Operation Storm) in 1999?
- The NATO intervention into Afghanistan (Operation Enduring Freedom), 2001-
present?
- The US & Others invasion of Iraq (Operation Iraqi Freedom) 2003?
- The armed activities of Ugandan forces and paramilitaries in the territory of the
Congo?
- The 2011 military intervention into Libya?

Week 12
International Humanitarian Law
International Humanitarian Law (IHL) is the branch of international law that provides
the rules that regulate the conduct of armed conflict.
It is the body of law that regulates the conduct of hostilities by all parties to a conflict
once an armed conflict has commenced. IHL is also called jus in bello. It is different
from just ad bellum which the law governing the use of force which concerns the
legality of decisions about going to war.

It provides detailed rules that regulate the means and methods of warfare and which
aim to protect those persons that are not taking part in a con!ict, including civilians
and soldiers that are out of action (also called hors de combat ).
What does IHL regulate?
Modern IHL is concerned with six central topics:

79
1. permissible use of weapons and military tactics;
2. protection of those who can no longer fight (wounded, sick and shipwrecked troops,
prisoners of war);
3. the duties and rights of neutral parties to a conflict;
4. rules regulating occupation;
5. the protection of people who do not take part in the fighting (e.g. civilians, medics,
and
aid-workers);
6. the protection of cultural, religious sites, and the environment.

The order of these six topics reflects the historical progression of IHL, which is coined
as the ‘humanization’ of IHL (Meron 2000). The humanization of IHL, that is the
increasing focus on the humanitarian protection function of IHL, is reflected both in the
changes in the name of the topic and the development of its substance. IHL was
traditionally referred to as the ‘laws of war’ or ‘the international law of armed conflict’.

the IHL treaties, the Hague Regulations, the four Geneva Conventions, and
two Additional Protocols of 1977 together stand out.

Customary IHL is important because it establishes which rules apply to all states
regardless
of their ratification status of the myriad of IHL treaties

International Committee of the Red Cross (ICRC)

The nature of IHL as a body of international law is unique due to a number of its
institutional features. These are, the actor- centric nature of IHL; the existence of two
sets of rules for international and internal conflicts; and the incorporation of a non- state
actors, and the International Review of the Red Cross, in its implementation.

IHL challenges international relations and law approaches that view states as unitary
actors and international law as only regulating relationships between states. IHL

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regulates the conduct of all actors that are involved an armed conflict: these actors may
be states (be it as " fighting parties or neutral observers), but they may also be any
individual or group of individuals of any nationality that are involved in an armed
conflict—e.g. rebel groups, soldiers, medical officers, civilians, or non- governmental
humanitarian organizations.

IHL challenges international relations and law approaches that view states as unitary
actors and international law as only regulating relationships between states. IHL
regulates the conduct of all actors that are involved an armed conflict: these actors may
be states (be it as fighting parties or neutral observers), but they may also be any
individual or group of individuals of any nationality that are involved in an armed
conflict—e.g. rebel groups, soldiers, medical officers, civilians, or non- governmental
humanitarian organizations.

The fact that IHL creates obligations not only for states, but also for individuals.

International and internal armed conflicts

Due to the resistance to regulate internal conflicts, IHL has different rules that are
applicable in international and non- international (internal) armed conflicts. In
particular, states regard dissidents as criminals rather than combatants. It is for this
reason that no prisoner of war status exists in internal armed conflicts. the rules that
govern non- international con!icts are less developed and weaker than
those applicable to international armed con!icts.

IHL and the International Committee of the Red Cross (ICRC)

Another unique element of IHL is that it is the only body of international law that
provides a special status and role to an international humanitarian organization. The
1949 Geneva Conventions task the International Committee of the Red Cross (ICRC)
to play a major role in encouraging compliance with IHL and it is recognized in treaty
law as having the authority to visit prisoners, organize relief operations, reunite
separated families, and carry out other humanitarian activities during armed conflicts.

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Many states recognize the international legal personality of theICRC and accord it
privileges and immunities under their domestic laws.

IHL basic principles: military necessity

• Parties to a confl ict are allowed to do whatever is necessary to win the war (in line
with IHL).
• The only legitimate object of war is to weaken the military force of the enemy.
• Military necessity cannot be invoked as a reason for violating IHL.
• There must be a balance struck between humanity and military necessity.

One of the central purposes and features of IHL is to limit human suffering and protect
innocent victims of conflict and out- of- action fighters (hors de combat).

IHL basic principles: protection of humanity and the prohibition of superfluous injury
and unnecessary suffering
• All human beings must be treated with humanity and parties must respect human
dignity. The principle of humanity means that parties to a conflict are not, for example,
able to kill and main at random, ethnically cleanse populations, forcibly displace
civilians, burn down religious monuments, torture, use sexual violence as a weapon of
war, or use cruel, inhumane, or degrading treatment of any kind against any human
being.
• Although the killing of combatants is allowed, IHL prohibits inhumane and painful
ways of killing (e.g. drowning and torture).
• Some weapons have been outlawed as they cause superfluous injury and unnecessary
suffering (e.g. chemical, biological, and poisonous weapons, expanding and exploding
bullets, and weapons primarily causing injury by non- detectable fragments).

IHL basic principles: the principle of distinction and proportionality

• In order to protect humanity armed forces are required to distinguish between military
and civilian targets and they are only allowed to direct their operations against military
objectives.
• IHL prohibits the direct targeting of civilians and civilian targets such as schools,
religious buildings, patrimonial sites, and hospitals.

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• A party to the conflict may only target a civilian object in exceptional circumstances
where there is clear evidence that a civilian object is being used for military purposes
and where it can justify an attack on the basis of military necessity. Any such attack
must be proportionate to the aim.
• In modern non- international conflicts, civilians and military targets are often not easy
to distinguish, for example, where fighting is carried out by rebels that operate out of
densely populated civilian areas.
• IHL obliges all parties to a conflict to ensure that their actions are proportional to the
military aim.
• A disproportionate attack is ‘an attack which may be expected to cause incidental loss
of civilian life, injury to civilians, damage to civilian objects, or a combination
thereof, which would be excessive in relation to the concrete and direct military
advantage anticipated’ (Protocol 1 Article 51).
THE HIERARCHY OF RULES IN INTERNATIONAL LAW: JUS COGENS

Differences between national and international legal order

National systems
- hierarchy of sources (usually: constitution, laws, regulations)
- hierarchy of legal rules produced through such sources (a law may not
contradict the constitution, a regulation may not contradict a law, and a fortiori, the
constitution)
Traditional international law
- custom and treaties are on an equal footing
- lack of hierarchy of sources and rules deriving from such sources
- freedom of States to alter custom or treaty rules to suit their interests

Today, there is still no hierarchy, but a class of general customary rules has acquired
the special status of peremptory norms.

Jus Cogens
- Emergence of jus cogens can be traced to the late 60s and rests upon the idea
that a certain category of law that derives from reason and humanity (natural law)
should prevail over man-made law (consent-based law)

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- the establishment for peremptory norms was a result of the initiatives of
socialist and developing countries
- The compromise reached between the proponents of jus cogens and the
countries that opposed the idea resulted in the affirmation of jus cogens norms,
subject to the strict condition that a judicial mechanism for determination of
peremptory norms be established. This mechanism was imbedded in the I.C.J. and
the result was that any State invoking jus cogens should be ready to submit the issue
for determinations to the I.C.J.

Establishment and Scope of Jus Cogens

- Vienna Convention 1969, Art. 53 and Art. 64 - do not exactly define jus
cogens but do establish its character of a peremptory norm with the effect that no
other rule of international law may derogate to it (Art. 53) and if a peremptory rule
emerges that is contrary to an existing custom or treaty, such custom or treaty become
void and terminate (Art. 64)
- Vienna Convention 1986, Articles 66(a) and 66.2 provide that in cases of
dispute regarding the actual content of jus cogens and, where parties may not resolve
their differences through negotiation or agree to arbitration, parties shall submit their
dispute to the I.C.J..
- Is universal acceptance of a norm as being peremptory necessary for its
formation? (It is enough for a large majority of representative States to recognize such
rule as part of jus cogens. It is safe to contend that all Major Powers should assent to
such rule).

Examples of Peremptory Norms

- The current state of affairs shows no state practice, with the accompanying
opinio juris of the peremptory character of certain norms, although there is consensus
among States, at the level of opinio juris or opinio necessitas regarding the existence
of peremptory international rules
- Art. 19 ICL Draft Articles on State Responsibility gives some clues as to
which principles or rules might belong to jus cogens - (refers to international

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obligations so essential for the protection of fundamental interests of the international
community that their breach shall be recognized as a crime by that community as a
whole; e.g. prohibition of aggression; slavery, genocide, apartheid; forceful
colonization; massive environmental pollution)
- Prohibition of use or threat of force – can be inferred from UN SC resolution
condemning the annexation of Kuwait by Iraq by declaring it null and void
- Ban on racial discrimination (customary rule); ban on torture - see Prosecutor
v. Furundzija (ICTY, 1998); general rules of self-determination.
- Most norms of humanitarian law (esp. war crimes and crimes against
humanity). See Zoran Kupreskic et al..

1) Limitations for Jus Cogens as Envisaged in the Vienna Convention

The provisions of the Vienna Convention on jus cogens can be invoked only by States
that are parties to both the VC and to a treaty that alleged as contrary to these
peremptory norms.

2) Remedies to the Limited Applicability of the VC provisions on jus cogens

After the adoption of the VC, some customary rules regarding the invalidity of
treaties have evolved to the effect that any State concerned (i.e. directly affected by a
treaty that is contrary to jus cogens), whether or not a party to the VC, may invoke the
invalidity of the treaty if such treaty is contrary to jus cogens or the rules prohibiting
coercion of a State or of a State representative.

What can also be observed is the emergence of a customary rule on the existence of
peremptory law. The prevailing view, shared by the majority of States, is that certain
rules are peremptory in nature (i.e. possess special legal force in that it renders null
norms that are contrary to it) and because of its wide acceptance this customary rule
on jus cogens also applies to normative acts by other international subjects
(insurgents’ agreements) and to legal standards other than those laid down in the
treaties (e.g. SC resolutions). This customary rule operates against states that are not
party to the VC.

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How did this rule evolve in such a short period of time? 1969 showed broad consent
on jus cogens as expressed in the Convention, but also based on the comments made
during the Conference. Many national courts have brought attention to peremptory
norms. International arbitral courts implicitly upheld the notion of jus cogens.

Note:
The customary rule on jus cogens does not, however, embody reference to the
compulsory jurisdiction in the case of dispute, so a State, not party to the VC,
while it can invoke the invalidity of a treaty as contrary to jus cogens, may not
have much of a recourse against the other State if the latter refuses to submit the
case to judicial determination. The contestant State will have to fall back on
traditional mechanisms of settling disputes.

Legal Effects of Jus Cogens:

- treaties and customary rules that are contrary to jus cogens are invalid ab
initio
- possibly, a court will declare null and void only the provisions of the treaty
that are contrary to jus cogens, but uphold the validity of all other provisions (if such
are not tainted by illegality); VC, Art. 44.5 does not provide for this effect, and may
even be construed as excluding it. If Art. 44.5 is to be construed literally, as nullify
the entire treaty, such consequence will affect only States that are party to the VC, but
the possibility remains that as to non-parties to the VC the customary rule of jus
cogens may have the effect to void only those treaty provisions that are contrary to
peremptory norms
- With respect to construction: in case of doubt, international norms should be
construed so as to be consistent with peremptory norms
- Jus cogens is binding on UN SC, as well as ICTY and their resolutions or
judgments respectively shall be construed as to be consistent with jus cogens; and if
that is impossible, i.e. if they are bluntly contradictory, they shall be viewed as invalid
- see example regarding the reconciliation of SC Res. 1497 which provided for
the exclusive jurisdiction of the State of the criminal who falls under the “grave
breaches” provisions of the Geneva Conventions (grave breaches of humanitarian law
belong to jus cogens and are intransgressible as the I.C.J. held in Threat or Use of

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Nuclear Weapons) and the Geneva Conventions which provided for universal
jurisdiction. How can this inconsistency be solved? Strict interpretation of the SC
Resolution so as to give the national state primary jurisdiction (a first shot), unless the
State where the criminal was apprehended is not satisfied that the national state will
pursue a genuine trial, in which cases it may decide to try it itself, or extradite it to a
foreign country that has a nexus (a connection) to the crime
- Deterrent effect. See Furundzija
- Bearing on the recognition of States. See Arbitration Commission on
Yugoslavia, Opinion 10: recognition is a discretionary act by each state, subject only
to compliance with the imperative rules of international law. It follows that when such
rules are violated (e.g. entity that meets the requirements for statehood emerges as a
result of aggression), other States should withhold recognition.
- A reservation that is contrary to jus cogens is inadmissible
- Effect on extradition treaties: A State may not comply with its obligations
under an extradition treaty if doing so may lead to a possible violation of jus cogens
(i.e. if compliance with the extradition treaty will expose the person to the risk of
facing torture, persecution on ethnic, religious or racial grounds).
- State immunity from foreign jurisdiction – peremptory norms may remove
such immunity
- See Furnundzija - peremptory norms may produce legal effects at the
municipal level, by rendering internationally invalid any national norms contrary to
them.
- According to some courts, the peremptory character of certain norms may be
granting to State courts universal criminal jurisdiction over the alleged authors of
those crimes. In other words, the alleged author of crimes could face prosecution in
any country in the world (even a country that has no nexus to the crimes).

The limited reliance on Jus Cogens in International Dealings

- these norms have been used only in dissenting opinions, orbiter dicta, State
pronouncements, declarations of international bodies, by litigants.
- Not yet invoked to invalidate a treaty provision
- I.C.J. has avoided the term

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- States refrain to invoke such rules out of principle, because they are still
inclined to act out of self-interest and will not invoke a rule unless they are affected

However, jus cogens rules do have a deterrent effect and can be said to shape State
conduct. Still, in bilateral relations, jus cogens norms still remain a potentiality.

Jus Cogens at the National Level

- jus cogens was used as the rationale for invalidating treaty provisions that
were determined to be contrary to it. See Bufano (Swiss Supreme Court, 1982) –
refused to comply with its obligations under the extradition treaty it had concluded
with Argentina, stating that the provisions of the European Convention on Extradition
and the ECHR (European Convention of Human Rights) apply to Argentina as
general principles of international law and justify Switzerland’s refusal to extradite in
the case at issue because the crimes may qualify as political crimes and also because
the accused were likely to face torture, which was a peremptory norm of international
law and as such required Switzerland from refraining to fulfill its treaty obligations.
- In later decisions the Swiss Supreme Court relied on Bufano and relied on jus
cogens, by explicitly stating the Art. 3 of the ECHR belonged to jus cogens. Notion of
jus cogens was enshrined in Swiss Constitution in 1999.
- Persistent objector
- The court in the Anglo Norwegian Fisheries case held that even if a customary
law rule existed (on a ten-mile rule relating to straight base-lines),
- “…the ten-mile rule would appear to be inapplicable as against Norway
inasmuch as she has always opposed any attempt to apply it to the Norwegian
coast.”
- On the other hand, in the Asylum case the court found that a state is not bound
by a customary law rule when the state refrained from becoming a party to a
convention that was the first to introduce the rule that had crystallized into
custom.
- “But even if it could be supposed that such a custom existed between certain
Latin-American States only, it could not be invoked against Peru which, far
from having by its attitude adhered to it, has, on the contrary, repudiated it by
refraining from ratifying the Montevideo Conventions of 1933 and 1939, which

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 were the first to include a rule concerning the qualification of the offence in
matters of diplomatic asylum.”
- NB: It is arguable whether this can apply as a general rule because there are
many reasons that a state may refuse to sign a convention – for example,
political, moral or economic reasons. We also know that the state has the option
to enter into a treaty and reserve out of the objectionable treaty provision. One
cannot always assume, unless the state has expressed itself on the matter, that a
state refuses to sign a particular treaty because it refutes the legality of a
particular provision within the treaty.
- In both these cases, the court did not set out the criteria to determine if a state is
a persistent objector. It did, however, allude to certain criteria in the Anglo-
Norwegian fisheries case jurisprudence. The jurisprudence of the case appears
to support the idea that an existing customary law rule would not apply to a state
if
- (1) it objected to any outside attempts to apply the rule to itself – (a) at the initial
stages and (b) in a consistent manner, and
- (2) if other states did not object to her resistance (read more in the case summary
available here).
- Commentators have stated, on the other hand, that for a state to become a
persistent objector, the state must
- (1) object to the practice at the initial stages of the formation of customary law
and continue to object in a sustained manner; or
- (2) adopt a contrary practice at the initial stages of the formation of customary
law and continue to do so a sustained manner.
- The objection must be expressed – either verbally or as contrary practice. There
is no rule that States have to take physical action to preserve their rights (see the
commentary (15) to the ILA customary law study).
- The absurdity of a persistent objector continuing to benefit from its objector
status is demonstrated in the following examples:
- (1) Consider also this possibility. A customary law rule is formed with regard
to the 12-mile territorial limit within which the state’s citizens have the
exclusive right to engage in fishing. If country B considers themselves as
persistent objectors to this rule then it is not bound by this rule. Country B’s

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 citizens, then in pursuance of the non-binding nature of the customary law rule
on its country, ventures into country C’s territorial waters to fish. Country C can
arrest these fishermen and prosecute them in accordance with its domestic laws.
Country B does not have an actionable cause before an international court
because country C’s action was to enforce a customary law right.
- (2) The other argument is that persistent objection cannot affect or look to
absolve the state’s obligations of jus cogens norms. For example, a state cannot
said to have a right or escape from the prohibition of torture simply because it
had been a persistent objector. This would be consistent with the position in
treaty law – states cannot make treaties or treaty reservations that conflict with
jus cogens norms.
- But what about other fundamental norms that fall short of the jus cogens status
– consider for example human rights obligations that do not form jus cogens
norms. For example, in the hypothetical scenario that a state objected initially
and persistently to the freedom of expression or religion, would the state, then,
be excused if it violated people’s rights to freedom and religion? Or would we
say that these people did not have the rights because the state chose the path of
a persistent objector?
- (3) What if the rule that the persistent objector objected to was an obligation?
Assume for example, the hunting of a certain endangered animal is prohibited
under treaty and customary law. Assume that state B had consistently objected
to this prohibition and continues to hunt that animal even after the prohibition
becomes a customary law right. Does this mean that state B is now absolved
from the prohibition and can continue to hunt regardless of the customary law
ban?
- In view of the above, it maybe more prudent and practical to argue that a state
can only be a persistent objector – and have the benefits of being a persistent
objector – at the time of the formation of the customary law. This is also
consistent with the fact that existing customary law binds new states and that
they cannot withdraw from customary law after they attain statehood.
-
- Subsequent objector
- Suffice to say, the consequences of a subsequent objector – one who objects

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 after the formation of the customary law rule – is clear. The state that objects
continues to be bound by the customary law. If it acts in contrary to the law, it
violates the law. The state can be held responsible for the violation under
international law.
- If a number of states agree to the deviation then these states could create another
customary law rule, either as a local custom or, if a sufficient number of affected
states participate, a general custom.
- For a subsequent objector to develop a new customary law rule an existing norm
must be broken. A state wishing to change customary law must either (1) violate
the law and hope other states would acquiesce to it (and if, and until such time
the state would be in breach of a customary international law); or (2) without
violating the existing law the state must (a) get a sufficient number of states to
accept that a new customary law had developed before choosing to adopt its
state practice accordingly or (2) use the existing framework and creative
interpretations to bring the violation within the existing law. In time, this
creative interpretation would allow for the formation of new law or it would be
rejected by states preventing such formation.

Legality of the Use by a State of Nuclear Weapons in Armed Conflict

Advisory Opinion (Jurisprudence & Customary Law)
The initial request for an advisory opinion by the ICJ was presented by the World
Health Organization (WHO) on 3 September 1993, but the ICJ did not render an
opinion on this request because the WHO was ultra vires, or acting outside its legal
capacity. Another request was presented by the United Nations General Assembly in
December 1994 and accepted by the Court in January 1995. The ICJ handed down an
advisory opinion on 8 July 1996 the Legality of the Threat or Use of Nuclear Weapons
case. The decision provides one of the few authoritative judicial decisions concerning
the legality under international law of the use or the threatened use of nuclear weapons.
Overview:
The General Assembly and World Health Organization requested advisory opinions
from the International Court of Justice regarding the legality of nuclear weapons.

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Issue:
May the International Court of Justice give an advisory opinion on any legal question
at the request of whatever body may be authorized by or in accordance with the Charter
of the United Nations to make such a request?

Rule:
the ICJ may give an advisory opinion on any legal question at the request of whatever
body may be authorized by or in accordance with the charter of the UN to make such a
request.

Analysis:
The Court also rejected arguments that it should refrain from rendering an advisory
opinion on the basis that such a reply might negatively affect disarmament negotiations,
and that the Court would be exceeding its authority and acting in a law-making
capacity. The Court rejected the latter argument on the basis that it simply states the
existing law and does not legislate, even if it sometimes must specify the scope and
application of such law .

Outcome:
Yes. The International Court of Justice may give an advisory opinion on any legal
question at the request of whatever body may be authorized by or in accordance with
the Charter of the United Nations to make such a request. Only compelling reasons are
justified for a refusal to grant such an advisory opinion. The Charter of the United
Nations authorizes the General Assembly to make such a request; however, the Court
lacks the jurisdiction to grant such an opinion to the World Health Organization.

Court's analysis of illegality of nuclear weapons

1. Deterrence and "threat"

The court considered the matter of deterrence, which involves a threat to use nuclear
weapons under certain circumstances on a potential enemy or an enemy. Was such a
threat illegal? The court decided, with some judges dissenting, that, if a threatened
retaliatory strike was consistent with military necessity and proportionality, it would
not necessarily be illegal. (Judgement paragraphs 37–50)

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 2. The legality of the possession of nuclear weapons

The court then considered the legality of the possession, as opposed to actual use, of
nuclear weapons. The Court looked at various treaties, including the UN Charter, and
found no treaty language that specifically forbade the possession of nuclear weapons in
a categorical way.
The UN Charter was examined in paragraphs 37-50 (paragraph 37: "The Court will
now address the question of the legality or illegality of recourse to nuclear weapons in
the light of the provisions of the Charter relating to the threat or use of force").
Paragraph 39 mentions: "These provisions [i.e. those of the Charter] do not refer to
specific weapons. They apply to any use of force, regardless of the weapons employed.
The Charter neither expressly prohibits, nor permits, the use of any specific weapon,
including nuclear weapons. A weapon that is already unlawful per se, whether by treaty
or custom, does not become lawful by reason of its being used for a legitimate purpose
under the Charter."
Treaties were examined in paragraphs 53-63 (paragraph 53: "The Court must therefore
now examine whether there is any prohibition of recourse to nuclear weapons as such;
it will first ascertain whether there is a conventional prescription to this effect"), as part
of the law applicable in situations of armed conflict (paragraph 51, first sentence:
"Having dealt with the Charter provisions relating to the threat or use of force, the Court
will now turn to the law applicable in situations of armed conflict"). In particular, with
respect to "the argument [that] has been advanced that nuclear weapons should be
treated in the same way as poisoned weapons", the Court concluded that "it does not
seem to the Court that the use of nuclear weapons can be regarded as specifically
prohibited on the basis of the [...] provisions of the Second Hague Declaration of 1899,
the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Protocol"
(paragraphs 54 and 56)". It was also argued by some that the Hague Conventions
concerning the use of bacteriological or chemical weapons would also apply to nuclear
weapons, but the Court was unable to adopt this argument ("The Court does not find
any specific prohibition of recourse to nuclear weapons in treaties expressly prohibiting
the use of certain weapons of mass destruction", paragraph 57 in fine).
With respect to treaties that "deal [...] exclusively with acquisition, manufacture,
possession, deployment and testing of nuclear weapons, without specifically addressing

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their threat or use," the Court notes that those treaties "certainly point to an increasing
concern in the international community with these weapons; the Court concludes from
this that these treaties could therefore be seen as foreshadowing a future general
prohibition of the use of such weapons, but they do not constitute such a prohibition by
themselves" (paragraph 62). Also, regarding regional treaties prohibiting resource,
namely those of Tlatelolco (Latin America) and Rarotonga (South Pacific) the Court
notes that while those "testify to a growing awareness of the need to liberate the
community of States and the international public from the dangers resulting from the
existence of nuclear weapons", "[i]t [i.e. the Court] does not, however, view these
elements as amounting to a comprehensive and universal conventional prohibition on
the use, or the threat of use, of those weapons as such." (paragraph 63).
Customary international law also provided insufficient evidence that the possession
of nuclear weapons had come to be universally regarded as illegal.
Ultimately, the court was unable to find an opinio juris (that is, legal consensus) that
nuclear weapons are illegal to possess. (paragraph 65) However, in practice, nuclear
weapons have not been used in war since 1945 and there have been numerous UN
resolutions condemning their use (however, such resolutions are not universally
supported—most notably, the nuclear powers object to them).(paragraph 68-73) The
ICJ did not find that these facts demonstrated a new and clear customary law absolutely
forbidding nuclear weapons.
However, there are many universal humanitarian laws applying to war. For instance, it
is illegal for a combatant specifically to target civilians and certain types of weapons
that cause indiscriminate damage are categorically outlawed. All states seem to observe
these rules, making them a part of customary international law, so the court ruled that
these laws would also apply to the use of nuclear weapons.(paragraph 86) The Court
decided not to pronounce on the matter of whether the use of nuclear weapons might
possibly be legal, if exercised as a last resort in extreme circumstances (such as if the
very existence of the state was in jeopardy).(paragraph 97)
Decision
The court undertook seven separate votes, all of which were passed.
▪ The court decided to comply with the request for an advisory opinion;
▪ The court replied that "There is in neither customary nor conventional
international law any specific authorization of the threat or use of nuclear weapons";

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▪ The court replied that "There is in neither customary nor conventional
international law any comprehensive and universal prohibition of the threat or use of
nuclear weapons as such";
▪ The court replied that "A threat or use of force by means of nuclear weapons
that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to
meet all the requirements of Article 51, is unlawful";
▪ The court replied that "A threat or use of nuclear weapons should also be
compatible with the requirements of the international law applicable in armed conflict,
particularly those of the principles and rules of humanitarian law, as well as with
specific obligations under treaties and other undertakings which expressly deal with
nuclear weapons"
▪ The court replied that "the threat or use of nuclear weapons would generally be
contrary to the rules of international law applicable in armed conflict, and in particular
the principles and rules of humanitarian law; However, in view of the current state of
international law, and of the elements of fact at its disposal, the Court cannot conclude
definitively whether the threat or use of nuclear weapons would be lawful or unlawful
in an extreme circumstance of self-defence, in which the very survival of a State would
be at stake"
The court replied that "There exists an obligation to pursue in good faith and bring to a
conclusion negotiations leading to nuclear disarmament in all its aspects under strict
and effective international control".
The Court reached this conclusion after a thorough examination both of the relevant
frameworks of international law and of the interplay between them. Its threshold
decision that the laws of war would determine nuclear weapons use left it with
essentially two questions to answer:
(1) Could the decision to use nuclear weapons be legal under jus ad bellum(right to
war)?
(2) Could the use of nuclear weapons ever comply with jus in bello(law of war)?
The Court’s determination that nuclear weapons might, under exceptional
circumstances, meet the demands of both doctrines compelled its refusal to find the use
of nuclear weapons categorically unlawful.
Turning to the first question, jus ad bellum determines the legality of decisions to use
force, and its precepts serve as a foundation of the United Nations Charter. The Charter

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creates a presumption against the legality of decisions to use force by demanding that
States “refrain in their international relations from the threat or use of force.” The
Charter also, however, creates exceptions to this rule, explicitly permitting any decision
to use force authorized by the United Nations Security Council, and noting that the
Charter does not “impair the inherent right of individual or collective self-defense if an
armed attack occurs” against a State. Thus, any decision to use force pursuant to
Security Council authorization or to defend against an armed attack is presumptively
legal, whereas any other use of force is presumptively illegal.
Applying this doctrine to determine the legality of nuclear weapons use, the Court sets
aside the question of the Security Council authorization (the Security Council, in
theory, may authorize the use of any sort of force it deems necessary to maintain or
restore peace and security) and instead focuses on the legality of a nuclear strike
launched in self-defense. Although uses of force in self-defense are presumptively
legal, the Court notes that attacks carried out in self-defense must conform to the
requirements of necessity and proportionality to qualify as legal.
Though the Court recognizes fully the impossibility of containing the destructive power
of nuclear weapons “in either space or time,” and notes that such weapons “have the
potential to destroy all civilization and the entire ecosystem of the planet, it refuses to
find that any possible authorization of a defensive nuclear strike would violate the
principle of proportionality. A nuclear strike launched to defend against a nuclear
strike, or against a sufficiently potent bombardment with conventional weapons, would
qualify as proportional and thus satisfy the demands of jus ad bellum. (This
corresponds to the “extreme circumstance of self-defence” language in the Court’s
ultimate holding quoted above.)
The Court then looks to whether jus in bello—or international humanitarian law, which
governs the conduct of warfare—would ever permit the use of a nuclear weapon. The
Court focuses its inquiry on three principles of IHL: the prohibition against unnecessary
suffering, the command that weapons distinguish between combatants and civilians,
and the requirement that attacks be proportional.
The Court states that, given their tremendous destructive power, “the use of nuclear
weapons in fact seems scarcely reconcilable with respect” for the requirements against
unnecessary suffering and the requirement of distinction. However, noting the lack of
a discrete factual scenario before it, the Court went on to find that it could

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not “conclude with certainty that the use of nuclear weapons would necessary be at
variance with the principles and rules of law applicable in armed conflict in any
circumstance.”
The Court more carefully scrutinizes the principle of proportionality, articulated in IHL
as a prohibition against attacks “expected to cause incidental loss of civilian life, injury
to civilians, damage to civilian objects, or a combination thereof, which would be
excessive in relation to the concrete and direct military advantage anticipated.” The
italicized clause directs a State to weigh the expected damage to civilians and civilian
objects not against a fixed counterweight but against the military advantage of the
attack. More concretely, a State whose very survival hinged on a nuclear attack against
the civilian-filled city of an opponent would weigh the expected loss of civilian life not
against any objective standard, but against the military advantage it anticipates—in this
case, survival. Given this feature of IHL, the Court found that it could not construe IHL
to categorically prohibit the use of nuclear weapons. (This corresponds to the “in which
the very survival of a State would be at stake” language in the Court’s ultimate holding
quoted above.)
Anglo-Norwegian Fisheries Case (UK v. Norway)
(Law of Sea & Customary Notes)

The Fisheries Case (United Kingdom v. Norway) was the culmination of a dispute,
originating in 1933, over how large an area of water surrounding Norway was
Norwegian waters (that Norway thus had exclusive fishing rights to) and how much
was 'high seas' (that the UK could thus fish).
In1949, the UK requested that the International Court of Justice determine how far
Norway's territorial claim extended to sea, and to award the UK damages in
compensation for Norwegian interference with UK fishing vessels in the disputed
waters, claiming that Norway's claim to such an extent of waters was against
international law.
The ICJ decided that Norway's claims to the waters were not inconsistent with
international laws concerning the ownership of local sea-space.
The United Kingdom requested the court to decide if Norway had used a legally
acceptable method in drawing the baseline from which it measured its territorial
sea. The United Kingdom argued that customary international law did not allow the

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length of a baseline drawn across abay to be longer than ten miles. Norway argued that
its delimitation method was consistent with general principles of international law.

The judgment was rendered in favor of Norway on the 18th December 1951. By 10
votes to 2 the court held that the method employed in the delimitation of the fisheries
zone by the Royal Norwegian decree is not contrary to international law.
By 8 votes to 4 votes the court also held that the base lines fixed by this decree in
application are not contrary to international law. However there are separate opinions
and dissenting opinions from the judges in the court.
Judge Hackworth declared that he concurred with the operative part of the judgment
because he considered that the Norwegian government had proved the existence of
historic title of the disputed areas of water.
Judge Alvarez from Chile relied on the evolving principles of the law of nations
applicable to the law of the sea.
• States have the right to modify the extent of the of their territorial sea
• Any state directly concerned may object to another state's decision as to the
extent of its territorial sea
• International status of bays and straits must be determined by the coastal state
directly concerned with due regard to the general interest and
• Historic rights and concept of prescription in international law.
Formation of customary law
The court consistently referred to positive (1) state practice and (2) lack of objections
of other states on that practice as a confirmation of an existing rule of customary
international law (see p. 17 and 18). There was no mention of opinio juris in this early
judgment.
In the following passage, the court considered that expressed state dissent regarding a
particular practice was detrimental to the existence of an alleged general rule. It did
not elaborate whether these states adopted a contrary practice because it was claiming
an exception to the rule (see the Nicaragua jurisprudence) or because it believed that
the said rule did not possess the character of customary law.
“In these circumstances the Court deems it necessary to point out that although the ten-
mile rule has been adopted by certain States both in their national law and in their
treaties and conventions, and although certain arbitral decisions have applied it as
between these States, other States have adopted a different limit. Consequently, the

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ten-mile rule has not acquired the authority of a general rule of international law.”
Persistent objector rule
The court in its judgment held that even if a customary law rule existed on the ten-mile
rule,
“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as
she has always opposed any attempt to apply it to the Norwegian coast.”
In this case, the court appears to support the idea that an existing customary law rule
would not apply to a state if it objected to any outside attempts to apply the rule to itself,
at the initial stages and in a consistent manner, and if other states did not object to her
resistance. In this manner, the Anglo Norwegian fisheries case joined the asylum case
(Peru vs Colombia) in articulating what we now call the persistent objector rule.
Initial objection
In the present case, the court pointed out that the Norwegian Minister of Foreign
Affairs, in 1870, stated that, “in spite of the adoption in some treaties of the quite
arbitrary distance of 10 sea miles, this distance would not appear to me to have acquired
the force of international law. Still less would it appear to have any foundation in
reality…”
The court held that “Language of this kind can only be construed as the considered
expression of a legal conception regarded by the Norwegian Government as compatible
with international law”. The court held that Norway had refused to accept the rule as
regards to it by 1870.
Sustained objection
The court also went on to hold that Norway followed the principles of delimitation that
it considers a part of its system in a consistent and uninterrupted manner from 1869
until the time of the dispute. In establishing consistent practice, the court held that
“…too much importance need not be attached to the few uncertainties or contradictions,
real or apparent, which the United Kingdom Government claims to have discovered in
Norwegian practice.”
No objection
After the court held that the 10-mile rule did not form a part of the general law and, in
any event, could not bind Norway because of its objections, the court inquired whether
the Norwegian system of delimitation, itself, was contrary to international law. To do
so, the court referred to state practice once more.

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“The general toleration of foreign States with regard to the Norwegian practice is an
unchallenged fact. For a period of more than sixty years the United Kingdom
Government itself in no way contested it… The Court notes that in respect of a situation
which could only be strengthened with the passage of time, the United Kingdom
Government refrained from formulating reservations.”
Contrary practice
In this case, Norway adopted a contrary practice – a practice that was the subject of
litigation.
However, interestingly, Norway was clear that it was not claiming an exception to the
rule (i.e. that its practice was not contrary to international law) but rather it claimed that
its practice was in conformity with international law (see page 21).
“In its (Norway’s) view, these rules of international law take into account the diversity
of facts and, therefore, concede that the drawing of base-lines must be adapted to the
special conditions obtaining in different regions. In its view, the system of delimitation
applied in 1935, a system characterized by the use of straight lines, does not therefore
infringe the general law; it is an adaptation rendered necessary by local conditions. ”
Conclusion
The court held that the fact that this consistent and sufficiently long practice took place
without any objection to the practice from other states (until the time of dispute)
indicated that states did not consider the Norwegian system to be “contrary to
international law”.
“The notoriety of the facts, the general toleration of the international community, Great
Britain’s position in the North Sea, her own interest in the question, and her prolonged
abstention would in any case warrant Norway’s enforcement of her system against the
United Kingdom. The Court is thus led to conclude that the method of straight lines,
established in the Norwegian system, was imposed by the peculiar geography of the
Norwegian coast; that even before the dispute arose, this method had been consolidated
by a consistent and sufficiently long practice, in the face of which the attitude of
governments bears witness to the fact that they did not consider it to be contrary to
international law.”
Relationship between international and national law
The court alluded to the relationship between national and international law in
delimitation of maritime boundaries. In delimitation cases, states “must be allowed the

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latitude necessary in order to be able to adapt its delimitation to practical needs and
local requirements…” The court would also consider “…certain economic interests
peculiar to a region, the reality and importance of which are clearly evidenced by a long
usage.” However, while the act of delimitation can be undertaken by the State, its legal
validity depends on international law.
“The delimitation of sea areas has always an international aspect; it cannot be
dependent merely upon the will of the coastal State as expressed in its municipal law.
Although it is true that the act of delimitation is necessarily a unilateral act, because
only the coastal State is competent to undertake it, the validity of the delimitation with
regard to other States depends upon international law. (p. 20)”

Island of Palmas Case (United States v. The Netherlands)

Procedural History:
Arbitration of territorial dispute.

Palmas (Miangas) is an island of little economic value or strategic location. It is two

miles in length, three-quarters of a mile in width, and had a population of about 750 in
1932, when the case was decided. Palmas lies between Mindanao, the southernmost
part of the Philippines, and the Nanusa Islands, the northernmost part of Indonesia other
than Palmas.
In 1898, Spain ceded the Philippines to the United States in the Treaty of Paris (1898)
and Palmas lay within the boundaries of that cession to the U.S. In 1906, the United
States discovered that the Netherlands also claimed sovereignty over the island, and the
two parties agreed to submit to binding arbitration by the Permanent Court of
Arbitration. On 23 January 1925, the two governments signed an agreement to that
effect. Ratifications were exchanged in Washington on 1 April 1925. The agreement
was registered in League of Nations Treaty Series on 19 May 1925.[1] The arbitrator
in the case was Max Huber, a Swiss lawyer.
The question before the arbitrator was whether the Island of Palmas (Miangas), in its
entirety, was a part of the territory of the United States or the Netherlands.
The legal issue presented was whether a territory belongs to the first discoverer, even
if they do not exercise authority over the territory, or whether it belongs to the state

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which actually exercises sovereignty over it.

Overview:
-The United States (P) claimed that the Island of Palmas was part of the Philippines but
the Netherlands (D) claimed title as well.
-The United States (P) claimed the Island of Palmas was part of the Philippines and had
been ceded by Spain by the Treaty of Paris in 1898.
-The United States (P), as successor to the rights of Spain over the Philippines, based
its claim of title in the first place on discovery. The Netherlands (D) claimed that it had
possessed and exercised rights of sovereignty over the island from 1677 or earlier to
the present.

Issue:
Can an inchoate title prevail over a definite title founded on continuous and peaceful
display of sovereignty?

Rule:
-An inchoate title cannot prevail over a definite title found on continuous and peaceful
display of sovereignty.

Analysis:
The arbitrator examined evidence of contracts made by the East India Company and
the Netherlands (D). The Netherlands (D) also based its claims on conventions it had
with the princes and native chieftains of the islands. Spain was found not to have had
dominion over the island at the time of the Treaty of Paris in 1898.
Outcome:
-An inchoate title cannot prevail over a definite title founded on continuous and
peaceful display of sovereignty. The continuous and peaceful display of territorial
sovereignty is as good as title. Discovery alone, without any subsequent act, cannot
suffice to prove sovereignty over the island. There is no positive rule of international
law that islands situated outside territorial waters should belong to a state whose
territory forms the nearest continent or large island. No one contested the exercise of

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territorial rights by the Netherlands (D) from 1700 to 1906. The title of discovery, at
best an inchoate title, does not prevail over the Netherlands, (D) claim of sovereignty.

DETAILED ANALYSES

Right by discovery
In the first of its two arguments, the United States argued that it held the island
because it had received actual title through legitimate treaties from the original
"discoverer" of the island, Spain. The United States argued that Spain acquired title to
Palmas when Spain discovered the island and the island was terra nullius. Spain's title
to the island, because it was a part of the Philippines, was then ceded to the United
States in the Treaty of Paris (1898) after Spain's defeat in the Spanish-American War.
The arbitrator noted that no new international law invalidated the legal transfer of
territory via cession.
However, the arbitrator noted that Spain could not legally grant what it did not hold and
the Treaty of Paris could not grant Palmas to the United States if Spain had no actual
title to it. The arbitrator concluded that Spain held an inchoate title when Spain
“discovered” Palmas. However, for a sovereign to maintain its initial title via discovery,
the arbitrator said that the discoverer had to actually exercise authority, even if it were
as simple an act as planting a flag on the beach. In this case, Spain did not exercise
authority over the island after making an initial claim after discovery and so the
American claim was based on relatively weak grounds.
The dispute was regarding the sovereignty over the island of Palmas.This island was
handed over to the US by the treaty of peace by Span. Their argument was that Spain
ceded Philippines to the United States. However, Netherlands believed that it was part
of their territory in the east Indies.

Contiguity
The United States also argued that Palmas was American territory because the island
was closer to the Philippines than to the Netherlands East Indies. The arbitrator said
there was no positive international law which favored the United States approach of
terra firma, where the nearest continent or island of considerable size gives title to the

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land in dispute. The arbitrator held that mere proximity was not an adequate claim to
land noted that if the international community followed the proposed American
approach, it would lead to arbitrary results.

Continuous and peaceful display of sovereignty

The Netherlands' primary contention was that it held actual title because the
Netherlands had exercised authority on the island since 1677. The arbitrator noted that
the United States had failed to show documentation proving Spanish sovereignty on the
island except those documents that specifically mentioned the island's discovery.
Additionally, there was no evidence that Palmas was a part of the judicial or
administrative organization of the Spanish government of the Philippines. However,
the Netherlands showed that the Dutch East India Company had negotiated treaties with
the local princes of the island since the 17th century and had exercised sovereignty,
including a requirement of Protestantism and the denial of other nationals on the island.
The arbitrator pointed out that if Spain had actually exercised authority, then there
would have been conflicts between the two countries but none are provided in the
evidence.

Conclusion
Under the Palmas decision, three important rules for resolving island territorial disputes
were decided:
▪ Firstly, title based on contiguity (the state of bordering) has no standing in
international law.
▪ Secondly, title by discovery is only an inchoate title.
Finally, if another sovereign begins to exercise continuous and actual sovereignty, (and
the arbitrator required that the claim had to be open and public and with good title), and
the discoverer does not contest this claim, the claim by the sovereign that exercises
authority is greater than a title based on mere discovery.

The Case of the S.S. Lotus (France v. Turkey)

(Jurisdiction and Customary Law)

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A collision occurred on the high seas between a French vessel and a Turkish vessel.
Victims were Turkish nationals and the alleged offender was French. Could
Turkey exercise its jurisdiction over the French national under international law?
A French ship (the S.S. Lotus), collided with a Turkish ship in international waters,
killing some Turkish sailors. The French ship then docked in Turkey. Turkey attempted
to try the French officer in charge of the Lotus for negligence. They found him guilty
and sentenced him to 80 days in jail.
France went to the Permanent Court of International Justice (P.C.I.J.) and argued that
Turkey did not have jurisdiction to try the French officers, because they were on a
French boat in international waters at the time of the accident.
Turkey argued that since their nationals were killed, they had jurisdiction to try those
responsible for the deaths.
France argued that as a matter of customary international law, the flag of the vessel (in
this case France) has exclusive jurisdiction.
The PCIJ found that Turkey did have the right to try the French sailors.
The PCIJ basically found that since the two ships were involved in the same accident,
that both countries had concurrent jurisdiction over the accident.
The PCIJ found that customary international law gave France jurisdiction, but it didn't
give them exclusive jurisdiction.
This case led to the Lotus Principle (aka the Lotus Approach), which says that sovereign
states may act in any way they wish so long as they do not contravene an explicit
prohibition. "Under international law, everything that isn't prohibited is permitted."

The Lotus Principle was later overruled by the 1958 High Seas Convention.
Article 11(1) says that only the flag State or the State of which the alleged offender
was a national has jurisdiction over sailors regarding incidents occurring in high seas.

Questions before the Court:

Did Turkey violate international law when Turkish courts exercised jurisdiction over a
crime committed by a French national, outside Turkey? If yes, should Turkey pay
compensation to France?
The Court’s Decision:

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Turkey, by instituting criminal proceedings against Demons, did not violate
international law.
Relevant Findings of the Court:
Establishing Jurisdiction: Does Turkey need to support its assertion of
jurisdiction using an existing rule of international law or is the mere absence of a
prohibition preventing the exercise of jurisdiction enough?
The first principle of the Lotus case said that jurisdiction is territorial: A State cannot
exercise its jurisdiction outside its territory unless an international treaty or customary
law permits it to do so. This is what we called the first Lotus Principle.
The second principle of the Lotus case: Within its territory, a State may exercise its
jurisdiction, on any matter, even if there is no specific rule of international law
permitting it to do so. In these instances, States have a wide measure of discretion,
which is only limited by the prohibitive rules of international law.
This applied to civil and criminal cases.
France alleged that the flag State of a vessel would have exclusive jurisdiction over
offences committed on board the ship in high seas. The PCIJ disagreed. It held that
France, as the flag State, did not enjoy exclusive territorial jurisdiction in the high seas
in respect of a collision with a vessel carrying the flag of another State (paras 71 – 84).
The Court held that Turkey and France both have jurisdiction in respect of the whole
incident: i.e. there is concurrent jurisdiction.
The PCIJ held that a ship in the high seas is assimilated to the territory of the flag State.
This State may exercise its jurisdiction over the ship, in the same way as it exercises its
jurisdiction over its land, to the exclusion of all other States. In this case, the Court
equated the Turkish vessel to Turkish territory. In this case, the PCIJ held that the “…
offence produced its effects on the Turkish vessel and consequently in a place
assimilated to Turkish territory in which the application of Turkish criminal law cannot
be challenged, even in regard to offences committed there by foreigners.” Turkey had
jurisdiction over this case.
The Lotus Case was also significant in that the PCIJ said that a State would have
territorial jurisdiction, even if the crime was committed outside its territory, so long as
a constitutive element of the crime was committed in that State. Today, we call this
subjective territorial jurisdiction. In order for subjective territorial jurisdiction to be
established, one must prove that the element of the crime and the actual crime are

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entirely inseparable; i.e., if the constituent element was absent – the crime would not
have happened.
“The offence for which Lieutenant Demons appears to have been prosecuted was an
act – of negligence or imprudence – having its origin on board the Lotus, whilst its
effects made themselves felt on board the Boz-Kourt. These two elements are, legally,
entirely inseparable, so much so that their separation renders the offence non-
existent… It is only natural that each should be able to exercise jurisdiction and to do
so in respect of the incident as a whole. It is therefore a case of concurrent
jurisdiction.”
Customary International Law
The Lotus case gives an important dictum on creating customary international law.
France alleged that jurisdictional questions on collision cases are rarely heard in
criminal cases because States tend to prosecute only before the flag State. France argued
that this absence of prosecutions points to a positive rule in customary law on
collisions.The Court held that this “…would merely show that States had often, in
practice, abstained from instituting criminal proceedings, and not that they recognized
themselves as being obliged to do so; for only if such abstention were based on their
being conscious of having a duty to abstain would it be possible to speak of an
international custom. The alleged fact does not allow one to infer that States have been
conscious of having such a duty; on the other hand, as will presently be seen, there are
other circumstances calculated to show that the contrary is true.” In other words,
opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case)
in so far as those acts or omissions are done following a belief that the said State is
obligated by law to act or refrain from acting in a particular way.

Military and Paramilitary Activities in Nicaragua Case

(Use of Force & Customary Law)

ICJ case where Nicaragua brought suit against US for funding of Contras in Nicaragua.
Was contra conduct attributable to the United States?
Standard applied? Article 11 of ILC Draft Articles
The ICJ found that there was not enough direction or control from the US to the contras
to make the acts of the contras attributable to the US

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For there to be enough direction, the US would have had to have effective control of
the military or paramilitary operations in the course of which the alleged violations
were committed
However, the US violate international law on other grounds: its support of the contras
was a use of force against Nicaragua
US was held responsible for its own conduct, but not for the conduct of the contras.

Facts of the Case:

In July 1979 the Government of President Somoza collapsed following an armed
opposition led by the Frente Sandinista de Liberacibn Nacional (FSLN) . The new
government – installed by FSLN – began to meet armed opposition from supporters of
the former Somoza Government and ex-members of the National Guard. The US –
initially supportive of the new government – changed its attitude when, according to
the United States, it found that Nicaragua was providing logistical support and weapons
to guerrillas in El Salvador. In April 1981 it terminated United States aid to Nicaragua
and in September 1981, according to Nicaragua, the United States “decided to plan and
undertake activities directed against Nicaragua”.
The armed opposition to the new Government was conducted mainly by
(1) Fuerza Democratica Nicaragüense (FDN), which operated along the border with
Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated
along the border with Costa Rica, (see map of the region). Initial US support to these
groups fighting against the Nicaraguan Government (called “contras”) was covert.
Later, the United States officially acknowledged its support (for example: In 1983
budgetary legislation enacted by the United States Congress made specific provision
for funds to be used by United States intelligence agencies for supporting “directly or
indirectly military or paramilitary operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in control of the contras, the
United States devised their strategy and directed their tactics and that they were paid for
and directly controlled by United States personal. Nicaragua also alleged that some
attacks were carried out by United States military – with the aim to overthrow the
Government of Nicaragua. Attacks against Nicaragua included the mining of
Nicaraguan ports and attacks on ports, oil installations and a naval base. Nicaragua
alleged that aircrafts belonging to the United States flew over Nicaraguan territory to

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gather intelligence, supply to the contras in the field and to intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing to
accept the ICJ’s jurisdiction to decide the case. The United States at the jurisdictional
phase of the hearing, however, stated that it relied on an inherent right of collective
self-defence guaranteed in A. 51 of the UN Charter by “providing, upon request,
proportionate and appropriate assistance…” to Costa Rica, Honduras and El Salvador
in response to Nicaragua’s alleged acts aggression against those countries (paras. 126,
128).

Questions before the Court:

1. Did the United States breach its customary international law obligation – not to
intervene in the affairs of another State – when it trained, armed, equipped and financed
the contra forces or encouraged, supported and aided the military and paramilitary
activities against Nicaragua?
2. Did the United States breach its customary international law obligation – not to use
force against another State – when it directly attacked Nicaragua in 1983 – 1984 and
when its activities in bullet point 1 above resulted in the use of force?
3. If so, can the military and paramilitary activities that the United States undertook in
and against Nicaragua be justified as collective self-defence?
4. Did the United States breach its customary international law obligation – not to
violate the sovereignty of another State – when it directed or authorized its aircrafts to
fly over Nicaraguan territory and by acts referred to in bullet point 2 above?
5. Did the United States breach its customary international law obligations – not to
violate the sovereignty of another State, not to intervene in its affairs, not to use force
against another State and not to interrupt peaceful maritime commerce – when it laid
mines in the internal waters and the territorial sea of Nicaragua?
ICJ decision:
The United States violated customary international law in relation to bullet points 1, 2,
4 and 5 above. On bullet point 3, the Court found that the United States could not rely
on collective self-defence to justify its use of force against Nicaragua.
The court held that the United States breached its customary international law
obligation – not to use force against another State: (1) when it directly attacked

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Nicaragua in 1983 – 1984; and (2) when its activities with the contra forces resulted
in the threat or use of force
The Court held that:
The prohibition on the use of force is found in Article 2(4) of the UN Charter and in
customary international law.
In a controversial finding the court sub-classified the use of force as: (1) the “most
grave forms of the use of force” (i.e. those that constitute an armed attack) and (2) the
“less grave form” (i.e. organizing, instigating, assisting or participating in acts of civil
strife and terrorist acts in another State – when the acts referred to involve a threat or
use of force not amounting to an armed attack).
The United States violated the customary international law prohibition on the use of
force when it laid mines in Nicaraguan ports. It violated this prohibition when it
attacked Nicaraguan ports, oil installations and a naval base (see below). The United
States could justify its action on collective self-defence, if certain criteria were met –
this aspect is discussed below.
The United States violated the customary international law prohibition on the use of
force when it assisted the contras by “organizing or encouraging the organization of
irregular forces and armed bands… for incursion into the territory of another state” and
participated “in acts of civil strife…in another State” when these acts involved the
threat or use of force.
The supply of funds to the contras did not violate the prohibition on the use of force.
Nicaragua argued that the timing of the offensives against it was determined by the
United States: i.e. an offensive could not be launched until the requisite funds were
available. The Court held that “…it does not follow that each provision of funds by the
United States was made to set in motion a particular offensive, and that that offensive
was planned by the United States.” The Court held further that while the arming and
training of the contras involved the threat or use of force against Nicaragua, the supply
of funds, in it self, only amounted to an act of intervention in the internal affairs of
Nicaragua (para 227) – this aspect is discussed below.
What is an armed attack?
(1) A controversial but interesting aspect of the Court’s judgement was its
definition of an armed attack. The Court held that an armed attack included:
(2) action by regular armed forces across an international border; and

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(3) “the sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of armed force against another State of such gravity
as to amount to (inter alia) an actual armed attack conducted by regular forces, or its
(the State’s) substantial involvement therein”
(4) Mere frontier incidents are not considered as an armed attack – unless because
of its scale and effects it would have been classified as an armed attack if it was carried
out by regular forces.
(5) Assistance to rebels in the form of provision of weapons or logistical support
did not constitute an armed attack – it can be regarded as a threat or use of force, or an
intervention in the internal or external affairs of other States.
-> In the Palestine wall case, the ICJ upheld the definition of “armed attack” proposed
in the Nicaragua case.

2. The Court held that the United States could not justify its military and
paramilitary activities on the basis of collective self-defence.

▪ Customary international law allows for exceptions to the prohibition on the use
of force – including the right to individual or collective self-defence (for a difference
between the two forms of self defence, click here). The United States, at an earlier stage
of the proceedings, had asserted that the Charter itself acknowledges the existence of
this customary international law right when it talks of the “inherent” right of a State
under Article 51 of the Charter (para.193).
▪ When a State claims that it used force in collective self-defence, the Court
would look into two aspects:
(1) whether the circumstances required for the exercise of self-defence existed and
(2) whether the steps taken by the State, which was acting in self-defence, corresponds
to the requirements of international law (i.e. did it comply with the principles of
necessity and proportionality).
▪ Several criteria must be met for a State to exercise the right of individual or
collective self-defence:
(1) A State must have been the victim of an armed attack;
(2) This State must declare itself as a victim of an armed attack; [NB: the assessment
whether an armed attack took place or not is done by the state who was subjected to the

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attack. A third State cannot exercise a right of collective self-defence based its (the third
State’s) own assessment]; and
(3) In the case of collective self-defence – the victim State must request for assistance
(“there is no rule permitting the exercise of collective self-defence in the absence of a
request by the State which regards itself as the victim of an armed attack”).
(4) The State does not, under customary international law, have the same obligation as
under Article 51 of the UN Charter to report to the Security Council that an armed
attack happened – but “the absence of a report may be one of the factors indicating
whether the State in question was itself convinced that it was acting in self-defence”
The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica
and Honduras in determining whether an armed attack was undertaken by Nicaragua
against the three countries – which in turn would necessitate self-defence (paras 230 -
236). The Court referred to statements made by El Salvador, Costa Rica, Honduras and
the United States before the Security Council. None of the countries who were allegedly
subject to an armed attack by Nicaragua (1) declared themselves as a victim of an armed
attack or request assistance from the United States in self-defence – at the time when
the United States was allegedly acting in collective self-defence; and (2) the United
States did not claim that it was acting under Article 51 of the UN Charter and it did not
report that it was so acting to the Security Council. The Court concluded that the United
States cannot justify its use of force as collective self-defence.
The criteria with regard to necessity and proportionality, that is necessary when using
force in self-defence – was also not fulfilled.
3. The Court held that the United States breached its CIL obligation – not to
intervene in the affairs of another State – when it trained, armed, equipped and
financed the contra forces or encouraged, supported and aided the military and
paramilitary activities against Nicaragua.
▪ The principle of non- intervention means that every State has a right to conduct
its affairs without outside interference – i.e it “…forbids States or groups of States to
intervene directly or indirectly in internal or external affairs of other States.” . This is a
corollary of the principle of sovereign equality of States.
A prohibited intervention must accordingly be one bearing on matters in which each
State is permitted, by the principle of State sovereignty to decide freely. One of these
is the choice of a political, economic, social and cultural system, and the formulation

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of foreign policy. Intervention is wrongful when it uses methods of coercion in regard
to such choices, which must remain free ones. The element of coercion, which defines,
and indeed forms the very essence of, prohibited intervention, is particularly obvious
in the case of an intervention which uses force, either in the direct form of military
action, or in the indirect form of support for subversive or terrorist armed activities
within another State (para 205).
▪ Nicaragua stated that the activities of the United States were aimed to overthrow
the government of Nicaragua and to substantially damage the economy and weaken the
political system to coerce the Government of Nicaragua to accept various political
demands of the United States. The Court held:
“…first, that the United States intended, by its support of the contras, to coerce the
Government of Nicaragua in respect of matters in which each State is permitted, by the
principle of State sovereignty, to decide freely (see paragraph 205 above) ; and secondly
that the intention of the contras themselves was to overthrow the present Government
of Nicaragua… The Court considers that in international law, if one State, with a view
to the coercion of another State, supports and assists armed bands in that State whose
purpose is to overthrow the government of that State, that amounts to an intervention
by the one State in the internal affairs of the other, whether or not the political
objective of the State giving such support and assistance is equally far reaching.”
▪ The financial support, training, supply of weapons, intelligence and logistic
support given by the United States to the contras was a breach of the principle of non-
interference. “…no such general right of intervention, in support of an opposition
within another State, exists in contemporary international law”, even if such a request
for assistance is made by an opposition group of that State (see para 246 for more).
▪ However, in a controversial finding, the Court held that the United States did
not devise the strategy, direct the tactics of the contras or exercise control on them in
manner so as to make their acts committed in violation of international law imputable
to the United States (see in this respect “Determining US responsibility for contra
operations under international law” 81 AMJIL 86).T he Court concluded thaFBt “a
number of military and paramilitary operations of the contras were decided and
planned, if not actually by United States advisers, then at least in close collaboration
with them, and on the basis of the intelligence and logistic support which the United
States was able to offer, particularly the supply aircraft provided to the contras by the

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United States” but not all contra operations reflected strategy and tactics wholly devised
by the United States.
“In sum, the evidence available to the Court indicates that the various forms of
assistance provided to the contras by the United States have been crucial to the pursuit
of their activities, but is insufficient to demonstrate their complete dependence on
United States aid. On the other hand, it indicates that in the initial years of United States
assistance the contra force was so dependent. However, whether the United States
Government at any stage devised the strategy and directed the tactics of the contras
depends on the extent to which the United States made use of the potential for control
inherent in that dependence. The Court already indicated that it has insufficient
evidence to reach a finding on this point. It is a fortiori unable to determine that the
contra force may be equated for legal purposes with the forces of the United
States…The Court has taken the view (paragraph 110 above) that United States
participation, even if preponderant or decisive, in the financing, organizing, training,
supplying and equipping of the contras, the selection of its military or paramilitary
targets, and the planning of the whole of its operation, is still insufficient in itself, on
the basis of the evidence in the possession of the Court, for the purpose of attributing
to the United States the acts committed by the contras in the course of their military or
paramilitary operations in Nicaragua. All the forms of United States participation
mentioned above, and even the general control by the respondent State over a force
with a high degree of dependency on it, would not in themselves mean, without further
evidence, that the United States directed or enforced the perpetration of the acts
contrary to human rights and humanitarian law alleged by the applicant State. Such acts
could well be committed by members of the contras without the control of the United
States. For this conduct to give rise to legal responsibility of the United States, it would
in principle have to be proved that that State had effective control of the military or
paramilitary.”
▪ Interesting, however, the Court also held that providing “…humanitarian aid to
persons or forces in another country, whatever their political affiliations or objectives,
cannot be regarded as unlawful intervention, or as in any other way contrary to
international law” (para 242).
▪ In the event one State intervenes in the affairs of another State, the victim State
has a right to intervene in a manner that is short of an armed attack (210).

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“While an armed attack would give rise to an entitlement to collective self-defence, a
use of force of a lesser degree of gravity cannot as the Court has already observed
(paragraph 21 1 above). produce any entitlement to take collective countermeasures
involving the use of force. The acts of which Nicaragua is accused, even assuming them
to have been established and imputable to that State, could only have justified
proportionate counter-measures on the part of the State which had been the victim of
these acts, namely El Salvador, Honduras or Costa Rica. They could not justify counter-
measures taken by a third State, the United States, and particularly could not justify
intervention involving the use of force.”
4. The United States breached its customary international law obligation – not to
violate the sovereignty of another State – when it directed or authorized its
aircrafts to fly over Nicaraguan territory and when it laid mines in the internal
waters of Nicaragua and its territorial sea.
▪ The ICJ examined evidence and found that in early 1984 mines were laid in or
close to ports of the territorial sea or internal waters of Nicaragua “by persons in the
pay or acting ion the instructions” of the United States and acting under its supervision
with its logistical support. The United States did not issue any warning on the location
or existence of mines and this resulted in injuries and increases in maritime insurance
rates.
▪ The court found that the United States also carried out high-altitude
reconnaissance flights over Nicaraguan territory and certain low-altitude flights,
complained of as causing sonic booms.
The basic concept of State sovereignty in customary international law is found in
Article 2(1) of the UN Charter. State sovereignty extends to a State’s internal waters,
its territorial sea and the air space above its territory. The United States violated
customary international law when it laid mines in the territorial sea and internal waters
of Nicaragua and when it carried out unauthorised overflights over Nicaraguan airspace
by aircrafts that belong to or was under the control of the United States.
In the Nicaragua case, the ICJ discussed:
▪ The competence of the ICJ to give its determination based on customary
international law in the face of the Vandenberg reservation of the United States.
▪ The relationship between treaty law and customary international law.
▪ Elements of customary international law.

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▪ The prohibition on the use of force as a jus cogens norm.
▪ Customary international law status of the principle of non-intervention.

The competence of the ICJ to give its determination based on customary

international law
1. The United States when accepting the compulsory jurisdiction of the ICJ (under
Article 36(2) of the ICJ Statute) entered into the Vandenberg reservation. This
reservation barred the ICJ from using certain multilateral treaties in the adjudication of
the dispute.
2. The United States held that this reservation barred the Court from determining the
case even on the basis of customary and general principles of international law because
customary law provisions, on which Nicaragua relied on, were identical to provisions
in treaties sought to be excluded. Because of the identical content, the United States
argued, treaty provisions supervene and subsume the parallel customary law provision
(see below).
3. The Court disagreed. It held that multilateral treaty reservations could not preclude
the Court from determining cases relying customary international law because the latter
exists independently of treaty law.
Relationship between treaty law and customary international law
4. As we noted before, the United States argued that when customary international law
and treaty law contain the same content; the treaty law subsumes and supervenes
customary international law. In other words, “the existence of principles in the United
Nations Charter precludes the possibility that similar rules might exist independently
in customary international law, either because existing customary rules had been
incorporated into the Charter, or because the Charter influenced the later adoption of
customary rules with a corresponding content” (para 174).
5. In its response, the Court distinguished two situations:
(a) Situations where the customary law principles were identical to treaty provisions;
and
(b) Situations where customary law and treaty law rights and obligations differed in
respect of the same subject matter.
6. In situations where customary law principles were identical to treaty provisions
(reflected as (a) above), the Court, quite correctly, disagreed with the view of the United

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States. It held that even if principles of customary international law are codified into
treaties, the former continues to exist side by side with the latter. For treaty parties, both
customary and treaty law apply and if, for some reason, the treaty ceases to apply the
identical customary law provision continues to apply between them unaffected.
7. The fact that customary international law exists alongside treaty law was an argument
brought by Norway and Denmark in the North Sea Continental Shelf Cases. In these
cases, the two countries having failed to attribute an obligation under Article 6 of the
Geneva Conventions of 1958 to Germany, sought to bind Germany via customary
international law. In this case the Court determined that Article 6 neither reflected
customary law at the time of the codification, nor had it attained that status at the time
of the determination. In the Nicaragua case, the Court relied on the North Sea
Continental Shelf Cases to support the assertion that principles of customary
international law can exist side by side with identical treaty law provisions and the latter
does not supervene the former in a manner where the former ceases to exist.
The Court discussed situations where customary international law and treaty law
provisions were not identical (see point (b) above). For example, the Court referred to
the fact that concepts such and necessity and proportionality, or the definition of what
constitutes an armed attack, are not found under Article 51, or the UN Charter, but in
customary law. The Court concluded that (1) this proves that customary international
law continues to exist alongside treaty law and that (2) areas governed by the two
sources of law do not (always) overlap and the rules do not (always) have the same
content.
In case of a divergence between treaty law and customary international law, for the
parties to the treaty, amongst themselves, the treaty provisions apply as lex specialis.
The court’s support for this principle can be found in paras 180 and 181. The Court, in
conclusion, explained the relationship between the UN Charter and customary
international law in the following manner:
“However, so far from having constituted a marked departure from a customary
international law which still exists unmodified, the Charter gave expression in this field
(on the use of force and self defence) to principles already present in customary
international law, and that law has in the subsequent four decades developed under the
influence of the Charter, to such an extent that a number of rules contained in the
Charter have acquired a status independent of it. The essential consideration is that both

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the Charter and the customary international law flow from a common fundamental
principle outlawing the use of force in international relations. The differences which
may exist between the specific content of each are not, in the Court’s view, such as to
cause a judgment confined to the field of customary international law to be ineffective
or inappropriate (to the parties of the Charter who are bound by the Charter)…

The relationship between customary international law and jus cogens

13. The court cited material presented by Nicaragua, the United States and the
International Law Commission to argue that the prohibition on the use of force
contained in Article 2(4) of the UN Charter has attained the status of a jus cogens
norm. The Court found this to be “A further confirmation of the validity as customary
international law of the principle of the prohibition of the use of force expressed in
Article 2, paragraph 4, of the Charter of the United Nations…” (para 190).

The necessary elements to determine the existence of customary international law

14. The Court, similar to the North Sea Continental Shelf Case, considered both the
subjective element (opinio juris) and the objective element (State practice) as essential
pre-requisites to the formation and elucidation of a customary international law norm
(para 207). The jurisprudence of the Nicaragua case contained an important
clarification – inconsistent State practice does not affect the formation or continued
existence of a customary principle so long as the inconsistency is justified as a breach
of the rule.
“It is not to be expected that in the practice of States the application of the rules in
question should have been perfect, in the sense that States should have refrained, with
complete consistency, from the use of force or from intervention in each other’s internal
affairs.
The Court does not consider that, for a rule to be established as customary, the
corresponding practice must be in absolutely rigorous conformity with the rule. In
order to deduce the existence of customary rules, the Court deems it sufficient that the
conduct of States should, in general, be consistent with such rules, and that instances
of State conduct inconsistent with a given rule should generally have been treated as
breaches of that rule, not as indications of the recognition of a new rule.
If a State acts in a way prima facie incompatible with a recognized rule, but defends its

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conduct by appealing to exceptions or justifications contained within the rule itself,
then whether or not the State’s conduct is in fact justifiable on that basis, the
significance of that attitude is to confirm rather than to weaken the rule. (para 186)”
15. The Nicaragua jurisprudence explained how one could deduct opinio juris from acts
of State. The Court held that opinio juris could be deduced from:
- the attitude of States towards certain General Assembly resolutions. For example,
the “Declaration on Principles of International Law concerning Friendly Relations…”
(hereafter called the Declaration on Friendly Relations). The Court held that:
“The effect of consent to the text of such resolutions cannot be understood as merely
that of a “reiteration or elucidation” of the treaty commitment undertaken in the Charter.
On the contrary, it may be understood as an acceptance of the validity of the rule or set
of rules declared by the resolution by themselves…It would therefore seem apparent
that the attitude referred to expresses an opinio juris respecting such rule (or set of
rules), to be thenceforth treated separately from the provisions, especially those of an
institutional kind, to which it is subject on the treaty-law plane of the Charter”
- Statements by State representatives.
- Obligations undertaken by participating States in international forums (the Court
provided the example of the Conference on Security and Co-operation in Europe,
Helsinki)
- The International Law Commission’s findings that a concept amounts to a customary
law principle.
- Multilateral conventions.
NB: The fact that the Court relied on resolutions of the United Nations to deduct opinio
juris was subject to criticism. As you know, opinio juris is the subjective element
necessary to form customary law. Opinio juris is reflected in instances where the
State undertakes a particular practice because it believes that it is legally bound to do
so. Voting patterns in the United Nations are often guided by policy considerations over
legal merits. The General Assembly’s subject matter is more policy oriented than legal
(for which we have the 6th Committee). For example, when the United States voted for
the Friendly Relations Declaration it stated on record its belief that the Declaration
was “only a statement of political intention and not an expression of the law.” This is
not to say that provisions on General Assembly Resolutions that guide the international
community to act in a certain way may not eventually become binding international

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law (either by attaining customary law status or becoming codified into treaty law). It
can, if there is adequate State practice and opinio juris. The argument is that opinio juris
cannot be said to exist based merely on a vote in favour of a non-binding resolution –
in the absence of an examination of subsequent consistent and general State practice
(which, in turn, reflects or confirms opinio juris).
Customary international law relating to principles of non-intervention
16. The Court held that “Principles such as those of the non-use of force (para 191),
non-intervention (para 192), respect for the independence and territorial integrity of
States, right of collective self defence (para 193) and the freedom of navigation,
continue to be binding as part of customary international law, despite the operation of
provisions of conventional law in which they have been incorporated (text in brackets
added).”
17. The Court’s finding that principle of non-intervention formed a part of customary
international law invited criticism from commentators, partly because they disagreed
that the principle formed customary international law and partly because of the Court’s
own contradictions in coming to its conclusions and inadequacy of analysis (see below).
The Court’s contradiction stems from this statement: ” The principle of non-
intervention involves the right of every sovereign State to conduct its affairs without
outside interference; though examples of trespass against this principle are not
infrequent, the Court considers that it is part and parcel of customary
international law…”(emphasis added. Para 202).
18. The Court began its analysis with two questions: “Notwithstanding the multiplicity
of declarations by States accepting the principle of non-intervention, there remain two
questions: first, what is the exact content of the principle so accepted, and secondly, is
the practice sufficiently in conformity with it for this to be a rule of customary
international law?” The first question was discussed in a previous post and will not be
discussed here.
18. Although the question seemed to direct the Court towards identifying an existing
custom, in its response the Court seemed to have already determined that the customary
law prohibition of non-intervention existed. In the following passage the Court
deliberates if, in contrast, a customary law right to intervention had evolved.
“There have been in recent years a number of instances of foreign intervention for the
benefit of forces opposed to the government of another State. The Court is not here

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concerned with the process of decolonisation… It has to consider whether there might
be indications of a practice illustrative of belief in a kind of general right for States to
intervene, directly or indirectly, with or without armed force, in support of an internal
opposition in another State, whose cause appeared particularly worthy by reason of the
political and moral values with which it was identified. For such a general right to come
into existence would involve a fundamental modification of the customary law
principle of non-intervention.” (paras 206, 207).
19. The Court went on to hold, as before, that for a new customary rule to be formed,
not only must the acts concerned “amount to a settled practice”, but they must be
accompanied by the opinio juris sive necessitates”.
“The significance for the Court of cases of State conduct prima facie inconsistent with
the principle of non-intervention lies in the nature of the ground offered as
justification. Reliance by a State on a novel right or an unprecedented exception to the
principle might, if shared in principle by other States, tend towards a modification of
customary international law. In fact however the Court finds that States have not
justified their conduct by reference to a new right of intervention or a new exception to
the principle of its prohibition. The United States authorities have on some occasions
clearly stated their grounds for intervening in the affairs of a foreign State for reasons
connected with, for example, the domestic policies of that country, its ideology, the
level of its armaments, or the direction of its foreign policy. But these were statements
of international policy, and not an assertion of rules of existing international law.”
20. The Court also noted that the United States has not sought to justify its intervention
in Nicaragua on legal grounds, but had only justified it at a political level. The United
States had not asserted for itself legal right of intervention in these circumstances. The
Court, without further analysis into State practice, almost immediately proceeded to
find that “…no such general right of intervention, in support of an opposition within
another State, exists in contemporary international law. The Court concludes that acts
constituting a breach of the customary principle of non-intervention will also, if they
directly or indirectly involve the use of force, constitute a breach of the principle of
non-use of force in international relations (para 209).”

Development of a parallel customary international law?

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In addition to the comments made above in italics, another interesting aspect of the
judgment is that it sought to divorce customary international law obligation from the
identical treaty obligation because of the jurisdictional bar to consider multilateral
treaties. In its consideration of customary international law it developed certain
principles independently of the treaty. For example, Article 2(4) of the UN Charter
prohibits the threat or use of force against another State. The Court held that the same
prohibition on the use of force could be found under customary international law and
as a jus cogens norm. The Court then went on to categorize the use of force under
customary law as either a “grave use of force” (i.e. use of force amounting to an armed
attack) or a “less grave use of force” (i.e. use of force that falls short of an armed attack
– for example, the threat to use force). The Court, then, restricted the right of self-
defense to a situation where there had been a grave use of force (or an armed attack, as
defined by the Court). If one were to hold that the relevant Charter principles were
clear, precise and unambiguous, one could say this divorced interpretation could result
in customary law developing in a manner that is not in line with the Charter and thereby
creating separate rights/ regimes of law that govern the same subject matter. This is
because, then, the two regimes would be irreconcilable. However, the fact remains that
the Charter does leave room for interpretation – for example, on the definition of an
armed attack or on the use of force. In cases of ambiguity, Article 31 of the Vienna
Convention on the Law of Treaties directs us to look at, inter alia, subsequent practice
and any relevant rules of international law that maybe applicable. In other words, a
treaty can be interpreted with the assistance of customary and general principles of
international law. In this case, the development of customary law would also mean a
potential development of ambiguous treaty law – and a reconciliation of treaty and
customary law provisions.

North Sea Continental Shelf Case

(Federal Republic Of Germany
v
Denmark and v Netherlands) ( Customary law & law of sea )

Germany's North Sea coast is concave, while the Netherlands' and Denmark's coasts
are convex. If the delimitation had been determined by the equidistance rule ("drawing

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a line each point of which is equally distant from each shore"), Germany would have
received a smaller portion of the resource-rich shelf relative to the two other states.
Thus Germany argued that the length of the coastlines be used to determine the
delimitation. Germany wanted the ICJ to apportion the Continental Shelf to the
proportion of the size of the state's adjacent land and not by the rule of equidistance.
The Court ultimately urged the parties to "abat[e] the effects of an incidental special
feature [Germany's concave coast] from which an unjustifiable difference of treatment
could result." In subsequent negotiations, the states granted to Germany most of the
additional shelf it sought. The cases are viewed as an example of "equity praeter
legem"—that is, equity "beyond the law"—when a judge supplements the law with
equitable rules necessary to decide the case at hand.

Facts
West Germany, the Netherlands and Denmark wanted to determine where the maritime
borders of their countries were. West Germany wanted to use the just and equitable idea
and the Netherlands and Denmark wanted to use the equidistance/special circumstances
principals in the 1958 Geneva Convention on the Continental Shelf. Applying the
equidistance principle would cut off ocean access to West Germany while greatly
increasing the area under Danish and Dutch control.

The case involved the delimitation of the continental shelf areas in the North Sea
between Germany and Denmark and Germany and Netherlands beyond the partial
boundaries previously agreed upon by these States.

The parties requested the ICJ to decide the principles and rules of international law that
are applicable to the above delimitation.

The parties disagreed on the applicable principles or rules of delimitation – Netherlands

and Denmark relied on the principle of equidistance (the method of determining the
boundaries in such a way that every point in the boundary is equidistant from the nearest
points of the baselines from which the breath of the territorial sea of each State is
measured). Germany sought to get a decision in favour of the notion that the
delimitation of the relevant continental shelf is governed by the principle that each

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coastal state is entitled to a just and equitable share (hereinafter called just and equitable
principle/method). Contrary to Denmark and Netherlands, Germany argued that the
principle of equidistance was neither a mandatory rule in delimitation of the continental
shelf nor a rule of customary international law that was not binding on Germany.
The court was not asked to delimit – the parties agreed to delimit the continental shelf
as between their countries, by agreement, after the determination of the ICJ on the
applicable principles.

Issue
What principles and rules of international law are applicable to the delimitation of the
continental shelf in the North Sea between the parties?

Is Germany under a legal obligation to accept the equidistance-special circumstances

principle, contained in Article 6 of the Geneva Convention, either as a customary
international law rule or on the basis of the Geneva Convention?

Decision
Equidistance principle is not customary law, and thus the parties must come to an
equitable settlement of the appropriate boundaries.
The use of the equidistance method had not crystallised into customary law and was is
not obligatory for the delimitation of the areas in the North Sea related to the present
proceedings.
Reasons
The majority spent a significant amount of the decision considering what constitutes a
customary rule of law. They considered three ways the equidistance rule could be
customary law:
▪ the rule predated the Convention and was simply codified;
▪ the Convention crystallized equidistance as a rule of customary law; or
▪ the rule became custom in light of subsequent state practice.
They also identify three elements necessary for an element to constitute a customary
rule of law:
▪ the provision must be of a norm-creating character such that it could be regarded
as forming the basis of a general rule of law;

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▪ the provision must be a settled practice based on the acts of state actors; and
▪ the provision must be such, or be carried out in such a way, as to be evidence
of a subjective belief that this practice is rendered obligatory by the existence
of a rule of law requiring it, i.e. opinio juris.
Applying this reasoning to the facts, both Denmark and the Netherlands had admitted
at the hearing that the law in this area had not yet settled at the time of the Convention,
but they both felt the law had crystallized when the Convention came into force. Article
6 of the Convention stated that equidistance was the secondary method to be used in
delimitation, which seemed to contradict the idea of it as a general rule of law, plus
there was a facility for making reservations to Article 6, making it difficult to conclude
it was now crystallized by the Convention.
On subsequent state practice, the majority found fifteen examples where equidistance
was used, more than half between states subject to the Convention. They stressed
strongly, however, that even were there far more examples of the use of equidistance,
the subjective belief that the states were doing so out of obligation must be present.
Finding then that equidistance was not a rule of customary law, the majority ruled that
equitable principles must be utilized in negotiations between the parties to delineate the
boundaries.
Ratio
Customary rules of law are difficult to establish; there must be a settled practice among
states carried out such that the actors have a subjective belief that there is an obligation
to carry out such a practice.

DETAILED ANALYSES

Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article
6, binding on Germany?
1. Article 6 of the Geneva Convention on the Continental Shelf states that unless the
parties have agreed on a method for delimitation or unless special circumstances exist,
the equidistance method would apply (see Article 6). Germany has signed but not
ratified the Geneva Convention, while Netherlands and Denmark are parties to the
Convention. The latter two States argue that while Germany is not a party to the
Convention (not having ratified it), she is still bound by Article 6 of the Convention

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because:
“…(1) by conduct, by public statements and proclamations, and in other ways, the
Republic has unilaterally assumed the obligations of the Convention; or has manifested
its acceptance of the conventional regime; or has recognized it as being generally
applicable to the delimitation of continental shelf areas…
(2) the Federal Republic had held itself out as so assuming, accepting or recognizing,
in such a manner as to cause other States, and in particular Denmark and the
Netherlands, to rely on the attitude thus taken up” (the latter is called the principle of
estoppel).
2. The Court rejected the first argument. It stated that only a ‘very definite very
consistent course of conduct on the part of a State’ would allow the court to presume
that a State had somehow become bound by a treaty (by a means other than in a formal
manner: i.e. ratification) when the State was ‘at all times fully able and entitled to…’
accept the treaty commitments in a formal manner. The Court held that Germany had
not unilaterally assumed obligations under the Convention. The court also took notice
of the fact that even if Germany ratified the treaty, she had the option of entering into a
reservation on Article 6 following which that particular article would no longer be
applicable to Germany (i.e. even if one were to assume that Germany had intended to
become a party to the Convention, it does not presuppose that it would have also
undertaken those obligations contained in Article 6).
3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came
into force in 1980, discusses more fully the obligations of third States to treaties. It
clearly stipulates that an obligation arises for a third State from a provision of a treaty
only if (1) the parties to the treaty intend the provision to create this obligation for the
third States; and (2) the third State expressly accepts that obligation in writing (A. 35
of the VCLT). The VCLT was not in force when the ICJ deliberated on this case.
However, as seen above, the ICJ’s position was consistent the VCLT. (See the relevant
provisions of the Vienna Convention on the Law of Treaties).
4. The court held that the existence of a situation of estoppel would have allowed Article
6 to become binding on Germany – but held that Germany’s action did not support an
argument for estoppel. The court also held that the mere fact that Germany may not
have specifically objected to the equidistance principle as contained in Article 6 is not
sufficient to state that the principle is now binding upon it.

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5. In conclusion, the court held that Germany had not acted in any way to incur
obligations contained in Article 6 of the Geneva Convention. The equidistance – special
circumstances rule was not binding on Germany by way of treaty.
Nature of the customary international law obligation: Is Germany bound by the
provisions of Article 6 of the Geneva Convention by way of customary international
law?
6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of
general international law on the subject of continental shelf delimitation’ and existed
independently of the Convention. Therefore, they argued, Germany is bound by it by
way of customary international law.
7. To decide if the equidistance principle bound Germany by way of customary
international law, the court examined (1) the status of the principle contained in Article
6 as it stood when the Convention was being drawn up (2) and after the latter came into
force.
What was the customary law status of Article 6 at the time of drafting the Convention?
8. The court held the principle of equidistance, as contained in Article 6, did not form
a part of existing or emerging customary international law at the time of drafting the
Convention. The Court supported this finding based on (1) the hesitation expressed by
the drafters of the Convention – International Law Commission – on the inclusion of
Article 6 (para. 62) and (2) the fact reservations to Article 6 was permissible under the
Convention (Article 12). The court held:
… Article 6 is one of those in respect of which, under the reservations article of the
Convention (Article 12) reservations may be made by any State on signing, ratifying or
acceding for, speaking generally, it is a characteristic of purely conventional rules and
obligations that, in regard to them, some faculty of making unilateral reservations may,
within certain limits, be admitted; whereas this cannot be so in the case of general or
customary law rules and obligations which, by their very nature, must have equal force
for all members of the international community, and cannot therefore be the subject of
any right of unilateral exclusion exercisable at will by any one of them in its own
favor…. The normal inference would therefore be that any articles that do not figure
among those excluded from the faculty of reservation under Article 12, were not
regarded as declaratory of previously existing or emergent rules of law (see para 65 for
a counter argument and the court’s careful differentiation)…”

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Did the provisions in Article 6 on the equidistance principle attain the customary law
status after the Convention came into force?
9. The court then examined whether the rule contained in Article 6 had become
customary international law after the Convention entered into force – either due the
convention itself (i.e., if enough States had ratified the Convention in a manner to fulfil
the criteria specified below), or because of subsequent State practice (i.e. even if
adequate number of States had not ratified the Convention one could find sufficient
State practice to meet the criteria below). The court held that Article 6 of the
Convention had not attained a customary law status (compare the 1958 Geneva
Convention with the four Geneva Conventions on 1949 in the field of international
humanitarian law in terms of its authority as a pronouncement of customary
international law).
10. For a customary rule to emerge the court held that it needed: (1) very widespread
and representative participation in the convention, including States whose interests
were specially affected (i.e. generality); and (2) virtually uniform practice (i.e.
consistent and uniform usage) undertaken in a manner that demonstrates (3) a general
recognition of the rule of law or legal obligation (i.e. opinio juries). In the North Sea
Continental Shelf cases the court held that the passage of a considerable period of time
was unnecessary (i.e. duration) for the formation of a customary law.
Widespread and representative participation
11. The court held that the first criteria was not met. The number of ratifications and
accessions to the convention (39 States) were not adequately representative (including
of coastal States – i.e. those States whose rights are affected) or widespread.
Duration
12. The court held that duration taken for the customary law rule to emerge is not as
important as widespread and representative participation, uniform usage and the
existence of an opinio juris.
“Although the passage of only a short period of time (in this case, 3 – 5 years) is not
necessarily, or of itself, a bar to the formation of a new rule of customary international
law on the basis of what was originally a purely conventional rule, an indispensable
requirement would be that within the period in question, short though it might be, State
practice, including that of States whose interests are specially affected, should have
been both extensive and virtually uniform in the sense of the provision invoked and

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should moreover have occurred in such a way as to show a general recognition that a
rule of law or legal obligation is involved (text in brackets added).”
Opinio juris
13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus
case) in so far as those acts or omissions are done following a belief that the said State
is obligated by law to act or refrain from acting in a particular way. (For more on opinio
juris click here).
14. The Court examined 15 cases where States had delimited their boundaries using the
equidistance method, after the Convention came into force (paras. 75 -77). The court
concluded, even if there were some State practice in favour of the equidistance principle
the court could not deduct the necessary opinio juris from this State practice. The North
Sea Continental Shelf Cases confirmed that both State practice (the objective element)
and opinio juris (the subjective element) are essential pre-requisites for the formation
of a customary law rule. This is consistent with Article 38 (1) (b) of the Statute of the
ICJ. The following explains the concept of opinio juris and the difference between
customs (i.e. habits) and customary law:
Not only must the acts concerned amount to a settled practice, but they must also be
such, or be carried out in such a way, as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it. The need for such a
belief, i.e, the existence of a subjective element, is implicit in the very notion of the
opinio juris sive necessitatis. The States concerned must therefore feel that they are
conforming to what amounts to a legal obligation. The frequency, or even habitual
character of the acts is not in itself enough. There are many international acts, e.g., in
the field of ceremonial and protocol, which are performed almost invariably, but which
are motivated only by considerations of courtesy, convenience or tradition, and not by
any sense of legal duty.
15. The court concluded that the equidistance principle was not binding on Germany
by way of treaty or customary international law because, in the case of the latter, the
principle had not attained a customary international law status at the time of the entry
into force of the Geneva Convention or thereafter. As such, the court held that the use
of the equidistance method is not obligatory for the delimitation of the areas concerned
in the present proceedings.
Velasquez Rodriguez Case,

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 Inter-American Court of Human Rights,
July 29, 1988 (case summary)

In the Velasquez Rodriguez Case, a case in which the Inter-American Court of Human
Rights held the government of Honduras responsible for the disappearance of three
persons and ordered it to pay compensation to the victims' survivors.
AS the Inter-American Court on Human Rights of the Organization of American States
made clear in the Velasquez Rodriguez Case, under international law every violation
of an international obligation that results in harm creates a duty to make adequate
reparation.
IACHR's seminal forced disappearance case, Caso Velásquez Rodríguez, which arose
out of events in Honduras. In Velásquez Rodríguez, the Inter-American Commission
on Human Rights presented evidence to the IACHR on behalf of the applicant (the
victim's father), suggesting the Honduran government conducted, or at least tolerated,
a pattern or practice of forced disappearance. Such evidence included testimony from
victims of arbitrary detentions during the relevant period, interviews with family
members whose relatives were disappeared, and general country reports produced by
independent, non-governmental organizations. From this evidence, the IACHR
concluded a pattern or practice of forced disappearance existed in Honduras.
After concluding a pattern or practice existed and was "supported or tolerated" by the
government, the IACHR stated that if the applicant could link the disappearance of a
particular individual to that practice, then the "disappearance of [a] particular individual
[could] be proved through circumstantial or indirect evidence or by logical inference."
The value of the IACHR's holding is significant because it lowers the burden of proof
for an individual to establish that a forced disappearance occurred. This lowering of the
evidentiary burden increases the likelihood of success on the merits.
The Requisite Burden of Proof for a Violation of the Right to Life
Based on the IACHR's finding of a pattern or practice presumption, as indicated above,
the evidentiary burden to establish a violation of the right to life is less than proof
beyond a reasonable doubt, though the IACHR has not articulated a particular standard
for this lesser burden. Most forced disappearance cases, however, arise in the context
of a pattern or practice.

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In Velásquez Rodríguez, the IACHR addressed the burden of proof required in forced
disappearance cases where a pattern or practice was established. The discussion focused
on the fact that in cases of forced disappearances, the government involved likely would
"attempt to suppress all information about the kidnapping or the whereabouts and fate
of the victim." The government's concealment or destruction of direct evidence, namely
a body, renders it virtually impossible to prove a violation of the right to life. Thus,
recognizing that direct evidence would almost always be unavailable to establish a
violation of the right to life, the IACHR permitted a finding of violation of the right to
life based exclusively on circumstantial evidence, or even logical inference.
In Velásquez Rodríguez, the IACHR relied on circumstantial evidence, including
hearsay testimony by the victim's sister, who testified that eyewitnesses saw Manfredo
Velásquez kidnapped by men in civilian clothes in broad daylight. The IACHR
acknowledged that when the Honduran government carried out or tolerated forced
disappearances, the police customarily use this form of kidnapping. Consequently, the
Court presumed Velásquez disappeared at the "hands of or with the acquiescence of
those officials with the framework of that practice." Moreover, the fact that the
government failed to investigate or make any inquiry into his disappearance, and
thwarted attempts by the victim's family to do so, strongly suggested the government's
involvement in the disappearance, even if there was no direct evidence indicating the
government kidnapped Velásquez. Finally, because Velásquez had not been seen for
over seven years, the IACHR reasonably concluded that Velásquez could be presumed
dead. Although the IACHR did not name the evidentiary burden for establishing a
violation of the right to life, proof beyond a reasonable doubt was not required as
indicated by the IACHR's use of circumstantial or indirect evidence, as well as logical
inferences, to hold Honduras in violation of the victim's right to life.
The Right to be Free from Torture, Inhuman, or Degrading Treatment
The reasoning the IACHR employed in Velásquez Rodríguez on the issue of the
evidentiary burden required to prove a violation of the right to life in forced
disappearance cases is directly applicable to claims of torture or cruel, inhuman, or
degrading treatment under Article 5 of the American Convention. An applicant can
establish the victim suffered torture based on "circumstantial or indirect evidence or
even by logical inference."

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The ECHR's employment of proof beyond a reasonable doubt to establish a claim of
torture raises numerous concerns in light of the objectives of international human rights
law, especially the applicability of such law in the context of forced disappearances.
There are two concerns that warrant attention. First, in forced disappearance cases, as
stated by the IACHR in Velásquez Rodríguez, the government likely will attempt to
conceal or destroy the pertinent evidence. Consequently, any direct evidence of the
victim's fate will be sparse, thus rendering it virtually impossible to prove beyond a
reasonable doubt that the authorities tortured the victim.
Second, as the IACHR emphasized in Velásquez Rodríguez, "international protection
of human rights should not be confused with criminal justice." An international human
rights proceeding is civil rather than criminal in nature. The objective of international
human rights law, as noted by Velásquez Rodríguez, is not "to punish those individuals
who are guilty of violations, but rather to protect the victims and to provide for
reparation of damages resulting from the acts of the States responsible." These
objectives are identical to those in any civil proceeding. Therefore, the evidentiary
burden required in most civil claims-proof by a preponderance of the evidence-should
be utilized in human rights courts.
As stated by the IACHR in Velásquez Rodríguez, "States do not appear before the Court
as defendants in a criminal action." The goal of the adjudication is to compensate the
aggrieved party and not to punish the individual, thereby eliminating the need to use
the evidentiary burden of proof beyond a reasonable doubt.

The Asylum Case

(Customary Law)

The Colombian Ambassador in Lima, Perú allowed Torre, head of the American
People's Revolutionary Alliance sanctuary after his faction lost a one-day civil war in
Peru on 3 October 1948. The Colombian government granted him asylum, but the
Peruvian government refused to grant him safe passage out of Peru.
Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the
crime of military rebellion” which took place on October 3, 1949, in Peru. 3 months
after the rebellion, Torre fled to the Colombian Embassy in Lima, Peru. The Colombian
Ambassador confirmed that Torre was granted diplomatic asylum in accordance with

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Article 2(2) of the Havana Convention on Asylum of 1928 and requested safe passage
for Torre to leave Peru. Subsequently, the Ambassador also stated Colombia had
qualified Torre as a political refugee in accordance with Article 2 Montevideo
Convention on Political Asylum of 1933 (note the term refugee is not the same as the
Refugee Convention of 1951). Peru refused to accept the unilateral qualification and
refused to grant safe passage.
The Court rejected both submissions of Colombia. It was not found that the custom of
Asylum was uniformly or continuously executed sufficiently to demonstrate that the
custom was of a generally applicable character.
Questions before the Court:
(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the
offence for the purpose of asylum under treaty law and international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of
safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928
(hereinafter called the Havana Convention) when it granted asylum and is the continued
maintenance of asylum a violation of the treaty?

Relevant Findings of the Court:

(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the
offence for the purpose of asylum under treaty law and international law?
1. The court stated that in the normal course of granting diplomatic asylum a diplomatic
representative has the competence to make a provisional qualification of the offence
(for example, as a political offence) and the territorial State has the right to give consent
to this qualification. In the Torre’s case, Colombia has asserted, as the State granting
asylum, that it is competent to qualify the nature of the offence in a unilateral and
definitive manner that is binding on Peru. The court had to decide if such a decision
was binding on Peru either because of treaty law (in particular the Havana Convention
of 1928 and the Montevideo Convention of 1933), other principles of international law
or by way of regional or local custom.
2. The court held that there was no expressed or implied right of unilateral and definitive
qualification of the State that grants asylum under the Havana Convention or relevant
principles of international law (p. 12, 13). The Montevideo Convention of 1933, which

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accepts the right of unilateral qualification, and on which Colombia relied to justify its
unilateral qualification, was not ratified by Peru. The Convention, per say, was not
binding on Peru and considering the low numbers of ratifications the provisions of the
latter Convention cannot be said to reflect customary international law (p. 15).
3. Colombia also argued that regional or local customs support the qualification. The
court held that the burden of proof on the existence of an alleged customary law rests
with the party making the allegation:
“The Party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other Party… (that) it is
in accordance with a (1) constant and uniform usage (2) practiced by the States in
question, and that this usage is (3) the expression of a right appertaining to the State
granting asylum (Columbia) and (4) a duty incumbent on the territorial State (in this
case, Peru). This follows from Article 38 of the Statute of the Court, which refers to
international custom “as evidence of a general practice accepted as law(text in brackets
added).”
4. The court held that Columbia did not establish the existence of a regional custom
because it failed to prove consistent and uniform usage of the alleged custom by
relevant States. The fluctuations and contradictions in State practice did not allow for
the uniform usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98, the
legal impact of fluctuations of State practice). The court also reiterated that the fact that
a particular State practice was followed because of political expediency and not because
of a belief that the said practice is binding on the State by way of a legal obligation
(opinio juris) is detrimental to the formation of a customary law (see North Sea
Continental Shelf Cases and Lotus Case for more on opinio juris):
“[T]he Colombian Government has referred to a large number of particular cases in
which diplomatic asylum was in fact granted and respected. But it has not shown that
the alleged rule of unilateral and definitive qualification was invoked or … that it was,
apart from conventional stipulations, exercised by the States granting asylum as a right
appertaining to them and respected by the territorial States as a duty incumbent on them
and not merely for reasons of political expediency. The facts brought to the knowledge
of the Court disclose so much uncertainty and contradiction, so much fluctuation and
discrepancy in the exercise of diplomatic asylum and in the official views expressed on
various occasions, there has been so much inconsistency in the rapid succession of

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conventions on asylum, ratified by some States and rejected by others, and the practice
has been so much influenced by considerations of political expediency in the various
cases, that it is not possible to discern in all this any constant and uniform usage,
mutually accepted as law, with regard to the alleged rule of unilateral and definitive
qualification of the offence.”
5. The court held that even if Colombia could prove that such a regional custom existed,
it would not be binding on Peru, because Peru “far from having by its attitude adhered
to it, has, on the contrary, repudiated it by refraining from ratifying the Montevideo
Conventions of 1933 and 1939, which were the first to include a rule concerning the
qualification of the offence [as “political” in nature] in matters of diplomatic asylum.”
(See in this regard, the lesson on persistent objectors. Similarly in the North Sea
Continental Shelf Cases the court held ‘in any event the . . . rule would appear to be
inapplicable as against Norway in as much as she had always opposed any attempt to
apply it to the Norwegian coast’.)
6. The court concluded that Columbia, as the State granting asylum, is not competent
to qualify the offence by a unilateral and definitive decision, binding on Peru.
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of
safe passage?
7. The court held that there was no legal obligation on Peru to grant safe passage either
because of the Havana Convention or customary law. In the case of the Havana
Convention, a plain reading of Article 2 results in an obligation on the territorial state
(Peru) to grant safe passage only after it requests the asylum granting State (Columbia)
to send the person granted asylum outside its national territory (Peru). In this case the
Peruvian government had not asked that Torre leave Peru. On the contrary, it contested
the legality of asylum granted to him and refused to grant safe conduct.
8. The court looked at the possibility of a customary law emerging from State practice
where diplomatic agents have requested and been granted safe passage for asylum
seekers, before the territorial State could request for his departure. Once more, the court
held that these practices were a result of a need for expediency and other practice
considerations over an existence of a belief that the act amounts to a legal obligation
(see paragraph 4 above).
“There exists undoubtedly a practice whereby the diplomatic representative who grants
asylum immediately requests a safe conduct without awaiting a request from the

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territorial state for the departure of the refugee…but this practice does not and cannot
mean that the State, to whom such a request for safe-conduct has been addressed, is
legally bound to accede to it.”
(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted
asylum and is the continued maintenance of asylum a violation of the treaty?
9. Article 1 of the Havana Convention states that “It is not permissible for States to
grant asylum… to persons accused or condemned for common crimes… (such
persons) shall be surrendered upon request of the local government.”
10. In other words, the person-seeking asylum must not be accused of a common crime
(for example, murder would constitute a common crime, while a political offence would
not).The accusations that are relevant are those made before the granting of
asylum. Torre’s accusation related to a military rebellion, which the court concluded
was not a common crime and as such the granting of asylum complied with Article 1
of the Convention.
11. Article 2 (2) of the Havana Convention states that “Asylum granted to political
offenders in legations, warships, military camps or military aircraft, shall be respected
to the extent in which allowed, as a right or through humanitarian toleration, by the
usages, the conventions or the laws of the country in which granted and in accordance
with the following provisions: First: Asylum may not be granted except in urgent cases
and for the period of time strictly indispensable for the person who has sought asylum
to ensure in some other way his safety.”
12. An essential pre-requisite for the granting of asylum is the urgency or, in other
words, the presence of “an imminent or persistence of a danger for the person of the
refugee”. The court held that the facts of the case, including the 3 months that passed
between the rebellion and the time when asylum was sought, did not establish the
urgency criteria in this case (pp. 20 -23). The court held:
“In principle, it is inconceivable that the Havana Convention could have intended the
term “urgent cases” to include the danger of regular prosecution to which the citizens
of any country lay themselves open by attacking the institutions of that country… In
principle, asylum cannot be opposed to the operation of justice.”
13. In other words, Torre was accused of a crime but he could not be tried in a court
because Colombia granted him asylum. The court held that “protection from the
operation of regular legal proceedings” was not justified under diplomatic asylum.

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14. The court held:
“In the case of diplomatic asylum the refugee is within the territory of the State. A
decision to grant diplomatic asylum involves a derogation from the sovereignty of that
State. It withdraws the offender from the jurisdiction of the territorial State and
constitutes an intervention in matters which are exclusively within the competence of
that State. Such a derogation from territorial sovereignty cannot be recognised unless
its legal basis is established in each particular case.”
15. As a result, exceptions to this rule are strictly regulated under international law.
Asylum may be granted on “humanitarian grounds to protect political prisoners against
the violent and disorderly action of irresponsible sections of the population.” (for
example during a mob attack where the territorial State is unable to protect the
offender). Torre was not in such a situation at the time when he sought refuge in the
Colombian Embassy at Lima.
17. The court concluded that the grant of asylum and reasons for its prolongation were
not in conformity with Article 2(2) of the Havana Convention.

Pinochet Case
(Immunity)

A former head of state only has immunity with regard to his acts as a head of state but
not with regard to acts, which fall outside his role as head of state. A head of state may
be treated as the state itself and entitled to the same immunities.
A former head of state cannot have immunity for acts of murder committed outside his
own territory. International law recognizes crimes against humanity and the Torture
Convention says that no circumstances can be invoked as justification for torture.
Therefore it cannot be a part of the function of a head of state under international law
to commit those crimes. There is general agreement between the parties as to the
rules of statutory immunity and the rationale which underlies them.

The issue is whether international law grants state immunity in relation to the
international crime of torture and, if so, whether the Republic of Chile is entitled to
claim such immunity even though Chile, Spain and the United Kingdom are all parties
to the Torture Convention and therefore “contractually” bound to give effect to its

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provisions from 8 December 1988 at the latest.

CURRENT HEAD OF STATE

It is a basic principle of international law that one sovereign state (the forum state) does
not adjudicate on the conduct of a foreign state. The foreign state is entitled to
procedural immunity from the processes of the forum state. This immunity extends to
both criminal and civil liability. State immunity probably grew from the historical
immunity of the person of the monarch. In any event, such personal immunity of the
head of state persists to the present day: the head of state is entitled to the same
immunity as the state itself. The diplomatic representative of the foreign state in the
forum state is also afforded the same immunity in recognition of the dignity of the state
which he represents. This immunity enjoyed by a head of state in power and an
ambassador in post is a complete immunity attaching to the person of the head of state
or ambassador and rendering him immune from all actions or prosecutions whether or
not they relate to matters done for the benefit of the state. Such immunity is said to be
granted ratione personae.
FORMER HEAD OF STATE
What then when the ambassador leaves his post or the head of state is deposed? The
position of the ambassador is covered by the Vienna Convention on Diplomatic
Relations (1961). After providing for immunity from arrest (article 29) and from
criminal and civil jurisdiction (article 31), article 39(1) provides that the ambassador’s
privileges shall be enjoyed from the moment he takes up post; and paragraph (2)
provides:
“When the functions of a person enjoying privileges and immunities have come to an
end, such privileges and immunities shall normally cease at the moment when he leaves
the country, or on expiry of a reasonable period in which to do so, but shall subsist until
that time, even in case of armed conflict. However, with respect to acts performed by
such a person in the exercise of his functions as a member of the mission, immunity
shall continue to subsist.”
The continuing partial immunity of the ambassador after leaving post is of a different
kind from that enjoyed ratione personae while he was in post. Since he is no longer the
representative of the foreign state he merits no particular privileges or immunities as a
person. However in order to preserve the integrity of the activities of the foreign state

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during the period when he was ambassador, it is necessary to provide that immunity is
afforded to his official acts during his tenure in post. If this were not done the sovereign
immunity of the state could be evaded by calling in question acts done during the
previous ambassador’s time. Accordingly under article 39(2) the ambassador, like any
other official of the state, enjoys immunity in relation to his official acts done while he
was an official. This limited immunity, ratione materiae, is to be contrasted with the
former immunity ratione personae which gave complete immunity to all activities
whether public or private.
In my judgment at common law a former head of state enjoys similar immunities,
ratione materiae, once he ceases to be head of state. He too loses immunity ratione
personae on ceasing to be head of state. The ex-head of state he cannot be sued in
respect of acts performed whilst head of state in his public capacity. Thus, at common
law, the position of the former ambassador and the former head of state appears to be
much the same: both enjoy immunity for acts done in performance of their respective
functions whilst in office.
The question then which has to be answered is whether the alleged organisation of state
torture by Senator Pinochet (if proved) would constitute an act committed by Senator
Pinochet as part of his official functions as head of state. It is not enough to say that it
cannot be part of the functions of the head of state to commit a crime. Actions, which
are criminal under the local law can, still have been done officially and therefore give
rise to immunity ratione materiae. The case needs to be analysed more closely.
Can it be said that the commission of a crime, which is an international crime against
humanity and jus cogens, is an act done in an official capacity on behalf of the state? I
believe there to be strong ground for saying that the implementation of torture as
defined by the Torture Convention cannot be a state function.
“While generally international law … does not directly involve obligations on
individuals personally, that is not always appropriate, particularly for acts of such
seriousness that they constitute not merely international wrongs (in the broad sense of
a civil wrong) but rather international crimes which offend against the public order of
the international community. States are artificial legal persons: they can only act
through the institutions and agencies of the state, which means, ultimately, through its
officials and other individuals acting on behalf of the state. For international conduct
which is so serious as to be tainted with criminality to be regarded as attributable only

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to the impersonal state and not to the individuals who ordered or perpetrated it is both
unrealistic and offensive to common notions of justice. The idea that individuals who
commit international crimes are internationally accountable for them has now become
an accepted part of international law. Problems in this area – such as the non-existence
of any standing international tribunal to have jurisdiction over such crimes, and the lack
of agreement as to what acts are internationally criminal for this purpose – have not
affected the general acceptance of the principle of individual responsibility for
international criminal conduct.”
Later he said, at p. 84: “It can no longer be doubted that as a matter of general customary
international law a head of state will personally be liable to be called to account if there
is sufficient evidence that he authorised or perpetrated such serious international
crimes.”
It can be objected that Sir Arthur was looking at those cases where the international
community has established an international tribunal in relation to which the regulating
document expressly makes the head of state subject to the tribunal’s jurisdiction: see,
for example, the Nuremberg Charter, article 7; the Statute of the International Criminal
Tribunal for Former Yugoslavia; the Statute of the International Criminal Tribunal for
Rwanda and the Statute of the International Criminal Court. It is true that in these cases
it is expressly said that the head of state or former head of state is subject to the court’s
jurisdiction. But those are cases in which a new court with no existing jurisdiction is
being established. The jurisdiction being established by the Torture Convention and the
Hostages Convention is one where existing domestic courts of all the countries are
being authorised and required to take jurisdiction internationally. The question is
whether, in this new type of jurisdiction, the only possible view is that those made
subject to the jurisdiction of each of the state courts of the world in relation to torture
are not entitled to claim immunity.
I have doubts whether, before the coming into force of the Torture Convention, the
existence of the international crime of torture as jus cogens was enough to justify the
conclusion that the organisation of state torture could not rank for immunity purposes
as performance of an official function. At that stage there was no international tribunal
to punish torture and no general jurisdiction to permit or require its punishment in
domestic courts. Not until there was some form of universal jurisdiction for the
punishment of the crime of torture could it really be talked about as a fully constituted

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international crime. But in my judgment [*205] the Torture Convention did provide
what was missing: a worldwide universal jurisdiction. Further, it required all member
states to ban and outlaw torture: article 2. How can it be for international law purposes
an official function to do something which international law itself prohibits and
criminalises? Thirdly, an essential feature of the international crime of torture is that it
must be committed “by or with the acquiesence of a public official or other person
acting in an official capacity.” As a result all defendants in torture cases will be state
officials. Yet, if the former head of state has immunity, the man most responsible will
escape liability while his inferiors (the chiefs of police, junior army officers) who
carried out his orders will be liable. I find it impossible to accept that this was the
intention.
Finally, and to my mind decisively, if the implementation of a torture regime is a public
function giving rise to immunity ratione materiae, this produces bizarre results.
Immunity ratione materiae applies not only to ex-heads of state and ex-ambassadors
but to all state officials who have been involved in carrying out the functions of the
state. Such immunity is necessary in order to prevent state immunity being
circumvented by prosecuting or suing the official who, for example, actually carried
out the torture when a claim against the head of state would be precluded by the doctrine
of immunity. If that applied to the present case, and if the implementation of the torture
regime is to be treated as official business sufficient to found an immunity for the
former head of state, it must also be official business sufficient to justify immunity for
his inferiors who actually did the torturing. Under the Convention the international
crime of torture can only be committed by an official or someone in an official capacity.
They would all be entitled to immunity. It would follow that there can be no case outside
Chile in which a successful prosecution for torture can be brought unless the State of
Chile is prepared to waive its right to its officials’ immunity. Therefore the whole
elaborate structure of universal jurisdiction over torture committed by officials is
rendered abortive and one of the main objectives of the Torture Convention – to provide
a system under which there is no safe haven for torturers – will have been frustrated. In
my judgment all these factors together demonstrate that the notion of continued
immunity for ex-heads of state is inconsistent with the provisions of the Torture
Convention.
For these reasons in my judgment if, as alleged, Senator Pinochet organised and

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 authorised torture after 8 December 1988, he was not acting in any capacity which gives
rise to immunity ratione materiae because such actions were contrary to international
law, Chile had agreed to outlaw such conduct and Chile had agreed with the other
parties to the Torture Convention that all signatory states should have jurisdiction to try
official torture (as defined in the Convention) even if such torture were committed in
Chile.
As to the charges of murder and conspiracy to murder, no one has advanced any reason
why the ordinary rules of immunity should not apply and Senator Pinochet is entitled
to such immunity.
For these reasons, I would allow the appeal so as to permit the extradition proceedings
to proceed on the allegation that torture in pursuance of a conspiracy to commit torture,
including the single act of torture which is alleged in charge 30, was being committed
by Senator Pinochet after 8 December 1988 when he lost his immunity.

1. What are the main tenets of the feminist critique of international law? Outline some of
the various feminist critiques presented by Chinkin and Charlesworth. Do you think
PIL ignores the views of women?

The feminist critique of international law is build on two main notions, the innate
ignorance of women during the law making process in the international legal system
and on the inherent tendency of the law to incline towards the male gender.
Chinkin and Charlesworth believe that this has thus resulted in "a narrow and
inadequate jurisprudence". They emphasized on four critiques of international law,
which is leading to “male dominance of women”. Firstly, they pointed the “absence of
women in international legal institutions”. The lack of representation of women as head
of States or in international institutions like the UN clearly emphasizes this notion.
Secondly, they emphasized on how “women were excluded by the international
documents” by the continued usage of the generic male pronoun. Liberal feminist are
against this typed of sexed laws. They assert equality between men and women. They
believe that only bad law is the problem, not the law as a whole. They believe that
there is an inherent flaw of bias in the methodology, when men produce it by observing
other men. Men wrote most the international literature. Thirdly, they highlight how

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 “certain ‘neutral’ principles and rules of International law are seen to operate
differently with respect to women and men.” In the 21st century, inhuman crimes such
as slavery, racial discrimination etc are considered as jus cogens, however, the
international law does not consider trafficking women, prostitution etc as a peremptory
norm. Fourthly, they reveal how certain “basic concepts of international law reveals
a sexed and gendered nature”. When the law talks about the State protecting the
people, the State over here would be referring to men protecting the weaker people i.e.
the women. The Cultural Feminists (another school of feminism) describes this voice
as the “different voice”. This school of feminism stresses, on how this “different voice”
is not equally respected and valued if it is considered a woman’s voice. The authors
also comment on the concept of essentialism. They believe that this would pose as a
liability for restructuring political and social life as it stereotypes the characteristics or
the “essence” of women.

Yes, I believe that public international law ignores the views of women. It is clearly
seen from the above discussion of the feminist critique that the international law ignores
women in the process of law making and is inherently biased towards men. Though
International law essentially deals with the various States, these laws are framed by the
subjects, to govern the various aspects relating to the States, which they are part of.
Therefore, the individuals of the states are the indirect parties of international laws.
Thus, it requires the adequate representation of everyone’s interest, which even
includes the ignored women.

2. What triggered the emergence of TWAIL? Did TWAIL II identify the lacunae of
TWAIL I correctly? If you were a TWAIL scholar, how would you amend TWAIL I?

TWAIL was mainly the product of two attributes. The first being the inclination to
defy the notion, proclaimed by the western scholars, of international law being a
product of European Christian civilization and the second was the need to revive,
revitalize and restructure the international law, so as to reciprocate to the needs of the
third world people, which would also include the Indians. The restructuring aimed at
addressing the third worlds interest in an international system and thereby incorporating
these interests while formulating new international policies or laws. These factors

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 coupled with the works of various scholars such as C.H. Alexandrowicz, R.P. Anand
among others, triggered the emergence of TWAIL.

TWAIL II did identify most of the lacunae of TWAIL I. TWAIL failed to grasp the true
concept of imperialism. Due to the over simplification of the concept of imperialism,
by associating it with colonisation, they failed to oversee the colonialist or the neo-
colonialist approaches adopted, practiced and continued by these global capitalists.
TWAIL I presupposed the international law to be neutral. They expected the
International law to accept and transform according to their commands. TWAIL I
further failed to appreciate the indeterminacy involved in the structure of International
law, an hence failed in addressing the class, gender and ethnic divides. TWAIL I was
ineffective in establishing the international institutions as the proper forum for address
the needs of the states. TWAIL I eluded itself from inter disciplinary inquires. Even
though TWAIL I claimed to envision an egalitarian and just international law, it was
still ignorant of the concerns of the people from the third world.

If I were a TWAIL scholar, I would first try to identify the advantages of my country
and tap into that resource. By optimally exploiting this resource, I would try to find a
voice for my country in the international community and later use this power to amend
the international laws to address my country’s internal problems such as
malnourishment, poverty, security etc before addressing it in the international system.
The simple defiance to the European laws or claims will not get us anywhere.

3. What are the sources of international law? Are municipal legal systems obliged to
recognize these sources while exercising a) domestic jurisdiction, b) extraterritorial
jurisdiction? Elucidate with case laws and examples.

Over the years, the sources of international law have been divided into primary and
secondary sources. Both sources find their origins in Article 38(1) of the Statute of the
International Court of Justice, which is held to be the most authoritative and complete
statement as to the sources of International Law. The international conventions,
customs and general principles of law are considered the primary source, which is part

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of the law creating processes. The secondary sources, which are considered the law
determining agencies comprise of judicial decisions and academic writings. Besides
these sources, the international law also recognises jus cogens or peremptory norms,
which are, accepted principles of international law. Generally, no one is permitted to
digress from these norms. Examples of jus cogens would be slavery,

1) Custom
A general practice, which is accepted and followed as a law, would be a custom. Thus,
there 2 elements which comprise a custom are the material fact i.e. the actual behaviour
of states and the opinion juris i.e. the psychological or subjective belief that such
behaviour is law. According to the International Court of Justice, to be a material fact
of a custom, the customary rule had to be a constant and uniform usage practiced by
the state. The Anglo-Norwegian Fisheries case, established a custom to be recognized
as a law if some degree of uniformity amongst state practices could be established.
However, in Nicaragua v. United States, the court differed from its stand of “uniform
state practice” as prescribed in the Anglo-Norwegian Fisheries case, and held that there
need not be absolute rigorous conformity to the “uniform state practice”.

With respect to the subjective belief of a custom, the Court of International Justice in
the Lotus case held that a state practice would constitute customary law if it had the
essential ingredient of obligation, i.e. if it casts an obligation on the party involved.
Alternatively it would be a mere practice and a customary law.

2) International Conventions

International conventions are legally binding written statements, which establish a

relation between the states. The principles of agreements are binding or pacta sunt
servanda obligates the parties involved to act according to the predetermined conditions
and arrangements. Law making treaties and treaty contracts are the two types of
International conventions. The former establishes new laws, rules and guidelines to be
followed by all the members to the convention, where as the latter is between a limited
number of parties and are not considered to be a law making instrument. They are more
like a contract.

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3) General Principles of Law

When there exists a lacuna in law, rules are construed by the judge by drawing an
inference from the pre existing laws; these are called the General Principles of Law and
are used to guide the legal system.

While exercising domestic jurisdiction, the municipal legal systems are obliged to take
into account these sources of law. Earlier there used to be an assumption of
independence within the domestic jurisdiction because of the sovereign nature of the
states, however, after the Anglo-Norwegian Fisheries case, it has been held that the
validity of a state’s action with respect to other states have to based on international
law. This implies that the sources of the international law have to be considered for
validating a state’s action while dealing with other states even within their domestic
jurisdiction.

While exercising extra territorial jurisdiction, the municipal legal systems are obliged
to take into account jus cogens i.e. when crimes of universal concern are committed,
each state involved has the right to prosecute the crime, however, the validity of
extraterritorial jurisdiction is derived from jus cogens. This rule can be inferred from
the Pinochet case where universal jurisdiction was invoked for prosecuting the head of
Chile for the torture committed by him. Never the less, there is an exception to this rule
of universal jurisdiction and that is diplomatic immunity. In the Belgian Arrest Warrant
case, the ICJ withdrew an arrest warrant issued against the foreign minister of Congo
for inciting racial hatred. They were of the opinion that this arrest would prevent him
from exercising his duties.

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