Public International Law

Kibrome M. (Producer)
JU – 2016
Ashenafi B. (Mixing)
JU_2021
Introduction to PIL

 Course Description
 Course Delivery
 Assessment
 Students will be assessed on a continuous basis –
Assignments and/or tests
 Assignments of varying nature will be provided for each
chapter
 Continuous Assessment will constitute 50% of your total
marks
 Final exam constitutes 50%
Chapter One

THE MEANING AND NATURE OF PUBLIC

INTERNATIONAL LAW
Meaning of Public International law
• International law comprises a system of rules and principles
that govern international relations between:
 Mainly sovereign states and other institutional subjects of
international law – AU or UN for e.g.
 But also deals with the rights and obligations of individuals and
other subjects of the law
• Public International law Vs. Private International law
(conflict of laws)
 From your previous study what is private international law?
On the nature of PIL
 Does it qualify as a law/legal system?
 Comparison with domestic legal system: legislative, executive and
judicial organs
 Can the international system be on a par with the domestic? - Is such
necessary to qualify as law?
 Rules of PILVs. Rules of Comity/Practices
 Rules of PILVs. Rules of International Morality (Ethics)
 The role of politics and Power in international law/relations
 Is international law efficient? Not according to the News!!
Contd.
 PIL is a law, albeit a different kind, because:
 International law is practiced on a daily basis in the Foreign
Offices, national courts and other governmental organs of
states as well as IOs.
 No state denies the existence of PIL nor does any state claim
to be above it – rather try to justify their action based on it.
 The overwhelming majority of international legal rules are
consistently obeyed – of course there are violations, as in any
legal system.
 The weakness in resolving disputes of facts and law only
evince the need to develop the legal system not the absence
of it.
Historical Development

 The Ancient World – ‘Silent trading’ 6th C. BC

 Not necessarily PIL but shows that ancient civilizations of
different ages had their own way of regulating trade, war...
 Middle Ages – the ‘Natural Law Era’ - the Stoics view
mixed with Christianity
 Natural law as a guiding principle of international law –
‘pple common to all’
 Just War – Spanish conquest of the ‘New World’
 The role of the Roman Catholic Church
 City states & the relation amongst themselves and the Empire.
 Diplomatic relation, conduct of war
Contd.
 17th – early 19th C. – the rise of Nation States & the Doctrine
of Sovereignty
 The reformation and the 30 years religious war in Europe
 The decline of the holly sea and the rise of reason and free
thinking
 Treaty of Westphalia (1648) – The rise of modern states
 the concept of the ‘community of states’ – and the concept of sovereignty
 The question of inter-state relations
Contd.
 Grotius – 1620s - decoupled theology and international law
 ‘natural law can still exist even if there was no God’ – NL in the
classical sense
 His standing out contribution:
 Freedom of the seas – no single jurisdiction over the high seas
 Law of nations – governing a category of humans – i.e. Rulers
Contd.
 Thomas Hobbes – Leviathan
 His view on the state of nature and the role of law and
state/sovereign
 His work striped down Natural Law to two fundamental tenets:
 A right of self preservation
 The duty to perform contracts or obligations
 End of 18th C. - the corpus of rules governing state
relation came to be known as ‘International Law’
 The value of state practice as a source of law grew in this
period
Contd.
 19th C – the rise and influence of legal positivism
 PIL as the law ‘between states’ rather than a law ‘above states’ -
a consent based system
 States as the sole/primary persons of PIL
 An instrumental view of international law
 Going to war no longer a moral question – but only a choice left to the
state
 Normalized war as a means to secure national interest
 Had a defining impact on the centuries to come
Contd.
 The influence of other theories
 The historical school
 Customary law – mainly ‘opinio juris’
 ‘Nation state’ as fundamental unit of the system than the
‘state’ – ‘spirit of the people’ – the ‘people’ or ‘Volk’
 Foundations for modern day ‘self determination’
 Imperialism
 Their fascination with ‘stages of development’
 The mission to ‘civilize’ – colonization
Contd.
 Natural law thoughts
 The old views were re-introduced as the new science of the
liberal political economy
 Adam Smith, David Ricardo, J. S. Mill …
 A belief in a natural harmony of interests amongst human beings across
the globe - freedom, free trade …
 Legacy of classical natural law

 The ‘Concert of Europe’ system – interventions and

post-war peace settlements
 Mainly characterized by reprisals
Contd.
 Professionalization of international law
 1873: the founding of the two major bodies on the field
 International Law Association
 Institute of International Law
 It begun to be studied as a course in universities
 Several treatises were written
 The Hague Peace Conferences
Contd.
 20th C. – Present
 The Inter-war periods
 War as a political decision – and not a legal one - cost the world so much
 LN, PCIJ, early efforts on HR, codification of IL…
 Post 1945
 The UN and a New World Order
 Increase in newly independent states
 New domains in to the sphere of PIL
 Hence an ever increasing role for PIL
The 3rd World and IL
 The Eurocentric nature of IL
 Post WW II developments
 3rd world states embraced the core principles of IL:
 Sovereignty and equality of states
 Principles of non-aggression & non-intervention
 Mainly for security reasons

 Increased role in the UNSC, UNGA, ICJ...

 But still there are worries …
The Role of International Law
 Rules of international law cover almost every facet of inter-state
activity
 The use of the high seas, outer space and Antarctica,
 Resolution of international disputes,
 International telecommunications, postal services, the carriage of goods and
passengers by air and the transfer of money,
 International trade, international investment, international financial and
monetary issues,
 The use of armed force, the laws of war and the security of nations and the
fight against terror,
 Extradition, human rights, International criminal acts, protection of the
environment … etc
 In short PIL is the vital mechanism without which an increasingly
interdependent world could not function.
The Enforcement of International Law
 How then could PIL play these roles?
 Mechanism of enforcement:
 The Security Council
 Loss of Legal Rights and Privileges: as a counter veiling measure
 Judicial Enforcement: ICJ, Regional and National Courts,
WTO, Tribunals …
 Other institutional mechanisms: loss of membership in IOs …
The Effectiveness of International Law
 why it works, at least most of the time!
 The common good – mutual interest
 The psychological reverence towards law
 The practitioners of international law – a judge at the ICJ,
Advisor at the UN or a State …
 The flexible nature of international law – suitable for the
sensitivity of sovereignty
 The political cost – loss of influence and trust may affect a
state’s interest
 Sanctions – when effectively put it determines out comes
The Weaknesses of International
Law
 Lack of institutions
 Lack of certainty on certain rules – disputes are less likely to
be seen as ‘right Vs. wrong’
 Vital Interests – national interests may sometimes prevail
 Weak enforcement of Vital rules – lack of efficient response
when a vital rule is violated
The Juridical Basis of International
law: Theories on the binding nature of PIL

 The Positivist/ The consensual theory

 The consensual theory holds that PIL is binding only because
states consent to be bound by it.
 Be it express (treaty) or implied (custom) consent
 Austin – IL is nothing but positive morality
 Kellsen and institutionalism – PIL as a primitive system
 Hart and the system of rules - PIL not yet a legal system
 Hence, Kellsen and Hart accept, at least, the existence of certain
norms/rules that qualify IL as a law
 An inherent flaw in the consensual theory:
 where does the consent rule it self come from?
 Why are new states bound by existing rules of PIL?
Contd.
 Natural law – mainly in its revived form
 Classical NL – minimal role in general
 but plays a significant role as a source of IL through general principles of
law
 Modern NL
 WWII Atrocities and the Nuremberg Trials
 NL principles have found their way in many aspects of modern IL –
Human rights, war crimes, …
 Practical Necessity - Society exists, hence law is necessary
 I.e. law is the hallmark of any political community
Public International Law

Kibrome M.
JU - 2016
 CHAPTER TWO
SOURCES OF PUBLIC
INTERNATIONAL LAW
 Intro Q:
 What does ‘source’ of law mean in municipal law?
 Should it mean any different in international law?
 Why is it important to study source of law?
Conceptualizing ‘Source’ in PIL
 Various meanings are attributed to the term ‘source’
 Cause
 i.e. the desire of states to have their mutual relations, which their social
nature renders indispensable, regulated by a legal rule
 Origin
 i.e. the opinions, decisions or acts constituting the starting point from which
a rule’s more or less gradual establishment can be traced.
 Basis
 i.e. (state consent) the binding nature of the rules of international law as a
system and of the rules of which it is composed.
 Evidence
 i.e. the documents or acts proving the consent of states to the rules, like
treaties, practice, unilateral declarations, instructions to diplomatic agents,
laws and ordinances, and, to some extent the writings of authoritative jurists
Contd.
 There are common distinctions made between sources of
law:
 Formal source
 I.e. the constitutional procedure of creating a binding rule
 Material source
 Legal material source – functional (locating the rules)
 Historical material source – evidentiary – ( where the substance of
the rules comes from – e.g. libraries, documents,…
 Given the nature of PIL:
 some of the distinctions might be harder to maintain- for
e.g.‘state practice’ - is it a functional or evidentiary source?
 Others prove to be untenable - for e.g. formal sources
Sources of PIL
 Article 38 (1) of the statute of the ICJ lists different sources, which are
generally accepted, as the sources of PIL:
 (1). The Court, whose function is to decide in
accordance with international law such disputes as are
submitted to it, shall apply:
 (a) International conventions, whether general or particular,
establishing rules expressly recognized by the contesting states;
 (b) International custom, as evidence of a ‘general practice’ ‘accepted as
law’;
 (c)The general principles of law recognized by civilized nations;
 (d) Subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
 Sources of PIL are not necessarily limited to these.
Contd.
 Article 38(1) should not be considered as exhaustive because:
 By focusing on states as law makers, it doesn't recognize the plurality of law
makers in modern IL – like IOs, non-state actors, individuals…
 The plurality of law makers have:
 Increased both the number of PIL norms and the issues they cover.
 It also changed the law making process to an institutionalized – quasi legislative
process
 This change results in PIL’s normativity and scope changing considerably, i.e.
o From subjective more in to objective, and
o From relative more in to universal
 Ultimately, these changes dictate that:
 Art. 38(1) be understood as an illustration of sources of general IL
 But also, the ICJ it self need to take it as non-exhaustive
Treaty as source of PIL
 Art. 38(1) (a) – ICJ Statute
 ‘international conventions, whether general or particular,
establishing rules expressly recognized by the contesting states’
 Treaties are considered the main sources of international law
or obligation today.
 Three Essential Elements:
 1. ‘International conventions’
 Meaning
 Variations in name:
 Convention, Covenant, Charter, Constitution, Protocol, Treaty,
Constitutive Act, Pact, Act, …
Contd.
 2.‘general or particular’
 Treaty shares the characteristics of both ‘statutes’ and ‘contracts’ of domestic legal
system.
 Based on to which they resemble (most), treaties are classified in to two Types:
 ‘law making treaties’ and
 ‘contract treaties’/’treaty contracts’
 Some scholars argue only those resembling statutes can be taken as source of law:
Because -
 They address a large number of states, and regulate the parties behavior for a
long period of time:
 i.e.They are of normative nature. E.g. Genocide Convention
 Contracts are a source of obligation rather than law
 But due care must be made in analogizing statutes for treaties: because
 The making of treaty and making of statute is entirely different
 States are bound by treaties only with their consent
 NB: Such division of treaties is not as important at this point.
Contd.
 3. ‘establishing rules expressly recognized by the contesting
states’
 The binding force of treaties emanate from the customary
principle of ‘pacta sunt servanda’
 Hence, in principle states not party to a treaty are not legally bound
by such treaty.
 Treaties as a source of CIL rules
 Mainly law making treaties – because the rules contained are ‘of a
fundamentally norm creating character’ ICJ, Continental Shelf Case
 Treaty contracts in limited ways
 When a certain rule is repetitively included in such treaties, and even then with
restrictive application
 The rules do not create general obligation, e.g. like to ‘extradite’
o Rather help to settle for e.g. minor issues in an already existing treaty
contract
Contd.
 Treaties may also codify existing custom
 Scenarios when a treaty codifies or gives rise to CIL
 When a rule of CIL develops from a treaty
 In relation to states parties to the treaty
 In relation to states not party to the treaty
 In relation to disputes between states party to the treaty
 When a treaty codifies an already existing CIL
 In relation to a states parties to the treaty
 In relation to states not party to the treaty
 In relation to disputes between states party to the treaty
 Justifications for coexistence of both rules
 Because the rules can be subjected to different rules of interpretation and
application
 See ICJ Decision, Nicaragua Vs. The USA
Customary International Law (CIL)
 Qs for discussion:
 What is custom?
 what is customary law?
 What is its role in domestic legal system – for e.g. like
that of ours?
 Can custom play a significant role in the international
system?
 How and why?
Contd.
 Divided positions on the role of CIL:
 Against:
 It is too slow moving to accommodate the evolution of PIL anymore
 The manner of ascertaining CIL rules attracts much criticism
 For:
 It is a dynamic process of law creation and of universal
application.
 It is activated by spontaneous behavior and thus mirrors the
contemporary concerns of society.
 It reflects the decentralized nature of the international system, in
which all states can have a say in the creation of a rule – hence democratic
 NB: Both views are meritorious to some extent, but it would be too
soon to relegate CIL from the sources of PIL.
Contd.
 Formation of CIL
 Article 38 (1) b):
 International custom, as evidence of a ‘general practice’‘accepted as law’
 Two elements in ascertaining a rule of CIL:
 General practice – i.e. State Practice – which is ‘the material fact’ or
overt element of CIL
 Accepted as law – i.e. Opinio Juris – which is a
psychological/subjective element of CIL
 Unless the ‘practice’ element is supported by the ‘psychological’
element, it becomes difficult to determine if states are acting:
 Because of the requirements of international law, or
 Due to international morality, nicety, or other consideration
Contd.
 Therefore, CIL is to be ascertained by looking at different
aspects of state behavior.
 But …
 What constitutes an ‘act’ or ‘behavior’ of a state?
 Which state acts/behaviors are to be taken as relevant?
 Do the acts of all states matter/weigh equally?
 What is the relative relevance of the two elements?
 How and by whom are these elements to be ascertained?
State Practice
 Whose acts are attributable to states?
 Since the state is an abstract entity, acts of its officials are
generally taken to be acts of the state.
 What exactly constitute a ‘state practice’? – two views:
 ‘Actual enforcement acts only’ – i.e. only what states ‘do’
 ‘Statements’ as well – i.e. what states ‘say’ and ‘do’.
 The actual enforcement argument – I.e. the exercise, of the right
claimed by a state or the commitment to act.
 They argue that:
 Taking statements as ‘acts of states’ conflates ‘the material fact’
with ‘the psychological element’
 ‘Statements,’ if taken as an act, can only create a rule on ‘making
statement’ not on the action described in the statement.
Contd.
 For e.g
 Anglo-Norwegian Fisheries Case (1951) – dissenting opinion
‘Customary law is the generalization of the practice of
states. This cannot be established by citing cases where coastal
states have made extensive claims ... The only convincing
evidence of state practice is to be found in seizures, where the
coastal state asserts its sovereignty over the water in question
by arresting a foreign ship.’
 i.e. The mere assertion in abstracto of the existence of a
legal right or legal rule is not an act of state practice
Contd.
 ‘Statements’ as evidence of ‘state practice’ – i.e. statements made
ascertaining the claim as a right, without action.
 They argue that:
 Some significant ‘acts’ of states don’t require action – e.g. Recognition
 A prohibitive rule of CIL can only be proved by showing abstention not
‘enforcement action’
 In a post UN, globalized and technologically advanced world –
international relation is most characterized by communications rather
than ‘action’
 All statements are not manifestation of ‘opinio-juris’
rather a manifestation of ‘which’ acts a state finds acceptable:
 i.e. indicate ‘how’ it would act. Not the ‘Why,’ which is OJ.
 Which position do you find acceptable?
Contd.
 The theoretical divide aside, evidence on state practice can be
gathered from:
 Domestic legislations, administrative actions, judicial decisions,
 Patterns of voting in the UNGA or other IOs,
 Activity on the international forum,
 Treaty making practices (with due care not to conflate treaty and
custom),
 Diplomatic exchanges …
 These are to be found mainly by observing ‘’how’’ officials of
the state act and looking at official documents.
 A good starting place can be; the news, consulting historical
documents, official publications, speeches, correspondences…
Essential Elements of state practice
 Establishing ‘state practice’ need to be assessed based on the following four
elements:
 The Duration of the practice
 Consistency and Repetition of the practice
 Generality – in terms of the variety and number of states taking
part in the practice.
 Duration: - i.e. how long the practice need to be sustained
 There is no rigid time under international law – unlike some domestic
legal systems
 It varies case by case – depending on the matter it governs
o As example in areas of space law – it developed quickly
 This element is less important compared to the other elements
– the ICJ noted in its decision in the North Sea Continental Shelf case:
1969
Contd.
Contd.
 “….Although the passage of only a short period of time
is not necessarily, or of itself, a bar to the formation of a
new rule of customary international law on the basis of what
was originally a purely conventional rule, an indispensible
requirement would be that within the period under
question, short though it might be, state practice, including
that of states whose interests are specially affected (the
generality element), it should have been both extensive and virtually
uniform in the sense of the provision invoked.”
 This decision makes it plainly clear that ‘duration’ may take a back sit
to the other elements.
 Contd.
 Consistency and Repetition
 The Asylum Case ICJ 1950 – the leading case
 – Relevant Facts
 ColombiaVs. Peru
 Haya de la Torre, a Peruvian, pursued by Peru for an unsuccessful revolution
 Granted asylum by the Colombians in their embassy in Lima(i.e. the capital of
Peru)
 Peru refused to issue a safe conduct to permit his departure
 Colombia brought the case to ICJ, basing its claim on a ‘regional custom’ –
Latin America region
 Requested a decision recognizing that it, rather than Peru, has the right to
determine Torre’s offense, whether criminal or political – if political, safe
conduct can be issued.
Contd.
 Colombia, as the state claiming the existence of the rule, had the
duty to prove its existence
 For this purpose it listed a large number of extradition treaties,
mostly regional, which are only ratified by a limited number of states
and not ratified by Peru
 It claimed that the ‘1933 Montevideo Convention’ merely codified an
already existing rule of regional custom of Latin America
 Hence, it is valid against Peru
 The court’s holding
 The 1933 Convention is not ratified by Peru and is only ratified by 11
state and hence invalid.
 It further held that, ‘a CIL rule must be “in accordance with a
constant and uniform usage practiced by the states in question.’
Contd.
 The court found the state practice to be so uncertain and contradictory –
hence does not fulfill the ‘constant and uniform’ usage requirement.
 Because:
o some of the conventions do not even include the rule
o The ones which does, do not do so consistently
o The practice out side conventions as well is found to be inconsistent and
uncertain
 The threshold the court set in this case is very high, mainly because the custom
claimed is a regional one.
 i.e. in case of regional customs, among other things,
o The number of states involved is smaller
• Hence, even minor variations in the practice will count significantly
Contd.
The continental shelf case
 The court also set a very high standard in the Continental Shelf Case,
 The two states were able to cite only a very small number of previous
examples in support of their arguments.To which ICJ said:
 ‘... the Court is not concerned to deny to ... [the cases] cited all evidential value in favor
of the thesis of Denmark and the Netherlands. It simply considers that they are
inconclusive, and insufficient to bear the weight sought to be put upon
them as evidence of such a settled practice, manifested in such
circumstances, as would justify the inference that delimitation according to the
principle of equidistance amounts to a mandatory rule of customary international law...’
 Hence, to justify such inference, ‘state practice,…, had to be ‘both extensive
and virtually uniform in the sense of the provision invoked.’
 The main reason for such a high threshold seems the shortage of the duration and
existence of a prior CIL rule contrary to the one invoked
Contd.
 Nicaragua Case – ICJ 1986 Nicaragua Vs. USA

 Facts:
 Nicaragua claims, the USA is responsible for military and paramilitary
activities in and against Nicaragua.
 It claims it is a violation of several regional and multilateral treaties
 The USA invoked its multilateral treaty reservation or Vandenberg
amendment objecting the jurisdiction of the ICJ.
 It further claimed that the court cannot entertain the case based on
customary and general principles of international law, that are of similar
nature with the rules under the multilateral treaties –
 because such rules are subsumed by the treaty rules, and hence the
reservation bars it.
Contd.
 The court held that:
 Two sets of rules, i.e. CIL and treaty based, can simultaneously
exist
 Hence the reservation doesn’t bar the court from applying the
rules as rules of CIL if such rules exist.
 It also held that the court has to make a determination of state
practice and opinio-juris,
 aside from the shared view of the parties on what the content of the rule
is.
 In doing so, it held, among other things, that it was:
o not necessary that the practice in question had to be “in absolutely rigorous
conformity” with the purported customary rule.
Contd.
 The court further noted that;

 ‘…in order to deduce(infer) 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.’

 Unlike the previous cases, this case sets a lower test for consistency and repetition: mainly
because

 Very high number of states are (have) involved in the practice

 The universal nature of the rule invoked

 The practice has lasted for a very long duration (time)

 As can be seen from the above cases the threshold varies from case to case.
Contd.
 In determining the threshold, there are certain (inter-related) factors that
need to be taken into account:
 The nature of the new rule – the area it governs, or the nature of
the behavior being prescribed
 The objection it arouses – from other states
 The strength of the prior rule (if at all there was any)
 i.e. if the new rule is to replace an old one the standard of prove may rise
 In some disputes, the relative strength of each parties claim
 NB: Like duration, in some cases repetition need not exist–
 E.g. in case of ‘Instant CIL’- provided OJ is shown.
 Instant CIL: is when a rule is created following an action which is
immediately received by the international community as a legal recourse.
 E.g. in relation to US’s response to state sponsored terrorism – after 9/11
Contd.
 Generality
 This is mainly about whose behavior to take in to account in
assessing ‘state practice’

 whose practices are relevant? - among different states

 What criteria can be used to choose and pick between different state’s
practices?
 Need it be universal participation?
 If not, how many is needed?
 Do you think the size of a state matters in any way?
 i.e. economic, political, military, population, or even geographical
size?
Contd.
 DeVisscher’s analogy of road formation on a land!
 His idea was by reflecting that just as some make heavier footprints than others due
to their greater weight, the more influential states of the world mark the way with
more vigour and tend to become the guarantors and defenders of the way forward.
 The central message here is, it is not number that plays the central role,
we need to see:
 State interests and why they act in a certain way
o i.e. which states are most affected by the rule
 Without discounting a state’s international standing and power
 The state’s relation with the subject matter
o i.e. aside state interest, states with much experience in the area
 Continental Shelf Case – ICJ
 ‘…an indispensible requirement would be that within the period
under question, …, state practice, including that of states whose
interests are specially affected…should have been …’
 Hence, 'a very widespread and representative‘ participation
Contd.
 Though all the four elements are relevant in analyzing
‘state practice’
 Their relative value is not equal – i.e. between the elements,
and
 The threshold required for each element also varies case by
case.
Opinio Juris (OJ)
 The Psychological element

 Review Qs:
 What does OJ mean?
 What is its role in CIL?
 What constitutes OJ?
 How do we determine the existence of OJ?
Contd.
 Article 38 (1) b):‘…evidence of a ‘general practice’‘accepted as law’…’

 Defining OJ:
 Traditionally: OJ as: ‘a
conviction felt by states that a certain form of
conduct is required by international law.’
 i.e. presupposes that all rules are formed as ‘duties’
 To show OJ in the traditional sense, we need to show:
 Not only the absence of protest by other states against an ‘action’ or
‘inaction’ of a state,
 But also that states consider it obligatory – obligation to ‘do or not
to do’
 the second element can be proved from:
 An express acknowledgment of the obligation by states, or
 From other states’ response condemning an action or inaction of a state
as illegal.
o E.g. abolition of slavery
Contd.
 The ‘Permissive Rule’ challenge
 Since all rules of PIL are not about ‘duties’ OJ in the traditional
sense fails to explain permissive rules.
 Because, proving OJ for rules of ‘duty’ and ‘permissive rules’ requires
different method.
 Hence, OJ should/can also be understood as:
 ‘ the belief that a certain action is permitted, but not obligatory, under
rules of PIL.’
 To show OJ in this sense:
 the absence of protest by other states condemning the action or inaction as
illegal can be enough.
 E.g. state sovereignty Vs. space science
 Therefore distinguishing the two is essential in determining the
existence of OJ.
Contd.
 The role of OJ in customary law vis a vis ‘state
practice’
 Do you remember Blackstone’s seven requisite elements in the
creation of domestic customary rule? … 6) be accepted as
compulsory …
 The sixth element parallels in function to what we call OJ in CIL – It
signifies that compliance is not voluntary
 In International custom the role of OJ is introduced by
historical school of thought scholars, mainly Von Savigny
and Puchta in 1840.
 In their view, custom is “merely the immediate and spontaneous
revelation(disclose) of the common popular sentiment(feeling,
emotion).” – Volksgeist
Contd.
 This view relegates the role of state practice and they justify
stating:
 “…if law is the expression of the popular consciousness or
will, then the overt or tangible aspect of custom dwindles in
relevance and importance. So long as we can discover the
popular sentiment, what need is there for an overt act or
‘precedent’.”
 But how do we find the popular sentiment, without the practice?
Contd.
 This view was challenged by Francois Geny, 1899,
who came up with a concept of custom reconciling the
material and psychological elements
 His view was that different usages are motivated by different
reasons.
 So to identify those usage that constitute legal rules we have to
see if OJ is the reason – i.e.‘accepted as law’
 This is the traditional formulation of custom that is
adopted under Art. 38(1) of the ICJ statute.
 There are several theoretical debates on the nature and
purpose of OJ and its relation with ‘state practice’
 do you see any problem?
THE THEORY: some doctrinal issues on OJ
 The Chronological Paradox – on OJ’s role in the creation of a
new rule of CIL.
 Kelsen poses the following challenge: on the role of OJ in
CIL creation
 Is it because there was a rule already?
 If so, can we say OJ creates the rule – which already exists?
 If there was no rule, why would states accept the practice as legal
obligation – without a rule so requiring?
 He concluded therefore, that:
 OJ cannot be a legal obligation
 OJ is a (fake) pseudo element which allows wide discretion for courts in
analyzing state practice.
 What possible explanations can you imagine?
Contd.
 The error hypothesis (Francois Geny) – states making the error
 Really all states? D’Amato’s response
 Mistake cannot change a non-existent positive law in to a law – Kelsen’s
response
 OJ as Consent – this approach can be challenged, because:
 Express universal consent will be practically challenging and systematically
undesirable – can consent be implied one?
 How are newly independent states bound by old rules?
 Where does the rule of ‘consent’ itself come from?
Contd.
 OJ as ‘state will’ – consensus approach
 The meeting of such wills, as evidenced by state practice, is the
immediate cause of legal obligation.
 But the content of each state’s will varies case by case:
 Those states whose action led to the birth of the customary rule
will have ‘free will’
 The silent majority states’ ‘wills’ are conditioned by the
irresistible will of the first states.
 Here the rule is created as a result of consensus, i.e. by a simple
and tacit manifestation of the will of the majority of the states.
Contd.
 OJ as the ‘Articulation’ of rules of CIL
 A prior or concurrent, public characterization of an act or failure to act as legal
under international law.
 The articulation is the qualitative element which gives other states notice
that the state’s actions will have ‘legal consequences’
 When other states, with the implicit knowledge of the articulated rule,
act/refrain in accordance with the rule, it creates legal precedent
 As a challenge: sometimes rules of CIL arise without such articulation – for
e.g. ‘Torture’ i.e.
 All states accept that it is illegal, but most states conduct torture but conceal it, which
usually is leaked(disclose).
 A rule allowing concealed torture won’t arise from this act, but another rule may arise,
without ‘articulation’ i.e. a rule prohibiting such ‘concealed’ actions
Contd.
 A pragmatic solution, e.g. by M. Shaw, Akehurst
 This view is motivated by the practice and to some extent influenced by the
‘Articulation’ approach. I.e. By taking a more flexible view of OJ.
 Such view will make the law meaningful – or at least less stultified/foolish,
than the restrictive view of OJ.
 To make this solution effective though, states must notify other states that
their action is within the confines of PIL, rather than other motivations.
 Here the acting state need not necessarily have a genuine belief that there is a
rule at that point, because even violations of a rule may sometimes lead to change in the
existing rule.
 So that states can differentiate the legal from the non-legal practices and respond
accordingly.
 This is essential for the development and presentation of a legal framework amongst the
states
THE PRACTICE: OJ in the works of the ICJ
 1.The Lotus Case – FranceVs.Turkey – PCIJ 1927
 Facts
 Collision of the Lotus (French) and Boz Kourt (Turkish) ships on the “high seas”
 Several people aboard the Turkish ship died
 Captain of the Lotus, a French citizen, was accused of negligence, and was prosecuted
upon arrival(coming of) in Istanbul
 France argues that a rule of CIL prohibits Turkey from prosecuting the captain
 And it claims, as per that rule, the flag state of the accused (France) rather than the flag
state of the victim (Turkey) has the jurisdiction to try the captain.
 To support its claim of the rule, it referred to the absence (rarity) of prosecution
by such states in similar situations.
 Turkey claimed that the rule permits such prosecution.
Contd.
 The PCIJ decided against the French claim stating that:

 ‘Even if the rarity of the judicial decisions to be found . . . were sufficient

to prove . . . the circumstance alleged . . it 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.’
 I.e. an international custom prohibiting prosecution
 Hence, in the absence of a rule to the contrary, Turkey is permitted to
institute criminal prosecution
Contd.
 2. North Sea continental shelf case – ICJ
 In determining whether subsequent practice, after the
signature of the 1958 convention, led to the creation of an
‘equidistance principle’ of CIL, the court stated:
 “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(o.j) that this practice
is rendered obligatory by the existence of a rule of law
requiring it . . . The States concerned must therefore feel that
they are conforming to what amounts to a legal
obligation.”
Contd.
 3. Nicaragua Case – ICJ
 It reaffirmed the relevance of OJ by referring to its
decision in the North Sea Continental Shelf case:
 ‘…for a new customary rule to be formed, not only must the
acts concerned ‘amount to a settled practice’, but they must
be accompanied by the opinio juris sive necessitatis. Either
the States taking such action or other States in a
position to react to it, must have behaved so that
their conduct is ‘evidence of a belief that this
practice is rendered obligatory by the existence of a
rule of law requiring it.’
Contd.
 On impact of the history of State practice contrary to the alleged customary rule of non-intervention, the
court held:
 ‘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.’ – I.e.
 The inconstancies are generally considered as violations of a rule,
 But, if supported by OJ it may modify or create a rule of CIL.
 This case also shows OJ can be deduced, with due caution, from the attitude of states in IOs,
especially the UN - UNGA resolutions.
 The focus in this case was the declaration on friendly relations.
 The court held that the states vote to the resolution is not a mere reaffirmation of their charter
obligations …
APPLICATION AND CHANGE OF A CIL RULE
 Application: who is bound by CIL?
 It is generally accepted that CIL has universal application.
 This general rule has exceptions depending on states’ response during the
formation of the rule
 The response may be a ‘protest’ or ‘acquiescence’.
 NB ‘Recognition’ can also be a response but it is clear so no need for discussion.
 Protest: mostly expected of states particularly interested in the matter
 Therefore a state has to:
 expressly and persistently object;
 As of the inception of the rule to bar a certain rule from being applicable on it –
AKA persistent objector
Contd.
 In the Anglo-Norwegian Fisheries case the ICJ up held this view in deciding that –
 even if there was a rule developed as claimed by the UK, such rule won’t be
applicable on Norway as it has persistently protested against such a
rule.
 When dissent(opposition) is expressed late:-
 i.e. after the practice has led to and attained a status of a rule of CIL
 Such dissent(opposition) will not generally have the same effect.
 Newly independent states: they are generally governed by the preexisting rules.
 Protest is essentially instrumental in relation to ‘obligatory rules’
 i.e. rules imposing obligation either to act or to refrain from acting
Contd.
 Acquiescence/acceptance
 The ICJ in the Gulf of Maine case defined it as:
 ‘‘equivalent to tacit recognition manifested by unilateral conduct which the
other party may interpret as consent’ and as founded upon the principles
of good faith and equity.”
 I.e. it doesn’t mean that failure to protest against another state’s act, that
violates a rule of CIL, always amounts to acceptance, by the previous state,
of a new rule.
 It has to be noted it is impractical to expect states to either protest or
recognize every act of every other state,
 Besides, states may refrain from protesting for considerations other than
legality
 Hence, ascertaining acquiescence, largely depends on particular
circumstances of the case being considered
Contd.
 But it is possible for acquiescence to lead to:
 The creation of an exception to an already existing rule, especially when constant
dissent(opposition) of one state is reinforced by the acquiescence of and/or absence of
protest from others, or
 The change of an existing rule takes place when a large number of states
dissent(opposition) from the rule, and other states abstained from reaction
 This may hold true even if there was a protest by few states.
 But the few who opposed can become exceptions to the changed rule
 Change of a CIL rule may refer to:
 Modification of an already existing rule, or
 The replacement of an old rule with a new one
 NB: change in a CIL rule is also subject to the two element test – i.e. SP(state practice)
& O.J.
Regional and Local Custom
 Regional Custom
 It is possible to have a regional custom – but the threshold of proving
it will be high. As evidenced in the Asylum Case
 Local Custom - This is a custom developed between few states,
as few as two states
 ICJ – Right of passage over Indian territory case, Portugal Vs.
India 1960, it held:
 ‘There existed a constant and uniform practice allowing free passage
and such practice was accepted as law by the parties (not just
consensus) and has given rise to a right and a correlative obligation’ –
very high threshold
Summary on CIL
 Two elements
 State practice – to be tested based on:
 Duration
 Consistency and Repetition, and
 Generality; and
 Opinio Juris
 Application and change
 Protest
 Acquiescence
 Local and regional custom
General Principles of Law – (GPs)

 First we need to distinguish between ‘rules’ and ‘principles’ of law

 Ronald Dworkin’s criticism on Hart’s ‘concept of law’
 Domestic courts and tribunals often resort to general principles of
law;
 When there is a gap/lacuna in the law – to solve a problem of
‘non liquet’
 When they need to interpret an existing rule/text
 To reinforce their legal reasoning - to confirm their decision,
which is primarily grounded on a clear rule
Contd.
 Earlier experience under international law
 In the 19th C states used to allow tribunals to adjudicate a dispute not
only based on treaty and custom, but also such concepts as equity,
justice…
 There are arbitral decisions based on general principles of law on matters
including;
 amount of interest to be paid,
 standard of procedural laws,
 interpretation techniques,
 burden of proof…
 A look at earlier arbitral decisions reveals(show) that GP of law is mostly used
to fill gap
Contd.
 ICJ Art. 38(1) (c) – ‘The general principles of law recognized by civilized nations…’
 Elements for brief consideration:
 General Principles this is in line with the substantial nature of principles
 unlike rule, which applies to a specific situation; principles operate at a higher, more
abstract level.
 Recognized: chronologically already developed, so not the ones yet arising
 ‘Civilized’ Nations: some form of recognition by nations of the world is
needed
 This source is markedly different from CIL and treaty as source of PIL as
state consent is less critical here
Contd.
 The concept of ‘civilized nation’
 A reflection of the euro centric development of PIL, and
 legacy of historical school of thought, no practical meaning today
 So, should the judges know all the laws of all national legal systems?
 No! Because it suffices to see the major families of legal systems in the world
 i.e. civil law & common law
 Universal acceptance is needed, not mere commonality in handful systems.
 To ensure representation Article 9 of the ICJ statute states:
 ‘At every election, the electors shall bear in mind not only that the persons to be elected should
individually possess the qualifications required, but also that in the body as a whole the
representation of the main forms of civilization and of the principal legal systems of the world
should be assured.’
Contd.
 ‘GPs of Law’ – various meanings forwarded
 GPs of international law: the soviet & positivist view
 This meaning is influenced by the soviet and positivists view of IL – where state consent is of the at most
value
 Hence, for them GPs serve just as a method of using existing law- i.e. broad principles to be derived from
specific rules of PIL
 Principles from municipal law can only have application in international arena once accepted by states
either through treaty or OJ – i.e. CIL
 Otherwise, they argue, it would amount to law making by the ICJ, which is not its function
 The wording of Art. 38(1) of PCIJ statuteVs. ICJ statutes:
 Unlike PCIJ the ICJ statute clearly provides: ‘the court, whose function is to decide in accordance with
international law…’
 So, they argue, there is no room for principles of domestic law - except as material sources of IL
 Due to the different nature of the socio-political setting domestic principles operate in, they say, they
cannot be sources of IL
 This view would render ICJ’s art. 38(1)C meaningless
 Contd.
 Principles of municipal law (included) view- they argue:
 Since Art. 38(1)C doesn’t qualify ‘law’ – the GPs referred to can be both
principles of national and international law
 The wording of Art. 38(1)C of PCIJ statute Vs. ICJ statutes:
 Since GPs are listed under this caption, they should be taken as a separate source of PIL which the
court can resort to,
 Hence, GPs are sources of international law even if their content is to be found in principles
common to domestic systems.
 It may not be always easy to distinguish evidence of domestic law and IL, as these
views might seem to suggest
 Hence, the division is not as such relevant
 The socio-political setting argument is questionable as in practice the ICJ and
other tribunals have applied them without any problem
 In reality GP has been even derived from ‘natural justice’.
 Principles like estoppel, good faith or proportionality
Contd.
 The theoretical divide aside, their inclusion under Art. 38(1) is at
the same time to:
 Enable the court to deal with cases where treaty and custom are either
unavailable or lack clarity, and
 Limit the court from deciding cases on broad concepts like ‘justice’ or
‘equity’
 hence, their function is not different from that of domestic systems
 These, coupled with the prevailing practice, supports GPs to be taken
as a separate source of PIL.
 I.e. GPs derived from both domestic legal systems and international practice.
Contd.
 International courts and tribunals have two chances/ways of ascertaining general principles of law:
 They may have recourse(option) to decisions of international courts and tribunals (including
their own) for reference ; or/and
 The court may decide itself to ascertain by means of comparative law applicable in international law, if
 Prior decisions are unavailable, or the court decides not to use them
 Courts and tribunals, however, rarely detail out how they reached at a certain GP they ascertain from
the municipal law
- e.g. the right of passage case- Portugal v India
 In the above case Portugal produce the 64 countries’ domestic law of servitudes as comparative study
 Ascertainment of GPs must be made carefully: two tests:-
 Vertical test: must only be done when they suited(appropriate) the international legal system.
 The horizontal test: how wide the acceptance is in the legal systems of the nations of the world
Contd.
 A good example pertinent to the vertical test is a position held
in the Southwest Africa Case, ICJ 1950:

 ‘The way in which international law borrows from this source

is not by means of importing private law institutions ‘lock,
stock and barrel’, ready-made and fully equipped with a set of rules.
It would be difficult to reconcile(resolve) such a process with the
application of ‘the general principles of law’.’
Contd.
 Leading International cases on GPs
 1. Charzow Factory case – PCIJ 1928, Germany V. Poland
 Principle invoked: reparation
 This case arose following the seizure of a nitrate factory in Upper Silesia by
Poland in the post WWI years, but there was an agreement b/n them that
Poland not to siezed the Germany’s factory
 The court held that ‘it is a general conception of law that every violation of an
engagement involves an obligation to make reparation’
 It also held that it is: ‘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.’
Contd.
 2. German settlers in Poland Advisory Opinion – PCIJ 1923
 The issue in this case was the fate of private rights acquired under an
existing law when sovereignty changed from Germany to Poland
 The court stated that, ‘it can hardly be maintained that, although the
law survived, private rights acquired under it perished. Such contention
is based on no principle and would be contrary to an almost universal
opinion and practice.’ (of rule of law)
 3. Corfu Channel case – ICJ 1949, Britain(UK) V. Albania
 Principle invoked: circumstantial evidence
 The court held that ‘this indirect evidence is admitted in all systems of law
and its use is recognized by international decisions’.
Contd.
 4. UN AdministrativeTribunal Advisory Opinion – ICJ 1954
 Principle invoked: res judicata
 The fact was the dismissal of the members of UN secretary staffs by UN.
 The issue was whether the UGA has the right to refuse the payment of compensation for the
dismissed officials or not.
 The court held that ‘according to a well-established and generally recognized principle of law, a
judgment rendered by such a judicial body is res judicata and has binding force between the parties to the dispute’.
 5.? Genocide Convention case – ICJ 2007, Bosnia and Herzegovina V. Serbia and Montenegro
 The principle of res judicata was further elaborated
 This case concerned the court’s 1996 decision rejecting preliminary objection to jurisdiction.
 The court stated two purposes of the principle
 Generally, to establish the stability of legal relations, and
 Particularly, not to be adverse to the wining state by re arguing a case
 It also held that the principle applies to both preliminary objections and the merit
Contd.
 6. Right of Passage case
 The case was b/n Portugal v. India
 Principles invoked: on revocation of declaration of jurisdiction and
estoppel
 Regarding revocation of declaration accepting the court’s jurisdiction, it held
that,
 ‘… it is a rule of law generally accepted, as well as one acted upon in the
past by the Court, that, once the Court has been validly seized of a dispute,
unilateral action by the respondent state in terminating its Declaration
[i.e. of accepting the jurisdiction of the Court], in whole or in part, cannot divest the
Court of jurisdiction.’
 On estoppel, the court held that a party that acquiesced in a
particular situation cannot proceed to challenge it now
Contd.
 7.? Temple Case – ICJ 1962,Thailand V. Cambodia
 Principles invoked: estoppel and acquiescence
 Estoppel generally signifies:
 ‘that silence when something ought to have been said prohibits the
concerned state from objecting at a later time’
 However the ICJ, in ELSI case – (1989), emphasized on the need for
some limitation in inferring estoppel, stating,
 ‘… although it cannot be excluded that an estoppel could in certain
circumstances arise from a silence when something ought to have
been said, there are obvious difficulties in constructing an estoppel
from a mere failure to mention a matter at a particular point in somewhat
desultory (casual) diplomatic exchanges’.
Contd.
 8.? Cameroon V. Nigeria – ICJ 1998
 Principle invoked: estoppel (confirmed and even more clarified)
 It was decided in relation to Nigeria’s preliminary objection on jurisdiction
 Even though both states have accepted the Court’s jurisdiction through declaration
 Nigeria claims Cameroon is estopped from invoking ‘the declaration’ to justify jurisdiction of the
court – ‘because, by its subsequent actions Cameroon has tacitly indicated to settle the dispute by
other means.’
 The court held:
 ‘An estoppel would only arise if by its acts or declarations Cameroon had consistently made it
fully clear that it had agreed to settle the boundary dispute submitted to the Court by bilateral avenues
alone. It would further be necessary that, by relying on such an attitude, Nigeria had changed
position to its own detriment or had suffered some prejudice.
Contd.
 9. Barcelona Traction case – ICJ 1970, Belgium V. Spain
 Principle invoked: limited liability (company)
 I.e. is a corporation’s juridical personality distinct from its share holders.
 Who can bring a claim against the Spanish government?
 Belgium? - representing its citizens
 The Shareholders? – 88% are representing themselves/the company
 Or is it Canada? – representing the Company w/c is established in Canada
 The corporate personality is derived from the domestic law i.e. Canada, b/c it
was established in Canada
 As evidenced in these and other cases, there are a wide variety GPs of law that
function in IL
 Of all, the most important GPs in international law is, ‘the principle of
good faith’
Contd.
 A comprehensive view of these cases shows that general principles of law
are:

 Not limited to those background principles of international law like ‘good

faith’,‘Pacta sunt servanda’ … etc
 They are a separate source of international law
 i.e. as distinct from CIL and treaty
 They can emanate both from state practice and national legal systems
 There is no need to go through all nations’ laws to identify GPs
 The commonalities in many of the world’s legal systems(major
families) makes finding GPs more easier
Individual Assignment - I
 Discuss the place of ‘equity’ in relation to sources of international
law? 10 Marks, Page limit: 1 page, Due Date: a week after
today
 You must consult the following cases for your assignment :
 Barcelona Traction,
 North Sea Continental Shelf,
 South West Africa cases,
 Rann of Kutch Arbitration,
 Diversion of Water from the Meuse,
 LibyaV.Tunisia Continental Shelf,
 Burkina Faso V. Republic of Mali; and
 LibyaV. Malta cases
Judicial decisions and scholarly works

 Art. 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.’
 ‘Judicial Decisions…’ which decisions does it constitute?
 PCIJ/ICJ and other similar courts’ decisions
 International arbitral awards, and
 National decisions
 ‘… as subsidiary sources of IL’
 Art. 59 confirms this by stating that,
 ‘ the decision of the court has no binding force except between the parties and in
respect of that particular case’
 i.e. as a rule, the primary purpose of the decisions is to settle a particular dispute, not
to set a rule/precedent for all similar cases
Contd.
 But is the role of judicial/arbitral decisions so limited?
 Scholars and states repeatedly rely on such decisions as
authoritative/reliable statements of the law
 ICJ itself make great effort to maintain consistency in its decisions
 CameroonV. Nigeria, - ‘earlier decisions as a starting place’
 ‘Interpretation’ of a contested rule may sometimes amount to ‘rule
making’ – see the following cases for example
 Anglo-Norwegian fisheries case and its impact on the law of the sea
 Reparation case and legal personality of IOs.
 Nottebohm case and the issue of citizenship/nationality
 Genocide Convention Case (1951) and the issue of treaty reservation
 Island of Palmas arbitration 1928 and the concept of territorial sovereignty
Contd.
 Writings of prominent scholars
 The role of scholars was relatively higher in the earliest stages
of the development of international law mainly due to:
 The relative youth of the field, and
 The absence of a legislature
 But even today states make plentiful reference to academic
writings in their pleadings before the ICJ or other forums
 Who qualifies as a prominent scholar? – that’s a subjective
matter to be decided on a case by case basis
Contd.
 Are there other possible sources of IL?
 What is the role of soft laws? – these are international instruments:
 Not binding like that of treaty provisions, nonetheless constitute normative claims and provide
standards or aspirations of behavior, and
 They can have an enormous impact on international relations and the behavior of states but would not be
considered law in the positivist sense.
 One particular benefit of soft law is that it allows states to participate in the formulation of
standards of behavior which they may not feel, at the time of formulation, ready to implement
fully.
 A good example – the UDHR 1948
 The works of professional bodies like, ILC, ILA, IIL…
 Decisions of international organizations
 Thought exercise:What other sources can you imagine?
Hierarchy of Sources and the Question of
Peremptory(dogmatic) Norms
 Is there hierarchy of sources in IL?
 The subsidiary nature of judicial decisions and wittings is not contested
 General principles of law can be taken as a lower hierarchy in relation to custom and
treaty
 A position inherent in the nature of their function
 The hierarchy between custom and treaty law is less clear
 What happens when there is conflict between the two sources?
 Is it possible to apply the domestic law techniques of resolving
conflict?
 What are those techniques?
o lex superior derogat inferiori
o lex posterior derogat priori
o Lex specialis derogat generali
 Do you think all three can be equally relevant in international law?
Contd.
 The question of peremptory norms:
 Can there be a constitutionally higher norm in IL?
 These are norms that usually develop out of a rule of CIL or treaty, and become higher in
hierarchy than the CIL/treaty rule itself.
 ‘Rules of Jus Cogens’ and ‘Obligatio Erga Omnes’: both have an overlapping character
 Obligatio Erga Omnes – obligation owed to all the states
 It is more of a procedural one, i.e. to whom the obligation is owed
 Which all states have a legal interest in its observance
 E.g. protection from genocide, slavery, racial discrimination, aggression…
 Rules of Jus Cogens are those rules:
 Of a substantive nature: i.e. rules that prohibit a certain action
 Its sole purpose is as a limitation on international freedom of contract. i.e. no
derogation is allowed
 Hence, only a norm of similar nature can change an existing peremptory norm.
Contd.
 So what exactly is a ‘peremptory norm of general international law’?
 Art. 53 of the VCLT provides;
 “a norm accepted and recognized 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 the same character.”
 Art 63 - a new JC norm renders older treaties void if in conflict with it
 Similar phrasing is used in the 1986 VCLT between states and IOs and between IOs.
 The drafting story of this particular provision highlights the difficulty and disagreement
among states on the meaning of such a ‘norm’
 As a result, article 53 suffers from two major weaknesses in relation to the
‘jus cogens’ concept:
 The conceptual weakness
 The theoretical weakness
Contd.
 The conceptual weakness
 The definition under Art. 53 does not tell as to the substance but only
 the fact of the non-derogable nature of the norms, and
 the procedure to determine a ‘jus cogens’ norm - i.e. the ‘double consent’ test
 But how this ‘universal acceptance’ is to be ascertained proves to be difficult – can the same test for rules
of CIL be applied here?
 This problem led some to look for a conceptual meaning:
 Some tried to develop a criteria to identify such norms founded in:
 Morality and/or ethical considerations,
 importance to international peace and security,
 general acceptance in the international community of states; and
 Global public policy – I.e. the fact it serves global interests rather than interests of individual states.
 None of these efforts brought about an acceptable definition.
Contd.
 The theoretical defect
 In the drafting stage of Art. 53 there was divide, as was throughout the
history of international law, between the natural and positivist schools
 Given the positivists skepticism towards the existence of ‘natural law’ or
‘general principles’ binding over states without their consent
 The final version seems a compromise between the two, particularly the
‘accepted by states’ part.
 There is so far no clear theoretical basis for the binding nature of jus cogens
norms,
 Hence, some so far unresolved questions, remain unanswered: questions like
 Is it universal consent required?
o Is such consent possible?
o How would such consent be given – express and/or tacit?
 What will the position of a non-consenting state be?
o Can it act contrary to a jus cogens norm as a matter of law?
Contd.
 The theoretical and conceptual challenges aside, good examples of
rules almost universally accepted as rules of jus cogens include:
 Prohibitions against:
 aggression, genocide, crimes against humanity and war crimes, as well
as, slavery
 other basic principles of international humanitarian law, and
 the principle of self-determination.
 Some even claim all human rights should be included
 It however doesn’t mean that every aspect of these rules is clear or free
from contention in specific cases.
Contd.
 The relevant cases can be seen in different categories
 The first category of cases are where the court refers to a certain rule, in an
obiter dictum
 E.g. Nicaragua case – the prohibition of use of force – just as an a fortiori
argument
 The second category is mostly domestic cases in relation to human right
violation and waiver of state immunity but only few domestic courts
accepted the argument
 Ferrini v.The Federal Republic of Germany – Italian court, accepted
 Perfecture ofVoiotia v.The FDG – Greek Supreme court, accepted
 House of lords Jones judgment – UK, detailed how the jus cogens
nature of the prohibition of torture wont waive state immunity, hence
rejected the claim
Contd.
 The third category is cases largely related with treaty law:
 ArrestWarrant Case, ICJ 2002
 Belgium issued an international arrest warrant for the Congolese foreign
minister
 For committing grave breaches of the Geneva Conventions of 1949
 Congo claimed that Belgium is violating CIL rules on Immunity
 The court decided in Congo’s favor stating that even though the substantive rules
prohibiting such acts attained a JC status in IL,
 There is no similar CIL rule developed that allows revoking immunity of sitting
foreign ministers even when such crimes are committed
  Arms activity case – ICJ 2006 DR CongoV. Rwanda
 the DR Congo argued that, Rwanda’s reservation to the court’s jurisdiction under the
Genocide convention is unacceptable, since prohibition of genocide is a rule of jus cogens
 The ICJ, without disputing the jus cogens nature of the prohibition of genocide, followed the
Jones judgment argument in, holding that:
 Rwanda’s reservation on ICJ’s jurisdiction is "meant to exclude a particular
method of settling a dispute relating to the interpretation, application or
fulfillment of the Convention" and not one affecting substantive obligations
relating to acts of genocide themselves. It was therefore valid, there being
no peremptory norm of international law requiring a state to consent
to ICJ jurisdiction in a case involving genocide.
Individual Assignment - II
 Question:
 Given the ‘double consent’ requirement, norms only attain preemptory or JC status after
a rule out lawing the act has already developed, either through treaty or CIL; hence, do
you think rules/norms of JC can have any more practical legal consequences? If yes;
 What do you imagine that/those consequence(s) will be?
 Instruction:
 Contemplation, independent thinking and novelty is encouraged
 Research and efforts in further reading is equally important
 Do not write more than a page
 Submission date: a week after the due date for ‘Assignment I’
 Total mark assigned: 10%
 Public International
Law
Kibrome M.
JU - 2016
 Chapter Four
PERSONHOOD AND
INTERNATIONAL
LAW
Additional Required Reading: Addisu Damtie and
Jones Kruger, Public International Law (Teaching
Material),
 Pages: 5-12, 28-57 and 104-118
Questions:
 What does legal personality mean?
 What does ‘subjects of law’ mean?
 Are the two concepts similar?
 Who are the subjects or persons of international law?
 How do we determine subjects/persons of international law?
 What does being a subject/person under any law entail?
 Why do we need to know subjects/persons of any law?
 Are all persons/subjects of international law of similar nature?
 General Introduction
 Why do we need to know the subjects or persons under any law?
 Theoretically, law cannot simply talk in terms of rights and duties without
stating ‘who’ has those rights and duties,
 We need to know the subjects or persons under any law is b/c of:-
 In the interest of certainty about who has rights and duties and who can
legitimately enter in to a legal relation.
 It also helps to protect interference from outside, especially in case of
groups/entities
 It is also connected to status, capacity, competence; and the scope of rights and
duties,
 The characteristics of the legal system will also be reflected in its legal
personalities
Concepts and Conceptions
 Two Concepts: Legal personality Vs. Subjects of law
 The concept of ‘Persons’ and ‘Subjects’ under municipal law
 From your knowledge of Ethiopian law what do these concepts mean?
 Is there a legally relevant difference between the two?
 I.e. can all subjects be persons? What about the reverse?
 i.e. which one is more inclusive?
 What is the difference between a natural person and a legal person?
 Would being a natural or legal person make any difference on the rights and
duties a ‘person/subject’ may have?
Contd.
 The International Law context
The Reparation Case, ICJ Advisory Opinion on the
question of ‘Personality of the UN’.
After holding that the UN enjoys legal personality, the court further
stated:

“That is not the same thing as saying that it is a State, which it certainly is not, or that
its legal personality and rights and duties are the same as those of a State. What
it does mean is that it is a subject of international law and capable of
possessing international rights and duties, and
that it has capacity to
maintain its rights by bringing international claims.”
The ‘and’ distinguishes the concept of ‘subject’ from ‘person’
under international law
Contd.
 The Case Concerning East Timor, (Portugal v. Australia) ICJ 1995
 The court held that peoples, not States or other entities, possess a right of self-
determination
 i.e. the ‘peoples’ in this instance are the subject of the law on SD
 It further held that this right has an erga omnes character
 However, it didn’t go as far to conclude that this gives the ‘peoples’ a right to bring a
claim under international law when their right to self-determination is violated
 Impliedly affirming that in addition to having rights and
duties (i.e. being subject of a law) ability (under the law) to bring
an international action to ascertain the right requires legal
personality
 Which currently doesn’t exist for such ‘Peoples’
Conceptions
 Traditionally the distinction between subject and person is of
little important under IL
 Mainly because states were considered the only concerns of
IL,
 And they can qualify both as subjects and persons of IL
 However, the subjects/persons of modern IL are not
limited to states
 As a result differing conceptions of ‘personality’ have been
forwarded below:-
 Contd.
 1. States only view – the traditional view – less relevant today
 NB: it is not completely out of practical use
 A well known encapsulation of the states-only conception was
rendered in the Lotus case (1927 PCIJ):
 ‘International law governs relations between independent States. The rules of
law binding upon States therefore emanate from their own free will as expressed in
conventions or by usages generally accepted as expressing principles of law and established
in order to regulate the relations between the co-existing independent
communities or with a view to the achievement of common aims. Restrictions
upon the independence of States cannot therefore be presumed.’
 Generally, in this view:
 The international community consists only of states
 i.e. the state seen as a historical fact absorbing individuals
 Hence, international law solely emanates from common state will.
 Contd.
 2. Recognition – a modification of the state only view
 Hence, sees states as primary subjects of IL
 It is largely influenced by state practice in relation to personality
 Other (non-state) entities can acquire secondary/derivative
international personality
 Through implicit/explicit recognition by states
 Such persons enjoy rights, duties and capacities analogous to states
 This view is mostly invoked when dealing with entities that effectively
play a role in international relations, like
 The UN, the ICRC, the Holy See or transnational corporations
 Contd.
Since recognition is one form of expression of states’ will and
non-state actors are not in principle persons of IL:
Recognition has to be ascertained explicitly or by clear implication
The scope of personality of non-state entities is strictly limited to the
recognizing states – at least as a rule
It results in a limited personality existing in accordance with the
parameters defined in the act of recognition
And hence, the effect of such personality has to be interpreted
restrictively
Contd.
This view is encapsulated in the Reparation for Injuries Advisory Opinion
Facts:
Assassination of the UN Secretary General’s envoy/ ambassador or diplomat to
Palestine/Israel - 1948
by paramilitary units in Jerusalem/Israel,
Israel was not a UN member
The question - whether the UN could bring an international claim against Israel in
order to obtain reparation for the damage caused
 to the UN and the victim or to persons entitled through him
 Two questions arise in this case:
Whether the charter gives the UN international legal personality as
related to its members,
 A matter not settled under the charter
And, whether such international personality can be exercised
against non-members
Contd.
 In answering the first, it held that:
 ‘Throughout its history, the development of international law
has been influenced by the requirements of
international life …This development culminated in the
establishment … of an international organization whose
purposes and principles are specified in the Charter of
the United Nations. But to achieve these ends the
attribution of international personality is
indispensable.‘
 i.e. the members have, at least tacitly, recognized the UN’s
international personality
Contd.
 In relation to the second, it held that:
 ‘. . . the Court’s opinion is that fifty States, representing the vast
majority of the members of the international community, had
the power, inconformity with international law, to bring into being an
entity possessing objective international personality, and not
merely personality recognized by them alone, together with capacity
to bring international claims.’
 This position is at odds with the ‘recognition’ conception and is only
justified as related to the ‘special nature’ of the UN
 Pursuant to this view, what is tacit/implied is the ‘recognition’
not the ‘power’
 the power to bring international claim is viewed as a result of the ‘implied/tacit recognition’
of the personality
 NB: in addition to the recognition conception, different authors view
this case as stipulating the formal or actor conception of personality.
 Contd.
 3. Individualistic – the individual as an international person
 Esp. in the field of so-called fundamental norms of international
law,
 i.e. Jus Cogens norms
 States and other entities also - if there are international norms addressing
them
 To them the consequence of personality is international
responsibility, and
 Individuals become internationally responsible for violation of such
norms, whether they act in public or private capacity
 The Nuremberg judgment and international criminal law
 The lingering question of acts done in ‘private capacity’?
 Contd.
 4. Formal – IL as an open system
 There is no presumption as to whom is a legal person
 Every addressee, by the principles of interpretation, of the
norms of international law is an IL person
 Basically, there are no consequences attached to being an
international person.
 Usually comes in to picture when the direct effect of treaties
on individuals is at issue.
 E.g. Lagrand case, USAV. Germany, ICJ 2001
 The issue was: whether individuals are direct right holders or
beneficiaries of states’ rights under international treaty
 Contd.
 5. Actor - completely rejects the traditional view
 All effective actors of international relations are relevant for the international
legal system
 Influenced by the realist thought and rule skepticism
 Hence, the term ‘participant’ is preferred in this view than ‘subject’ or
‘person’
 The specific rights and duties held by particular actors are determined:
 In an international decision making process
 in which the actors themselves participate
 Is manifested mainly in the context of dealing with entities that are:
 somehow attached to a domestic legal system, but
 nevertheless possess essentially international characteristics
 States

 States remain to be the primary/main actors in the

international system
 As the ICJ noted in the reparations case, states possess "the
totality of international rights and duties recognized by
international law"
 I.e. the state possesses full or unlimited international legal
personality.
 NB: Full or unlimited, doesn’t mean absolute
 it rather means, only states enjoy the entirety of all the rights that can possibly
arise as a result of being an international person
 Hence, for e.g. it should not be confused as to mean states have rights like ‘human
rights’. Rather, it refers to certain general and exclusive attributes
of a state as a full international legal person.
 Before an entity enjoys such rights, however, it has to
attain its ‘statehood’ status
Contd.
What makes a state a state?
Matter of fact?
Matter of law?
Who determines the creation of a new state?

It is possible for a new state to be created in many

different ways.

Today: creation of new states is more of a political

process regulated by international law
Contd.
 Traditional statehood criteria
 Art.1 Montevideo Convention on the Rights and Duties of
States, 1931:
 ‘...a state as an international person should possess
 a)a permanent population,
 b)a defined territory,
 c)government, and
 d)capacity to enter into relations with other states.’

 This provision is widely accepted as codification of CIL

 Today: neither exhaustive nor immutable (unchangeable)
criteria
 i.e. developments in IL and international life have introduced
additional considerations
Contd.

 a)Permanent population
 Stable community
 No minimum number required
 Citizenship as connection between state and people
 But, is it possible for two people to establish a state?
 b) A defined territory
 particular territorial base upon which to operate, but
no need for settled boundaries
 can be non-contiguous (e.g. UK-Falklands)
 no fixed lower limit (micro-states)
Contd.

 A defined territory:
 includes
 part of the globe’s surface
 ground under this territory,
 air space above,
 some portions of the sea along the coast line (territorial waters)

 Which is subject to state’s sovereign authority

Contd.
 c) Government
 Some sort of central control over a political community
 The form of government is not an essential requirement
 The ‘government’ need to have the control over the earlier
identified permanent population and defined territory
 The control criterion is somewhat relative – i.e.
 The existence or non-existence of another competing authority, or
 Presence/absence of wide recognition and membership to the UN
 Breakdown of central organs of an already established state
does not obviate statehood
 Somalia
 What is the status of Libya’s statehood today?
 Contd.
 d) Capacity to enter into relations with other states
 Whether the entity can enter in to a legal relation with other subjects or
persons of its own choice under the rules of international law
 The issue here is ‘independence’ – more specifically ‘formal
independence’
 How about ‘factual independence’?
o The issue of S. Africa and its Bantustans – and the measures taken by
the UN and OAU
 Relativity of the criterion:
 1995 Dayton Peace Agreement, appointing a High Representative for B&H as ‘the final
authority in theatre’
 Kosovo (executive functions of UNMIK)?

 In principle upon fulfilling these factual requirements, a state is

created,
 Hence, endowed with certain ‘fundamental rights and duties’ under
international law
 Fundamental rights and duties of states

 Independence/ ‘sovereignty’
 Today: catch-all phrase describing the rights held by states
 Right as entity to exercise control over its territory (jurisdiction)
 Right to act on international plane, representing territory/its
people
 Duty not to interfere with the affairs of other independent or
sovereign states
 Equality
 Irrespective of size or power, all states have same juridical
capacities/functions
 For E.g. UNGA: one state, one vote
 But does it mean formal or factual equality?
 How do you see the P5’s veto power in the UNSC?

 Peaceful coexistence: more of an embodiment of the peaceful

enjoyment of the other fundamental rights and duties of states
 Contd.
 Additional considerations
 Concepts like: recognition, self-determination and
effective control play a role
 Recognition - implies an undertaking by the recognizing
state that it will treat the entity in question as a state
 Legal effects? -> ‘declaratory’ or ‘constitutive’ theories?
 Declaratory: ‘the existence of a state as an international legal
person is independent of its recognition by other states’
 It depends only on the fulfillment of the traditional
criteria
 The international personality acquired as such will have an erga
omnes effect
 Therefore it will have rights and duties of states even
without recognition from others
 Contd.
 Constitutive - ‘it is recognition by other states that gives
international legal personality to a new state’
 This view is influenced by the ‘absolute sovereignty’
conception of states
 For them ‘recognition’ is an exclusive competence of already
existing states
 The argument is ‘states cannot be forced to obey a
relationship under international law without their prior consent.’
 The justification: the absence of a central organ to determine
the fulfillment of the factual requirement under international law
– so states take that role.
 NB: they are not saying recognition creates the ‘state as a fact’;
rather it gives international legal personality to an already
existing factual entity

Contd.
The two theories in practice
 The practice is not exclusive - but the declaratory theory is
predominantly reflected; mainly because:
 States usually grant/refuse recognition out of political consideration
 And are not comfortable with the idea that unrecognized states remain
unbound by duties of states under international law
 The constitutive theory becomes of significance in
situations where:
 the fulfillment of the traditional criteria is in doubt
 Or to enable or deny a certain entity from enjoying certain rights in the
recognizing state’s municipal system
 Recognition, at least, in the declaratory sense has a retroactive effect
 Contd.
 Recognition: to whom and types of recognition
 Whom to recognize: states? Governments? People?
Insurgents? ..
 Which type of recognition: ‘de facto’ or ‘de jure’
 Generally, the legal nature and effect of recognition
becomes an issue:
 In cases of premature recognition
 Both in cases of state and government recognitions
 E.g. Biafra’s secession – 1967-1970
 See in contrast with Eritrea's smooth (post war) transition
 In case of entities fulfilling the criteria of statehood but:
 Are not recognized at all, or
 Are recognized only by few states, or
 Are recognized after a significant time has lapsed
 In cases related to the right to self determination of peoples
 Contd.
 Recognition of states: the State practice
 States overwhelmingly reject the idea that they have duty to
recognize a new entity once the traditional criteria are fulfilled
 Neither do they consider an unrecognized entity to be free
from the duties imposed by international law
 In practice, the burden of fulfilling the traditional criteria varies
highly depending on:
 The recognition or opposition that entity gets,
 Admission as member of the various IOs is a significant indication of fulfillment,
 Membership to the UN can serve as the ultimate guarantee, because:
 Art. 4 of the charter limits membership to states only
 UN membership implies support from the P5
Contd.
 Two doctrines in relation to recognition of
governments:
 The Tabor doctrine – i.e. the legitimacy doctrine
 Aimed at recognizing only those that come to power through constitutional means
– democratic issues, or
 Or in cases of revolution – recognition to be given only when it was supported by
the people
 NB: more of ideal and ignores practical/political needs of engaging
 The Estrada doctrine – i.e. the effective control doctrine
 Here recognition to be given immediately once the factual issue of effective
control is proved
 It doesn’t matter how and from where that fact arises.
 NB:This again ignores the political aspect of recognition – i.e. states for
different reasons deny recognition even in cases where effective control can be
proved
 Abandonment and ‘return’ of recognition of governments
Contd.
Generally:

Recognition or non-recognition of an entity as a state can

have some effect (in addition to other considerations)
 Effects of (almost) universal recognition: ‘solidification of
statehood’, e.g. successor states SFRY
 Effect of universal non-recognition: denial of statehood,
e.g. Somaliland, Taiwan
 Controversial non-universal recognition: Kosovo
 However, the weight to be given to the ‘recognition’ (or
lack thereof) it self might vary
 Depending on the reason it was given or denied
Contd.
 Some issues related to recognition – Reading
Assignment (M. Shaw, page 465 – 470)
 Conditional recognition
 See along with the European Community's practice in
relation to Yugoslavia
 Collective recognition
 Withdrawal of recognition
 Non-recognition
Public International Law
Kibrome M
JU - 2016
Chapter Five

Territory
Introduction
 UNDERSTANDINGTHE CONCEPT: nationally and internationally
 What is the importance associated with land and its distribution in
any society?
 Firstly: Ourselves and everything we own takes up space
 Secondly: Land is composed of the resources we need to
survive, prosper and express our selves, and
 Third: land and its properties determine how/whether
we continue to live
 i.e. its location, its material composition, who or what lives on it, the
environment …
Territory Under International Law

 As one of the requirements of statehood, territory is an

important concept in IL

 International law recognizes three(3) types of

territories:

 Sovereign Territory – the state or territory that belongs

to the single state
 Terra Nullius – that belongs to no one
 Res Communes – that belongs to all, and is
incapable of being under one sovereign
 Its centrality in PIL is reflected in two of the basic principles of the law on state
relation:
 Territorial sovereignty
 Territorial integrity
 1.Territorial Sovereignty
 It is considered the fullest possible right that can be had over
land/territory.
 Lesser rights such as lease and servitude can be good comparison.
 Territorial sovereignty has two aspects:
 Positive: exclusive competence of the state with regard to its territory
 Negative: obligation to protect the right of other states
 Most of all, it is the mark of the sovereignty of the state:
 i.e. ‘the right to exercise therein, to the exclusion of any other state, the
functions of a state’ Island of Palmas Arbitration
Contd.
 Q for discussion:
 Do you see the internal and external exclusivity effect in
this statement?
 But:
 Can this exclusivity be absolute?
 what limits can you think of? And,
 Can we maintain it in the modern age of technology and
globalization?
Contd.
 ‘Title’ to territory – how territorial sovereignty is
established ?
 Due to limitations inherent in the nature of IL, certain
questions are worth addressing:
 How and by whom is ‘title to territory’ established?
 What does ‘title to territory’ mean?
 What constitute title to territory?
 What is the nature of the ‘title’?
 what leads to lose of title to territory?
Contd.
 Burkina FasoV. Republic of Mali – ICJ 1986
 The court noted that title comprehends both any evidence which may
establish the existence of a right and the actual source of that right.
 For e.g. the court in dealing with the various cartographic materials
submitted to it by the parties held that, ‘in frontier delimitations, maps
merely constitute information, and never constitute territorial title
in themselves alone. They are merely extrinsic evidence, which may
be used, along with other evidence, to establish the real facts.’
 This clearly implies that, unlike in municipal systems, title to territory is relative
under international law – not absolute.
 So ‘Title’ – refers to the factual and legal conditions under which territory is deemed
to belong to one or another state.
Ways of acquiring Title to territory in PIL
 Acquisition of territory arises as an issue when:
 New states are created and/or
 Additional territory is acquired by an existing state.
 It is not an issue in the absence of an international
contention(controversy)
 i.e. no need under international law, for e.g. to ask how Ethiopia acquired title to territory
on Axum.
 A.When new states are created
 Generally a new state emerges through two ways
 Constitutionally, and
 Non-constitutional means – e.g. by force
 NB: The right of self determination complicates this means
 Practically, there is not much issue in relation to new states
 Contd.
 A theoretical issue in case of new states is:
 If territory is a requirement of statehood, how would a new
state acquire title to its territory ?
 i.e. how can it have title before it becomes a state?
 i. Can the constitutive theory of recognition be of help here?
 ii. Another option is, to focus on the fact that an entity has fulfilled
the requirements of statehood(declaratory theory)
 i.e. international law should focus on possession of the land upon
independence as title to territory
 But not really helpful when there is contention over the territory
 iii. A third way out? I.e. abandoning the classical view that only states
acquire title to territory
Contd.
 B. Acquisition Of Additional Territory by existing state
 States may acquire title to additional territory through different means:
 Occupation of terra nullius, Prescription, Accretion(accumulation), Cession
and Subjugation (conquest)
 Title acquired through these means may be either an original or a
derivative one.
 States mainly use treaties to gain/lose a territory, or settle a dispute over a
boundary
 Hence, a frequent issue in disputes over title to territory are ‘boundary
treaties’
 These agreements have certain special characters distinguishing them from
treaties in general
 The special nature of Boundary
treaties
 A.They create obligation Erga Omnes
 Unlike most treaties, boundary treaties effectively bind third parties
 But the treaty has to be one entered by a party who has title to begin with
 A third party can object such treaty if it can prove that:
 it has a better title over the territory and show that its interest is affected by the agreement
 Eritrea/Yemen territory award – 1998
 Eritrea’s claim was based on ‘succession’ – from Italy
 Stating that title was given to its predecessor under the 1923 Lausanne – a fact not accurate
 Yemen bases its claim based on automatic reversion and historic title
 stating that it had title over the islands before the Ottomans took it and it has to be returned to it following the
fall of the Ottomans, and
 It didn’t consent to the 1923 agreement
Contd.
 B.The obligation created outlive(live longer than) the treaty
 i.e. even if the treaty lapses after a certain time, or even concluded for a specific
period – the expiration of such period won’t nullify the obligation
created.
 Unless it is clear from the treaty or a provision therein that the boundary is of a temporary
nature for e.g. a lease agreement
 This is in the interest of stability of boundaries – as you remember this interest was
invoked in the Temple case
 LibyaV. Chad ICJ, 1994 (PIL material page 85 ff)
 related to Art. 11 of the 1955 agreement – treaty entered for 20 years
 A binding or non binding earlier document referred to as establishing
or confirming a boundary line in a treaty will have the same effect.
 See Libya V. Chad ICJ, 1994 – In relation to Art. 3 of the 1955 agreement and
Annex 1 therein
Contd.
 Interpretation of boundary treaties
 The 1969 VCLT, under Arts. 31 and 32 provides for the rules
of interpretation of treaties
 But most boundary treaties pre-date theVienna convention
 The ICJ held in several cases that, the provisions of the VCLT
are codifications of CIL, so the techniques apply.
 See: Libya V. Chad and Botswana V. Namibia cases
 NB: this effect of the CIL nature of Arts. 31 and 32 of
theVCLTs is not limited to boundary treaties only
Contd.
 1. Application of modern scientific knowledge in
interpretation
 As most boundary treaties date back many years, sometimes
it becomes hard to determine what some of the terms of the
treaty refer to.
 See Botswana/Namibia case – ICJ 1999
 The court faced the challenge of identifying what ‘main
channel of a river’ in a 1890 treaty meant
 So the court approved the use of modern scientific
knowledge in understanding where it is.
 Q: what problem do you see here?
Contd.
 2.The principle of contemporaneity
 The interpretation of the treaty must take in to account the
circumstances prevailing at the time of the signing of
the treaty.
 E.g. names of place, locations …
 See the Ethiopia/Eritrea decision

 Boundary treaties are capable of constituting a root of

a title in themselves – i.e. create the title it self
 3.The role of Boundary decisions/awards
 Usually referred to as one root of title to territory
 However, though relevant in territory issues, should only be
seen as a means to ascertain ‘an already existing, but
contested, title’ than creating a new one
The Five Methods
 There are 5 additional methods of acquiring title to territory of the
state.
 i. Cession
 This refers to a transfer of title to territory
willfully(peacefully) – either by sell, as a gift or as part of a peace
settlement
 E.g. Alaska, from Russia to the USA in 1967
 The title transferred is only as good as the title the transferring
state had
 Clearly one cannot transfer what one doesn’t have
 See Island of Palmas case, Spain, the USA and Netherlands
The arbiters’ decision highlight that even if Spain had the
original title, that title must be present at the time of
cession.
 NB: Cession in recent times is a rare occurrence.
Contd.
 ii. Accretion
 This refers to the creation of a new territory through the forces of
nature.
 i.e. it is the creation of new territory title due to a geographical process.
 These are very rare and less important instances,
 for e.g.
 when a volcano creates a new island in the territorial sea of a state
 Or when a change in the flow of a boundary river occurs
 Accretion only refers to an evolutionary change(gradual
change).
 If the change is sudden/aversion, it is not accretion
 And the change is slight and imperceptible(invisible)
 Or a new island/land is created in a river mouth of pacific ocean named
jimma on the side of Japan.
Contd.
 iii. Conquest or subjugation – use of force involved
 This occurs after a war where the winner claims the territories it has
conquered
 Under classical IL, it has served as a legitimate way of acquiring territory
when conquest is followed by formal annexation
 Modern IL has outlawed aggression, and the use of force is allowed
only exceptionally, See Art. 2(4) UN Charter
 Therefore, conquest may result from both lawful and unlawful use of force
 In both cases conquest will be against international law
 Q: so can ‘lawful title emerge from an unlawful act’?
 Q:Will recognition from the rest of the world rectify the illegitimacy?
 E.g. Ethio-Eritrea war – the debate whether to take Asseb back
 1990 annexation of Kuwait by Iraq - resulted in universal condemnation of such
acts.
 The practice reveals that, under modern IL the disapproval of such mode of
acquisition
 Crimea – a modern day challenge now a territory of Ukraine
 Contd.
 Effective Control: Occupation and Prescription
 iv. Occupation
 This refers to the acquisition of territory terra nullius
 A territory is terra nullius in one of two situation:
 1. It has never been under the sovereign of another state, or
 2. It has been abandoned(vacant) or unused by the state
that had a title over it
 NB: Abandoned doesn’t mean lose of title due to lack of
effective control – it is a conscious act of
abandonment by the state holding the territory
 Q: does our property law make a distinction
between the two? What is the effect of such
distinction?
Contd.
 Traditionally, discovery would have sufficed to establish at
least an inchoate(unclear) title in case of occupation
 i.e. the discovering state has the option to occupy the discovered
territory within a reasonable time, during which other states
cannot occupy the territory
 i.e. discovery serves as a notice to other states – as held in the Island
of Palmas case
 This status changed, once terra nullius became very rare
 Now occupation requires ‘effective control’ to establish
title – i.e. ‘occupation with the will and intent to act as a
sovereign.’
 In case of occupation the role of acquiescence/protest, in
principle is very limited – acquiescence, though, may
compliment a claim.
 Contd.
 V. Prescription – ‘presumption of possession’
 This method is similar in many ways with occupation.
 The difference is prescription works in case of a territory
that used to be under the sovereignty of another state and its
title is being claimed by another state.
 i.e. the claimed loss of title by the former sovereign is not an
intentional act
 it loses its territory as a result of lose of effective control
 Hence, proving prescription requires a longer period of
time
 Because the loss of title by the former sovereign cannot be readily
presumed.
 Therefore, ‘effective control’ needs to be accompanied by
acquiescence of or lack of protest by the former sovereign.
Contd.
 In Island of Palmas case – Judge Huber cited the lack of
protest by Spain against Dutch acts on the island as one of
the ground why Spain would have lost its title and the
Dutch acquired one.
 Generally, prescription is the legitimization of the fact of
possession for a long time by a state.

 NB: This, and most other, cases do not make clear which doctrine is
invoked specifically

 In cases where occupation and/or prescription are invoked, the issue

boils down to ‘effective control’
 i.e.The exercise of ‘sovereign activity’
Contd.
 ‘Effective Control” however is a relative concept
 I.e. the level of ‘effectiveness’ required depends on the
nature of the territory being discussed: i.e.
 Whether it is terra nullius or not
 Whether it is habitable or not – this determines what
amounts to effective control or ‘effectivites’
 Whether there is an opposing claim over the territory or not
 Hence, determining ‘effective control’ has to also
consider these different factors
 These different scenarios are well demonstrated in several
‘boundary decisions’
Cases on Effective Control
 Western Sahara Advisory opinion – 1975
 Colonized by Spain in 1884
 In 1960 added to the UN General Assembly list of non-self
governing territories
 1963 UNGA called for referendum to be arranged for the people
to exercise their right to self determination
 Mauritania and Morocco objected, each claiming a
historical title prior to Spain’s colonization
 Hence, addressing ‘Whether the territory was terra nullius’
at the time of colonization became relevant.
 The court held that, the state practice during the period of
colonization, i.e. the period under consideration, ‘territories
inhabited by tribes or peoples having a social and political
organization were not considered as terra nullius.’
Contd.
 Botswana/Namibia case ICJ
 This case illustrates elements to take in to account in
prescriptive mode:
 Most of the elements are equally relevant for occupation as well
 The court stated that, the ‘possession must be by virtue of
authority of the state (in the exercise of sovereign authority),
peaceful and uninterrupted, public and enduring for a
certain length of time.’
 The publicity requirement has double purpose:
 It gives chance for interested states to express their view – so
that protest and acquiescence can be verified
o Which makes it more important for prescription
 Which as a result, helps testing the ‘peaceful and uninterrupted’
element
Contd.
 Minquiers and Ecrehos case – ICJ, France V. UK, 1953
 The ‘endure for a certain length of time’ requirement – it is hard to say
how long is required
 Its length may vary depending on the nature of the territory
 For e.g. the court in this case looked evidence as back to 1066
 The case was ultimately decided taking into account ‘administrative
activities’ of relatively recent period
 Late 19th C to 1950s
 Fisheries Case, ICJ 1951, Eritrea/Yemen case,
Indonesia/Malaysia
 The intent of the ‘authority of the state requirement’ in ascertaining
effective control is addressed:
 I.e. the independent activity of private individuals is of little value unless
it can be shown that they have acted in pursuance of…some…authority received from
their Governments or that in some other way their Governments have asserted
jurisdiction through them.
Contd.
 Chamizal arbitration – the USA V. Mexico
 This case illustrates what the ‘peaceful and uninterrupted’ element means
 The US’s claim over the land which resulted from the shift of the boundary
river, the Rio Grande – on the ground of ‘peaceful and uninterrupted’
possession
 The US’s claim was not tenable(acceptable) due to Mexico’s persistent
protest against the US’s claim, plus their boundary was already in dispute
 Q: what form of protest do you think is expected?
 Temple of Preah Vihear Case – ‘peaceful and uninterrupted’
 The role of estoppel in the creation of prescriptive title to territory
 The interest of ‘stability’ of international boundary
 Shows how a legal title can be lost through prescription in the interest of
stability – i.e. in the absence of protest
Contd.
 Eastern Greenland case – PCIJ DenmarkV. Norway:
 The court highlighted other aspects of the relative nature of
effective control,
 ‘Another circumstance which must be taken into account…is the
extent to which the sovereignty is also claimed by some other
Power. In most of the cases…, there have been two competing
claims to sovereignty, and the tribunal has had to decide which of
the two is the stronger…in many cases the tribunal has been
satisfied with very little in the way of actual exercise of sovereign
rights, provided that the other State could not make out a
superior claim. This is particularly true in the case of claims to
sovereignty over areas in thinly populated or unsettled countries.’
Contd.
 Inter-temporal law and critical date
 This two concepts play a crucial role in determining the
existence or absence of ‘effective control’
 Inter-temporal law refers to the effect of changes in the law
on title to territory
 i.e. changes to the law on ‘the how’ of ‘acquisition of title to
territory’
 Critical date – when the right was created/when the
dispute materialized
 Refers to the (due) date at which point the rights of the parties
crystallized(come together)
 It is important in determining effective control because, acts
that occur after such time won’t change the legal position.
Contd.
 Inter-temporal law
 Which laws apply in determining whether title is acquired at a certain time or
not?
 See Spain’s claim of acquisition by discovery in the Island of Palmas
case
 Would change in the law affect the requirements to maintain a title?
 See Palmas case again on how Spain could lose title
 Would change of the law retroactively affect ‘established order of things’?
 Not as long as they are maintained in line with current law
 Can there be any retroactive impact by the new law?
 YES!! See Aegean Sea Continental Shelf case, ICJ 1978
 Greek’s reservation on the 1928 Kellogg – Briand Pact
 What does the phrase ‘disputes relating to the territorial status of Greece’ refer to?
 The territory in 1928?
 Or inclusive of its ‘continental shelf’ – which developed after the treaty was signed?
Contd.
 Critical date
 It is important in determining effective control because, acts that
occur after such time won’t change the legal position.
 Depending on the case, the ‘critical date’ can be:
 Date of a particular treaty if its provisions are at issue
 See Island of Palmas case
 Date of independence – relevant in case of ‘Uti Possidetis’
 See Burkina FasoV. Mali case
 It could also be other date than independence date, if there were
some other reasons to consider
 Date of occupation of a territory
o See Island of Palmas Case
Contd.
 There could also be more than one critical date in the same
case
 See Nicaragua V. Honduras case - land and maritime dispute,
ICJ 2007
 Two critical dates – for the land and the maritime
 There may even be no critical date to be dealt with
 Eritrea V.Yemen territory award
 In this case the tribunal analyzed all the evidences produced from different
periods of time
 The critical date can be moved either by agreement or
judicial award
 Hence, it is more of an issue to be dealt with case by case
 Q: How do you see current Chinese activities in the disputed South China
Sea in light of this? Would such acts have legal relevance?
Contd.
 Effectivites in summary
 It refers to ‘the actual continuous and peaceful display of
state functions.’
 Island of Palmas Case
 The title that arises is relative than absolute one
 Eastern Green Land Case
 Island of Palmas case
 Despite the relativity, can there be an ‘absolute minimum
requirement’?
 Eritrea V.Yemen Boundary award held so
 But this seems to emanate from the unusual questions it was asked by
the parties – ‘to decide the sovereignty’ rather than ‘to decide the award
to one of the two parties’ as was the case in Palmas case.
Contd.
 The amount of effectiveness expected to be mate depends on
the nature of the disputed territory
 Eastern Green Land case
 Clipperton Island arbitration, France V Mexico –
uninhabited island
 Here a simple French declaration, without physical
occupation was sufficient
 The activities must be that of the state in the exercise of its
sovereign authority or by anyone who is so delegated
Contd.
 Effectiveness V Legal title: generally
 If there is a clear legal title the legal title
prevails
 But if such title doesn’t exactly define the relevant
territorial limit, effectiveness complements(go
together) it
 If there is no legal title, effectiveness can
establish title on its own
Contd.
 NB: Effectivety is, theoretically at least, different from
subsequent conducts
 Conducts such as recognition, acquiescence and estoppel
 Subsequent conducts can alter or even derogate treaties
 Hence, can sometimes lead to lose of a ‘legal title’
 Because, such conducts are considered as manifestations of
the will of the parties.
 Lose of ‘Title to Territory’ essentially follows the reverse of the
modes of acquisition
 One state’s lose will often be another state’s gain
 2.The principle of territorial integrity
 See Art. 2(4) and (7) UN Charter
 Art. 2 ‘The Organization and its Members, …, shall act in
accordance with the following Principles.
 (4) 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 …
 (7) 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 …’
Contd.
 This principle denotes: ‘the material elements of the
State, namely the physical (land, sea and airspace) and demographic
resources that lie within its territory and (that) are delimited by the
State's frontiers.’
 i.e. refers to the effective control over and possession of
territory by a State – a corollary/result of State sovereignty.
 Hence, the forced loss of control of the State over its territory in any case
implies impairment (injures) of that State's territorial integrity.
 NB: this principle cannot be invoked by a state occupying
a non self governing people.
 In fact the territory of such non self governing peoples is also
protected by the principle of territorial integrity.
Right of Self Determination
 Development of the concept
 FromWestphalia to the interwar periods
 The creation of nation states
 American and French Revolutions – a democratic question
 Interwar period – e.g. Danzing
 Not as a rule of IL but as a means of political settlement
 PostWWII – the ‘decolonization context’
 Article 1(2) of the UN charter - one of the purposes of the UN
 ‘To develop friendly relations among nations based on the respect for the
principle of equal rights and self-determination of peoples…’
 Article 73 of the Charter provides for the duty of the colonizing powers –
mainly focused on non self governing territories/peoples
 Eventually it was recognized and included in both regional and
international human rights instruments
Contd.
 Questions on the meaning of SD(self-determination)
 What does right to SD mean beyond colonial contexts?
 Internal self-determination?
 External self determination?
 What does the term ‘people’ refer to?
 Is it consistent with the territorial sovereignty and
integrity of states?
Contd.
 Internal self determination
 ‘Internal’ refers to the mode of implementation of the right
 i.e. the right is exercised within the territorial confines of an
existing state.
 The challenge here was whether, a ‘people’ not under foreign
domination have this right?
 If so, wouldn’t it amount to an intervention in the internal
matter of independent states?
 The internal dimension is in fact the main implementation
mechanism in non-colonial contexts
 As a result of the ‘continuous’ nature of the right
Contd.
 This ‘continuous nature’ is reflected in the development of
general IL and international human rights law
 E.g. in ICCPR and ICESCR – article 1, ACHPR – Article 20(1) …
 ‘All peoples’ not just ‘oppressed people’ or ‘non-self governing
people’ are recognized as holders of the right
 ICCPR Art. 1(3) provides: ‘The States Parties to the present
Covenant, including those having responsibility for the
administration of Non-Self-Governing and Trust Territories, shall
promote the realization of the right of self-determination …’
 Hence, in addition to the ‘all peoples’ reference, this article makes it
clear that all states have this obligation towards their people.
Contd.
 Meaning:
 In general it can be understood to mean, ‘a right of people to
participate or right to have a say in the decision making process
of the state’
 But what exactly would this right mean practically?
 It can be said that a government which is ‘representative’ of the
whole population…can be taken as fulfilling the criteria.
 But what does ‘representation’ mean?
 Or is it only the western ideal of Participatory democratic
governance that is required?
 Wouldn’t such conception take away the right of the people to
choose for themselves, a non-participatory means of governance?
 What about indigenous systems of governance which people
may prefer/accept, irrespective of its participatory nature?
Contd.
 Subjects of the right: to whom does ‘people’ refer to?
 The territorial definition – the entire population/nation of an existing
state
 The ethnic definition – sub groups within an existing state
 The minority definition – ICCPR Art. 27 based
 Do you think such distinction will have any effect?
 For e.g. in terms of the way people might be able to exercise their rights
to SD?
 What lessons can you take from your constitutional law classes?
 The very reason for the rise of the right to SD supports the second
view – without necessarily discarding the first view:
 i.e. the right of participation in decisions which may directly or indirectly affect the
protection, preservation, strengthening or development of the cultural, ethnic, and/or
historical identity of the people.’
 i.e. pertaining to a group with a distinct (ethnic) character
Contd.
 External self determination and territorial integrity of
the state
 ‘external’ – because the right will be exercised beyond and
outside the territorial confines of an existing state
 This form of exercise of the right will always affect the territorial
integrity of the state.
 Almost all international documents addressing the right of self
determination stress that –
 ‘this right should not be construed as authorizing or encouraging
any action which would dismember or impair, totally or in part,
the territorial integrity of the state.’
Contd.
 External self determination can be exercised in one of the
following ways:
 The dissolution of an existing state
 Integration or merger with another state
 Secession
 NB: if constitutional/consensual, no rule of IL is at issue
 In fact it will be considered as the logical end of the people exercising
their right to self determination.
 External self-determination becomes an issue when it is
invoked against the will of the parent state.
 May generally amount to violation of the principle of ‘territorial
integrity’ of the state.
 If so then, can there be a right of external SD under IL?
Contd.
 Unilateral Secession as a right? – Two theories
forwarded
 Unconditional
 This theory argues for absolute right of secession
 It is based on ‘choice theory’ – i.e. democracy
 Not widely accepted
 Conditional or qualified
 Right to secession arises only in limited circumstances
 i.e. in response to serious and persisting wrongs suffered
by the people at the hands of the parent state.
 Q: what is your position on article 39 of the Ethiopian
constitution?
Contd.
 The 1970 UN declaration on friendly relations: principle V
para. 7
 Can an a contrario reading be used to infer a right to secede? I.e.
when the parent state fails to fulfill the elements under Para. 7
 If so who will make the assessment?
 Wouldn’t it lead to the breach of international peace
 Since such a contrario reading would permit third states to assist a ‘people’s’
effort to secede?
 There is a growing support among writers for such a ‘qualified’
right of secession
 The practice is yet to evolve clearly
 But there are some examples
Contd.
 Secession of Quebec case – Supreme Court of Canada
 The court in its analysis raised the growing support to the view
that denial of internal self-determination can serve as one
ground for secession.

 ‘…the general state of international law with respect to the right to

self determination is that the right operates within the
overriding protection granted to the territorial integrity
of "parent" states. However…, there are certain defined
contexts within which the right to the self-determination of peoples
does allow that right to be exercised "externally", which, in the
context of this Reference, would potentially mean secession…’
Contd.
 African Commission on Human and Peoples' Rights in
Katangese Peoples' Congress v. Zaire. 1992
 ‘…the Commission is obligated to uphold the sovereignty
and territorial integrity of Zaire, a member of the OAU and
a party to the African Charter on Human and Peoples' Rights. In
the absence of concrete evidence of violations of human
rights to the point that the territorial integrity of Zaire
should be called to question and in the absence of
evidence that the people of Katanga are denied the right
to participate in government as guaranteed by Article 13(1)
of the African Charter, the Commission holds the view that
Katanga is obliged to exercise a variant of self-
determination that is compatible with the sovereignty
and territorial integrity of Zaire.’
Contd.
 Generally, the following are put forward as a condition
to be met in order to pursue secession as a means of self
determination.
 A people, even if a minority in the state, forming a
majority in an identifiable part of the parent state
 The people must have suffered grievous wrongs at the hand
of the state – like:
 Denial or violation of internal self-determination of the people
 Serious and widespread violation of fundamental human rights of
members of such people
 There must be no (other) realistic and effective means of
settling the conflict
Contd.
 The doctrine of uti possidetis
 A Roman law principle – ‘as you possess, so you may
possess’
 Developed under international law out of the practice in South
America following the end of the Spanish colonization.
 This principle calls for ‘the preservation of the demarcations
under the colonial regimes corresponding to each of the colonial
entities that was constituted as a State.’
 i.e. upon independence the colonies have to accept the colonial
administrative lines as their boundaries.
 It is maintained mainly in the interest of:
 Territorial stability and continuity of boundaries, and
 Avoiding hostilities and foreign intervention
Contd.
 Uti Possidetis and Africa
 Given the peculiar features of colonial boundaries in Africa,
can the same principle be followed in colonial Africa? – i.e. the
fact that:
 Upon colonization much of Africa was not considered terra nullius
unlike South America
 The colonial boundaries in Africa were drawn arbitrarily, without
ethnic, historical, economic or geographical consideration
 The ethnically heterogeneous nature of the African continent
 Q: should this principle be accepted in African context?
 Q: would such principle be contrary to the right to self
determination of people?
Contd.
 The African position
 Ethiopian prime minister, 1963, Inaugural Conference of the OAU:
 ‘It is in the interest of all Africans now to respect the frontiers drawn on the
maps, whether they are good or bad, by the former colonizers.’
 In the same conference the representative from Mali sated:
 ‘We must take Africa as it is and we must renounce any territorial
claims if we do not wish to introduce what we might call black
imperialism in Africa [...]. African unity demands of each one of us complete
respect for the legacy that we have received from the colonial system, that is to say,
maintenance of the present frontiers of our respective States.’
 1964, Cairo Declaration adopted by the Heads of States and
Governments of the OAU, proclaimed:
 ‘All Member States (vis a vis each other) pledge themselves to respect the
borders existing on their achievement of their national independence.’
Uti Possidetis before the ICJ
 Burkina Faso V. Republic of Mali – 1983, the ICJ
held:
 On the definition of the principle
 ‘The essence of the principle lies in its primary aim of
securing respect for the territorial boundaries at the
moment when independence is achieved… It applies to
the State as it is, i.e. to the 'photograph' of the territorial
situation then existing. The principle of uti possidetis
freezes the territorial title; it stops the clock, but does
not put back the hands.’
 Hence, it does not prohibit post independence
consensual change of boundaries.
Contd.
 On the status of the principle under international law:

 ‘The principle is not a special rule which pertains solely to one specific
system of international law. It is a general principle, which is
logically connected with the phenomenon of the obtaining
of independence wherever it occurs [...]. The fact that the new
African States have respected the administrative
boundaries and frontiers established by the colonial powers
must be seen not as a mere practice contributing to the
gradual emergence of a principle of customary
international law, limited in its impact to the African continent
as it had previously been to Spanish America, but as the
application in Africa of a rule of general scope.’
Contd.
 Application of the principle between administrative
divisions
 ‘Such territorial boundaries may be no more than delimitations between
different administrative divisions or colonies all subject to the same
sovereign. In that case, the application of the principle of
uti possidetis resulted in administrative boundaries
being transformed into international frontiers in the full
sense of the term [...]. International law - and consequently the
principle of uti possidetis - applies to the new State (as a State) not
with retroactive effect, but immediately and from that moment
onwards.’
Contd.
 The principle Vs. right of self determination
 ‘This principle of uti possidetis appears to conflict outright with the
right of peoples to self-determination. In fact, however, the
maintenance of the territorial status quo in Africa is often seen as the
wisest course. The essential requirement of stability in order to
survive, to develop and gradually to consolidate their independence in
all fields has induced African States to consent to the maintenance of
colonial boundaries or frontiers, and to take account of this when
interpreting the principle of self-determination of peoples. If the
principle of uti possidetis has kept its place among the most important legal
principles, this is by a deliberate choice on the part of African States.’
Contd.
 Uti Possidetis in a non colonial contex
 The dissolution of the USSR
 The dissolution of the FSRY
 Beyond Uti Possidetis
 In some cases it may be difficult to determine administrative
lines or colonial boundaries
 In such cases the Uti Possidetis pre-independent line can
be determined by effectivites: i.e.
 Colonial effectivites
 Post colonial and more recent effectivites
Contd.
 Reading Assignment:
 The common heritage of man kind
 Seabed and ocean floor – 1982 UNCLOS
 The Moon – 1979 Moon treaty
 Boundary Rivers
 Leases and servitude
 Airspace above a state’s territory and the Outer space
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Chapter Six
JURISDICTION
Introduction
 Questions:
 What does jurisdiction refer to in municipal law?
 How is the question of jurisdiction settled in private international law?

 What are states entitled to do by virtue of jurisdiction?

 Over whom/what do states enjoy jurisdiction?
 How is jurisdiction related with territory (sovereignty)?
 Is it limited by/to territorial matters?
 On what grounds can states assume jurisdiction?
 Are there limits on states’ exercise of jurisdiction?
The nature of jurisdiction
 ‘Jurisdiction’ in international law could be raised in different
contexts: for e.g.
 ICJ’s or any international forums jurisdiction (civil or criminal) or
 What states can do in certain circumstances domestically
 It tries to set the rules dealing with the limits of a state’s exercise of
governmental function.
 It reflects the basic principles of PIL such as:
 ‘state sovereignty’, ‘equality of states’ and ‘non-interference in domestic
affairs’ of another state.
 I.e. it’s a continuous friction between what states can do and what IL
allows states to do.
The principle of domestic jurisdiction
 IL recognizes the supremacy of the state in its internal affairs
 This supremacy, however, is not an absolute one
 For e.g. international law, in time, evolved to deal with some issues
traditionally considered purely internal.
 Hence, the principle of domestic jurisdiction is a relative one.
 Domestic Jurisdiction is a claim to exercise powers which, by their
very nature, have an international aspect.
 I.e. powers over individuals as well as their liberty, property and
activities.
 Hence, such exercise needs a legal basis
 Examples of internal regulation leading to issues of IL
 Nottebohm Case ICJ 1955 – Liechtenstein V. Guatemala
 Case brought by Liechtenstein claiming diplomatic protection for Mr. Nottebohm, who
was a naturalized citizen
 Mr Nottebohm, a Germen born and national up until 1939, has been living and working
in Guatemala as of 1905
 On 1939, right around the beginning of WWII, he applied for a Liechtenstein nationality,
with the waiver of the three year waiting period
 His nationality was granted within a month time
 Guatemala, argued that the manner the nationality is granted doesn’t suffice to create the
‘special bond created between a state and a citizen’ that justifies diplomatic protection.
 The court in its decision held:
 ‘While a state may formulate such rules as it wished regarding
the acquisition of nationality, the exercise of diplomatic
protection upon the basis of nationality was within the
purview of international law. In addition, no state may
plead its municipal laws as a justification for the breach
of an obligation of international law.’
 See also: Anglo-Norwegian Fisheries case ICJ
 The regulation by Norway of the delimitation of its territorial
water was raised as affecting the fishing of other nationals.
 The court held:
 ‘Although it is true that the act of delimitation [of territorial
waters] 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.’
Contd.
 Jurisdictional claims can comprise any or all of the
following:
 The claim to regulate or prescribe – legislative nature
 Relating to behavior - by prohibiting activities, or subjecting them to
conditional permission
 Can such power be extended abroad? If so to what extent?
 The claim to enforce/execute
 To compel by physical or economic means)
 Territory significantly affects this power – mainly for practical reasons
 See: Eichmann case, Israel 1961 – the arrest
 The claim to adjudicate
 Relating to breaches of prescriptions or regulations.
 Can be of civil or criminal nature
 Of most relevance in IL – even then, primarily in criminal cases
 Civil cases mostly left for conflict of laws and so far no CIL rule
Contd.
 CRIMINAL JURISDICTION
 Civil jurisdiction is less controversial and hence even less
dealt with under international law.
 States generally assume civil jurisdiction based on the
smallest of connection the defendant may have with the
state – a temporary visit, asset in the country, …
 The practice in civil law and common law countries show
differing approach
 Criminal jurisdiction, however, is contentious and a
continually changing one.
Contd.
 Hence, international law provides principles as to how to
assume jurisdiction.
 The territorial principle
 The nationality principle
 The protective (security) principle
 The universality principle
 The passive personality principle
 NB:
 International law does not put any hierarchy between these
principles.
 It is possible for two or more states, to legitimately, claim
jurisdiction based on one or the other principle
 Which states actually exercises jurisdiction will largely depend on
the non-law fact of where the alleged offender is found
Contd.
 TheTerritorial principle
 This is the usual/mostly favored method of acquiring jurisdiction
 It emanates from the basic right of states to regulate the activities in
their territory
 The idea is
 ‘in principle the state in whose territory a crime is committed,
irrespective of the nature of the crime and the nationality of the criminal will
have jurisdiction over the case.’
 NB: this principle is subject to immunity.
 Usually the most convenient method – it will make the gathering
of evidence/witness easier
 This principle is a reflection of the territorial sovereignty of the
state
 Hence in principle; other states cannot claim jurisdiction on cases
occurring within another state.
Contd.
 Complicated cases – when the commission of the crime
involves two territories.
 I.e. a crime originating in one country may be completed in
another.
 In this case both countries can claim jurisdiction based on
two variations of this principle.
 The subjective territorial jurisdiction – the territory
from where the act begun will have jurisdiction and
 Objective territorial principle – the territory where the
damage/injury occurs takes the jurisdiction
 Generally where the person will be prosecuted depends on
where he is found or other factors like extradition
Contd.
 States sometimes invoke the objective territorial
jurisdiction in cases that are not as clear as the cases of singular
criminal acts.
 For e.g. the USA 1996 Act prohibiting certain oil investments in
Iran and Libya, invoking international terrorism’s effect on it as a
ground.
 Q: Is this a reasonable ground to invoke the principle?
 What about offenses committed on a ship on the high seas?
 In case of offenses committed on a ship
 In case of collision - Lotus case Vs. UNCLOS(art.11(1) )
 What about offenses committed aboard aircraft?
 While on flight over high seas or where there is no other sovereignty
 While on flight on another states’ territory
 Where is ‘Cyberspace’?
Contd.
 The Nationality Principle
 The question ‘who is a national of a state?’ often the main issue
 Nationality Decrees in Tunis and Morocco case, PCIJ 1923
 In principle a wholly domestic question
 1930 Hague Convention on the Conflict of Nationality Laws
 Art. 1 – other states interests as a limitation
 Nottebohm Case ICJ 1955
 According to state practice, nationality is ‘a legal bond having as its basis
a social fact of attachment, a genuine connection of existence,
interests and sentiments, together with the existence of reciprocal
rights and duties.’
 Here jurisdiction is determined by reference to the nationality of the person
committing the offence
Contd.
 The passive personality principle
 This is invoked incases of offences committed abroad which
have affected or will affect nationals of the state.
 Hence, based on the nationality of the victim.
 The act must be a crime under the claimant state’s laws Famous
case: Cutting case – Mexcio 1886
 Generally a debatable ground, but has some acceptance in
situations of an internationally condemned act:
 Hijacking of an aircraft
 Terrorist acts …
 In case of crimes committed in territories out side a states control
Contd.
 The protective principle
 It is invoked in cases where:
 An alien’s act abroad is deemed prejudicial to the security or
interest of a particular state
 Is of special interest mainly because, its not common for other
states to out law an act that might be prejudicial to other states
 And since, the act is committed by an alien, out side the
territory of the victim state the other principles wont cover it
 the victim is usually the government or the sovereign it self
 One common example is treason
Contd.
 The Universality principle
 Under this principle, each and every state has jurisdiction
to try particular offences.
 The reason being the offenses covered by this principle are
considered an offense against the international community
as whole
 Hence, is applicable in cases of violations of jus cogens norms
 Q:What kinds of offenses can you think of?
 Cases: Eichmann case, Israel 1961
 ArrestWarrant case
Summary
 State jurisdiction concerns essentially the extent of each state’s
right to regulate conduct or the consequences of events.
 It is an aspect/result of territorial sovereignty of the state
 Not necessarily sharing the same limits though!
 Though jurisdiction may be exercised on one of various grounds:
 It essentially boils down to ‘whether there is sufficiently
close connection between the state and the subject matter
at issue.’
 Hence it is common for overlapping jurisdictions to coexist
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Chapter Eight
State
Responsibility
Introduction
 Principles of state responsibility are of a procedural nature
 i.e. are concerned with second order issues
 its important to resort to substantive laws, to ascertain responsibility.
 RainbowWarrior Arbitration
 Responsibility, once ascertained leads to reparation.
 Gabcikovo – Nagymaros case ICJ
 The state asserting the fact – carries the burden of proof
 Genocide Convention ( BosniaVs. Serbia) case ICJ 2007
 Generally, the standard of proof - ‘a clear and convincing’
evidence
 Eritrea-Ethiopia Claims Commission
 In cases of ‘charges of exceptional gravity’ the evidence provided must
be ‘fully conclusive’
 Genocide Convention ( BosniaVs. Serbia) case ICJ 2007
Contd.
 The nature of Sate Responsibility – General
 In general, for responsibility under international law to arise
these factors need to be mate:-
 1. The existence of an international obligation (regardless of its
origin or character) between the concerned states
 2. An act, omission or a combination of both in violation of
the obligation attributable to the state; and
- 3.The question of a loss or damage arising from the violation
 This element is concerned more with the consequences of the
violation
 It is possible for another state to be held responsible of
violation in addition to the principal offender state,
depending on circumstances.
 State responsibility may co-exist with individual responsibility
Contd.
 This general rule/principle has been affirmed in the case ‘law’:
 Spanish Zone of Morocco Claims – Judge Huber
 ‘…responsibility is the necessary corollary of a right. All rights of
an international character involve international responsibility.
Responsibility results in the duty to make reparation if the
obligation in question is not met.’
 Charzow Factory Case
 ‘…it is a principle of international law, and even a greater conception of
law, that any breach of an engagement involves an obligation to
make reparation.’
 This CIL rule has also found its way in the ILC’s (draft) articles
on state responsibility
 The long history of the draft articles – 1956 on wards
 The current status of the articles
 Adopted by UNGA
 It represents codification of CIL
 ILC – Articles on State Responsibility
 The Nature of State Responsibility
 Article 1: ‘Every internationally wrongful act of a State
entails the international responsibility of that State.’
 ‘Internationally wrongful act’ is inclusive of omissions as well
 Art. 2 intro states: ‘There is an internationally wrongful act of a
State when conduct consisting of an action or omission …’
 Article 2 additionally, provides for two elements of an
internationally wrongful act of a State.
 I.e. state responsibility arises when the act:
 (a) is attributable to the State under international law; and
 (b) Constitutes a breach of an international obligation of the
State
Contd.
 Hence, first:
 Art. 2 makes it clear that:
 it is only international law that determines whether the
two conditions/elements are met or not
 This is irrespective of the provisions of a municipal law.

 As reiterated under Art. 3.

 Neither lawfulness nor unlawfulness in domestic law of
the concerned act has effect in the determination of state
responsibility.
 Reflection of a generally recognized principle of PIL that states
cannot invoke their municipal law against IL
Contd.
 Secondly, Art. 2(a) – requires ‘Imputability’

 i.e. attribution of an act to a state in case of violation

 A crucial element in establishing state responsibility
 But, when are acts considered ‘attributable’ to the state -
The question of fault ??????
 Two contending theories on the role of fault:-
 Is state responsibility strict or do we need ‘fault’
(negligence/intention) on the part of officials concerned.
 Do you think your knowledge of criminal, contract
and tort laws help here?
Contd.
 1. Objective Responsibility – strict
 it only looks at the objective element, regardless of good
faith and bad faith
 Neer Claim Commission - 1926 USAVs. Mexico
 The question was the sufficiency of standard of treatment
to be afforded to foreigners.
 The commission, after detailing the ‘reasonable standard’
that will be sufficient, held that:
 ‘Whether the insufficiency proceeds from deficient execution of
an intelligent law OR from the fact that the laws of the country
do not empower the authorities to measure up to international
standard is immaterial.’
Contd.
 See also Caire Claim Commission - 1929 France Vs.
Mexico
 The case concerned the murder of a French national by
two Mexican officers who, after failing to extort money,
took Caire to the local barracks and shot him.

 The commission held that: ‘that the two officers, even if they
are deemed to have acted outside their competence … and
even if their superiors countermanded an order, have
involved the responsibility of the State, since they acted
under cover of their status as officers and used means
placed at their disposal on account of that status.’
Contd.
 2. Subjective Responsibility – fault
 It looks at the existence of intention or negligence on the part of the state.
 Home Missionary Society Claim Commission – 1920 BritainVs. USA
 The tribunal dismissed the US claim (presented on behalf of the society) stating that:
 ‘Under international law it is generally accepted that no state is responsible for acts of rebels
where it itself was guilty of no breach of good faith or negligence in suppressing the revolt.’
 But since this case is special in that it involves the additional question of ‘acts of rebels’ it is
questionable if it can be analogized to all cases.
 Corfu Chanel case – 1949 ICJ
 ‘…mere fact of control exercised by a state over its territory … in itself and apart from other
circumstances, neither involves prima facie responsibility nor shifts the burden of proof.’
Contd.
 Discussion:Which theory do you find acceptable?
 Is the divide meaningful?
 Can the theoretical challenges be discarded on account of the procedural nature of the
principles on SR?
 Generally the ‘objective responsibility’ seems to be favored in international law.
 The ILC states in its commentary that ‘neither theory is up hailed’ and as to
which theory applies depends on the nature of the rule/IL obligation being
considered in a particular case.

 Acts resulting in a state’s responsibility may arise in various contexts

 What possible scenarios can you imagine??
Contd.
 Direct acts of the state – for instance when states directly commit:
 Breach of treaty obligation
 Destruction of another states property
 i.e. an airliner, a ship, or any other properties
 Violation of the sovereignty of another state
 Nicaragua case
 Rainbow Warrior incident (France V. New Zealand)
 When state officials act results in injury to foreign nationals
 But since the state cannot actually act – but through its officials – how do
we establish the link between the act and the state?
 NB: the state is not responsible for all acts of its nationals – but for acts
committed by those who are serving the state.
Contd.
 i. Acts of an ‘organ of the state’
 Article 4 of the ILC Articles states:
 Sub (1) - Act of a state organ – i.e. a state organ of whatever capacity -
federal or regional, legislative, executive, judicial or any other capacity.
 Sub (2) – ‘an organ of the state’ is any person who has that status under
municipal law
 Genocide Convention (Bosnia v. Serbia) ICJ held that, ‘one of the
cornerstones of the law of state responsibility (i.e. CIL), 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’
Contd.
 ii. Acts of organs other than the ‘state organs’ of Article 4
 Article 5 of the ILC Articles ‘empowerment’ :
 ‘The conduct of a person or entity which is not an organ of the State under
article 4 but which is empowered by the law of that State to exercise
elements of the governmental authority shall be considered an act of the
State under international law, provided the person or entity is acting in that
capacity in the particular instance.’
 The word ‘entity’ implies the wider range conceived under article 5 than that of
‘organ’ under article 4.
 According to the ILC, the need for Article 5:
 ‘Is intended to take account of the increasingly common phenomenon of parastatal
entities, which exercise elements of governmental authority in place of State
organs, as well as situations where former State corporations have been privatized
but retain certain public or regulatory functions.’
Contd.
 Such ‘entities’ may include:
 public corporations, semi-public entities, public agencies of various kinds
and even, in special cases, private companies:
 E.g. private security firms, private prisons and prison security, or
private/state owned airlines exercising some immigration control …
 iii. Agent or organ/entity of a state at the disposal of another
international entity, over whom both the state and the international entity
has some control
 e.g. UN, AU, NATO forces
 Behrami v. France, European CJ 2007
o NATO forces in Kosovo - under UNSC resolution
 The question in such case is ‘who has ultimate authority and
control?’
Contd.
 Organs of another state at the disposal of a state –
ILC Article 6
 The state in whose disposal such organs are placed will be
held responsible for their acts, hence they fall under Art. 4
Contd.
 iv. UltraVirus acts
 Q: what is an ultra Virus act?
 Q: should states be responsible for such acts?
 If so, in what instances?
 State responsibility when a state official acts beyond his legal capacity or
beyond his power under the (domestic) law.
 Generally, state responsibility is possible in cases of Ultra Virus acts
 For such responsibility to happen however, the Caire (France v. Mexico) claims case
test has to be mate:
 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’.
 i.e. An instance of the objective responsibility view
Contd.
 This position was reiterated(repeated) in another case, the Mosse Case, where
it was held – that:
 ‘Even if it were admitted that . . . officials . . . had acted . . . outside the statutory
limits of the competence of their service, it should not be deduced(presumed),
without further ado, that the claim is not well founded. It would still be
necessary to consider a question of law. . . namely whether in the international order the
state should be acknowledged responsible for acts performed by officials within the
apparent limits of their functions, in accordance with a line of conduct which was
not entirely contrary to the instructions received.’
 See also:Youman’s claim USA Vs. Mexico – assault by the militia
 NB: this rule distinguishes acts by officers in their private and public
capacity:
 For a good e.g. see Mallen Claim 1927 (Mexico v. USA) the slapVs. the arrest
Contd.
 The ILC Articles – Article 7 codifies this CIL rule
 The ILC commentary justifies such a rule stating:
 The fact the rule evolved in response to the need for clarity and security in
international relations.
 I.e. because it is not always easy for other states to know whether the agent had or had
not acted in line with the law/orders received
 I.e.The question of the real Vs. apparent authority.
 Otherwise, it would amount to allowing states to invoke municipal law against IL
contrary to what is provided under Art. 3
 NB: the officials must have acted in their official capacity (real or
apparent), not as private individuals to lead to state responsibility in
cases of ultra virus.
 The ILC didn’t however indicate how to distinguish between the two – the
way out is to assess it on a case by case basis
Contd.
 V. State control and International Responsibility
 State responsibility in case of ultra virus is raised only in relation to acts
of organs or entities of a state which formally undertake a
governmental task.
 i.e. those covered under Arts. 4, 5 and 6
 In principle, IL does not attribute responsibility to states for
acts of private individuals or groups.
 However, in certain circumstances acts of such entities may lead to
state responsibility.

 What scenarios, do you imagine, could lead to such circumstances?

Contd.
 ILC articles on SR – Article 8 – provides a situation where the conduct
of persons or group of persons may be attributable to a state:
 ‘…if the person or group of persons is in fact acting on the instructions of, or
under the direction or control of, that State in carrying out the conduct.’
 NB: in this case it is irrelevant whether the persons involved are private
persons, nor whether their conduct involves ‘governmental activity’
 Most commonly, cases of this kind will arise where:
 State organs supplement their own action by recruiting or instigating
private persons or groups who act as “auxiliaries” while remaining
outside the official structure of the State.
Contd.
 Two Scenarios under Article 8:
 ‘instruction’ by the state – pretty straight forward, hence not much
complicated issue
 ‘Under the direction or control’ of the state – its meaning can be
controversial.
 I.e. what exactly amounts to ‘direction or control’?

 The ILC tried to clarify ‘direction or control’ to mean:

 ‘Such conduct will be attributable to the State only if it directed or controlled the
specific operation and the conduct complained of was an integral part of that
operation.’
 i.e. the principle does not extend to conduct which was only incidentally or
peripherally associated with an operation and which escaped from the
State’s direction or control.
 Therefore, a state can not be responsible for ‘ultra virus’ acts for such groups.
Contd.
 Nicaragua case – The contents of this rule is illustrated in this case.
 The court differentiated between two issues of control:
 The ‘general control’ the US had over the contra guerillas,
 Based on this form of control, the court held the US responsible for the “planning,
direction and support” given by the United States to Nicaraguan operatives.
 The ‘effective control of the military or paramilitary operation’ in the
course which the alleged violations were committed.
 In this case, the issue was the violation of Human rights and humanitarian law by the contras.
 The court held that the US won’t be held responsible for the humanitarian and human right
violations, for lack of such effective control.
 This sets a very high threshold in attributing responsibility.
Contd.
 In the Tadic Case the ICTY held that, the ‘control threshold’ need not always be
that high, and found ‘overall control’ sufficient
 Its position was that it has to be seen on a case by case basis.
 But it is important to note that this case is mainly about:
 individual criminal responsibility and not that of state, and
 the issue was on the applicable rules of IHL and not responsibility
 In the Genocide case the court re-affirmed its Nicaragua holding and rejected
the Tadic holding, mainly because the main issue in that case was individual criminal
responsibility.
 In the Namibia case, ICJ 1979, the court noted that the issue of ‘control’ can also
be affected by the issue of ‘factual control’ over a territory, stating:
 ‘‘Physical control of a territory and not sovereignty or legitimacy of title is
the basis of state liability for acts affecting other states.’
 I.e. a state won’t be liable for acts that took place within its territory when it doesn’t actually have
physical control of the territory at issue.
Contd.
 Mob violence insurrection and civil war
 Q:Would the state be liable for acts of such groups?
 The general rule in such cases is that of ‘non-liability’ as long as the
state conducted itself with due diligence
 Those groups, if they eventually win and come to power, they will
be held responsible for the acts they committed before coming to
power.
 NB: even those groups wouldn’t be responsible for all acts of their
supporters, the question of whether such group has control at the
time over the actors will still be relevant for such cases
 The Iran claims cases(Hostage case) demonstrate different aspects of this
issue.
SIX CIRCUMSTANCES PRECLUDING
WRONGFULNESS
 NB: Preclusion of wrongfulness :
 Does not annul or terminate the obligation
 This is a matter to be dealt with by the substantive law at issue
 Rather provide a justification or excuse for non-
performance while the circumstance in question subsists.

 The ICJ in the Gabcikovo Nagymoros case held:

 ‘Even if a state of necessity is found to exist, it is not a ground for the
termination of a treaty. It may only be invoked to exonerate from its
responsibility a State which has failed to implement a treaty. ..the Treaty
may be ineffective as long as the condition of necessity continues
to exist; it may in fact be dormant, but … As soon as the state of
necessity ceases to exist, the duty to comply with treaty obligations
revives.’
Contd.
 1. Consent of the other state – Art 20
 E.g. when the troops of one state are allowed to enter the
territory of another state with its consent
 2. Individual (and collective) self defense – Art 21
 i.e. when use of force is resort to in accordance with the
exceptions under the UN charter
 But self defense is already lawful, hence no wrongful act to be
precluded
 Therefore, Art. 21 is essentially about ensuring that this law full
use of force is conducted in line with all the requirements of IL
Contd.
 3. Countermeasures/reprisal – Art. 22
 This refers to the use of an otherwise unlawful act,
which is rendered lawful due to a preceding unlawful
act of the other state.
 Obviously, refers to measures short of use of force
 ICJ in the Gabcikovo Nagymoros case illustrated the
requirements of a lawful countermeasure act as
follows:
 Contd.
 ‘In the first place it must be taken in response to a previous
international wrongful act of another state and must be directed
against that state … Secondly, the injured state must have called
upon the state committing the wrongful act to discontinue its
wrongful conduct or to make reparation for it … (third) In the
view of the Court, an important consideration is that the effects
of a countermeasure must be commensurate with the injury
suffered, taking account of the rights in question . . . (fourth) [and] its
purpose must be to induce the wrongdoing state to comply
with its obligations under international law, and . . . the measure
must therefore be reversible.’

 Excercise: What if a countermeasure act results in a direct or

indirect harm to a third state?
Contd.
 4. Force Majeure – Art. 23
 ‘1. The wrongfulness of an act … is precluded if the act is due to
force majeure, that is the occurrence of an irresistible force or of an
unforeseen event, beyond the control of the State, making it
materially impossible in the circumstances to perform the
obligation.

 2. Paragraph 1 does not apply if:

 (a) the situation of force majeure is due, either alone or in
combination with other factors, to the conduct of the State
invoking it; or
 (b) the State has assumed the risk of that situation
occurring.
Contd.
 I.e. the conduct of the State is involuntary or at least involves no element
of free choice.
 This is what distinguishes it from necessity or distress
 The state is rendered unable to discharge its obligation
 Three elements must be mate:
 (a) the act in question must be brought about by an irresistible force or
an unforeseen event;
 It must be a constraint which the State was unable to avoid or oppose
by its own means
 the event must have been neither foreseen nor of an easily
foreseeable kind.
 (b) hence, which is beyond the control of the State concerned; and
 (c) which makes it materially impossible in the circumstances to
perform the obligation.
 These elements are subject to the requirements of Sub Art. 2
Contd.
 Serbians loans case – WWI as the reason not to pay the debt
was not accepted
 Payment of debt was not rendered impossible
 RainbowWarrior arbitration
 France invoked force majeure to repatriate one of the agents –
citing medical issues.
 The tribunal held that the test for force majeure is one of ‘absolute
and material impossibility’
 It further stated that ‘a circumstance rendering performance of an
obligation more difficult or burdensome did not constitute a
case of force majeure.’
 Good e.g. weather induced acts, loss of control over territory,
natural disasters …
Contd.
 5. In cases of distress – Art. 24
 conceptually somehow similar with force majeure
 The scenarios are however different.
 The main difference is in this case there is a choice which, however, may
be a violation of IL
 Usually invoked in relation to air crafts and ships, but limited to those
 The choice must be made, as per article 24, to save the life of the agent
or other peoples life – for e.g.
 when a ship enter a territorial sea of a state without notifying, due to storm
 It was successfully raised by France in the Rainbow Warrior case, at least in
relation to one of the agents ‘medical needs’
 Distress does not apply if the act in question is likely to create a
comparable or greater peril.
Contd.
 6. Necessity – article 25
 This refers to measures states may take ‘in exceptional
circumstances to safe guard an essential interest against a
‘grave and imminent peril’.
 Article 25(1) ‘Necessity may not be invoked by a State as a
ground for precluding the wrongfulness of an act not in conformity
with an international obligation of that State unless the act:
 (a) is the only way for the State to safeguard an essential interest
and
against a grave and imminent peril;
 (b) Does not seriously impair an essential interest of the State or
States towards which the obligation exists, or of the international
community as a whole.
 Contd.
 Article 25(2) ‘In any case, necessity may not be invoked by a State as a ground for
precluding wrongfulness if:
 (a) the international obligation in question excludes the possibility of invoking necessity;
for e.g. certain IHL rules
 (b) The State has contributed to the situation of necessity.
 The necessity defense exceptional, in that it covers the residual issues of the other
defenses, because:
 Unlike force majeure – it is not involuntary but it is voluntary
 Unlike distress – it is not taken to save life but another ‘vital interest’
 Unlike consent, self defense or countermeasures – it is not dependent on the prior conduct of
the injured state.

 It arises where there is an irreconcilable conflict between an essential interest on the

one hand and an obligation of the State invoking necessity on the other.
Contd.
 Given this exceptional nature of the necessity defense, it has
to be applied restrictively.
 This is reflected in the negative formulation of the rule
 This view is ascertained by the ICJ in the Gabkicovo
Nagymoros case, it held:
 ‘…the defense of necessity has attained a rule of CIL status, but
has to be applied on an exceptional basis.’
 It further held that the requirements of article 25 had to be
fulfilled cumulatively.
 E.g. an oil tanker submerges outside a state’s territorial sea and
spills oils.
 The coastal state may resort to bombing it to avert further
damage.
Contd.
 Necessity has been invoked to protect a wide variety of
interests, including:
 the environment,
 preserving the very existence of the State and its people in time
of public emergency, or
 ensuring the safety of a civilian population
Contd.
 Q for discussion:
 Can Egypt justify a bombing of the Ethiopian Renaissance Dam,
based on necessity – as it claims the construction of the dam
affects its vital national interest?
 Art. 26 provides:
 ‘Nothing in this (chapter) precludes the wrongfulness of
any act of a State which is not in conformity with an
obligation arising under a peremptory norm of general
international law.’
 THE CONSEQUENCES OF INTERNATIONALLY
WRONGFUL ACTS
 1. Cessation
 This involves the obligation to:
 Cease the act in cases of violations of continuing nature –
RainbowWarrior case
 To offer appropriate assurances and guarantees of non-
repetition of such circumstances
 LaGrande case
 CameroonV. Nigeria
 The court affirmed this remedy as principle of IL
 NB: owing to the facts of the case it didn’t apply it in either cases
Contd.
 2. Reparation
 Charzow factory case – PCIJ held that:
 ‘The essential principle contained in the actual notion of an
illegal act is that reparation must, as far as possible, wipe
out all the consequences of the illegal act and re-
establish the situation which would, in all probability, have
existed if that act had not been committed.’
Contd.
 Reparation may take different forms which can be applied
either in combination or separately:
 Restitution, Compensation or Satisfaction
 Restitution – in kind
 This is the best method as it will take the situation back to where
it was before the wrongful act occurred.
 In some cases Restitution may be a challenging proposal
because of political considerations involved.
 For e.g. in cases of expropriation or violations of
international contract obligation by states
 This view was upheld by the tribunal in BP V. Libya case, where
Libya expropriated BP.
 Can a state be asked for a ‘forced performance’? – The prevailing
view is that it cannot, given the sovereignty of states.
Contd.
 Compensation
 This relief is available to counter the difficulty of implementing
restitution in all cases of violations
 The ICJ in the Gabcikovo Nygimoros case held that:
 ‘it is a well established rule of international law that an
injured state is entitled to obtain compensation from the
state which has committed an internationally wrongful act for the
damage caused by it.’
 Damage includes both material and moral damages
 RainbowWarrior case – France paid 7 million dollars
 I Am Alone case – CanadaV. US,
 US was ordered to pay $25,000, not as compensation to
the ship sunk but an acknowledgement of the wrong
done to Canada
Contd.
 Satisfaction
 Thisform of reparation relates to non-monetary
compensations
 i.e. for injuries that cannot be made good neither by restitution nor by
compensation
 It may be through:
 An official apology or expression of regret,
 The punishment of minor officials who acted in the violation,
 A formal acknowledgment of the unlawful nature of the act
Contd.
 Sometimes, it may not be clear as to which remedy is
appropriate in a given case
 For e.g. in the RainbowWarrior case
 New Zealand requested for restitution
 Requesting the return of the French officers to the place where
they were to stay as per their agreement.
 Q: But is this a question of ‘restitution’ or ‘cessation’?
 The court held that this is a question of a continuing violence;
hence cessation of the violence is the appropriate remedy.
Contd.
 Serious Breaches of peremptory norms – Jus Cogens
 Rules of this nature are taken to be of interest to the whole
community of a state
 E.g. international crimes
 Remember these are rules from which no derogation is
allowed.
 So the question is:
 can there be state responsibility, if a state commits genocide
within its own territory and on its own people?
 What challenges can you imagine if we penalize states
for committing such crimes?
Contd.
 Initially, the ILC draft articles included a state responsibility for such
crimes, the justifications given where:
 The non-derogable nature of rules of jus cogens,
 The rise of individual criminal liability under international law
 The existence of enforcement mechanisms under chapter 7 of the UN
charter
 But as it stands now the ILC article 41 is limited to providing that,
 ‘states are under a duty to co-operate to bring to an end, through
lawful means, any serious breach by a state of an obligation arising under a
peremptory norm of international law and not to recognize as lawful any
such situation.’
 Non-recognition of the out come of such breach
 I.e. the question of state’s criminal responsibility for international
crimes is dropped from the articles as it proved to be controversial.
Contd.
 Diplomatic Protection and Nationality of Claims
 Treatment of aliens
 Which standard to apply?
 Who can invoke a states responsibility?
 Exhaustion of Local Remedies
 Meaning
Public International
Law

Kibrome M.
JU - 2017
Chapter Nine

The Law of Treaties

Introduction:
 Treaty like instruments – ‘MOUs’ or ‘Arrangements’
 Meaning
 Evidence of intention to conclude (not to conclude) a legally binding
instrument
 The practice shows a wide spread use of such instruments by states,
covering a wide ranging issues
 Disagreement as to status of the instrument
 How to distinguish treaties from such instruments
 Its form, terminologies used or express mention in the instrument
 Circumstances how it was concluded and how its authors acted subsequently
 MOUs are preferred to treaties for reasons of:
 confidentiality, convenience (not much formality), easy to amend, terminate
or re-negotiate
 Introduction: Treaties in General
 Treaty is basically a legally binding agreement between parties on the
international scene.
 There is no simpler method of reflecting the agreed objectives of states
than treaties.
 Treaties are binding up on the parties and must be performed in good faith
 the principle of pacta sunt servanda.
 Generally treaties need not always be in writing or signed
 Treaty may be designated in various ways – designation on its own has no
legal implication
 Treaties can be entered:
 between states, states and other entities of IL and between other entities of IL
 For a limited period of time or otherwise
 To be governed by IL or domestic laws (mainly in commercial matters,
but these are usually seen as contracts not treaties)
IL of Treaties: VCLT 1969
 Definition: Art. 2(1) (a)
 Elements:
 An international agreement
 i.e. it has to be of an international character – reflected in the other
elements
 Concluded between states
 Generally treaties can be entered in to between a variety of international
law subjects
 The limitation under this definition is solely to determine the scope of
application of this convention
 Hence, this convention only deals with treaties between states
Contd.
 In written form
 Generally treaties can be entered orally
 But theVCLT does not apply to such treaties
 ‘written form’ however doesn’t mean it has to be ‘typed or printed’
 i.e. doesn’t mean hard copies only
 It can include other electronic mechanisms – soft copies
 The main interest here is the text has to be reducible to a permanent,
readable form.
 In such cases ‘e-signature’ is of high importance
 Governed by international law
 This element signifies on one hand the ‘international character’ of the
agreement
 On the other, the states’‘intent’ to conclude a legally binding agreement
Contd.
 ‘whether embodied in a single instrument or in two or more
related instruments’
 The classic form for a treaty is ‘single instruments’
 This element is of special relevance for treaties concluded
through ‘exchange of notes’
 Such forms of treaties have become common
 ‘Whatever its particular designation’
 What name parties give to the treaty doesn’t matter
 The intent to create a legally binding agreement is what matters
Contd.
 Therefore, the convention doesn’t apply to:
 Treaties between states and international organization
 Treaties governed by municipal laws, even if entered between
two or more states; and
 Agreements entered in to in a non written form
Contd.
 This does not however bar:
 Such treaties validity - Article 3(a).
 The application of principles of CIL, to such agreements, even if
such principles are included under the convention - article
3(b)
 The application of the convention between the state parties to a
treaty even if other subjects of international law are parties to
the treaty - article 3(c).
 The convention applies also to treaties constituting IOs and
those adopted within an IO – Art. 5
 Why do you think is so?
The Making of Treaties
 Capacity - Art. 6
 Every state posses capacity to enter in to treaties
 ‘State’ for this purpose means a sovereign that has legal personality
under IL
 Treaty between states may be entered on behalf of or between:
 Heads of states
 Their governments or the big three
 Some times ministries
 There is no difference between such treaties for IL purposes
 The state remains a party irrespective of changes to those who
entered the agreement
 What do you think the scenario should be in relation to
federations? Can one of the federating states in Ethiopia enter in to
an international agreement?
Contd.
 States take part in the making of treaties through their
representatives
 Such representatives should be fully accredited(qualified) and
given sufficient authority to:
 conduct negotiations, and
 conclude and sign the final treaty.
 As a general rule such authority is contained in a formal document
known as ‘Full Powers’
 Full Powers can be dispense with
 if practice between the negotiating states shows an intention to
consider them as read
 Usually in cases of bilateral treaties, or treaties between small number
of states
Contd.
 Art. 7 Full Power
 Definition – Art 2(1) c representation may be for:
 Acts related with the making of a treaty, or
 Any other act with respect to a treaty
 for e.g. those listed under Art. 67 of VCLT
 Art. 7 reflects the rules in CIL
 Art. 7(2) – those who do not need to produce ‘full power’ to perform treaty
related acts
 This is irrespective of the position of municipal law on the issue
 7(2)a – ‘the big three’ - to perform all acts related to the conclusion of a treaty
 Presumably for those acts under art. 65 too
 7(2) b and c – the presumption is for specific/limited acts
 Full powers have to as much as possible specify which acts are authorized.
 Has to be issued by one of the ‘big three’
Contd.
 Art. 8 - Invalid Acts i.e. acts with no legal effect
 Acts performed by someone who cannot be considered as
authorized under Art. 7 or someone who devoid of such power.
 Unless it is subsequently confirmed by the concerned state:
 Either by ratifying the treaty, or
 By any other conduct indicating confirmation – i.e. acts like:
 Publication or application of such treaty
 Art. 8 is not applicable in relation to
 Omissions in relation to specific restrictions on authority to express
the state’s consent – Art. 47, or
 Violations of municipal law regarding competence to conclude
treaties – Art. 46
 This is particularly in relation to acts of the ‘big three’ (i.e. Art. 7(2)a)
Contd.
 Art. 9 – Adoption of the text
 It takes place once negotiations are over
 Indicates the negotiating states’ agreement with its form and
content
 Generally, adoption does not constitute consent to be bound by a
treaty
 Art. 9(1) - the classic Pre-WWII ‘unanimity’ rule
 Currently utilized in bilateral or small number state treaties
 Art. 9(2) – the modern approach ‘majority vote’
 Reflects the prevailing practice
 TheVCLT it self was adopted according to this rule
 ‘consensus’ approach is even more favored for the sake of efficiency
Contd.
 Art. 10 – Authentication
 States need to know the final text before giving their consent to be
bound
 Hence, authentication is the process of establishing this fact
 Hence, it consists of the certification that:
 A document contains the definitive and authentic text,
 Is thus not susceptible to alteration
 This doesn’t completely rule out minor changes before signature
 But generally marks a point of no return in the treaty making
process
 Which is particularly important in case of multilateral treaties
Contd.
 Consent to be bound
 ‘negotiating states’ – Art. 2(1)e – adoption
 ‘contracting state’ – Art. 2(1)e – consent given, but treaty not yet
entered in to force
 In principle neither adoption/authentication nor signing a final act
constitute a state’s consent to be bound
 Art. 11 – lists different ways states may express consent:
 Signature,
 exchange of instruments constituting a treaty,
 Ratification, acceptance or approval,
 Accession, or
 Any other means if so agreed – epitomizes the flexible nature of
treaty law
Contd.
 Art. 12 – signature
 Express provision in the treaty – 12(1) a
 Otherwise established – 12(1)b
 E.g. by looking at its ‘entry in to force’ clause
 i.e. if there is no indication, express or implied, of the need for
ratification the treaty will be presumed to enter in to force upon
signature
 To be inferred from the ‘full power’ – 12(1)c
 When signature is made subject to ratification, contracting
states will still have some obligations:
 Art. 18 – ‘not to defeat object and purpose’ of the treaty
 What do you think about the issue of ‘witnesses’?
 Contd.
 Art. 13 – exchange of instruments constituting a treaty
 It is ‘the act of exchange’ that constitutes consent
 It could be an exchange of ‘notes’, letters’ …
 Entry in to force will normally be upon the date of the reply of
the other state
 Can be seen in line with offer and acceptance
 It is important to carefully look at the wordings and languages to
ensure intent to be legally bound
 Because MOUs can also be entered in the same manner, but without
the intent to create a legally binding obligation
Contd.
 Art. 14 – ratification, approval or acceptance
 It is the most utilized way
 Gives states waiting time before giving their consent
 Is also aimed at ensuring the representative didn’t exceed his full power
 The waiting time is beneficial in two ways:
 Internally
 To enable the state to undertake the necessary preparations like:
 Enacting appropriate legislations
 Meet constitutional process if there is any
 Test public opinion on the issue …
 Externally
 Gives time for consideration of the implications of the treaty
Contd.
 Legally speaking, ratification, approval or acceptance mean the
same
 Definition - Art. 2(1)b – ratification is:
 An international act
 Carried out on the international plane
 Hence, IL is not interested in the internal process of how the state
ratifies a treaty
 states adopt different constitutional methods
 Methods also may vary depending on the nature of treaties
Contd.
 For IL purposes ratification consists of:
 Execution of an instrument of ratification by the executive, and
 Either:
 Its exchange for the instrument of ratification for the other state
 Commonly in case of bilateral treaties, or
 Its lodging with depository
 Commonly in case of multilateral treaties, or
 If so agreed, notification of the ratification to contracting states or the
depository – rarely practiced these days
 Art. 16 reflects this common conception
 NB: ratification does not, in it self, make the treaty binding on the state
 For that, the treaty have to enter in to force for that state
 At that point the state becomes a ‘party’ to the treaty – Art. 2(1)g
Contd.
 This method is used when:
 The treaty provides as such – Art 14(1)a – this is the norm
 An otherwise agreement is established - Art 14(1)b
 E.g. by a collateral agreement
 Representative signs subject to ratification – Art 14(1)c
 i.e. in case of treaties that enter in to force up on signature
 Because in case of treaties subject to ratification, the representative doesn’t need to
specify his signature is subject to ratification
 Intention of the state to sign subject to ratification – Art 14(1)d
 To be inferred from the full power or was expressed during negotiation
Contd.
 Art. 15 – Consent by Accession
 It is the means for a state to become a party, if for any reason, it was unable to
sign the treaty
 Reasons like:
 A treaty restricts signature for certain states, or
 The state misses deadline for signature
 For both see Art 81 ofVCLT it self as a good e.g.
 Consent by accession is possible when:
 The treaty so provides
 The negotiating states were so agreed, or
 They have subsequently agreed so
 Such accession clause may also
 provide ‘when’ accession can be exercised – i.e. before or after entry in to force,
or
 Set some conditions on who can accede to the treaty
 Contd.
 Art. 19 Reservations
 It is basically one of the illustrations of state sovereignty
 Definition: Art 2(1)d
 It is usually done to adjust the reserving state’s obligation under the
treaty with its domestic law
 Mainly when it is not feasible or desirable to change its laws
 For political, social and cultural reasons
 Can it be made in case of Bilateral treaties?Why/why not?
Contd.
 ReservationVs. other forms of Declarations
 Interpretative declarations
 Do not generally alter the obligation under the treaty
 It is merely meant to show how the state understands certain terms
 It could be:
for genuine domestic application purposes, or
 Appeasement of domestic ‘political’ demands
 But could come in to use in cases of interpretation of the treaty
 Disguise reservations
 Presented as interpretative declarations, but amount to reservation
 AKA ‘qualified’ or ‘conditional’ interpretative declarations.
 Anglo-French Continental shelf case, ICJ
 Political declarations
 Made purely for political reasons – e.g. non-recognition of a state
Contd.
 Generally, reservation can be made unless prohibited
 Art. 19 lists the ‘exceptions’ where it may be ‘prohibited’
 Exception 1: express prohibition – Art 19(a)
 E.g. Due to the subject matter or manner of application (‘package deals’)
some treaties prohibit reservation
 E.g. Human right treaties, UNCLoS, ICC statute
 This usually raises domestic controversy, esp where treaties have to be
ratified/approved/accepted by parliaments/legislatures
 Or for e.g. due to its unique trilateral negotiating structure the ILO
constitution prohibits reservations to ILO Conventions
Contd.
 Exception 2: the treaty provides that only specified reservations may be
made
 Hence, reservation in other cases is prohibited
 It is usually allowed in order to reach at consensus by enabling
states to opt out of one or more provisions
 This can be done in a particular treaty for e.g.:
 By excluding certain specific subjects from its scope – for e.g.
 If a treaty on dispute settlement – excluding territorial disputes
 Or it may be made against one or more specified articles
 If a convention on a certain matter provides for ICJ’s jurisdiction – it
may allow reservation in relation to that/those articles …
 Or a treaty may allow reservation in respect to certain rights and
obligations
 Contd.
 NB: whether a reservation falls under either ‘a’ or ‘b’ may call for
interpretation of the treaty.
 Exception 3: the compatibility test
 The reservation has to be incompatible with the ‘object and purpose’
of the treaty
 This may come in to picture where:
 The reservation doesn’t fall in either of the two exceptions
 The convention is silent about reservation, or
 It allows reservation except for certain specified articles
 So reservation on the unspecified articles has to meet this test
Contd.
 The third exception presents certain challenges
 How is the test to be conducted?
 Do human right treaties require a special test?
 Who determines compatibility?
 What is the effect of incompatible reservation?
 What role for states, other than the reserving state?
 These challenges have become even more harder with treaties becoming
longer and more complex
 i.e. treaties like UNCLOS – with 320 articles, or
 Human right treaties – covering a wide range of subjects
 E.g. the ICCPR
Contd.
 Some examples of controversial reservations: i.e. reservations :
 To torture terrorism suspects under the UN Torture Convention (UNTC)
 To raise ‘superior order’ as a defense by alleged torturer under the UNTC, when
it is provided as unacceptable defense - Chile
 To exclude National Lib. Movt from the scope of alleged offenders under Conv.
On the Prev. & Punishment of Crimes against Intnly. Protctd. Persons - Burundi
 To execute convicted persons, even those under 18 – against ICCPR, even
though the right to life is non-derogable – USA
 Against Art. 27 of the VCLT it self by – Guatemalla
Contd.
 All the reservations above, except the one by the US, were
withdrawn as a result of objection by other states
Contd.
 Acceptance of, and objection to Reservation
 Arts 20-23
 Art 20-2:the classical unanimity rule
 Art. 20-3: Constitutions of IO
 Art 20-4: on the status of the reserving state as related to the treaty and other
parties – the general norm
 B – objecting state
 e.g. Reservation to Genocide Convention Case
 Art. 20-5: acceptance need not be express
 The ‘period of time requirement’ is not a rule of CIL
 Art 21: legal effect
 Art.21-3: Anglo-French Continental Shelf Case
Contd.
 The unresolved question of impermissible reservations
 i.e. reservations made contrary to an explicit or implicit prohibition
 Unless regulated by the treaty, state parties will probably be the once to
determine on the issue
 So acceptance and objection may play a role
 The issue is however unsettled as to the effect of such reservations
 Would the reservation be invalid and the article in issue apply in full?
 Or would the state’s consent making the reservation be vitiated as whole?
 At least in relation to human right treaties, the first view seems gaining support
 The VCLTs has not addressed this matter
Contd.
 Entry in to force – Art. 24

 As a rule, its up to the parties to decide when the treaty enters in to force

 In the absence of such agreement

 entry in to force will be up on establishment of consent to be bound by all

negotiating states

 States for who the treaty is (enters) in force, become ‘parties’ to the treaty –
Art. 2(1)g
 Contd.
 Application of Treaties
 Art. 28 – non retroactivity of treaties
 See for e.g. Art. 4 VCLTs
 Art. 29 - application to entire territory
 Unless otherwise established
 Art. 30 – successive treaties
 The rules are more of a general guide, in practice states often settle the issues
expressly
 Art. 34 – treaties and third states
 In principle, treaty cannot create obligation/right for third states, without their
consent
 If a rule of CIL, it will be applicable to all states
 Art. 2(6) UN Charter – Enforcement against non-member states. what justification
can you imagine?
Contd.
 Treaty Interpretation – Arts. 31-33
 Three approaches to interpretation in IL
 Actual text of the agreement - an objective approach
 analysis of the words used
 Intention of the parties – subjective approach
 As a solution to ambiguous provisions
 The object and purpose of the treaty – teleological approach
 This one follows a wider perspective approach
 Art. 31 reflects a combination of all the three approaches