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Public International Law: University of Nairobi School of Law Parklands
Public International Law: University of Nairobi School of Law Parklands
UNIVERSITY OF NAIROBI
SCHOOL OF LAW PARKLANDS.
2015
MURIITHI PITAZ MWANGI ©
K.L.S BUREAU (BUREAU YA JESHI)
2/2/2015
PUBLIC INTERNATIONAL LAW
3RD YEAR 2ND SEM
LESSON ONE
Expectations:
How international law is enforced?
How it affects Kenyan Legal system?
What is the relation between human rights and international law?
Does international law affect me as an individual?
What is the nature of Public International Law or Law of Nations?4725
(Lecturer's Explanation; If you look at the two sentences you will see the kind of law we are
talking about. we are saying it comprises of the principles and rules of conduct which states feel
bound to and do observe. What does it mean? We will see when we get into detail that much of
International Law binds by consent. The states have to consent to certain rules of International
law before they are said to be bound by those rules of international law and in particular Treaty
rules. If a state is not a party to a particular treaty, it cannot be bound by the rules of law or the
provisions of that treaty. So we see that state consent is very crucial to the binding nature of
International Law. It is not like municipal Law where you and I have no choice once parliament
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has enacted a piece of Legislation we are bound whether or not we consent to it. The
International legal order that is it.
We are also talking of rules relating to the functioning of International organizations. The
U.N , The African Union, rules relating to their functioning, rules relating to their powers,
rules relating to their rights and duties form part of Public International Law that will be a
concern with. Individuals, or what somebody called Natural beings or natural persons,.. Is the
International community concerned about you and I ? Is the International Community
concerned about how you and I conduct ourselves? Is the International Community concerned
about how you and I are treated by our own states? Alright.. We are talking of non-state
entities, there are entities out there that fall short of states. A typical Example in Africa being
Western Sahara. Do you know Where Western Sahara is? Western Sahara is a non-state entity
but it is a concern of the International Community. The International Community is concerned
about the future of Western Sahara and Western Sahara has been a subject of Several
Resolutions of the U.N General Assembly. Several Resolutions of the U.N Security council. So
you will find rules of I.L that apply to Western Sahara although it is not a state .Okay}
This definition covers recent developments which have qualified the traditional
conception of International Law as purely a system of rules and principles that are
applicable to interstate relations on the basis of either state practice or international
multi-lateral treaties.
N/B - There have recently emerged numerous regional institutions and organizations
which have been endowed with international legal personality and are capable of
entering into relations with each other and with states. Such regional institutions and
organizations are governed by regional international law rules as opposed to general
rules which are of universal application. {Lecturer's Explanation: Lemmi expain that by
giving you a few Examples: In Africa we have the African Union. The African Union is a
regional Organization. It is a regional International Organization because it was created by the
African states for purposes as it were serving their interests on the African continent. So when
you look at the Constitutive Act of the African Union, that constitutive act of the A.U is I.L.
International why? Because it governs relations among various member states of the A.U. But
Deals with the questions of how states came into existence, how states may acquire
territory ,laws relating to the sea and the sea bed ,laws relating to international law
use of force and warfare as well as the law relating to treaties ,settlement of
international disputes laws governing human rights ,international crimes as well as
the laws relating to treatment of aliens. It is important to note and take account of the
dynamic quality of International which has led and is leading to changes both in the
subject of international law and its contents.
{Lecturer's Explanation: How states may acquire territory e.g. how did Kenya obtain the title to
what we claim as Kenya, because before 1963 Kenya was not a state or international legal
person. . The law relating the sea, laws relating to use of force and warfare (International
Humanitarian Law); The 1949 Geneva Convention of the laws of war. Under this convention
even if you are my enemy and am fighting you; am supposed to be “sympathetic”. If you are
injured am under obligation to offer medical assistance. There are rules relating to the treatment
Such a contact may exist for instance because a contract was made or has been
performed in a foreign country or because a tort was committed there or because some
property was situated there, the parties to a particular case or contract are non-nationals
of the forum state .{ Lecturer's Explanation For example:. divorce cases, where for example a
Chinese couple marry in China and then they come to reside in Kenya ,and as I normally say,
Later loves goes out through the window and the man sees a beautiful Kenyan Lady and wants
to spend the rest of his life with her meaning he has to divorce his wife.They appear before a
Kenya court and the question before the judge is which law does he apply? Does he apply
Kenyan law as the parties are in Kenya jurisdiction or China law in regard to marriage as both
are Chinese Nationals and married pursuant to Chinese laws. Such clearly manifests the said
Conflict of laws. or another example : You are an entrepreneur you want to expand the
business may it transportation that you are engaged in . You fly from Nairobi to the Seattle in
Washington the U.S the home of Boeng. You want to buy a Boeng 787 Dreamliner. The
contract is entered into in the U.S .. Boeng company under the Contract is supposed to deliver
the first 787 dreamliner in 1st January 2016.
You are a Kenyan the contract was entered into in the U.S . Do you file your suit for claim
against Boeng at High Court Nairobi in Kenya .What Foreign Law issues will be involvesuit? If
Kenya is the forum state or the state where you have filed your suit.. the question will be whether
that contract you entered into with Boeng in the U.S is enforceable under Kenyan Law? before
even you are told we have jurisdiction? is it even enforceable under Kenyan Law what did the
contract say? Did it say in the event of dispute Kenyan or U.S Law will apply.. In so far as the
Kenyan Courts are concerned there is an element of foreign law that element of foreign law is
how it is this way. The U.S law becomes foreign in so far as Kenya the Forum state is concerned
where the suit is being. You have to make a choice where to file the suit if the contract does not
say anything... }
The Conflict of laws is a necessary part of the domestic law of each country because
different countries have different legal systems containing different rules while Public
International Law seeks primarily to regulate relations between sovereign states
amongst inter se (themselves) as well as other international law persons.
N/B - In other words, Public International Law is at least in theory the same
everywhere while rules of conflict of laws are different from one country to another.
From the earliest times, rules of conduct to regulate relations between independent
communities were felt necessary and emerged from mutual relations of those
Around 2100BC, a solemn treaty was signed between the rulers of Lagash and Umma,
the city-states situated in the area known to historians as Mesopotamia. It was inscribed
on a stone block and concerned the establishment of a defined boundary to be respected
by both sides under pain of alienating a number of Sumerian gods.
The next major instance was in 1400BC where the Egyptian Pharaoh Ramses II
concluded a Treaty of Peace Alliance and Extradition with the King of Cheta which
recognized territorial sovereignty over certain areas of each ruler and provided for the
extradition of refugees and the exchange of diplomatic envoys. {Lecturers Explanation
We shall see later that diplomatic immunities of foreign diplomats as we know it today did not
start yesterday, it started long time ago because diplomats were regarded as messengers and as
messengers they enjoyed certain privileges and rights in order to facilitate their work.}
The role of ancient Israel must also be noted. A universal ethical stance coupled with
rules relating to warfare was handed down to other peoples and religions and the
demand for justice and a fair system of law founded upon strict morality permitted the
thought and conduct of subsequent generations.For example, the Prophet Isaiah
declared that sworn agreements, even where made with the enemy, must be performed.
Peace and social justice were the keys to man’s existence, not power. There were also
historical cases of recourse to international arbitration and mediation on registration in
ancient Greece, China and the early Islamic world.
The scope for any ‘international law’ of states was extremely limited and all that one
can point to is the existence of certain ideals, such as the sanctity of treaties, which have
In the period of the Greek city states there developed some international law though
regionally limited composed of customary rules which had crystallized into law from
long standing usages followed/observed by these states not only interse( among
themselves), but also as between them and the neighboring states. {NB: One of the
sources of International Law is customs and customs develop from state practice.}
Underlying the rules were deep religious influences characteristic of an era in which the
distinctions between law, morality, justice and religion were not sharply drawn. No
sense of a world community can be traced to Greek ideology in spite of the growth of
Greek colonies throughout the Mediterranean area. This was left to the able
administrators of the Roman Empire.
The Roman civilization before its period of expansion and conquest made treaties with
Latin cities under which Latins and Romans were given rights in each other’s court and
promised mutual cooperation. The Romans had a profound respect for organization
and the law. The law knitted together their empire and constituted a vital source of
reference for every inhabitant of the far flung domain.
When/once Rome became an empire, the Romans organized their relations with
foreigners on the basis of two principles :
⮚ Jus Fetiale
⮚ Jus Gentium.
Jus Gentium -was a Roman solution to the necessity of regulating legal relations
between Roman citizens and foreigners as Rome expanded. Jus Gentium simplified rules
to govern the relations between foreigners and citizens.
The distinction between Jus Civile and Jus Gentium was erased when Roman
citizenship was granted to all male inhabitants of the empire in 212 A.D. However, Jus
Gentium did not disappear but became an essential part of Roman law and greatly
influenced all European Legal Systems and through them Public International Law.
From Ancient Rome, international law also inherited the Doctrine of the Universal law
of Nature known as natural law which was developed by the Stoic philosophers of
ancient Greece and adopted by the Romans.
This doctrine considered law or recognized law as the product of right reason
emanating from assumptions about the nature of man and society. Because natural law
is the expression of right reason inherent in nature and man and discoverable by reason,
it applies universally and it is unchanging and everlasting.
The Middle Ages were characterized by the authority of the organized Church and the
comprehensive structure of power that it commanded. All Europe was of one religion,
and the ecclesiastical law applied to all, notwithstanding tribal or regional affiliations.
For much of the period, there were struggles between the religious authorities and the
rulers of the Holy Roman Empire.
These conflicts were eventually resolved in favour of the Papacy, but the victory over
secularism proved of relatively short duration. Religion and a common legacy derived
from the Roman Empire were strongly unifying influences, while political and regional
rivalries were not. But before a recognized system of international law could be created,
social changes were essential.Of particular importance during this era was the authority
of the Holy Roman Empire and the supranational character of canon law .
the Maritime Customary Law developed to deal with problems that transcended
national boundaries.
With the revival of trade in the 10th century, merchants started to travel all throughout
Europe in order to sell, buy and place orders for various goods. These commercial
activities required the establishment of a common legal framework. Out of necessity,
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the European merchants created their own rules of conduct on fair dealing which
formed Lex Mercatoria(law of merchants). During the same time, Maritime Customs
and Usages were formed. The High seas were no man’s land but with the development
of Maritime Commerce it became necessary to establish some rules and standards.
Rhodian Sea Law, a codification undertaken under the Byzantine Empire were
compiled into widely recognized collections that became accepted all through Europe.
The middle ages also saw the rise of nation states that led in turn to the process of the
formation of rules of customary international law from usages and practices followed
by such states in their mutual relations. For instance, there were the microscopic Italian
states that maintained diplomatic relations with each other and with the outside world
that led to the development of a number/certain rules relating to diplomatic envoys
and their inviolability.
Such commercial and maritime codes while at this stage merely expressions of national
legal systems were amongst the forerunners of international law because they were
created and nurtured upon a backcloth of cross national contacts and reflected the need
for rules that would cover international situations.
Such rules, growing out of the early Middle Ages, constituted the seeds of international
law, but before they could flourish, European thought had first to be developed by that
intellectual explosion known as the Renaissance. This complex of ideas changed the face
of European society and ushered in the modern era of scientific humanistic and
individualistic thought.
The collapse of the Byzantine Empire centred on Constantinople before the Turkish
armies in 1453 drove many Greek scholars to seek sanctuary in Italy and enliven
European’s cultural life.
The introduction of printing during the 15th century provided the means to disseminate
knowledge, and the undermining of feudalism in the wake of economic growth and the
The rise of the nation-states of England, France and Spain, in particular, characterized
the process of the creation of territorially consolidated independent units, in theory and
doctrine, as well as in fact. This led to a higher degree of interaction between sovereign
entities and thus the need to regulate such activities in a generally acceptable fashion.
The pursuit of political power and supremacy became overt and recognized, as
Machiavelli’s The Prince (1513) demonstrated.
The city-states of Italy struggled for supremacy and papacy too became a secular
power. From these hectic struggles emerged many of the staples of modern
international life; diplomacy, statesmanship, the theory of the balance of power and the
idea of a community of states.
Notions such as these are immediately appreciable and one can identify various
manoeuvres for political supremacy. Alliances, betrayals, manipulations of state
institutions and the drive for power are not unknown to us. We recognize the roots of
our society. It was the evolution of the concept of an international community of
separate, sovereign, if competing, states, that marks the beginning of what is
understood by international law.
Thus, a distinct value-system to underpin international relations was brought into being
and the law of nations was heralded as part of the universal law of nature.
With the rise of the modern state and the emancipation of international relations, the
doctrine of sovereignty emerged. This concept, first analysed systematically in 1576 in
the Six Livres de la Republique by Jean Bodin was intended to deal with the structure of
authority within the modern state. Bodin, who based his study upon his perception of
the politics of Europe rather than on a theoretical discussion of absolute principles,
emphasized the necessity for a sovereign power within the state that would make the
laws. While such a sovereign could not be bound by the laws he himself instituted, he
was subject to the laws of God and of nature.
The idea of the sovereign as supreme legislator was in the course of time transmuted
into the principle which gave the state supreme power vis-à-vis other states. The state
was regarded as being above the law. Such notions as these formed the intellectual basis
of the line of thought known as positivism which will be discussed later. The early
theorists of international law were deeply involved with the ideas of Natural law and
used them as the basis of their philosophies. Included within that complex of Natural
Law principles from which they constructed their theories was the significant merging
of Christian and Natural law ideas that occurred in the philosophy of St. Thomas
Aquinas. He maintained that Natural law formed part of the law of God, and was the
participation by rational creatures in the Eternal law.
It complemented that part of the Eternal Law which had been divinely revealed. Reason
declared Aquinas, was the essence of man and thus must be involved in the ordering of
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life according to the divine will. Natural law was the fount of moral behavior as well as
of social and political institutions and it led to a theory of conditional acceptance of
authority with unjust laws being unacceptable. Aquinas’ views of the late thirteenth
century can be regarded as basic to an understanding of present Catholic attitudes, but
should be confused with the later interpretation of Natural Law which stressed the
concepts of natural rights.
During the same time, a number of jurists began to consider a revolution of the
communities of independent sovereign states and to write about different problems of
the law of sovereign states and to write about different problems of the law of nations
recognizing the necessity of a body of rules to regulate certain aspects of relations
between such states.
Where there were no established customary rules, these jurists devised and fashioned
working principles by reason of analogy. Not only did they draw from the principles of
Roman laws, but they also had recourse from the precedence of ancient history,
theology, canon law and the semi theological concept of the law of Nature.
The Italian school of Law representative called Alberico Gentili (1552-1608) who
conceived the
Law of Nations as a universal and natural law applicable between independent pre
states and free common wealth. Francisco’s lectures were preserved by his students and
published posthumously. He demonstrated a remarkably progressive attitude for his
time towards the Spanish conquest of the South American Indians and contrary to the
views prevalent until then, maintained that the Indian peoples should be regarded as
nations with their own legitimate interests.
War against them could only be justified on the grounds of a just interests. War against
them could only be justified on the grounds of a just cause. International law was
founded on the universal law of nature and this meant that non-Europeans must be
included within its ambit.
However, Vittoria by no means advocated the recognition of the Indian nations as equal
to Christian states of Europe. For him, opposing the work of the missionaries in the
territories was a just reason for war, and he adopted a rather extensive view as to the
rights of the Spaniards in South America. Vittoria was no liberal and indeed acted on
behalf of the Spanish Inquisition, but his lectures did mark a step forward in the right
direction. Suarez (1548-1617), was a Jesuit and Professor of Theology and deeply
immersed in medieval culture. He noted that the obligatory character of international
law was based upon Natural Law, while its substance derived from the Natural Law
rule of carrying out agreements entered into.
One central doctrine in Grotius treatise was the acceptance of the law of nature as an
independent source of the rule of law of nations apart from customs and treaties. His
work was continually relied upon as a point of reference and authority in the decisions
of courts and text books and later writings of standing .Besides his earlier work 'More
Liberum' which translates to Free sea published in 1609 distinguished Grotius as the
historic standard bearer of the freedom of the seas.
Grotius finally excised theology from international law and emphasized the irrelevance
in such a study of any conception of a divine law. He remarked that the law of nature
would be valid even if there were no God. A statement which although suitably clothed
in religious protestation was extremely daring. The law of nature now reverted to being
founded exclusively on reason. Justice was part of man’s social make-up and thus not
only useful but essential.
Grotius conceived of a comprehensive system of international law and his work rapidly
became a university textbook theological distinction between a just and an unjust was, a
notion that was soon to disappear from treaties on international law, but which in some
way underpins modern approaches to aggression, self-defence and liberation.Besides
his earlier work Mare Liberum (1609) distinguished Grotius as the historic standard
bearer of the doctrine of the freedom of the seas.
In his work, Grotius argued that it would be against a natural law to rule over the sea
because no country was able to monopolize control over the ocean because of its
immensity, lack of stability and lack of fixed limit. Therefore, Grotius opposed the
‘closed seas’ of the Portuguese that was later elucidated by the English writer John
Selden and emphasized instead the principle that the nations could not appropriate to
themselves the high seas. They belonged to all. It must, of course, be mentioned,
However, this merely points up what must not be disregarded, namely that concepts of
law as of politics and other disciplines are firmly rooted in the world of reality and
reflect contemporary preoccupation. No theory cultural and social environment. To
ignore this is to distort the theory itself.
The Evolution Of International Law during the two centuries after Grotius was
marked by the final revolution of the modern state system in Europe a process that was
greatly influenced by the Peace of Westphalia 1648. The major countries of Europe had
been involved in the war which had started in 1618 for religious reasons namely the
struggle between Catholic and Protestant countries but had soon turned out to be an all-
out struggle in military and political hegemony in Europe. The treaties of peace were
signed in the Westphalia towns of Munster and Osnabruck but are considered in law as
one single instrument. The treaties constitute a watershed in the evolution of the
modern international legal community and legal order.
Secondly, the treaty granted the members of the Holy Roman Empire The Jus
Foederationis, that is the right to enter into alliances with foreign powers and to wage
war provided those alliances or wars were neither against the empire nor against public
peace and the treaty. Accordingly, a number of small countries were upgraded to
members of the international community with almost sovereign rights.
The period from the Peace of Westphalia to the congress of Vienna in 1815 is
considered as a period of formation of Classical International Law. This period
witnessed the breakup of the feudal state system and the formation of a society into
free nation states. The congress of Vienna ended 25 years of the Napoleonic War in
Europe.
It was convened by four European powers which had defeated Napoleon with the main
objective of establishing a balance of powers of political forces in Europe which would
ensure lasting peace and maintain a status quo in Europe by repressing political
revolutions.
International law greatly expanded during the rest of the 19th Century mainly due to the
rise of powerful new states in and outside Europe, the expansion of European influence
overseas and modernization of the world transport, the greater destructiveness of
modern warfare and influence of new inventions.
All these made it urgent for international societies of states to acquire a new system of
rules which would regulate in an ordered fashion conduct of international states affairs.
There was remarkable development in the law of war and neutrality and great increase
in adjudications in international arbitral tribunals provided an important newsource of
rules and international law principles. Besides, states commenced to acquire the habit of
negotiating of general treaties in order to regulate the affairs of mutual legal concerns.
i) Sovereignty
ii) Balance of powers
iii) Legitimacy of government
iv) Nationality
v) Equality
Other important developments took place in the 20th century;
⮚ Following the first world war, The League Of Nations was created as an
⮚ The league and the court were succeeded in 1946 by the United Nations
The scope of international law was also expanded to cover not only every kind of
economic and social interests affecting states but also the vast and complex areas of
international concerns such as: law of the sea, environmental laws, nuclear energy
laws, international crime, communications laws and human rights and interests
affecting states.
As a result, the influence of writers(e.g. Grotious) has tended to decline with the
consequence that international law rules have been positively tailored to cater for
modern developments in technology, economic exigencies and social economic and
political affairs of the world.
The last century also witnessed a great number of multilateral treaties laying down
rules to be observed in interstate relations as well as rules of arbitration to settle
international disputes. At the same time International Court of Justice(I.C.J) has made
an important contribution to the development of international law and Jurisprudence.
Similarly, the international law commission since its creation/inception in 1947 by the
UN General Assembly has worked on the codification and progressive development of
international law thereby ensuring greater certainty and stability.
Rules of customary international law have also been codified and consequently given
greater precision and made more specific.
Customary International law consists of rules of law derived from the consistent conduct of
states acting out of belief that the law required them so to act that way. It can be discerned by a
widespread repetition by states of similar international acts over time.
Finally, the last century also witnessed massive participation of the newly independent
states of Africa, Asia and the Pacific in the International Law undertakings.
These newly independent states realized that many international law rules did not fully
respond to their needs and reflect their concerns and hence taken an active part in the
readjustment of the old rules to the new economic and political realities.
N/B The impact of this new development is reflected in the content and scope of
contemporary international law namely, the shift from Euro centrism to Universalism
thereby diminishing the Western European Supremacy over International Law.
Note that these notes are added professor's explanations and they are not a substitute
to attending class lectures. Do so at your own peril.
❖ At the time of the formation league of nations the following African Countries
⮚ U.N security council is not a legislative body neither is the general assembly.
iii) Thirdly, Questions of international law are always treated as legal questions by
those who conduct international business in various foreign offices or through the
various existing international bodies. The agencies do not consider international law
as merely a moral code. In his Oxford lectures in 1890, Sir Fredrick Pollock sums up
the issue in this way namely “if international law were only a kind of morality, the
framers of state papers concerning foreign policy would draw all their strength on
moral arguments. But as a matter of fact, this is not what they do. They appeal not to
the general feeling of moral rightness, but to precedents, treaties and to opinions of
specialists. They assume the existence among statesmen or publicists of a series of
legal as distinguished from moral obligations in the affairs of nations.” {lecturer's
Explanation : He expounds this by giving an example of last year(2014) when Somalia filed
an application before the International Court of Justice against Kenya .This was in regard to
boundary between Kenya and Somalia relating to maritime zone of the Indian Ocean. When
be uniform consistent uniform &general). The practice need not be universal in that
what is important is that a substantial number of states must apply or practice the
custom.
END OF LESSON THREE.(This notes assist you but they are not a substitute to
attending class)
In other words the proponent of a custom has to establish a general practice and having
done this in a field which is governed by legal categories the tribunal can be accepted to
presume the existent of an opinion juris. The distinction between International rules
which create a legal obligation and those which simply permit a state to act in a certain
way was illustrated by a Permanent Court of International Justice in the SS Lotus case
between France and Turkey. A French steamer and a Turkish Collier(a special ship used
to transport coal) collided on the High seas. As a result the Turkish collier sank and
some of its crew and passengers lost their lives. The French steamer having been put
into Court in turkey voluntarily the officers of the watch on board at the time of the
collision were arrested tried, convicted of involuntary man slaughter by the Turkish
authority. (Under I.L if a foreign ship is forced by tempest or is about to sink and it asks Kenya
port to allow it to come in it means it is so doing involuntarily/it is seeking refuge/it is a refugee
and when it is a refugee you do not proceed against it despite any violation of I.L or even
National law hence the word voluntarily in this case is very important because if the French
Steamer had been forced involuntarily to dock into Turkey, Turkish authority could not have
Notice of this action was served on the respondent Government on December 16th 1925;
but the case was withdrawn in June 1928 at the same time as the
International Law they have been scarcely applied because the jurisdiction of the
I.C.J is founded on consent and the court is very cautious to this part so much so
that even if it is empowered to decide ex aequo et bono it rarely does so.
⮚ Note P.C.I.J cases are referenced as: Series A No.17....(series A are report of the
judgment of the court in contentious cases between states. Like the above was a contentious case
between Germany and Poland.)or Series B No. 1.....( Series B is All the advisory opinions of
the P.C.I.J and are reported as shown) P.C.I.J existed during the days of the league of nations.
The seat of the league of nations was in Geneva.)
⮚ The I.C.J succeeded the P.C.I .J officially in 1946 when the U.N General assembly
resolved to officially dissolve the P.C.I.J and inaugurate the I.C.J.(The seat of the I.C.J is at the
Hague in Netherlands in a building called the Peace Paris but not in the same building as
I.C.C ) Article 38 of the statute of I.C.J was the same as Article 38 of the statute of P.C.I.J. The
I.C.J reports are reported as .e.g. 1949 I.C.J Rep ..pg. There is no distinction made between
judgment in contentious issues and advisory opinions. Until one gets to the law reports that's
when one knows whether it is a judgment in contentious issue or advisory opinion.
⮚ The ICJ does not have compulsory jurisdiction it has to be accepted voluntarily by the
parties. The ICJ cannot decide without the consent of the state.
❖ JUDICIAL DECISIONS.
After enumerating the 3 sources of rules so far considered, Article 38 authorizes the
court to apply judicial decisions and the writings of the most highly qualified publicists
as subsidiary means of the determination of rules of law.
Article 59 of the statute of ICJ’s provides that the courts decisions have no binding
force except between the parties and in respect of that particular case.
This article was not intended merely to express the principle Res Judicata but to rule
out a system of binding precedent. The object of the article is to prevent legal principles
accepted by the court in a particular case from being binding on other states or in other
disputes. The reason for that is because the court has no compulsory jurisdiction and
States must formally accept the jurisdiction of ICJ. There is therefore no binding
authority of precedent in international law and international court and tribunal
decisions do not strictly speaking make law.(so strictly speaking it means that the decisions
of I.C.J are like the decisions of court of appeal in Kenya which bind the high Court and Supreme
court binds the court of appeal).
Although in theory there is the barrier to the adoption of the doctrine of precedent, n
practice the decisions of the ICJ are treated as having the highest authority. State
parties to cases that come before the court, frequently make reference to the decisions
of the court itself and various international tribunals.
Even in practice, the court itself has of necessity followed previous decisions in the
interest of judicial consistency and has where necessary distinguished its previous
decisions from the case actually being heard.
For instance, in the Reparation of Injuries Suffered In the Service of the UN case 1949
ICJ report pg 174 the International Court of Justice in its advisory opinion to the U.N
General Assembly relied on the previous pronouncement on the Permanent Court of
International Justice to the International Labor Organization in 1926.
On 17th September 1948 Count Bernadotte a Swedish National was killed allegedly by a
private gang of terrorist in the new city of Jerusalem; that part of the city was under
Israeli control. Count Bernadotte was carrying out his duties as U.N mediator in
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Palestine. {Lecturer's Explanation: Until 1948 there was no state called Israel .What is the
present Israel, Jordan, Syria, Palestinian Authority were all part of the Ottoman empire. When
it crumbled after the 1st World war, when Turkey was defeated after 1st World war, all the
administration was put under the U.K . U.K was the mandatory state. They were put under the
league of nations. U.K administered the territories on behalf of the league of nations. When
league of Nations goes and U.N comes in the question was what was going to happen? Israel
lobby U.S, U.K, Latin America to go back to their homeland which they were allowed. May 1948
Israel was declared a state and a member of the U.N resulting to a war with Arab neighbors'.
Count Bernadotte is killed when he goes to mediate and the question was what action was the
U.N going to take as he had gone there as a its representative/official and killed in a member
state of the U.N}
In deciding upon the action to be taken in respect of the death, the U.N General
Assembly asked the International Court of Justice for an advisory opinion on 2
questions. Namely:
i) In the event of an agent of the U.N in the performance of his duties suffering injuries in
circumstances involving the responsibility of a state, has the U.N as an organization,
have the capacity to bring an international claim against the responsible de jure or de
facto government with a view of obtaining the reparation due in respect of the damage
caused to the U.N or victim or to person entitled through him?
ii) In the event of an affirmative reply how is action by the U.N to be reconciled with such
rights as may be possessed by the state of which the victim is a national?(The question
the U.N General Assembly is asking is :If U.N as an Organization has the ability to ask for
reparation on behalf of its official does that shut out the state of nationality of the official injured
or killed?)
In advising that the U.N had international legal personality with powers to claim
reparation for damage suffered, the ICJ relied on the advice of the Permanent Court of
International Justice to the effect that the International Labor Organization as a
specialized agency of the UN was an International legal personality.
❖ WRITINGS OF PUBLICISTS
End of Lesson 4.
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cheers. !!!!
NExT class: Is Article 38 of statute of I.C.J exhaustive as a source of I.L even with recent
developments.
LESSON FIVE
Are there any other sources of IL?
Does the UN make laws which are binding?
OTHER SOURCES OF INTERNATIONAL LAW
As earlier indicated, the sources of law enumerated in Art. 38Para 1 of the statute of the
ICJ are often regarded as comprising the sum of the traditional sources of International
This is under Article 12 of U.N charter which states that: While the security Council is
exercising in respect of any dispute or situation the functions assigned to it in the
present charter, the General Assembly shall not make recommendations with regard to
that dispute or situation unless the security council so requests. This shows that when a
matter is seized by Security council no other organ of the U.N can discuss that matter, Example;
The security council passes a resolution and gives Sadam Hussein an ultimatum to get out of
Kuwait and that matter only remain with the security council. The General assembly does not
discuss the matter or any other organ of the U.N. That is why from the day Sadam invaded
In the legal status of Eastern Green land case (Norway v Denmark) (1933) PCIJ rep
Ser A/B No. 53
In this case the P.C.I.J held that the so called Ihlen Declaration was binding on
Norway. After World War 1, Denmark sought to obtain declarations from several of the
Allied Powers to the effect that they would not object to recognizing Danish sovereignty
over the whole of Greenland(Greenland is an autonomous country within the Kingdom of
Denmark located between the Arctic and Atlantic ocean it is the largest Island in the world)
On July 14th 1919, the Danish Minister accredited to Norway(Danish ambassador to
Norway) met M. Ihlen the Norwegian Minister for Foreign Affairs and told him that for
the purpose of considering the claims that may be put forward by different countries, to
an island in the North Sea called Spitzbergen at the Paris Peace Conference, Denmark
But, within the municipal system whether the constitution is in violation of a pre- existing rule
of I.L, or not the high court judges will be bound by the constitution and cannot consequently
say this constitution is in violation of A,B or C because it is the supreme law of the land hence
as the supreme law of the land they are bound to apply it. But when the judge goes to I.C.J they
cannot claim they have the Kenyan Constitution which is the supreme law of the land and
although these provisions are in conflict with I.L we are bound by the Kenyan Constitution
hence we cannot do what such I.L requires . State sovereignty is not absolute } .
It may be argued that municipal law has primacy, as states have wide liberties and
exercise almost complete sovereignty. However ,state sovereignty represents no more
than competence which states enjoy within the limits of International Law. {Lecturer's
explanation: This means that, even the whole doctrine of state sovereignty is not absolute ,it is
regative (act of being regulated) in the sense that in the exercise of its sovereignty, Kenya must
keep within the bounds of I.L. for example Kenya cannot claim to be exercising its sovereignty
and for example go around butchering everyone, and say this is our sovereign right we have it in
our law. This the reason we have International criminal law and those who do that will be
arrested as they will not be operating within the limits of I.L } Question the Chinese guys
committing cyber crimes in Kenya on Chinese Nationals, and China government wanting to try
them in China. Where are they to be tried? When one commits an offence in Kenya for example
and is from China, Kenya has jurisdiction upon such person on the basis of territoriality
Principle hence one can be tried under Kenyan Laws , but also China has jurisdiction over such
a person as he is a Chinese National this is on the basis of nationality principle. This results to
an overlap of jurisdiction, and normally & invalidly there is negotiations between the two states
concerned when such occurs.
There is no effect of Res Judicata from the decision of a Municipal court so far as an
International tribunal is since although the subject matter may be the same the parties
will not be and the issues will have very different aspect. In the Municipal court the
legal person claiming is an individual or a corporation. Before an International tribunal,
the claimant will be a state exercising diplomatic protection with respect to its Nation.
Similarly, a decision of the International Court does not of itself create a Res Judicata for
the Municipal court.{Lecturer's Explanation: This means that for Example a citizen of
Uganda has a claim against the Kenyan Government & he goes all the way up to Supreme court
in Kenya & is not satisfied that justice has been done. What does he do? Under I.L he has the
right to go back to Uganda and tell his government that he was wronged by the Kenyan
Government and was not as it were satisfied with the decision of the supreme court of Kenya.
I want my government in exercise of the right of diplomatic protection which is the right
conferred by I.L upon states to take up issues of their citizens wherever they are/protect their
citizens wherever they are, so I want the Uganda government to take up my claim against the
Kenya Government. When the Museveni Government takes up that claim, two things will
happen.
One it will now turn from being The individual citizen of Uganda versus Kenya government to
being Uganda vs. Kenya. The government of Kenya will be acting on his behalf. Secondly when
it turns to be Govt. of Uganda vs. Govt. of Kenya it cannot be filed in a municipal court either in
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Kenya or Uganda. It will have to go to an International tribunal. When it does go to an
International tribunal Kenya cannot come up and say" Hey, we are pleading Res-judicata
because this matter was finally determined by our Supreme court that is what we are saying
here". So that before an International Tribunal Kenya cannot plead Res-judicata because as we
have established at the International Tribunal the parties will be different as it will be Uganda
vs. Kenya and furthermore the wronged Uganda citizen by Kenya will may be appear as a
witness but otherwise he will not feature anywhere in the proceedings hence we say the subject
matter may be the same but the parties will not be & issues will have a very different
aspect. Here is now Uganda claiming against Kenya for violation of an International law rule
conferring certain rights upon wronged Uganda citizen by Kenya.
We are also saying/established that the decision of the International court does not of itself
create a res-judicata for the municipal court.
So when Uganda takes this matter to an International Tribunal & the International Tribunal
rules in favour of Uganda that does not mean that there is as it were, Res-judicata created for the
Kenyan Court. Because that is a different forum and the Kenyan court a different forum. Any
question? Student Question; Question of media suing? Answer: The media in Kenya talking of
suing the Govt. was talking of court which even does not exist. What is happening is a matter
squarely within the Kenya Jurisdiction and even if the media houses as it were displeased with
the decision they cannot go to an International Tribunal because they are not states. The only
International Tribunal where individuals have Locus Standi is what is called the International
Centre for Settlement of Investment Disputes(I.C.S.I.D). Remember the case of Nasir Ali and
duty free shops that were in the our International Airport.
That case ended up there. That is the only International tribunal I know of that gives Locus
Standi to Individuals & Corporations & is a special in that there is what is called International
Convention of Settlement of Investment disputes between states parties to the Convention and
Individuals & Corporations belonging to other state parties to the convention. So it has that
special jurisdiction given to it.
There is the International telecommunication Union which deals with disputes between
member states and not individuals & allocates wavelength to T.V'S and Radio stations.
CONCEPT OF OPPOSABILITY
⮚ The Country(opposing country) must prove that, that rule or Concept it relying on to
oppose the claim of the other exist: Either as a rule of Customary I.L hence binding
that states generally or as a rule of Municipal law which is common to both of
the countries(country being opposed & Country opposing) and in this case to
Netherlands ,Denmark & Germany and therefore binding in that respect.
⮚ Denmark & Netherlands not only had they to show it was a rule of their municipal law
but they must also show that it was a rule that is consistent with I.L.
⮚ Germany intention to ratify the convention held no water as that was just an intention.
Unless & until Germany ratified the convention it could not be bound by the its
provisions.
⮚ For example in the criminal offence of treason one is not found guilty of the offence until
one has manifested an overt Act hence one can imagine the overthrawal of the President
⮚ Does Article 2(6) of Kenya’s constitution turn Kenya into a monist state?
4) The entity/person must possess the capacity to enjoy some or all of the privileges
and immunities from the jurisdiction of the municipal courts or natio,nal courts of
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states these being an attribute of an international legal person as distinct from one
governed by Municipal Law. If this entity is an International legal person it must be
capable of enjoying immunity and privileges from the jurisdiction Kenya judicial system. If
it lacks then it may not be an International legal person.
Under International Law, entities which have International legal rights and duties, the
capacity to defend or enforce these rights, capacity to enter into binding International
legal agreements and to conclude legal treaties and the capacity to enjoy privileges and
immunities from municipal jurisdiction are described as international legal persons and
constitute the subjects of International Law.
The traditional view is that the only subjects of International Law are states. States
alone have unlimited International law personality. Other entities enjoy only limited
or relative International law personality. This is because contemporary International
Law has recognized the existence independently of a variety of International
institutions and in a number of cases has imposed obligations on and granted rights to
individuals so that both International Organizations and other non-state entities as well
as individuals enjoy a degree of International personality especially for functional
purposes.
Indeed, the International Court of Justice has recognized the diversity of International
law personality in the Reparations case by stating that, “the subjects of law in any
legal system are not necessarily identical in their nature or in the extent of their
rights.”
In its advisory opinion, in the Reparations Case, the I.C.J stated that, “In the opinion of
the court the United Nations Organization was intended to exercise and enjoy ---
functions and rights which can only be explained on the basis of the possession of a
large measure of International personality and the capacity to operate upon an
International claim. It is at present the supreme type of International organization and
it could not carry out the intentions of its founders if it was devoid of international
personality.
It must be acknowledged that its members, by entrusting certain functions to it, with
the attendant duties and responsibility, have clothed it with the competence required
BELLIGERENTS /INSURGENTS. E.g. Lord resistance Army in Uganda led by Joseph Kony.
(They are International Law Subjects. Subjects of International Law)
Quite often political and military dissidence(opposing a given political system) within a
sovereign state results in large scale armed conflict with rebels succeeding in controlling
a substantial part of the territory and setting up an operational structure capable of
effectively wielding authority over the individuals living there. When this happens the
insurrectional (the act or an instance of open revolt against civil authority or a constituted
Govt.) party normally claims some measure of recognition as an international subject.
States have traditionally been hostile to belligerents in their territory on the grounds
that they do not like the status quo to be disrupted by people who seek to topple the
lawful government and possibly change the whole fabric of the state.
Consequently they prefer to treat belligerency as a domestic occurrence and the rebels
as a group of common criminals.
The International community has also been reluctant to grant civil upheavals in states
International legal standing in order to avoid encouraging secessionist and irredentist
tendencies that may lead to International Anarchy. (Shifta movement)
❖ For instance, in the area of armed conflict, rules of both Customary International Law
and Conventional Law provide that Individuals who violate/break the international
rules of warfare( Jus in Bello) will be criminally liable for such breaches/ violation
regardless of their official positions as state agents.{ Lecturer's Explanation E.g. If you are
the commander K.D.F and you don't comply with the rules of warfare of Geneva Convention
will be so held personally liable for violation of those rules.}
❖ Individuals are also criminally liable for committing crimes against humanity, genocide,
aggression, terrorism and torture both in their capacity as state officials as well as in
their private capacity.
As the International Military Tribunal at Nuremberg stated in its judgment in 1947,
“crimes against International law are committed by men(and I dare and women) not
by abstract entities and only by punishing individuals who commit such crimes can the
provisions of international law be enforced.”
{Lecturer's Explanation: I want you to note this which is very important: Here we are talking of
international crimes and you may be aware that the International military Tribunal was the first
of its Kind, to try individuals that were alleged to have committed war crimes and crimes
❖ Another category of individuals who are subjects of International Law are Pirates.
Article 100 of the 1992 UN Convention of the Law of the Sea provides that all states
shall cooperate to the fullest extent in the repression of piracy on the high seas and on any
other place outside the jurisdiction of any state.
Under Article 105 of the Convention, provides that any state may seize a pirate ship or
aircraft or a ship taken by piracy and under the control of pirates and arrest the persons and
cease the property on board.
{Lecturer's Explanation; Piracy is an international crime, so if there is any pirate, they will be
arrested of the nationality of the ship they are operating. Piracy takes place in the high seas. It
doesn't take place in the Maritime Zone.}
The courts of the states which carried out the seizure may decide upon the penalties to
be imposed and may also determine the action to be taken on regard to the ships,
aircraft or person subject to the rights of the 3rd parties acting in good faith.
conferment by treaty provisions of rights upon individuals against the state of which
they are nationals. For instance establishment of human rights within the UN system
has removed the entire concept from the domestic jurisdiction of states to the
international plain thereby affording international protection to individuals whose
rights may be infringed by their states. {Lecturer's Explanation : Kenya cannot say the way
it treats its nationals is a matter of domestic jurisdiction it is not a concern of International
community. It is certainly a concern of International Community because Kenya is a party to
the 1956 International Covenance of human rights, Kenya is a party to various others
International law field treaties on human rights. What we are saying is that ,that has elevated
the status of individuals when it come to Human rights over and above the domestic jurisdiction
and placed them as it were on International frame. The International community is going to be
✔ The substantive rights they lay down may only be exercised by individuals within the
domestic legal system of each party of the states.(That means if those rights have been
transformed into municipal law then you can only espouse those rights before a municipal court
that is the domestic people system) Besides the individuals do not have direct procedural
rights to petition international bodies to seek redress in the event of violation of their
rights. A notable exception however is the European convention as revised in 1998 by
Protocol 2 of 1994. Prior to the entry into force of the protocol, individuals would access
the European Courts of Human rights only through the commission. (in other words they
did not have direct access to European Courts of Human rights they could only do so through
the European commission who would take up their cases)The protocol abolished the
commission so that there is no longer an administrative barrier between the individual
and the court.
LESSON EIGHT:
Practice question
"The rigid assumption that only sovereign states are the subjects of I.L is giving place to the idea
that other entities notably certain International Organizations like the United Nations itself as
well as individuals ,now subjects of International Law for most practical purposes" Do you
agree?
Interpret the question as to what it means to be an I.L person. Then ask yourself which entities
qualify to be I.L persons?
Last time we stopped at the point where we had seen that the Holy See is an I.L person by virtue
of it being a state. A state that maintains Diplomatic relations with other states including
Kenya and a state that concludes and has concluded several treaties with other states.
As the ICJ stated /put it in its advisory opinion on The Legality of the Threat or Use of
Nuclear Weapons (1996) ICJ Rep 90, paragraph 25(Go and read)
The Court concluded that "it does not seem to the Court that the use of nuclear weapons
can be regarded as specifically prohibited on the basis of the [...] provisions of the
Second Hague Declaration of 1899, the Regulations annexed to the Hague Convention
IV of 1907 or the 1925 Protocol" (paragraphs 54 and 56)". It was also argued by some
However, in practice, nuclear weapons have not been used in war since 1945 and there
have been numerous UN resolutions condemning their use (however, such resolutions
are not universally supported—most notably, the nuclear powers object to them.
(paragraph 68-73) .The ICJ did not find that these facts demonstrated a new and clear
customary law absolutely forbidding nuclear weapons.
6. The court replied that "the threat or use of nuclear weapons would generally be contrary to
the rules of international law applicable in armed conflict, and in particular the principles and
rules of humanitarian law; However, in view of the current state of international law, and of the
elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use
of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in
which the very survival of a State would be at stake"
the International Legal Order. They add additional expertise and make International
procedures more transparent. {Lecturer's Explanation: How many of you have heard of
I.U.C.N? I want to use it as an example as am a member of it. I.U.C.N has been very active in
areas of environmental management. Also W.W.F(World Wildlife Fund) e.t.c are NG.O's but
they have been very active in area of Environmental Management just like Green Peace
International who are very dramatic in the way they do their things and hence attract
International attention. But we are saying they add additional Expertise and make International
Procedures more transparent. I just wanted to give you the example of expertise that the
I.U.C.N has provided. Those who are familiar with a 1992 Convention called The U.N
Convention on Biological Diversity, the original draft of The U.N Convention on Biological
Diversity was provided by the I.C.U.N. It is the I.C.U.N that had actually started the whole
movement about the protection of Biological Diversity. It managed to put together a draft , a
draft that was ultimately adopted by U.N.E.P. & then U.N.E.P decided to as it were convene a
conference . I.C.U.N added that expertise that was as it were badly needed. The convention was
adopted in Gilgil May 1992.
We are also talking of making International procedures more transparent I don't know if
you remember the week, months , years when the Kenya Govt. vehemently objected to some
findings that were placed before the U.N Commission on Human Rights in Geneva about
extra -judicial killings and things like that. You remember that there was no love lost between
AMNESTY International & Human Rights Watch and retired President Moi because
according to him they were poking their fingers in matters not within their province. But there
they were, they were challenging the Kenya Govt. about the situation of Human rights in the
❖ Although the 1965 Convention on the Settlement of Investment Disputes Between States
and Nationals of Other States established an International Centre for the Settlement of
Investment Disputes (ICSID) as a permanent mechanism under the auspicious of the
world bank whereby participating states and corporations can settle any differences
arising out of investment agreements this does not confer international law personality
on such individuals or corporations. The centre(ICSID) was established to settle
investment disputes by conciliation and arbitration and has jurisdiction over any legal
dispute arising directly out of an investment agreement between a contracting state and
a National of another contracting state which the parties to the disputes consent in
writing to submit to the centre.
Any Question or Comment
⮚ Note: International corporations always retain the nationality of the Company where
they are registered in unless it is registered as a subsidiary in another country.
⮚ What is the legal position in regard to county governments entering into direct
agreements with other countries or Govt.'s? Answer: Those agreements are not Treaties.
They are anything but not treaties because the county Govt.'s do not have the capacity to
conclude treaties. Okay...let's leave it there.
⮚ Where does the World Bank fall under? World Bank is an Intergovernmental
{Lecturer's Explanation: What Brownlie is saying is that statehood is an objective legal status.
It is not relative. Once a particular entity has satisfied the criteria of statehood laid down by the
law that entity becomes a state.} However Brownlie does not say what a state is but, he
proceeds to look at the characteristics of statehood.
Greig Hazards a definition of a state. He says that a state for the general purposes of
international law is a territorial unit containing a stable population under the
authority of its own government and recognized as being capable of entering into
relations with other entities that have international legal personality.
These enumerations by the Article should be noted that is not exhaustive but merely a
basis for further investigations because not all the conditions/qualifications are final.
The criteria have been clarified and developed by international law especially by jurists
who on the basis of state practice have identified further elements that must be included
in the criteria for statehood. Lecturer's Explanation: What we are saying is that Article I of
the 1933 Montevideo Convention on Rights and Duties of States is nearer basis but it is
not exhaustive. You may have an entity that subscribes all those requirements but it is not a
state, and we are going to see that kind of entities}
1)Permanent Population
2)Defined Territory.
A fixed territory constitutes a basic requirement for statehood. The stable political
community must be in control of a certain area. {Lecturer's Explanation: what we are
saying is that that community must inhabit a certain area of planet earth. They must belong to
somewhere where we can say 'Yes' they are here.} The criterion of territory is connected
with that of permanent population and constitutes the physical basis for the existence of
a state. {So that permanent population must be as it were moving up and down within a defined
territory of planet earth. That permanent population must inhabit a defined area of planet earth.
That is what we mean when we talk of the physical basis for the existence of a state. The state
3)Government.
A government or at least some governmental control is required for qualification of an
entity as a state. The existence of an effective and independent government with
centralized administrative and legislative organs is generally the best evidence of a
stable political community. (Means a Govt. that does not as it were answer to any external
authority. A govt. that is answerable to the people that is an effective independent government)
In certain cases however, the presence of effective government alone is insufficient to
support statehood.(Do you remember the U.D.I(unilateral declaration of independence )by Ian
Smith in present day Zimbabwe. Was Ian Smith Govt. an effective and independent Govt.?For
15 years remember, that is from 1965 to December 1980 when Southern Rhodesia gained
independence under the name of Zimbabwe, Ian Smith was in effective control. His govt. was in
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effective control of the territory and you may be aware that for those 15 years nobody recognized
Southern Rhodesia as a state under Ian Smith even if his govt. was in effective control until
1980 when uncle Bob Mugabe took over and he has refused to leave. That is why we are saying
the presence of effective Govt. alone is insufficient to support statehood. What we are saying is
that there may be an effective Govt. but the question that we always ask is :In whose interest is
that Govt. effective? Then we bring in the issues to do with self determination we were talking
about earlier on , human rights and so forth. You remember that when Ian Smith declared the
Unilateral Declaration of Independence, the Rhodesian Govt. under Ian Smith that took effective
control and was mostly comprised of members of the country's white minority and the
indigenous people were denied the right to self-determination. Hence the presence of that
effective government(Ian Smith Govt.) alone was insufficient to make it to be a state}. However,
once a government has been established, the absence of governmental authority does
not affect the existing state’s right to be considered as a state. This is because states have
often survived periods of anarchy, civil war, hostile occupation and absence of
government .{I want you to note this and don't make the mistake that I hear many people
making: Once you have a pre-existing Entity that has been recognized as a state, if and when its
Govt. disappears that does not affect its International Law Status. What we are saying is that a
state does not seize being a state because there is no Govt. and I will give you examples .
In our backyard Somalia , nobody in the International Community has ever doubted the
statehood of Somalia despite there being no stable Govt. since 1990. If Somalia were not a state
because there were no Govt., there is nothing to stop Kenya Ethiopia, Eritrea and perhaps
Djibouti sharing the spoils but none of the neighboring states has touched an inch of Somalia
Territory. Why? because Somalia is a State under International Law. It is still a member of the
U.N. it is still a member of many other International Organizations including the African
Union that what we are saying here. This is because states have often survived periods of
anarchy, civil war and hostile occupation. In 1935, up to 1938 when Italy invaded Ethiopia, and
the Emperor was forced into exile, that did not affect the statehood of Ethiopia. Ethiopia still
remained a state under International law. In 1990-1991 when Sadam Hussein Invaded Kuwait
& the Lord Mayor of Kuwait and his entire Govt. were forced into exile in Saudi Arabia that did
not affect the statehood of Kuwait. That is what we are saying here. We can see a situation of
❖ When new entities are created in breach of the right of self determination and
The first one is this: Units within a federal may be allowed by the federal
constitution some autonomy including the freedom to conduct their own foreign
affairs. {Lecturer's Explanation: Do we have any federal state in Africa? Yes. Nigeria which is
the only Federal State in Africa. Nigeria is a Federal State with how many Federal Units? It has
Close to 40. The last time I counted they were 39.
Now under International Law and I want you to listen to this carefully because it is going to
come in the exam. Under International Law the International Law has The Federal Republic of
Nigeria. The 39 plus Federal Units, are not known. Why? because they don't have a separate
International legal status of their own. The U.S.A, has 50 federal Units. Under
International Law, it is the United States of America that is an International Law person.
None of the 50 federal Units of the U.S.A is an International Law person. None of them has an
International Law Status and that is why we are now saying that units within a federal state
may be allowed by the federal Constitution some Autonomy including the freedom to conduct
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their own foreign affairs . The Constitutional Law or rather the Constitution of the Federal state
may allow some Autonomy to the Federal Unit BUT that does not make them or that
does not give them International Legal Status. They still remain units of the federal state
which is the Only International Law Person recognized at the International Level.}
In the normal case, the Federal unit will be acting as a delegate or agent of the current
state that is the Federal State. {Lecturer's Explanation: So you have a situation where the
Federal Constitution allows some autonomy to one or several of the units then those units then
those units will be acting as delegates or agents of the federal state. Okay..} To the extent that
they are allowed to do so , such units are regarded as having Limited International
Law Personality. {Lecturer's Explanation; You see the I.L Personality is limited to the
extent allowed by the Constitution. If you look for Example at the Constitution of the United
Republic of Tanzania that is now under review. A colleague of mine from the University of Dar
es Saalam sent me a draft but it is all in Kiswahili and I cannot now remember my Kiswahili. It
all in Kiswahili. That is how they do in Tanzania they start off in Kiswahili finish everything
and then translate in English .
The mere fact that the Constitution of United Republic of Tanzania allows Zanzibar (and this is
true because I have seen it myself),to conduct its own Environmental Management affairs, sign
Environmental treaties, separate and distinct from the United Republic of Tanzania does not
mean Zanzibar thereby becomes a state. That the point we are saying...Alright. It becomes as it
were an International Person Sui Generis because Why? The Federal Constitution has
allowed it some Autonomy }.
Such units are regarded by I.L as having limited International Law personality.
However, such units are not thereby states but International Persons Sui Generis.
Examples include: Neuro-Russia and Ukraine under the former Soviet Union
constitution(you remember that during the days of the Soviet Union, Neuro -Russia and
Ukraine were distinct and separate members of the U.N despite the fact that they were part of the
U.S.S.R) and Zanzibar under the United Republic of Tanzania's Constitution. The most
important thing I want you to note is: Such units are not thereby by states but
International Persons Sui Generis.{Lecturer's Explanation; The mere fact that the
Constitution of United Republic of Tanzania allows Zanzibar (and this is true because I have
LATIN WORDS
✔ Jus Fetiale Religious Rules which governed Roman External relations and formal
declarations of which was inter alia recognized the inviolability of ambassadors and
was at the origin of distinction between just and unjust war.
✔ Jus Civile applicable to relations between Roman citizens and was less formalistic
✔ In the middle ages, two sets of international law developed to deal with problems
alliances with foreign powers and wage war provided that alliance or war were
neither against the empire or public peace
on the moral right of each state to receive courtesy from other states
✔ Binding force of international law traced to the fundamental principle of Pacta Sunt
Servanda i.e. agreements’ between states are to be respected. PSS manifests in itself
in all rules of IL.
✔ Sui Juris- [Latin "of one's own right; independent" 1. Of full age and capacity. 2.
Possessing full social and civil rights. 3. Roman law. Of or relating to anyone of any
age, male or female, not in the postestas of another, and therefore capable of owning
property and enjoying private law rights .• As a status, it was not relevant to public
law.
LESSON NINE.
RECOGNITION
What is recognition?
Lecturer's Initial Introduction Explanation : Let's look at this... :Riek Machar in South
Sudan is fighting President Salva Kiir. The latest information I have is that they have failed to
agree on signing a seize fire. So they are still at war with each other. Supposing Riek Machar in
South Sudan succeeds in taking over President Salva Kiir Government? What would be the first
issue that the International Community would be faced with? The International Community
would be faced with the issue of whether or not to recognize Riek Machar Government that has
taken over that of Silva Kiir. In 1971 when Idi Amin ousted who Doctor Milton Obote with a
Under Article 4 paragraph (1) requires that an applicant for admission must be a state
that is peace loving, must be ready to accept the obligations deriving from the charter
and must be able and willing to a carry out those obligations .
Under Article 4 (2) of the Charter, the absolute masters of the admission procedure are
the Security Council and the General Assembly.
The Security Council will verify whether the conditions laid down in Article. 4 (1) of
the Charter are fulfilled by the applying entity and at the recommendation of the
Security Council, the General Assembly will adopt the final decision[ adopted by :two-
thirds majority of the members present and voting (Article 18 of the Charter ) Example:
2011’s attempt by Mahmoud Abass to get Palestine as an entity] {Lecturer's Explanation: And
then of course, once the General Assembly, has adopted the final decision to admit Entity A
into membership of the U.N all the member states of the U.N will be bound by that
decision. This means that they cannot turn around and say "Hey.. we do not recognize you
as Entity A as a state" The question shall be then: How comes it was admitted into
membership of the U.N if it was not a state? That is why and I think I have told you the Israeli
neighbors.. the Arab neighbors of Israel cannot treat Israel as a non-state entity..., Arab states
do not recognize Israel as a state but they cannot treat Israel as a non state as it is against the
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UN charter and they will be in violation of their obligations, even Iran. .. You now..... I don't
know if you remember Mahmoud Ahmadinejad( 6th President of Iran from 2005 to 2013)
vowing to wipe out Israel out of the face of the World in year 2006 at the International
Conference to review the global vision of the Holocaust .He stated" The Zionist Regime will be
wiped out soon the same way the Soviet Union was and humanity will achieve freedom"
On Israel's 60th birthday, Ahmadinejad said: "Those who think they can revive the stinking
corpse of the usurping and fake Israeli regime by throwing a birthday party are seriously
mistaken. Today the reason for the Zionist regime's existence is questioned, and this regime is on
its way to annihilation."
Iran does not recognize Israel but it cannot dare touch the territory of Israel, because Israel is a
state and under the principles and purpose of the U.N there is Sovereign Equality(Article 2(1) of
the charter which states " The Organization is based on the principle of the sovereign equality of
all its Member"). So Iran cannot temper with the territorial integrity, the political
independence, and sovereignty of Israel. This is because Israel is a member of the U.N and it was
voted into as it were into membership of the U.N because it was a state. Okay.... Student
Question: Professor , in that Understanding: Where does the Resolution Number 43/177 of 15th
December 1988 which the U.N recognized Palestine as a state.
Where does it leave us in the light of what you have just said? Professor: What does it say? The
U.N by that resolution recognized the new state of Palestine and accorded it observer status."
But they are not saying what we are saying here... and if I may remind you two years ago
Mahmoud Abbas President of Palestine was in Newyork lobbing for the admission of Palestine
into the membership of the U.N. The Son of the Kenyan Father said the U.S was going to veto.
Which means there will have, come no recommendation from the Security Council for the
admission of Palestine into membership of the U.N. Now that does not mean Palestine is not
a state, it may be a state but according to Barrack Obama's Judgment and according to U.S
foreign policy Palestine is not peace loving. And that what they have said that Palestine is not
Peace Loving. There is Islamist Palestine movement Hamas which fights and there is other
such groups. Until and I can bet on this one until Palestine and Israel sign a peace accord and
RECOGNITION OF GOVERNMENTS
Recognition of governments is an indication of the willingness to accord the
government in question all the international rights and privileges normally accorded to
those governments that are recognized.
Recognition of government implicitly means recognition of state because there cannot
be interstate relations without intergovernmental relations. {Lecturer's Explanation: So
when we recognize, the Government of Riek Machar, in Juba, what we are saying is that we are
recognizing South Sudan. We are ready and willing and prepared to enter into inter-state
relations with South Sudan. You are aware, aren't you, now as students of I.L, you are aware,
that the concept of a state is an abstract(theoretical /exists as just an idea but not having a
physical or concrete existence). Is that true? Kenya will not move to interact with other states of
⮚ In the First place recognition cannot be granted unless and until in the appropriate
⮚ Secondly recognition is based on legal factors because it brings about formal legal
relations between the recognizing and the recognized state or government. It may give
rise to the establishment of diplomatic relations or the conclusion of bilateral treaties.
{Lecturer's Explanation: So when we recognize a country that, as it were gives us then the
opportunity or the consequence to establish diplomatic relations or conclude bilateral treaties
with that Government or that state}
However, in extreme situations of strategic or political considerations recognition may
be granted or withheld on the basis of political factors.
For instance, the decision of the United Nations not to grant recognition to the Ian smith
regime in Southern Rhodesia following the unilateral declaration of Independence in
November 1965 was political based on the fact that the policy of that regime was
repugnant to the purposes and principles of the United Nations.
{Lecturer's Explanation: This is coming just shortly after the U.N had adopted the Seminal
Resolution on the ground of independence to colonial and non-self Governing territories and
here is a situation where you have the U.N as it were advocating for right of self
determination, majority and what a view and then Ian Smith comes up and as it were installs a
white minority regime in Rhodesia. And then of course as you may be aware, or as you may be
aware for those of You who did not drop History, the Ian Smith Regime was in effective Control
of the territory of the present day Zimbabwe until December 1980 when uncle Bob Mugabe
became the first democratically elected president of Independent Zimbabwe. Do you now that?
So Ian Smith was in full control, ..effective from November 1965 to December 1980, a whole 15
years. But the U.N says "No, no no" we are not going to recognize that regime because, the
white minority racist regime policy, was against purposes and principles of the U.N. That is as
it were, what we mean when we talk of the politics of Recognition} I want you to note this about
the functions:
There are two basic functions of recognition.
Article 2(4) of U. N Charter states: All Members shall refrain in their international relations
from the threat or use of force against the territorial integrity or political independence of any
state, or in any other manner inconsistent with the Purposes of the United Nations. When you
travel out of Kenya what do you carry? What is your travel document, that you carry? Your
passport..alright. Now that passport is recognized because the country where you are going or
where you are transiting recognizes Kenya as a state with its own Nationality Law and Kenya
has a right to decide who becomes it National and who does not become its National and the
moment Kenya says so and so is a Kenya and has a Kenya passport nobody will question that
passport, unless you have forged it but these days you can't forge a passport, it is not
easy ..alright .. That is what we are talking about}
Where particular entity is a member of an international organization it will be bound by
the recognition granted by that organization and although the non -recognizing state
are not under legal duty of recognition they put themselves at risk legally if they ignore
the basic obligations of state relations. {Lecturer's Explanation: We saw this morning that,
when the U.N General Assembly, votes to admit a new state into the membership of the U.N,
You were... Okay let me give you not a direct answer; Supposing Sadam Hussein had invaded
this group of Island(Maldives) which are somewhere the Indian Ocean whose current population
is about 350,000, they are not even half a million yet but that is one of my favourite Island state.
200 altos , the biggest 5.10 Km, where the capital city is, the second biggest is around 3 by 5 km
where the airport is. But what makes it one of my favourite Island states is that the highest point
above sea level is 3 meters. I don't know if you are old enough or whether some of you saw it in
February 2012 the President of the Maldives dramatized what would happen if Sea Level rise
materialized by holding a cabinet meeting under water in the Indian Ocean did any of you see?
and they held a cabinet meeting under water, but the point am making is this: Remember in the
morning I said strategic interests particularly of the big powers. The Maldives has no strategic
interests to the U.S. So the U.S.A would not have been so much in a hurry so to speak to repulse
the Invasion. But you get Sadam Hussein Invading Kuwait which is the energy lifeline of the
U.S.A., you don't expect the U.S.A to sit back and watch the supply crude being interfered with
or being interrupted because.... Do you now ... and you guys better watch out... When I see what
⮚ Declaratory Theory
❖ Besides, diplomatic relations are established with recognized states and governments.
WHAT IS A TREATY?
What, then, is a treaty?
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Article 2 (1) (a) of the 1969 Vienna Convention on the Law of Treaties defines a treaty as “an
international agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whether its particular designation."
Note the key elements of the definition, namely:-
i) ''an international agreement" - To be a treaty an agreement has to have an international
character; it must be an agreement between international law-subjects. Hence, an agreement
between a state and a TNC is not a treaty:
ii) "concluded between States" - The 1969 Vienna Convention on the Law of Treaties applies
to agreements concluded between States. Agreements between States and international
organizations or among international organizations, inter se, are governed by the 1986 Vienna
Convention on the Law of Treaties between States and International Organizations or Between
International Organizations . Agreements between States and private individuals or corporations
are not governed by international law, but by the law of contracts;
iii) "in written form" - The Convention does not apply to oral agreements . So, while states may
undertake binding international agreements without concluding a written instrument, such
agreements may be governed by general principles of international law and not the
Convention/treaty ;
iv) "governed by international law" - This phrase embraces the element of an intention to
create obligations under international law. If there is no such intention, the instrument will
not be a treaty. Intention must be gathered from the terms of the instrument itself and the
circumstances of its conclusion , and not from what the parties subsequently say was their
intention;
v) "whether embodied in a single instrument or in two or more related instruments" - This
phrase recognizes that the classic form of a treaty is a single instrument - has often been
joined by treaties drawn in less formal ways, such as Exchange Of Notes . These play an
increasingly important role. An exchange of notes usually consists of an initiating note and a
reply. Cf. 1976 Kenya/Tanzania Maritime Delimitation Agreement;
vi) "whatever its particular designation'' - Most treaties are designated in unsystematic ways.
Types of Treaties
PART III.
OBSERVANCE,
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Article 26 “Pacta sunt servanda”
Every treaty in force is binding upon the parties to it and must be performed by
"Limit on Sovereignty"
Whereas States have the full capacity and sovereign rights to conclude agreements on the diverse
subjects of their relations, agreements concluded in violation of a norm of jus cogens and the
provisions of the UN Charter will be void.
Under Article 53 , a treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law.
For the purposes of the Convention, a peremptory norm of general international law is a norm
accepted and recognized by the international community as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character .
Even if part of a treaty conflicts with an existing jus cogens, the whole of the treaty, and not
just the offending part, will be void. Article 53 must be read with Article 64 which provides that
if a new peremptory norm of international law emerges, any existing treaty which is in conflict
with that norm becomes void and terminates. Since this provision is not retrospective, the treaty
is invalid only from the time the new norm is established.
Article 53 states "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention, a peremptory
norm of general international law is 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 general international law having the same character. "
Article 64 states that " If a new peremptory norm of general international law emerges, any
existing treaty which is in conflict with that norm becomes void and terminates."
The host organization will then organize preparatory committees, working groups of technical
and legal experts, scientific symposia and preliminary conferences. The organizing body may
invite and accept comments from NGOs, scientific unions and other private groups. During these
informal discussions, information is disseminated, the preliminary positions of interested States
are established, the parameters of a possible agreement are narrowed, and the slow process of
building international consensus begins.
Depending on the subject, this process of informal exchange may take a considerable period of
time before a conference of plenipotentiaries (representatives with authority to approve an
international agreement on behalf of their respective governments) is convened. In the interim,
the host government or organization, or some other qualified international body such as the
International Law Commission (ILC), will develop a draft convention to serve as the basis for
Under Article 6 of the Convention , every Sate possesses capacity to conclude treaties. What is
a "state?" A sovereign independent state as a subject of international law.
Under Article 7 of the Convention , by virtue of their functions, the following are considered as
representing their State and, hence, competent to express the consent of their State to be bound
by a treaty':
a) Heads of State, heads of government and ministers for foreign affairs , for the purpose of
performing all acts relating to the conclusion of a treaty;
b) Heads of diplomatic missions, for the purpose of adopting the text of a treaty between their
State and the State to which they are accredited:
Other persons must, however, produce appropriate "full powers" before being accepted as
competent to represent their States for purposes of negotiating, adopting or authenticating the
text of a treaty and for expressing the consent of the State to be bound by the treaty.
Article 7 of the Convention states:
1. A person is considered as representing a State for the purpose of adopting or authenticating
the text of a treaty or for the purpose of expressing the consent of the State to be bound by a
treaty if: a) he produces appropriate full powers; or b) it appears from the practice of the
Article 2(1) (c) of the Convention defines "full powers." Unless withdrawn, full powers remain.
valid so long as there is an outstanding act covered by them
Under Article 8, an act relating to the conclusion of a treaty which is performed by a person not
competent under Article 7 is without legal effect unless it is confirmed by the State involved
afterwards. For instance, ratification of the treaty will constitute confirmation, as will the
conduct by the state which evidences the acceptance of it, such as publication or its
implementation.
Article 8 states: An act relating to the conclusion of a treaty performed by a person who cannot
be considered under article 7 as authorized to represent a State for that purpose is without legal
effect unless afterwards confirmed by that State.
Article 10 provides for authentication, the process by which the final text of a treaty is
established, consisting of certification that the document contains the definitive and authentic
text and is not susceptible to alteration.
The text of a treaty is established as authentic by such procedure as may be provided for in the
text or agreed upon by the parties or by the signature, signature ad referendum, or initialing by
Article 11 lists the various means by which consent may be expressed as signature, exchange
of instruments constituting a treaty, ratification, acceptance or approval, accession, or by any
other agreed means.
Many multilateral treaties, especially those concluded within the UN, or at a conference
convened by the UN, will provide that they will be "open to signature" until a specified date,
after which signature will no longer be possible. Thereafter a State may only accede.
The penultimate stage in the treaty making process is the period between signature of the treaty
(where it is subject to ratification) and entry into force. In the period prior to the entry into force
of a treaty, the acts of adopting, signing and consenting to be bound will create certain rights and
obligations for the negotiating States, and for any depositary. The most obvious relate to those
matters which have to be attended to so that the treaty can enter into force.
Article 18 requires a State to refrain from acts which would defeat the object and purpose of
treaty before its entry into force for that State. When the treaty is subject to ratification,
acceptance or approval, this obligation lasts until the State has made clear its intention not to
become a party. States which have signed a treaty requiring ratification have thereby placed
Reservations
When a State expresses, its consent to be bound by a treaty, it is allowed to indicate that it is
not prepared to accept a particular term or provision thereof or that it wishes some other
variation in its favour, unless this is prohibited by the treaty itself or unless the treaty does not
include the particular modification or variation contemplated by the State party to the treaty or
unless the modification proposed is incompatible with the object and purpose of the treaty.
Article 2(1) (d) defines a reservation as a unilateral statement, however phrased or named,
made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it
purports to exclude or modify the legal effect of certain provisions of the treaty in their
application to that State. Although a reservation is unilateral in the sense that it has not been
agreed by the negotiating States, two or more States can agree to make the same reservation.
Reservations are different from interpretative declarations. The latter are unilateral
declarations, however phrased or named, made by a State or by an international organization,
whereby that State or organization purports to clarify the meaning or scope attributed by the
declarant to the treaty or certain specific provisions thereof.
During the course of the negotiation of a multilateral treaty there will often be differences of
view as to the meaning of a particular provision. If these cannot be solved, a delegation may
make a formal statement expressing the interpretation favoured by its government. An
interpretative declaration will become an element in the interpretation of the treaty, and,
The reservations regime of the Convention is set out in Articles 19 – 23, and may be
summarized as follows:-
1. States are entitled to formulate a reservation on signature or ratification of treaty unless the
treaty prohibits reservations, or the treaty provides that only specified reservations, which do
not include the reservation in question, may be made, or the reservation is incompatible with
the object and purpose of the treaty.
2. Where the treaty is silent on reservations, States are entitled to formulate reservation unless
the reservation is incompatible with the object and purpose of the treaty. This is the test laid
down by the ICJ in the: Advisory Opinion in the Reservations to the Convention on Genocide
Case (1951) ICJ Rep. 11
Advisory Opinion in the Reservations to the Convention on Genocide Case (1951) ICJ Rep. 11
The question concerning reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide had been referred for an advisory opinion to the Court by the General
Assembly of the United Nations (G.A. resolution of November 16, 1950) in the following terms:
"In so far as concerns the Convention on the Prevention and Punishment of the Crime of
Genocide in the event of a State ratifying or acceding to the Convention subject to a reservation
made either on ratification or on accession, or on signature followed by ratification: By 7 votes
to 5 the Court gave the following answers to the questions referred to:
Thus, if a new law or modification to existing law is needed in order to carry out the obligations
which will be laid upon it by the treaty, a negotiating State should ensure that this is done at least
by the time the treaty enters into force for it. If this is not done, the State may risk being in
breach of its treaty obligations and be liable in international law for any injury that may be
suffered by another State. Besides, a State cannot plead a change of government to excuse
failure to implement a treaty. Since the treaty is entered into on behalf of the State, the new
government must also perform the treaty.
Interpretation of Treaties
Despite the expertise and care that are involved in drafting, there is no "treaty which cannot
raise some question of interpretation. Many disputes submitted to international adjudication
involve some problem of treaty interpretation. Just as the interpretation of legislation is the
constant concern of any government lawyer, treaty interpretation forms a significant part of the
daily work of a foreign ministry advisor. The interpretation of treaties, like that of any legal
instrument, depends on what the aim and goal of treaty interpretation are.
There are, however, three main approaches to treaty interpretation.
i. Subjective Approach : First, there is the approach which asserts that the primary, and
indeed only, aim and goal of treaty interpretation are to ascertain the intention of the
parties to the treaty.
ii. Objective Approach : The second approach starts from the proposition that there must exist a
presumption that the intention of the parties is reflected in the text of the treaty which they have
drawn up, and that the primary goal of treaty interpretation is to ascertain the meaning of the
text.
Besides, in the Competence of The General Assembly For The Admission of A State to
The United Nations Case (1950) ICJ Rep. 4, the ICJ stated:
The ICJ stated: The Court considers it necessary to say that the first duty of a tribunal which is
called upon to interpret and apply the provisions of a treaty, is to endeavor to give effect to them
in their natural and ordinary meaning in the context in which they occur. If the relevant words in
their natural and ordinary meaning make sense in their context that is an end of the matter ...
When the Court can give effect to a provision of a treaty by giving to the words used in it their
TELEOLOGICAL APPROACH
The teleological approach seeks to interpret the treaty in the light of its object and purpose. The
first question under this approach is not about the meaning of the particular clause which is the
subject of interpretation, but a broader inquiry into the objects and purposes of the treaty as a
whole and the individual provisions of the treaty are construed so as to give effect to these
objects and purposes.
To a certain extent, this approach is a combination of elements of the first two. In so far as it
relies on the objects and purposes of the treaty as they are expressed in the text, and especially in
the preamble or can be gathered from a reading of the treaty as a whole, the teleological
approach is essentially a variant of the textual approach. In so far as it goes beyond the text and
seeks to ascertain the original aims of the parties in concluding the treaty, by reference to the
entire course of negotiations and the circumstances of its conclusion, it is the subjective approach
in another disguise.
A special meaning must be given to a term if it is established that the parties so intended (para.4).
Notwithstanding the apparent meaning of a term in its context, it is open to a party to invoke any
special meaning, but the burden of proof of the special meaning will rest on that party.
Where the interpretation leaves the meaning ambiguous or obscure, or leads to a result which is
manifestly absurd or unreasonable, Article 32 allows recourse to supplementary means of
interpretation, including the travaux preparatoires of the treaty and the circumstances of its
conclusion.
The travaux preparatoires of a treaty is not a primary means of interpretation, but is an
important supplementary means. International tribunals have for long had recourse to the
travaux for the purpose of confirming the meaning arrived at by the application of the general
rule as set out in Article 31 .
In the case where reliance on the primary means produces an interpretation which leaves the
meaning ambiguous and obscure or leads to a result which is manifestly absurd or unreasonable,
recourse to the same supplementary means of interpretation will be for the purpose of not
confirming, but determining, the meaning.
The International Law Commission did not define what is included in the travaux, but it is
generally understood to include written material such as successive drafts of the treaty,
conference records, explanatory statements by an expert at a codification conference and
Under Article 33(1), unless the treaty provides or the parties otherwise agree that in the case of
divergence between the texts a particular text shall prevail, the treaty is equally authoritative in
each language in which it has been authenticated. Sometimes, the parties expressly state in the
treaty if the various language texts are equally authentic.
Under Article 33(2), if a version of a treaty is produced in a language other than those ii which
the treaty has been authenticated, it is not an authentic text, unless the treaty sc provides or the
parties so agree.
If there are two or more authentic texts, the terms of the treaty are presumed to have the same
meaning in each authentic text.
Paragraph 4 lays down the residual rule that, provided there is no provision for a particular text
to prevail, when a comparison of the authentic texts discloses a difference of meaning, which the
application of Article 31 and 32 does not remove, one must accept the meaning which best
reconciles the texts.
The objective of Article 102 is to ensure that all treaties and international agreements remain in
the public domain and thus assist in eliminating secret diplomacy.
Every treaty or international agreement that is registered or filed and recorded must be
published as soon as possible, in a single series. Treaties are published in the UN Treaty Series
in their authentic languages, followed by translations in English and French, as required.
Denunciation denotes a unilateral act by which a party seeks to terminate its participation in a
treaty. Lawful denunciation of a bilateral treaty terminates the treaty. Although denunciation is
also used in relation to a multilateral treaty, the better term is withdrawal.
Withdrawal of a party from a multilateral treaty will not normally result in its termination
because, though the withdrawing parties may be discharged from their obligations, the treaty
will continue in full force and operation between the remaining parties.
Termination may occur in one of three ways, namely
i. pursuant to the provisions of the treaty itself,
ii. pursuant to the conclusion of a fresh agreement of the parties, and
iii. by operation of the law.
The first two ways of termination are provided for in Article 54 of the Vienna Convention which
states that the termination of a treaty or the withdrawal of a party may take place
a) In conformity with the provisions of the treaty; or
b) At any time by consent of all the parties after consultation with the other contracting
States. If the treaty creates rights for a third State in accordance with Article 36 or a obligation
has arisen for a third State from the treaty in accordance with Article 37, the consent of the third
State may also be needed.
b) the provisions of the later treaty are so incompatible with those of the earlier one that
the two treaties are not capable of being applied at the same time.
Article 59 (2) provides that the earlier treaty will be considered as only suspended in operation
if it appears from the later treaty, or it is otherwise established that such was the intention of
the parties. The question is therefore one of interpretation of the two treaties to determine what
the parties intended.
Grounds for Termination
Like the violation of any other international obligation, breach of a treaty obligation may entitle
another party to terminate or withdraw from the treaty or suspend its operation. Article 60 of the
Convention lays down rules on breach of treaties and these may be summarized as follows:-A
material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as
a ground for the termination or suspension of the treaty in whole or in part.
Article 60 Termination or suspension of the operation of a treaty as a consequence of its
breach
1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the
breach as a ground for terminating the treaty or suspending its operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties entitles:
a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or
in part or to terminate it either: i. in the relations between themselves and the defaulting State;
or ii. as between all the parties;
b) a party specially affected by the breach to invoke it as a ground for suspending the operation
of the treaty in whole or in part in the relations between itself and the defaulting State;
c) any party other than the d efaulting State to invoke the breach as a ground for suspending the
operation of the treaty in whole or in part with respect to itself if the treaty is of such a character
that a material breach of its provisions by one party radically changes the position of every
party with respect to the further performance of its obligations under the treaty.
5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person
contained in treaties of a humanitarian character, in particular to provisions prohibiting any
form of reprisals against persons protected by such treaties.
a) A material breach of a bilateral treaty by one of the parties entitles the other to invoke
the breach as ground for the termination or suspension of the treaty in whole or in part.
The use of ''invoke" means that a party may not simply declare a treaty at an end because
of the perceived breach. Subject to such right as it may have to take counter measures, it
must seek a peaceful settlement of the dispute as required by Article 33 of the UN
Charter as well as Articles 65 - 68 of the Convention. To entitle a party to invoke
material breach, the breach must be of the treaty itself and not of another treaty or of rules
of general international law. Nor can a party which is in itself already in breach, and
which has prevented the other party from complying with the treaty, invoke a breach of
that other party.
b) A material breach of a multilateral treaty by one of the parties entitles the other parties
by unanimous agreement to suspend the operation of the treaty in whole or in part or to
terminate it either in relations between themselves and the defaulting State or generally.
c) A material breach of a multilateral treaty by one of the parties entitles a party specially
affected by the breach to invoke it as a ground for suspending the operation of the treaty
as a whole or in part in relation between itself and the defaulting State.
d) A material breach of a multilateral treaty by one of the parties entitles any party other
than the defaulting State to invoke the breach as a ground for suspending the operation
of the treaty in whole or in part with respect to itself if the treaty is of such a character
that a material breach of its provisions radically changes the position of every party with
respect to the performance of its obligations under the treaty. This provision is designed
to deal with certain special types of treaty, such as disarmament treaties, where breach by
one party could well undermine the whole treaty regime. In such a case, the provision of
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paras. (1) and (2) may not adequately protect the interests of an individual party, which
could not suspend the performance of its own obligations in relation to the defaulting
party without at the same time breaching its obligations to the other parties, yet if it does
not do so, it may be unable to protect itself against the threat resulting, for instance, from
rearming by the defaulting State.
e) A "material breach" for purposes of the Article consists in a repudiation of the treaty not
sanctioned by the Convention or the violation of a provision essential to the
accomplishment of the object or purpose of the treaty. An example would be the refusal
by a party to the Nuclear Non-Proliferation Treaty 1968/Comprehensive Nuclear Test
Ban Treaty 1996 or the Chemical Weapons Convention 1993 to have conduct on its
territory of international inspections to verify its compliance with treaty provisions, the
inspection regime being a key means of monitoring the effectiveness of the treaties.
Article 60(5) makes it clear that paras. (1) to (3) do not apply to breach of provisions in
treaties relating to the protection of the human person and, in particular, provisions
prohibiting any form of reprisals against persons protected by such treaties.
Under Article 62(1) rebus sic stantibus may not be invoked as a ground for terminating or
withdrawing from a treaty unless
a) The existence of those circumstances constituted an essential basis of the consent of
the parties to be bound by the treaty, and
b) The effect of the change is radically to transform the extent of the obligations still to be
performed under the treaty.
Article 62(2) provides for two circumstances in which rebus sic stantibus cannot be invoked as
a ground for terminating or withdrawing from a treaty.
1. The first is where the treaty establishes a boundary. Treaties defining boundaries have a
special status in international law. Boundaries that are established by such agreements have a
permanence that exists independently of the fate of the agreements that set them out. This
principle was affirmed by the ICJ in the Case Concerning Territorial Dispute:
Libyan Arab Janahiriya v. Chad (1994) ICJ Rep. 6.
After an armed conflict, Libya and Chad agreed to refer a territorial dispute regarding the
location of their mutual border to the ICJ for resolution. A 1955 Treaty of Friendship and Good
Neighborliness had been negotiated between the then newly independent State of Libya and
France, as the colonial administrator of Chad at that time. In the treaty, a border had been set
down between the two countries, but the treaty itself was expressed to be for a period of twenty
years. In addition, there was complete disagreement between the parties as to the principles of
international law to be applied to the facts and circumstances of the case to establish the border.
The Court held that the border was definitively agreed in the 1955 Treaty to which Chad was a
party as a successor State to the French administered territory. The fact that the treaty was
concluded for a limited period was irrelevant because treaties setting down borders create
demarcations which endure independently of the agreement establishing them.
Article 39 of the VCLT states the general rule regarding the amendment of treaties, whether
bilateral or multilateral: a treaty may be amended by "agreement" between the parties.
PART IV. AMENDMENT AND MODIFICATION OF TREATIES
Article 39 General rule regarding the amendment of treaties: A treaty may be amended by
agreement between the parties. The rules laid down in Part II apply to such an agreement except
insofar as the treaty may otherwise provide.
The use of this word recognizes that it is perfectly possible to amend a treaty by an agreement
which does not itself constitute a treaty, or, possibly, by an oral agreement whose legal force is
preserved by Article 3. Similarly, a treaty can also be effectively amended by a subsequent
agreement between the parties regarding the interpretation or application of the treaty
(Article31(3)(a)).
SECTION 3. INTERPRETATION OF TREATIES
Article 31 General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.
Article 39 provides that the rules laid down in Part II of the Convention apply to an agreement
to amend a treaty "except in so far as the treaty may otherwise provide." This is recognition of
the fact that many multilateral treaties now have built-in amendment mechanisms.
Bilateral treaties can be amended more easily than multilateral. The parties can always agree to
an amendment, the only question being the form in which it is to be expressed. This could, for
instance, be by exchange of notes confirming the amendment.
With respect to multilateral treaties, States have devised methods of amendment which avoid
amendment by means of another treaty. Most multilateral treaties now have an effective and
comprehensive mechanism for their amendment. Cf. Article 108 of the UN Charter.
CHAPTER XVIII
AMENDMENTS
Article 108 Amendments to the present Charter shall come into force for all Members of the
United Nations when they have been adopted by a vote of two thirds of the members of the
General Assembly and ratified in accordance with their respective constitutional processes by
two thirds of the Members of the United Nations, including all the permanent members of the
Security Council.
Where there is no built-in amendment procedure or where the procedure is either not
comprehensive or does not cover all eventualities, Articles 40 and 41 of the VCLT provide the
fall-back rules.
Any proposal to amend the treaty as between the parties must be notified to all the contracting
States. Each of them has the right to participate in the decision on the action that should be taken
and in the negotiation and conclusion of any amendment treaty. Every State entitled to become a
party to the treaty-is also entitled to become a party to the treaty as amended.
PRACTICE QUESTION
Flecha and Tuphs are two sovereign independent states which in 2995 concluded a treaty to
facilitate the joint construction of hydro-electric dams on the Lauterpacht River, which marks the
common boundary between the two states, in order to meet the present and future energy
requirements to facilitate the rapid industrialization for the mutual socio-economic benefit of the
two states. The treaty did not contain any provision regarding termination. The construction
works commenced in January 1996 and were estimated to last for the next five years .In January
1997 Flecha faced with lots of opposition from local and international non -governmental
organizations concerned about the environmental impacts of the project suspended the works.
Flecha also argued that the suspension of the works was a matter of necessity for the State.
However Tuphs rejected Flecha’s grounds for suspension of the works and unilaterally
proceeded with the execution of the works and ended up diverting the waters of the Lauterpacht
River into a by-pass canal in its own territory. Flecha then claimed the right to terminate the
Treaty arguing that Tuphs had violated the treaty by undertaking unilateral works, culminating in
the diversion of the Lauterpacht River.Flecha argued further that the subsequent progress in the
knowledge and awareness of the environmental consequences of the project, its reduced
economic viability, coupled with the new government policy of self reliance, cumulatively
constituted such a fundamental change of circumstances as to radically transform the nature and
extent of the obligation still to be performed to accomplish the project.
ENDZ "#@@
*Related to the issues of continuous display of authority is the question of the date at
which sovereignty comes to be assessed. This critical date is the date beyond which
further evidence of the exercise of sovereign authority will not be allowed.
This judicial technique is important for two reasons
2. Prescription
Prescription like occupation it is based on effective control over territory but whereas
occupation is acquisition of terra- nullius prescription is the acquisition of
title/territory which belongs to another state.
According to Ian Brownlie, the essence of prescription is the removal of defects in a
putative title arising from usurpation of another’s sovereignty by the consent and
acquiescence by the former sovereign.
There are four requirements for acquisitive prescription.
1) First, possession must be exercised a titre de soverain (title of the sovereign. There
must be a display of state authority and the absence of any recognition of
sovereignty in another state.
2) Effective control necessary to establish title by prescription must be accompanied by
acquiescence in the part of the former or losing sovereign. Consequently protests or
other acts or statements which demonstrate a lack of acquiescence may prevent
acquisition of title by prescription. Read the following case:
3. Accretion
It occurs where new territory is added mainly through natural causes to territory
already under the sovereignty of the acquiring state. No formal act or assertion of title is
necessary since a state has the exclusive right of sovereignty over any additions of
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silting or other deposits or resulting from the formation of islands within its territorial
waters.
It is immaterial whether the process of accretion has been gradual or
imperceptible/unnoticeable or whether it has been produced by a sudden or abrupt
transfer of soil provided that this has become embedded and it is not in any event
identifiable as originating from another location.
Accretion can be of significance where a state boundary follows the course of a river.
River between Tanzania and Mozambique (Thalweg) Where a boundary river under
goes a sudden change of course this will not change a boundary line. It will remain a
centre line of the former boundary claimed.
4. Cession
This is the transfer of territory usually by treaty from one state to another, the treaty
forming the legal basis of sovereignty. The treaty is the legal basis of sovereignty.
Cession rests on the principle that the right of transferring its territory is a fundamental
attribute of the sovereignty of a state. It may be either gratuitous or for some
consideration as for instance the sale of Alaska by Russia to the U.S in 1867 and may be
voluntary or compulsory as a result of a war conducted successfully by the state to
which the territory is to be ceded.
However, a cession by treaty is void where the conclusion of the treaty has been
procured/ concluded by threat or use of force contrary to the provisions of the UN
Charter.
For cession to be valid there must be sufficient indication of an intention to transfer
sovereignty from one state to another. The receiving state takes all sovereign rights and
any limitations pertaining to the territory ceded.
b) The following year the assembly of the League of Nations adopted a resolution
stating that , “ it is incumbent upon the members of the League of Nations not to
recognize any situation, treaty or agreement which may be brought about by
means contrary to the Covenant of the League of Nations or with the ‘Pact of
Paris”, that is to say the 1928 Kellog-Briand Pact which prohibited war as a
means to achieve political aims.
The state may prescribe and prosecute offences provided in a number of treaties on
matters of general international concerns such as drug trafficking, hijacking and
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sabotage of aircraft, apartheid, attacks on diplomats, taking of hostages and torture
besides customary international crimes such as piracy jure gentium, slavery, genocide,
crimes against humanity and war crimes.
The state which prosecutes and punishes a pirate or a war criminal under its national
law acts solely as the organ and agent of the international community and meets out
punishment to the offender for his breach of the prohibition imposed by International
Law. Accordingly in Eichmann v AG of Israel 1962 vol 36 ILR pg 277, the Supreme
Court of Israel held that in punishing war crimes pursuant to the universality principle
the state was “acting in the capacity of guardian of International Law and agent for its
enforcement.” Adolph Eichmann a Nazi functionary of German or Austrian nationality
who was concerned in the Final solution of large numbers of Jewish persons of German,
Polish and other nationalities prior to the 1945 defeat of Germany escaped to Argentina.
There he was tracked down by Israeli secret agents by order of the then PM David Ben-
Gurion ceased and abducted to Israel. He was charged under the Israeli Nazi and Nazi
collaborators (Punishment Law of 1950) with 15 counts of war crimes and crimes
against humanity. It was alleged on his behalf that the exercise of jurisdiction by the
court of Israel in respect of the crime committed outside Israel and before Israel had
been created against persons who were not Israeli citizens was contrary to International
Law as was the prosecution consequent upon an international abduction.
The court found them guilty and his appeal was dismissed by the Supreme Court. The
Supreme Court stated, ‘… the crimes of which the appellant was convicted…have always
borne the stance of International crimes burned by International Law and entailing individual
criminal liability. It is the particular universal character of these crimes that vests in each state
the power to try and punish any who assisted in their commission.”
Read Nuremberg Tribunal
Besides piracy and war crimes states have jurisdiction to define and prescribe
punishment for slavery attacks on and hijacking of aircraft and genocide.
These and other International crimes have been addressed in a number of multilateral
treaties that provide for unilateral jurisdiction as a manifestation of international
concern.
ENFORCEMENT JURISDICTION
enforcement agents of one state may be allowed to enter the territorial waters of
another state to pursue vessels suspected of being engaged in trafficking illicit
drugs and or piracy.
● A special application of this principle is that courts of one state will generally not
enforce the public laws of another state such as criminal or taxation laws that
manifest the states sovereignty over its territory.
⮚ However, there are some international limits to the jurisdiction of states. (So when have
those overalls to what extent can states go? that is what we are talking about here
that there are certain international limits). Where two states have jurisdiction to
prescribe and enforce rules of law and the rules they may prescribe require inconsistent
conduct upon the part of a person each state is required by international law to consider
in good faith moderating the exercise of its enforcement jurisdiction in the light of
factors such as :
a) The vital national interests of each of the state
b) The nature and extent of the hardship that inconsistent and enforcement actions
may impose on the person
c) The extent to which the required conduct is to take place in the territory of the
other state
d) The nationality of the person involved.
e) The extent to which enforcement by action of either state can reasonably be
expected to achieve compliance with the rules prescribed by that state.
within whose territory he is found namely the asylum state to the forum state
(requisitioning state).
There is no right to extradition apart from treaty under international law. Similarly
there is no duty to surrender an alleged fugitive to the requisitioning state( forum state)
except under treaty.
The treaty may be bilateral or multi- lateral. Besides, most extradition treaties contain a
list of offences for which a fugitive may be extradited.
Further ,Multi lateral stipulates that the act for which extradition is sought must be a
crime under both jurisdictions punishable by a certain minimum penalty.(In other words
it must be a crime in the requisitioning state as well as the asylum state where the criminal is)
Indeed most multi lateral treaties codify “the double criminality rule” of customary
International Law. This rule provides that extradition is only granted in respect of an
act which is a crime according to law of the asylum state as well as the requisitioning
state.
Besides the courts of the asylum state do not have to determine whether the defendant
committed a crime for which extradition is sought.
The courts merely review the evidence to determine if a prima facie case exists for
which the defendant must answer at a trial in the requisitioning state.
A related principle is that of SPECIALTY that is: a person that surrendered may be
tried and punished only for the offence for which extradition had been sought and
granted.{ Lecturer's Explanation: If the U.K is seeking for Okemo and Gichuru to be tried for
the offence of money Laundering if they are extradited and it is a big if , if they are extradited .
The U.K authority cannot Turn around and say we are trying them for example say for Theft.
Or we are trying them for this or that other offence , it must be money laundering and nothing
else according to the principle of Specialty.}
❖ The 1st reason is found in the doctrine of sovereign equality expressed Par in parem
non habet imperium i.e. equals have no jurisdiction over one another concerned with
the status of legal equality attached to independent sovereign ( If one state was to be
subjected to the municipal law of one state it would bring about in equality which is against the
principle of state equality). States being independent legal persons of equal standing can't
have their disputes settled in the courts of one of them. This can only be done with the
consent of the sovereign state through waiving its immunity. In this case the consent
given upholds the state of equality.
❖ The 2nd reason is that it would as a corollary offend the dignity of a sovereign state, to
submit to the jurisdiction of another by having its acts performed in its sovereign
capacity subjected to the laws of another state. This is notwithstanding the fact that such
an act by a foreign sovereign state was a breach of the Municipal Law of the forum
state.
N/B- State immunity is a procedural rule that goes to the jurisdiction of a national
court it doesn't go to the substantive law.
Explanation: when we say that state immunity is a procedural rule going to the jurisdiction
what we are saying is this: You see the Kenyan courts will have what we call jurisdiction
ratione materiae. Alright.. The Kenyan courts will have subject matter jurisdiction that is
what it means. The Kenyan courts have authorities to interpret ,adjudicate, and enforce claims
arising out of all laws enacted by parliament.
So you have a foreign state that violates the Kenyan Law. Kenya courts have got jurisdiction
Ratione Materiae over that foreign state. But what is happening is this : That because one of
the parties to the case is a foreign state, that foreign state is telling the Kenyans courts you lack
jurisdiction Ratione personae. Meaning you do not have jurisdiction over one of the person
⮚ He is the mouth piece of the head of his state and its foreign minister for
⮚ A 3rd task is the protection in the receiving state of the interests of his home state
and its nationals within the limits permitted by the IL. It is however for the laws
regulations and practices of its home states and not IL to prescribe the extent of
the envoys obligation to afford protection to its compatriot.
Besides these regular functions a diplomatic envoy may be charged with other and
more miscellaneous functions such as : The promotion of friendly relations between
his own state and the receiving state and the development of economic cultural and
scientific relations. The carrying out of these functions is facilitated by the concept of
diplomatic immunities and privileges from the jurisdiction of the receiving states.
These immunities and privileges are not rights given to diplomatic envoys by
International Law, but by the law of the receiving states in compliance with an
international right belonging to their home states.
They are rights of the envoys home state rather than of the envoy himself and are
granted to envoys as representatives of their states because they could not exercise their
functions properly unless they enjoyed such privileges. In other words the basis of the
diplomatic envoys immunities and privileges is functional. Were the diplomatic
envoys liable to ordinary, legal and political interference, and accordingly more or less
dependent on the good will of the receiving state they might be influenced by personal
consideration of safety and comfort to such a degree that would materially compromise
their representation and functions. Hence, their immunities and privileges are
indispensible attributes of the diplomatic functions. Indeed the preamble to the Vienna
convention provides that the purposes of such immunity and privileges is not to benefit
individuals but to ensure the efficient performance of the functions of diplomatic
missions as representing states.
Immunity from the civil and administrative jurisdiction of the receiving state is subject
to three exceptions. Namely
1) A real action relating to private immovable property in the territory of the receiving
state not held by the envoy on behalf of his state and for the purposes of the mission
Envoys who fall in love with the country therefore buy property, this is not held on
behalf of his state or used for the commission, if a claim arises then the diplomatic
envoy cannot plead immunity if a suit is filed.)
2) An action relating to succession in which the diplomatic envoy is involved as
executor, administrator, heir or legatee as a private person.
A will as a private person, a suit arises on disinheritance.
3) An action relating to any professional or commercial activity exercised by the
diplomatic envoy outside his official functions.
However, in the last exception it should be noted that article 42 of the convention bars a
diplomatic envoy from practicing a professional or commercial activity or personal
profit in the receiving state.
Otherwise a diplomatic envoy cannot be sued nor arrested for debts incurred in the
receiving state nor can his furniture, vehicles and the like. The envoy is also immune
from execution except where judgment has been obtained under any of the three
exceptions above and provided that execution does not infringe the inviolability of the
person or residence.
⮚ Protecting in the receiving state the interests of the sending states and of its nationals
relations
sending states (Wildenhus case) and extending the necessary assistants to such
vessels and aircrafts and their crews including conducting investigations and
settling disputes between the masters and crews or passengers.
administration of oath for the purpose of procuring evidence for the courts and
other authorities of the sending state.
Under Article 28 of the convention the receiving state must accord full facilities for the
performance of the functions of the consular posts.
However, the receiving states reserves a rights under Article 23 at any time even before
arrival and without reasons having to be given to declare the head of a consular post or
other consular officer a persona non grata (Article 23)
Although consuls do not enjoy the positions of the diplomatic envoys being appointed
by foreign states and having received the exequatur they are publicly recognized by the
receiving states as agents of the sending state although for a limited number of tasks
and for local purposes only.{Exequatur-[Latin "let it be executed"] A written official
recognition and authorization of a consular officer, issued by the government to which the officer
is accredited. "Consuls on exhibiting proof of their appointment, if not objectionable persons,
receive an exequatur, or permission to discharge their functions within the limits prescribed,
which permission can be withdrawn for any misconduct.}
Members of his family forming part of his household and of his private staff, commence
the enjoyment of immunities and privileges either when he himself does or on entry
into the receiving state or upon the becoming a member of the family of private staff
whichever is the latter.
The Article further provides, that when the functions of the members of the post have
come to an end his immunities and privileges as well as those of the members of his
family forming part of his household and of his private staff cease either upon his
leaving the receiving state or after a reasonable time in which to do so whichever is the
sooner.
This is so even in cases of armed conflict. However the immunity enjoyed in respect of
act performed in the exercise of official functions continues without any limitation of
time. check added statement.
Three things to note:
1. Although diplomatic functions differ from and are governed by different rules from
consular functions, the consent given in the establishment of diplomatic relations
between two states, implies, unless otherwise stated, consent to the establishment of
consular relations. However, the severance of diplomatic relations does not ipso facto
involve the severance of consular relations (Article.2). Besides, in contradistinction on
diplomatic mission, the consular office does not come to an end through a change in the
headship of the appointing or admitting state. The reason for that is that diplomatic
envoys are appointed by ne head of state to one head of state.
If Kibaki ceases to be head of state of Kenya all diplomatic envoys appointed are recalled and
Kenyatta has to appoint his. For consular officials they do not have to be recalled because
they are not accredited by one head of state to another head of state.
2. On their way to take up or return to or return from their post, consular personnel
may have to pass through the territory of another state. Article.54 of the Convention
requires such transit states to grant to consular officers or members of their families
forming part of their households, such immunities and privileges provided for in the
convention and shall be required to facilitate the transit or travel required without
hindering the transit of other members of the consular post or of members of their
families forming part of their households.
3. The third is in the light of the 1986 Convention on the Prevention and Punishment of
Crimes Against Internationally Protected Persons including Diplomatic Agents
provides further international protection to heads of state and heads of government,
international officials e.g. UN Secretary General and his deputies and diplomatic agents
from crimes against their persons. This means that apart from the Vienna Conventions,
there is this protection under 1986 convention.
IMMUNITIES OF INTERNATIONAL ORGANIZATIONS
Customary International Law does not demand that international organizations and
their personnel be exempt from the jurisdiction of states. The matter is regulated by
specific treaty provisions in particular the treaties creating the international
organizations concerned or by the headquarters agreements concluded by the host state
where the organization is seated. E.g. when you look at the UN HQ at New York or
UNEP in Kenya and its HQ agreement with UN... Accordingly, League of Nations
provided in Article.7 that the representative and officials of the League when engaged
in the business of the League were to enjoy diplomatic immunities and privileges.
The UN Charter in Article 105 provides that the Organization shall enjoy the territory of
each of its members, such privileges and immunities as are necessary for the fulfillment
of its services. The representatives of the members of the UN and officials of the UN
shall similarly enjoy such immunities and privileges as are necessary for the
independent exercise of its functions in connection with the Organization.
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Acting under Article 105 (3) of the Charter, the UN General Assembly, did, in 1936
adopted the General Convention on the Privileges and Immunities of the United
Nations that provides details of the privileges and immunities enjoyed by the UN as an
international legal person.
Article 105 UN Charter
1. The Organization shall enjoy in the territory of each of its Members such privileges
and immunities as are necessary for the fulfillment of its purposes.
2. Representatives of the Members of the United Nations and officials of the
Organization shall similarly enjoy such privileges and immunities as are necessary for
the independent exercise of their functions in connection with the Organization.
3. The General Assembly may make recommendations with a view to determining the
details of the application of paragraphs 1 and 2 of this Article or may propose
conventions to the Members of the United Nations for this purpose.
The UN General Assembly also adopted the Convention on the Privileges and
Immunities of Specialized Agencies of the United Nations. These are like FAO, WHO,
ILO, IMO, UNESCO etc. Under the Provisions of Section 2(2) of the 1946 General
Convention on the Immunities of Specialized Agencies of the United Nations , the UN
enjoys complete immunity from all legal process. Under Section 3 and 4 , its premises,
assets, archives and documents are inviolable. Under s.7 the UN is exempt from direct
taxes and customs duties while under s.8 its personnel are exempt from income tax on
their salaries. (Section VII & VIII)
Under Section 19 , the Sec Gen and the Assistant Secretaries General have diplomatic
immunity. Other staff members only have limited immunities such as immunity from
legal process in respect of their official staff and exemption from military service
(Section 18 ).
Under Section 20 , Secretary General must waive staff member’s immunity if in his
opinion the immunity may impede the course of justice and can be waived without
prejudice to the interests of the UN.
Representatives of member states attending UN meetings are granted almost the same
N/B
✔ Consular functions are economic, social, cultural while diplomatic are political.
the head of the receiving state and that’s why when there is a change in the head of
state the envoy is also changed. The envoys are personal representatives even when
they are career diplomats
consular relations
✔ When there is a change of head of state, the heads will send their personal envoys
but in the case of consular relations no new exequatur is required when the head of
the state changes.
Subsequently he moved farther away about 25 miles from the place of the crime and although
this info was communicated to the Mexican civil and military authorities they failed to take any
steps to apprehend Carbajal. 8 years after the killing was still not apprehended and remained
unpunished for Janes’ murder.
The US alleged that in the circumstances the Mexican authorities had failed to take prompt and
adequate measures to apprehend and punish Carbajal and that consequently Mexico was liable
for the killing. The Mexico/ U.S General Claims Commission found for the US, that is, Mexico
was liable and was to compensate the US.
For instance in the US diplomatic and consular staff in Tehran Case the ICJ held that
when 17th November 1979 Ayatollah Khomeini issued a decree maintaining the
occupation of the US Embassy and the detention of hostages until the US handed over
the shah for trial in Iran. The acts of the private individuals were adopted by the state
and thereby arose the responsibility of Iran in IL arose.
The ILCDA provide for two situations in which a state may be responsible for unlawful
acts committed by private persons.
i) Under article 8 the conduct of a person or group of persons shall be considered an
act of a state under IL if the person or group of persons is in fact acting on the
instructions or under the direction or control of that state in carrying out the
conduct.
ii) Under article 11 conduct attributable to individuals shall nevertheless be considered
an act of that state under IL if and to the extent that the state acknowledges and
adopt the conduct in question as his own.(Hostages case)
3) A counter measure
A counter measure is an illegal act that is rendered lawful as a response to a prior illegal
act. Counter measures must fulfill some basic conditions and in addition subject to a
number of limitations.
The conditions are that
i) The injured state is not allowed to result to taking counter measures as soon as a
wrong occurs. It must first call upon the responsible state to discontinue
wrongful action or to make reparation.
ii) If the secession of the wrong is not obtained or no reparation is made i.e. there is
an unsatisfied demand, the injured state must endeavor to obtain through
negotiations pursuant to the general obligation under the UN Charter for
peaceful settlement of the dispute. Only when the author of the wrong doing
refuses to engage in negotiations or willfully or malafide hampers the working of
other means of settlement can the injured state consider in good faith that no
other choice is available except countermeasures.
● The imposition of sanctions will not give rise to responsibility for the
4) Force Majeure
Force majeure will preclude the wrongfulness of an act or omission by one state in
violation of its obligation owed to another. Article 23(1) ILCDA defines force majeure as
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.
Under Paragraph 2 force majeure does not apply if
5) Situations of Duress
Under Article 24 of the ILCDA the wrongfulness of an act of a state not in conformity
with the international obligation of that state is precluded if the author of the act in
question has no other reasonable way in a situation of distress of saving the authors life
or the other lives entrusted to the authors care.
The article goes on to provide that distress does not apply if
a) The situation of distress results either alone or in combination with other factors
from the conduct of the state invoking it or
b) The act in question was likely to create comparable or greater peril.
6) NECESSITY
It is often asserted that if a state coerced by necessity to save itself from great and
imminent danger which it has not itself induced and which it cannot in any other way
escape takes action violating the rights of another state such action does not engage its
international responsibility. The danger it is to avoid must be of such a nature as to put
on jeopardy the existence of the state, its territorial or personal statute, its government
Judge Pinkney, writing as a member of the majority that issued the award, relied for the issue of
necessity upon the opinion of jurists such as Hugo Grotius and admitted that in case of “scarcity
which produces severe national distress or national despondency unless extraordinary measures
are taken to prevent it” a state could be “authorised to have recourse to the forcible seizure of
provisions belonging to neutrals for averting the calamity it feared.“ However, in the instant
case, the judge dismissed the British argument essentially on two grounds:
a. The evil was only “seen in perspective” in that it was “imaginary” and not “real and
It held that the U.S was under the duty to make just compensation to the claimants. Fifteen
Norwegian ship owners placed contracts for the building of ships in U.S. shipyards. After the
United States declared war on Germany on 6 April 1917, the United States requisitioned the
Norwegian shipowners’ property. Negotiations between the United States and Norway failed to
lead to a settlement of the claims for compensation presented by Norway on behalf of the
shipowners, and by an Agreement signed on 13 June 1921 (14 L.N.T.S. 20) they referred the
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dispute to a tribunal of the Permanent Court of Arbitration for decision in accordance with the
principles of law and equity. Held that the United States must pay compensation to Norway.
The claimants were deprived of their property by a requisition in exercise of the power of
eminent domain (the power of the State to take property within its jurisdiction which may be
required for the public good); while the tribunal could not disregard the municipal law of the
parties (unless it was contrary to the equality of the parties or to principles of justice common to
all civilized nations) which had been accepted by foreign nationals in their private dealings, the
tribunal was not governed by that law, but could examine it for consistency with the equality of
the parties, treaties binding the party in question, well-established principles of international law,
including customary law, and the practice of judges of international courts; under U.S. law, as
well as under international law, just compensation was due to the claimants based upon respect
for private property, and providing such compensation was paid without undue delay the United
States was entitled to take the claimants’ property for the duration of the special war emergency;
just compensation implied a complete restitution of the status quo ante based upon loss of profits
of the Norwegian owners as compared with other owners of similar property and compensation
was accordingly awarded on the basis of the fair market value of the claimants’ property.
Article.35 of the International Law Commission Draft Articles provides that a state
responsible for an internationally wrongful act is under an obligation to make restitution that is to
re-establish the situation which existed before the wrongful act was committed provided and to
the extent that restitution:
a. is not materially responsible
b. it does not involve a burden out of all proportion to the benefit deriving restitution
instead of compensation .
See also : The Temple Of Preah Vihear (Cambodia V Thailand) 1962 ICJ Rep.6
The case involves a boundary between the two countries. Thailand because of the dispute
between the two, decided to carry out religious objects from the temple, which was on the
boundary. After determination, ICJ told Thailand to return the objects to Cambodia since the
temple was found to be on Cambodia’s side.
See also the Chorzow Factory Case as discussed above.
b.) The Articles specifies that interest runs from the date when the principal sum should have
been paid until the date when the obligation to be paid is fulfilled, i.e. until payment in full.
N /B-International law does not accept the concept of punitive, vindictive or exemplary damages.
3. SATISFACTION
Satisfaction as a form of reparation is appropriate for non-material damage or moral injury to
Ill treatment of foreign nationals giving rise to international responsibility may result
for instance from unlawful expropriation of foreign owned property, failure to punish
individuals responsible for attack on foreign nationals or denial of justice such as a
refusal to afford a foreign national a right to be heard or arbitrariness or unfairness in
judicial proceedings in which the foreign national is a resident.
Under international law every state has the right of diplomatic protection of its
nationals injured at the hands of another state. Injury to a citizen is injury to the state
2) The state espousing the claim must be the state of nationality of the foreign
national
Oppenheim states this principle as follows “...from the time of the occurrence of the injury
until the making of the award the claim must be continuously and without interruption have
belonged to a person or to a series of persons :A. Having the nationality of the state by whom
it is put forwards and B. Not having nationality of the state against whom it is put forward.”
Nationality is a vital concept in this area of responsibility. The right of a state to espouse
private claims is limited to intervention on behalf of its own nationals because in the
absence of a special agreement it is the bond of nationality between the state and the
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individual which alone confers upon the state the right to exercise diplomatic
protection.
It is as a part of the function of diplomatic protection that the right to take up a claim and
ensure respect for the rules of international law is exercised by the state. Where the injury has
been done to the national of some other state, no claim to which such injury may give rise falls
within the scope of diplomatic relations which the state is entitled to espouse. If you are not a
Kenyan and you suffer harm under Uganda, you cannot ask Kenya to exercise diplomatic
protection on your behalf.
Where the individual is a national of more than one state the test applicable is that of
“dominant nationality”, i.e. the nationality of the state with which the individual has a effective
or genuine link.
This is illustrated by the Nottebohm Case
Nottebohm Case (Leichtenstein vs Guatemala) 1955 ICJ Rep. 4.
Where the ICJ held that a state cannot espouse a claim on behalf of a person who has its
nationality but has no real and effective link with that state at least if that claim is against that
other state with which he does have such link.
This case is a dispute between Liechtenstein and Guatemala. It is based on the actual relation,
interest and position of individual to his national state in the case of international protection.
Mr. Friedrich Nottebohm was born as a German national. In 1905 he went to the Guatemala,
where he started his own successful business. In 1939 he applied for naturalization in
Liechtenstein. In the same year he paid all the fees and taxes, including security deposit (that was
about 68 500 Swiss francs.
On the 13th of October 1939 Mr. Nottebohm was naturalized by the Certificate for Nationality
produced by a Supreme Resolution of the Prince. Then he obtained the Liechtenstein Passport
and went to the Guatemala to continue in his business activities. Till 1943 he had fixed abode in
Guatemala.
When, on the 17th December 1951 Liechtenstein filed an Application against Guatemala, it
claimed damages in respect of various measures which Guatemala had taken against the person
and property of Mr. Nottebohm. Firstly, Guatemala contended that the court is without
jurisdiction. The Court decided to reject the preliminary objection to its jurisdiction. Then started
the main process. Liechtenstein claimed restitution and compensation on the ground that the
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Government of Guatemala had acted towards Mr. Nottebohm, a citizen of Liechtenstein, in a
manner contrary to international law.
Guatemala contended that the claim was inadmissible, for example, of nationality of Mr.
Nottebohm. The Court had to deal with the question without consideration of the validity of
Nottebohm’s naturalization according to the Law of Liechtenstein. Nationality itself is within the
domestic jurisdiction of the State. The exercise of State’s domestic jurisdiction does not have
automatic international effect.
The problem is real and effective nationality that is, based on strong factual ties between the
person and the State. Other problem is habitual residence of the individual and the centre of his
interests, his family ties, his participation in public life, attachment shown by him for a country
etc. Nationality, in the case of protection has to correspond with the factual situation. The
individual has to be closely connected with the population of a particular State.
At the time of naturalization Mr. Nottebohm had his family, business connections and interest in
Germany, so the application for naturalization in Liechtenstein was not motivated by the desire
to dissociate himself from the Government of his country. Other thing is that he had been settled
for 34 years in Guatemala where he stayed until removal as a result of war measures in 1943 and
Guatemala refused to readmit him. Nottebohm started to live in Liechtenstein, because
Guatemala refused to admit him. The naturalization was not based on any real prior connection
with Liechtenstein. The naturalization was not for obtaining a legal recognition and become a
part of Liechtenstein population. Because of all these reasons the claim of Liechtenstein was
inadmissible.
With respect to the application of the nationality of rules claim to corporations the ICJ in the
Barcelona Traction Case
The ICJ rejected Belgium’s capacity to espouse a claim on behalf of its nationals who were
shareholders in a Canadian company holding that the right of diplomatic protection extends to
wrongs done to companies which have the nationality of the protecting state and that in principle
it is only in special circumstances that international law permit any ‘piercing of the corporate
veil’ so as to permit a state to protect its national shareholders in a foreign company in respect of
the loss they suffer because of the situation of the company.
3) Measure of reparation
In the Chorzow Case the PICJ held that, “it is a principle of IL that the breach of an
international engagement involves an obligation to make reparation in an adequate
form. This principle has not only been reaffirmed in subsequent international decisions
but it is also reiterated under art 36 of the Statutes of International Court of Justice
which gives the court jurisdiction in all legal disputes concerning inter alia “ the nature
and extent of the reparation to be made of an international obligation.”
❖ For example The ICJ, for instance, can’t look at the contract between China Wu Yi and
Kenya, it will apply international rules. The claim ceases to be a private claim once it is
taken to the international court .