Public international law

W. Mansell

2006

LLB 2660013

This subject guide was prepared for the University of London External System by:
u

Wade Mansell, BA, LLB, LLM (Victoria University of Wellington) Professor of International Law, University of Kent.

This is one of a series of subject guides published by the University. We regret that owing to pressure of work the authors are unable to enter into any correspondence relating to, or arising from, the guide. If you have any comments on this subject guide, favourable or unfavourable, please use the form at the back of this guide.

Publications Office The External System University of London Stewart House 32 Russell Square London WC1B 5DN United Kingdom www.londonexternal.ac.uk Published by the University of London Press © University of London 2006. Reformatted and reprinted 2010 Printed by Central Printing Service, University of London All rights reserved. No part of this work may be reproduced in any form, or by any means, without permission in writing from the publisher.

Public international law

page i

Contents
1 Introduction 1
Introduction 11 12 13 14 15 16 The aims and objectives of the course Studying international law Outline structure of this subject guide A suggested approach to study The examination Useful web sites 2 3 3 5 6 10 11

2 The distinctive nature of international law 15
Introduction 21 22 23 24 25 What is international law? The differences between international law and domestic law The changing nature of international law International law and common sense Why should international law be defined as law? 16 17 18 19 21 24

3 The sources and method of international law 27
Introduction 31 32 33 34 35 36 37 Article 38 of the Statute of the International Court of Justice International treaties Treaties and jus cogens Treaties and reservations Customary international law Other sources of international law ‘Soft’ law 28 29 30 31 32 33 35 37

4 The dynamic quality of international law 39
Introduction 41 42 43 44 The concept of sovereignty Legal personality in international law The place of the individual in international law The interrelationship between sovereignty, personality and the individual in international law 40 41 43 45 49

5 Jurisdiction in international law 53
Introduction 51 52 53 54 Jurisdiction to prescribe and jurisdiction to enforce Uncontroversial bases for international jurisdiction Controversial bases for international jurisdiction Immunity from jurisdiction 54 55 56 58 63

page ii

University of London External System

6 The law of treaties 71
Introduction 61 62 63 64 65 66 The formation and formalities of treaties Treaties and reservations The validity of treaties The interpretation of treaties The amendment and termination of treaties Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) 1997 72 73 75 76 79 80 81

7 Self-determination and territory in international law 87
Introduction 71 72 73 74 75 The concept of self-determination in international law before the creation of the United Nations The United Nations Charter, self-determination and decolonisation Self-determination after the Cold War States, territory and recognition Territorial and other rights over the sea and its bed 88 89 93 100 103 106

8 The peaceful settlement of disputes in international law 111
Introduction 81 82 83 84 85 Legal method and international dispute resolution The limited use historically made of the ICJ The contentious jurisdiction of the ICJ exemplified by Nicaragua v USA The advisory jurisdiction of the ICJ International arbitration 112 114 116 118 122 126

9 Use of force in international law 129
Introduction 91 92 93 94 95 96 97 The use of force in international law before the creation of the United Nations The Charter of the United Nations Chapter VII of the UN Charter Self-defence in international law Self-defence and terrorism in international law Humanitarian intervention Rules constraining the sort of force permissible 130 132 135 138 140 145 148 151

10 Human rights in international law 155
Introduction 10 1 What are human rights? 10 2 The politics of human rights 10 3 The International Bill of Human Rights 10 4 Principal international human rights treaties 10 5 Regional protection of human rights 156 158 160 165 170 173

Public international law 11 International law in a unipolar world 181
Introduction 11 1 Is international law a source of disappointment? 11 2 The paradox of sovereign equality 11 3 The USA and international law 11 4 The case of Israel and international law 182 183 184 186 192

page iii

Feedback to activities 199
Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11 201 202 203 204 205 207 209 210 212 214

page iv

University of London External System

1

Introduction

Contents
Introduction 11 12 13 14 15 16 The aims and objectives of the course Studying international law Outline structure of this subject guide A suggested approach to study The examination Useful web sites 2 3 3 5 6 10 11

page 2

University of London External System

Introduction
This subject guide is intended to help you study public international law. Public international law was once almost entirely concerned with the regulation of the relations between nations. Particularly since the Second World War, however, it has become increasingly concerned with the rights and obligations of individuals beyond the jurisdiction of the state within which they live. But because it is public international law we will not be concerned with matters of private international law. Thus international commercial disputes and international disputes between individuals will be beyond our focus unless a state or its government is an interested party. For the sake of convenience ‘international law’ will be used as an abbreviation for public international law in this subject guide. Each chapter of this subject guide will isolate a topic within international law and will indicate to you its most significant features, will provide a brief overview of the relevant law, and will direct you to essential reading with suggestions for further reading. Obviously all the topics interrelate, and links will be suggested to other chapters. Within each chapter you will find exercises and activities which will enable you to monitor your progress and gain confidence in your comprehension. In addition each chapter contains sample examination questions and advice about appropriate answers. The most attractive feature of studying international law is that it is always topical. It is relevant to all of the major international events of the day whether they be concerned with the international use of force; the activities of such international organisations as the United Nations, the World Bank or the International Monetary Fund; conflict in the Middle East or elsewhere; the international alleviation of poverty and illness; the regulation of the exploitation of the seabed (including the extraction of oil); global warming; or the possession and use of nuclear weapons. Clearly not all these topics can be considered in this course, but those that do make an appearance will have been chosen because they should enable you to understand and explore the possibilities and limitations of international law in resolving (or pre-empting) disputes which may arise. The chapters will make suggestions concerning the relevance of the topics to contemporary issues.

Learning outcomes for this chapter
When you have completed this chapter, you should be able to:
uu uu uu

understand the objectives of the course approach the study of international law in an organised way appreciate the necessary examination techniques in answering questions in international law begin your study of international law with confidence, interest and enthusiasm.

uu

Public international law 1 Introduction

page 3

1.1 The aims and objectives of the course
While the course is intended to provide an understanding of the role and function of international law, several themes permeate the entire content. We can summarise these as follows:
u

the question of the reality of international law and its similarities with, and differences to, domestic law the relationship between international law and international relations the relationship between international law and European history the relationship between political power and the use or abuse of international law the limitations inherent in the legal method that constitutes international law.

u u u u

The aims of the course may similarly be summarised:
u

to provide a significant introduction to the concepts, principles and rules of international law to provide ways of considering the relevance of international law to particular disputes to provide an appreciation of both the possibilities and limitations of legal method in international disputes to provide a consideration of the relationship between international law and power to consider the institutions of international law.

u

u

u

u

It is the objective of this course that when you have successfully completed it you will:
u

appreciate the possibilities and limitations of international law in international dispute resolution be able to predict the relevance or otherwise of international law to particular disputes be able to formulate arguments in international law directed towards particular outcomes be able to critically evaluate the role of international law in particular disputes be aware of the arguments about the Eurocentric nature of international law be able to evaluate the relationship between international law and social and economic reality.

u

u

u u u

1.2 Studying international law
1.2.1 How does this differ from the study of a domestic law subject?
All legal practitioners who specialise in international law would accept that international law has a very different ‘feel’ from domestic law. Indeed the most sceptical domestic lawyers often query whether international law should really be described as law at all. International law often seems to be indistinguishable from general international relations. For those of that view, such rules as there are in international law seem excessively malleable and negotiable and often the very sources of international law are questionable. Such perspectives will be considered at the beginning of the course and will remain relevant throughout.

page 4

University of London External System
Nevertheless the course will argue that international law, while different to domestic law, is also sufficiently distinctive to international relations to fall easily within the definition of law and that this label is important. It is important because the legal quality of international law has consequences. In particular, if rules are accepted as legal, compliance tends to be much more automatic (although with obvious exceptions). And the centrality of international treaties in international law indicates that states, through their representatives, enter into what they regard as binding legal relations. It is often said that the principle pacta sunt servanda (translated as ‘pacts (or promises) must be respected (or kept)’) underlies the whole of international law. International law remains a developing and dynamic subject. When you remember that when the United Nations was created in 1945 only 51 states became members immediately, whereas there are now in excess of 190 members, it becomes obvious that the international community has changed considerably. The great period of decolonisation and self-determination created myriad new states that were faced with an international legal regime which they had had no part in creating. Much international law had been developed in the interaction between colonial powers. This led not only to stresses and tensions but also to some quite fundamental developments. As will be clear from the previous section, this course is not primarily concerned with the memorising of rules. Examination questions will require answers that demonstrate knowledge and also provide evidence of reflection. This means that even as you read the subject guide and the essential reading you should not be simply trying to understand and remember what you read, you should also be reacting to it. By this I mean that you should constantly be considering your perspective towards the readings you have been given. If you can respond in this way you will also find it much easier to remember what you have read because you will probably begin by remembering your reaction to the material rather than the material itself. Some people describe this process as not merely learning but internalising, by which they mean that your interaction with the course material makes it ‘subjectively meaningful’; that is, it becomes a part of how you see the international world. Perhaps the first and greatest difficulty for those trained in domestic law posed by a study of international law is the breadth of the subject itself. For almost every international dispute involving a state, international law will be relevant. Thus the potential topics for study are vast in number. Those that have been chosen for study have been selected either because they are central to an understanding of the international legal regime, or because they are illustrative of the way in which international law impacts upon international problems. The second major difficulty lies in the relationship between international law and international politics and power. An understanding of this relationship should develop throughout the course and the greater your interest in current affairs the easier will be this aspect to comprehend. To this end you are urged to read about contemporary international events as much as possible, whether in reputable newspapers, current affairs magazines, or even books analysing particular international crises.

1.2.2 A time of paradoxes
The fall of the Berlin Wall in 1989 presaged, and perhaps precipitated, stupendous changes and developments in the realm of international politics. These changes, which have continued, have greatly altered not only the realm of international organisation and relations, but also the rule regime which ordered them. While the focus of this course will be upon that rule regime it is obvious that it cannot properly be considered without recognition of the changes in the world it attempts to regulate. More recently the so-called Second Gulf War of 2003 in which an allied force led by the USA with the UK in a supporting role invaded Iraq and removed the regime of Saddam Hussein continues to reverberate in the world of international law. Concepts central to international law such as self-defence, the pre-emptive use of force and even sovereignty itself may be in the process of change.

Public international law 1 Introduction
Another reverberation is that the centrality of the role of the United Nations, and particularly the United Nations Security Council, in the promotion and maintenance of world peace and order has become highly problematic. The so-called ‘unipolar world’ which has followed the changes in Eastern Europe has left but one state with unchallenged and almost unchallengeable power. In terms of military power the United States is almost unassailable and will remain so for the foreseeable future. With its military spending outpacing that of all other states its power would seem absolute and its decisions for action, whether to ‘effect regime change’ or to punish what it perceives to be ‘rogue states’ either directly with force or indirectly with economic sanctions, indisputable. This in turn is reinforced by its political, economic and physical power which means that objectives can often be gained without the need for action, with other states coerced by the realities before them to support the USA’s international policy goals. This is a time of many paradoxes. One of the most significant for our purposes is that at a time when imperialism has given way to a recognition of the validity of a diversity of cultures no longer ‘on the road to civilisation’, globalisation seems to imply a homogeneity of goals quite incompatible with such real multi-culturalism. So-called ‘economic reality’ seems to dictate but one economic ideology and one particular form of government both inherent in the idea of ‘liberal democracy’. That this ideology is at the heart of the government of the world super-power is clearly not coincidental. Some indeed have effectively argued (they would probably not accept that this is the argument) that the ‘road to civilization’ has been replaced by the ‘road to democratic governance’. Perhaps it might also seem paradoxical to suggest that at such a time as this, international law can have any real effect or be of any real importance in governing or constraining international events. If realism dictates an appreciation of dramatic political changes, should international law now be seen as either irrelevant or itself subject to such changes as will reflect this new power reality? And if the latter is the case, does this not suggest that the true role of international law is less to constrain than to legitimate (give legal authority to) what is done through power? These are substantial questions and ones which underlie much of this course. Before studying them, however, basic ideas and methods of international law must be understood. The course begins with a discussion of the meaning of international law.

page 5

1.3 Outline structure of this subject guide
There is no one way to study international law. There is however considerable consensus about the topics that are central for an understanding of international law. A plethora of modern textbooks has appeared recently and as a generalisation they may be divided between those that are rule focused and those which are context focused. The former seem to regard international law as a ‘pure’ subject in the sense that it is seemingly sensible to study the rules in isolation from events. For various reasons this approach is rejected in this subject guide, primarily because it is a very dull way of learning. It also has the effect of disguising the politics which always underlie international law. You will be required to read material which will always emphasise this aspect. Much of the information you will be given is about events to which international law is applicable, rather than simply about the rules themselves. The subject guide consists of ten chapters apart from this Introduction:
u

Chapter 2: The distinctive nature of international law. Here we will consider just how international law differs from domestic law and will seek to justify its description as a legal regime. Chapter 3: The sources and method of international law. This is primarily but not exclusively concerned with treaty and customary international law. It will also consider a recent phenomenon which has come to be known as ‘soft law’.

u

page 6
u

University of London External System
Chapter 4: The dynamic quality of international law. Here we will illustrate the changing nature of international law by considering concepts of sovereignty, legal personality and the rise of the individual. Chapter 5: Jurisdiction in international law. This will explain the powers of a state regime beyond its own borders and consider the limitations of such power and the immunities from jurisdiction that are granted to individuals and states, sometimes in particular circumstances. Chapter 6: The law of treaties. Although treaty law is largely governed by the Vienna Convention on the Law of Treaties, 1969, the centrality of treaties in international law necessitates consideration of important issues concerning the validity of treaties and their interpretation and enforceability. Chapter 7: Self-determination and territory in international law. Whereas until recently it was thought that self-determination was exclusively concerned with decolonisation, the demise of the Soviet Union and the break-up of Yugoslavia have revitalised the subject, particularly for minorities wishing to secede from existing states. Economic self-determination is no less significant than political selfdetermination, and we will consider in particular the significance of international law for international debt. Chapter 8: The peaceful settlement of disputes in international law. The primary focus here will be upon the role and potential of the International Court of Justice but we will also consider the role of the United Nations. Chapter 9: Use of force in international law. Again the role of the United Nations (particularly the Security Council) will be examined and critically considered. The invasion of Iraq will be a focus for the chapter. The question of humanitarian intervention and its legality will be considered. Chapter 10: Human rights in international law. Essentially this chapter considers the individual in international law. It will consider the change in status and the real effects this has produced. The development of the International Criminal Court will be examined. Chapter 11: International law in a unipolar world. A final examination of the relationship between international law and power and the challenge posed by the United States to the existing regime. We will focus upon the position of the ‘neoconservatives’ in the present US administration and the unique position of Israel in international law.

u

u

u

u

u

u

u

1.4 A suggested approach to study
You should begin your studies with this subject guide. The sequence of chapters has been carefully chosen and you will find it easiest to follow the order provided and reading the recommended textbook pages for each chapter as you proceed. The course should develop both in a linear way and in a spiral way in that all the chapters are interrelated even if the relationship is initially difficult to perceive. Frequently in the subsequent chapters you will find references to chapters you have already completed and some you have yet to reach. This is inevitable because of the nature of international law. Although the course is divided into topics, they are not truly discrete and everything affects, and is affected by, the other topics. You are advised to complete the Activities for each chapter as you proceed.

Public international law 1 Introduction

page 7

1.4.1 Essential reading
Primary textbooks
¢u

Dixon, M. Textbook on international law. (Oxford: Oxford University Press, 2005) fifth edition [ISBN 0199260729]. Cassese, A. International law. (Oxford: Oxford University Press, 2005) second edition [ISBN 0199259399]. Kaczorowska, A. Public international law. (London: Old Bailey Press, 2005) third edition [ISBN 1858366070].

¢u

¢u

These texts will be referred to in an abbreviated form, for example:
¢u

Dixon, Chapter 2: ‘The sources of international law’, pp.xx–xx.

These books are very different in their approach but are complementary in their content. The most ‘legal’ is Kaczorowska and the subject guide usually relies upon you to have read at least this. It is, I think, very ‘user-friendly’ and clear with a lot of interesting context. Dixon often raises academic questions in a helpful and comprehensible form. Cassese is the least orthodox, but in its own terms very interesting with an approach that might be described as ‘continental’.† His categories and themes do not always fit easily with more orthodox approaches but he is (in my opinion) a stimulating author.

‘Continental’ – that is, European, rather than English.

Supplementary texts
¢u

Evans, M. International law. (Oxford: Oxford University Press, 2003) [ISBN 0199251142]. Cassese, A. International law in a divided world. (Oxford: Clarendon, 1986) [ISBN 0198761945]. Brownlie, I. Principles of public international law. (Oxford: Oxford University Press, 2003) sixth edition [ISBN 0199260710]. Van Dervort, T. International law and organization. (Thousand Oaks, CA: Sage, 1998) [ISBN 0761901892]. Shearer, I. Starke’s international law. (London: Butterworths, 1994) eleventh edition (new edition expected soon) [ISBN 0406016232].

¢u

¢u

¢u

¢u

Cases and materials
¢u

Dixon, M. and R. McCorquodale Cases and materials on international law. (Oxford: Oxford University Press, 2003) fourth edition [ISBN 0199259992]. Harris, D.J. Cases and materials on international law. (London: Sweet & Maxwell, 2004) sixth edition [ISBN 0421781505].

¢u

Neither book is essential, but both are useful.

1.4.2 Other stimulating reading related to international law
Books
¢u

Alston, P. and J. Crawford (eds) The future of UN human rights treaty monitoring. (Cambridge: Cambridge University Press, 2000) [ISBN 0521645743]. Anghie, A. Imperialism, sovereignty and the making of international law. (Cambridge: Cambridge University Press, 2005) [ISBN 0521828929]. Byers, M. Custom, power and power of rules: international relations and customary international law. (Cambridge: Cambridge University Press, 1999) [ISBN 0521632897].

¢u

¢u

page 8
¢u

University of London External System
Byers, M. (ed.) The role of law in international politics. (Oxford: Oxford University Press, 2000) [ISBN 0198268874]. Byers, M. War law. (London: Atlantic Books, 2005) [ISBN 1843543389]. Charlesworth, H. and C. Chinkin The boundaries of international law: a feminist analysis. (Manchester: Manchester University Press, 2000) [ISBN 0719037395]. Collier, J. and V. Lowe The settlement of disputes in international law: institutions and procedures. (Oxford: Oxford University Press, 1999) [ISBN 0198299273]. Fox, G. and B. Roth (eds) Democratic governance and international law. (Cambridge: Cambridge University Press, 2000) [ISBN 0521667968]. Franck, T. Fairness in international law and institutions. (Oxford: Clarendon Press, 1995) [ISBN 0198267851]. Glennon, M. Limits of law, prerogatives of power: interventionism after Kosovo. (London: Palgrave Macmillan, 2001) [ISBN 1403963665]. Goldsmith, J.L. and E.A. Posner The limits of international law. (Oxford: Oxford University Press, 2005) [ISBN 0195168399]. Goodwin-Gill, G.S. and S. Talmon The reality of international law. (Oxford: Oxford University Press, 1999) [ISBN 0198268378]. Hamm, B. (ed.) Devastating society: the neo-conservative assault on democracy and justice. (London: Pluto Press, 2005) [ISBN 0745323618]. Halper, S. and J. Clarke America alone: the neo-conservatives and the global order. (Cambridge: Cambridge University Press, 2004) [ISBN 0521674603]. Higgins, R. Problems and process: international law and how we use it. (Oxford: Clarendon Press, 1994) [ISBN 0198764103]. Ignatieff, M. (ed.) American exceptionalism and human rights. (Princeton, NJ: Princeton University Press, 2005) [ISBN 0691116482]. Koskenniemi, M. The gentle civilizer of nation: the rise and fall of international law 1870–1960. (Cambridge: Cambridge University Press, 2001) [ISBN 0521548098]. Meron, T. War crimes law comes of age. (Oxford: Clarendon Press, 1998) [ISBN 0198268564]. Merrills, J. International dispute settlement. (Cambridge: Cambridge University Press, 1998) third edition [ISBN 0521617820]. Moynihan, D.P. On the law of nations. (Cambridge, Mass: Harvard University Press, 1990) [ISBN 0674635760]. Murphy, J.F. The United States and the rule of law in international affairs. (Cambridge: Cambridge University Press, 2004) [ISBN 0521529689]. Newhouse, J. Imperial America: the Bush assault on world order. (New York: Knopf, 2003) [ISBN 0375414010]. Reus-Smit, C. (ed.) The politics of international law. (Cambridge: Cambridge University Press, 2004) [ISBN 0521546710]. Roth, B. Governmental illegitimacy in international law. (Oxford: Oxford University Press, 1999) [ISBN 0199243018]. Sands, P. Lawless world: America and the making and breaking of global rules. (London: Allen Lane, 2005) [ISBN 0713997923]. Simpson, G. Great powers and outlaw states: unequal sovereigns in the international legal order. (Cambridge: Cambridge University Press, 2004) [ISBN 0521534909].

¢u ¢u

¢u

¢u

¢u

¢u

¢u

¢u

¢u

¢u

¢u

¢u

¢u

¢u

¢u

¢u

¢u

¢u

¢u

¢u

¢u

¢u

Public international law 1 Introduction Documents
¢u

page 9

Evans, M. Blackstone’s international law documents. (Oxford: Oxford University Press, 2005) seventh edition [ISBN 0199283125].

Reports and journals
There are large numbers of these but you should occasionally consult (if possible) any of the following:
¢u ¢u ¢u

European Journal of International Law (EJIL) International and Comparative Law Quarterly (ICLQ) American Journal of International Law (AJIL).

Electronic resources
A vast amount of international law material is available on the web. What follows at the end of this chapter is what is supposed to be a helpful list when you require particular information. Most of it you will probably not want to consult. A very useful portal is LAWLINKS which is organised by the University of Kent Law Librarian. It is to be found at: http://library.kent.ac.uk/library/lawlinks/

1.4.3 How to proceed
This subject guide takes you through the international law course in a structured and systematic way. Each chapter covers a particular topic or group of topics. The order is loosely based upon the three primary textbooks on page 11, but because we are also concerned with contemporary issues in international law there is no total correlation.

Working through a chapter of the subject guide
Although the content of the international law course differs from the domestic law courses you have already studied, the method of study remains much the same. At the risk of repetition however you should try to work as follows. Begin each chapter by reading the Introduction and considering what you might expect to be reading about in this topic. Next do the essential reading. The essential reading is the core of the course and it is crucial both for understanding and for examination success that you read all of it. It has been chosen because it is appropriate for undergraduate study and where it is difficult your subject guide should help you. But the subject guide is not sufficient in itself. It relies upon what you will have learnt from the essential reading. You will find the reading much easier and more interesting if you attempt to relate to it. You will need to take notes as you read but these ideally should not simply be summaries but ‘involved summaries’ by which I mean that your appreciation of the readings is the educational part of the course. Your notes will reflect your understanding of what others have written. It is often best to begin with a quick and not very careful read through the readings so that you can see both the theme of the reading and its main thrust. This will also help your note taking upon a second and careful read. Note taking is very much an individual skill but the best notes reflect the theme of the reading, noting the most important points and providing memory aids – pointers to remind you of the things you thought significant. When the essential reading and note taking is completed you should work your way through the chapter in the subject guide. The text should complement the essential reading and you should consider whether it is in agreement or whether there are different or even contradictory points being made. Much of international law is contentious with persuasive arguments to be made from more than one perspective. Sometimes the subject guide should persuade you to modify the notes you took from the essential reading.

page 10

University of London External System
At key points in the chapter activities are to be found and these are intended to provide exercises which enable you to learn and understand important points and issues. They require you to think about a question and an appropriate answer. You will find it useful to write a response to each Activity – ideally at least a few sentences. Writing practice in which the English is structured in a logical and ‘legal’ way will be very useful when you come to sit the examination. While feedback is provided at the end of each chapter, you should resist the temptation to look at it before you have formulated your own response as otherwise you will get little indication as to how well your learning is progressing. Self-assessment questions are factual questions which are intended to highlight some of the major points you should have taken from the reading. Because they are factual, feedback will not be provided as the answers will be in the reading.

1.5 The examination
1.5.1 The examination paper
Important: the information and advice given in the following section are based on the examination structure used at the time this guide was written. However, the University can alter the format, style or requirements of an examination paper without notice. Because of this you are strongly advised to check the rubric/instructions on the paper you actually sit. The paper normally contains eight questions and you will be required to answer four in three hours. There are no compulsory questions and each question will be weighted equally. The majority of the questions will require essay answers but there will be at least two problem questions. The object of the examination is to test your knowledge, understanding and critical appreciation of international law. The paper is not divided into sections so you may answer any four questions.

1.5.2 Taking the examination
When taking the paper you should bear in mind the following: The object of the examination The purpose of the examination is for you to demonstrate what you have learned and to show that you have reflected upon the material. There will be no ‘risk questions’ and the paper will have been set to enable you to do justice to your knowledge and work. A good examination answer A good examination answer is one that answers the questions with sufficient depth and precision. Typically, such an answer will be three or four A4 pages of writing, with an introduction isolating the matters to be covered, paragraphs on each of them, and a conclusion directed to the wording of the question. Do not attempt to learn the whole syllabus in detail The course does attempt to present international law as a coherent ‘seamless web’ but the fact that there are so many distinguishable topics means that you can, to some extent, concentrate on some parts of the syllabus. You should ensure that you have worked through all the topics before deciding which areas you wish to concentrate on. These are likely to be the ones you have found most interesting. Because the topics do interrelate it is important that while specialising you are aware of related implications. Most of the questions will be based upon one, or at the most two, topics.

Public international law 1 Introduction
Memory and international law The examination is not testing what you have memorised but what you have understood and learnt. Nevertheless it is obvious that this can only be done if you remember much of what you have learnt. You need to memorise the points that you consider necessary to demonstrate your knowledge of topics. This requires the re-reading of notes from the readings and familiarity with the activities and sample examination questions. The essay questions will usually be formulated in a way that requires you to make your answer a coherent and cogent argument. The best answers are not simply factual but have within them a thesis which shows the comprehension of the learnt facts. Answering the question Almost all of your questions will require you to order your material so that your answer reads as a direct reply to what has been asked. Many students, partly because of the way in which they have revised, have a tendency to interpret questions as simply asking that you write all you know about a topic. This is never what is wanted. While it is sometimes depressing to have to leave out of an answer things that you have learnt, this is always the better option if the knowledge is not relevant to what has been asked. An ideal approach is to place yourself in the position of the person who set the examination and ask yourself why he or she thought the questions asked are important. If you understand why the question was set, you will be well on the way to answering it. When not to panic Examinations are stressful occasions, but it is important to use the consequent adrenaline rather than be overwhelmed by it. You may find that you are suddenly unable to remember things that you thought you knew well. This often happens, and if it does, you can either leave space for when your memory returns – as it usually does after you have regained composure – or alternatively, you can begin with arguments that you remember, giving sufficient information so that the examiner might recognise the source.

page 11

1.6 Useful web sites
1. United Nations and special agencies
u

United Nations Homepage http://www.un.org International Law Commission (ILC) http://www.un.org/law/ilc/index.htm International Court of Justice (ICJ) http://www.icj-cij.org International Labour Organization (ILO) http://www.ilo.org/public/english/index.htm United Nations Educational, Scientific and Cultural Organization (UNESCO) http://www.unesco.org United Nations Environment Programme (UNEP) http://www.unep.org United Nations High Commissioner for Human Rights (UNHCR) http:www.ohchr.org Another excellent website about the UN and human rights. You are also linked to all the UN human rights bodies, both Charter-based and treaty-based, plus texts of their reports, decisions, etc. For the text of treaties, declarations, etc. you can also go directly to: Human Rights Instruments http://www.unhchr.ch/html/intlist.htm

u u

u

u

u

u

u

page 12
u u

University of London External System
United Nations High Commissioner for Refugees http://www.unhcr.org World Health Organization (WHO) http://www.who.int

Regional organisations u Association of Southeast Asian Nations (ASEAN) http://www.aseansec.org
u u u

Council of Europe http://www.coe.int European Union (EU) http://www.europa.eu.int/index-en.htm The African Union (formerly Organization for African Unity) (AU) http://www.africaunion.org Organization of American States (OAS) http://www.oas.org Organization for Security and Co-operation in Europe (OSCE) http://www.osce.org

u u

2. Judicial organs and arbitration panels
u

International Centre for Settlement of Investment Disputes (ICSID) http://www. worldbank.org/icsid International Court of Arbitration (ICC), International Chamber of Commerce http://www.iccwbo.org International Court of Justice (ICJ) http://www.icj-cij.org For current declarations of states recognising the compulsory jurisdiction of the ICJ, see UN Treaties Collection (http://www.untreaty.un.org), Multilateral Treaties, Chapter 1 (4). International Criminal Court http://www.icc-cpi.int/home.html UN Conference on the Establishment of an International Criminal Court http://www.un.org/icc Coalition for the International Criminal Court (CICC) http://www.iccnow.org International Criminal Tribunal for Rwanda (ICTR) http://www.ictr.org International Criminal Tribunal for the former Yugoslavia (ICTY) http://www.un.org/ icty/index.html International Tribunal for the Law of the Sea http://www.itlos.org Permanent Court of Arbitration http://www.lawschool.cornell.edu/library/pca World Trade Organization (WTO), Dispute Settlement Panels http://www.wto.org/ English/tratop_e/dispu_e/dispu_e.htm

u

u

u

u

u u u

u

u u

3. Regional judicial organs
u

European Court of Human Rights. Note that the establishment of the Hudoc searching system on the homepage of the European Court of Human Rights (www. echr.coe.int/echr) now gives instant access to all the cases of the European Court of Human Rights. European Court of Justice http://www.europa.eu.int/cj/en/index.htm Inter-American Court of Human Rights http://www1.umn.edu/humanrts/iachr/iachr. html

u u

Public international law 1 Introduction 4. Non-governmental organisations (NGOs)
u

page 13

Amnesty International http://www.amnesty.org Greenpeace International http://www.greenpeace.org International Commission of Jurists (ICJ) http://www.icj.org International Committee of the Red Cross/Crescent (ICRC) http://www.icrc.org/eng Center for International Human Rights Law (US) http://www.rightsinternational.org Human Rights First http://www.humanrightsfirst.org The World Organisation Against Torture http://www.omct.org The Redress Trust (an NGO specialising in reparation for torture survivors) http://www.redress.org This site is useful on torture issues generally. It is also useful on truth commissions and amnesty/impunity issues. One World http://www.uk.oneworld.net This site aims to ‘provide the best online coverage of human rights and sustainable development’.

u

u

u u u

u

u

u

5. Universities and academic institutions
u

University of Minnesota Human Rights Library is at: http://www1.umn.edu/ humanrts/ A fantastic human rights website which includes the full text of treaties, UN docs, regional docs, US docs, asylum/refugee docs, etc. For Africa, see the joint project of Minnesota and Makerere University at http:// www1.umn.edu/humanrts/africa/index.html

u

6. Others
u u

The Human Rights Web Home Page is at http://www.hrweb.org The South African Truth and Reconciliation Commission site is at http://www.doj. gov.za/trc

Finally I hope very much that you will enjoy the study of international law, and will find it relevant to the world in which you live. If you become interested and read widely you will have no need of luck in the examination. Wade Mansell, May 2006.

page 14

University of London External System

Notes

2

The distinctive nature of international law

Contents
Introduction 21 22 23 24 25 What is international law? The differences between international law and domestic law The changing nature of international law International law and common sense Why should international law be defined as law? 16 17 18 19 21 24

page 16

University of London External System

Introduction
This chapter seeks to introduce you to international law. Although it is introductory, some of the concepts remain contentious even now, and not everyone would agree with the views expressed here. This is important because it should be immediately clear to you that international law is not a static object of study. Indeed, its very ‘legal quality’ remains a matter of debate, while the continuing changes in international law give the subject a unique fluidity. Nevertheless, the core of this chapter supports the view that international law really is ‘legal’ and that it is important that this perspective is understood. Since the time of the removal of the Berlin Wall in 1989, the world has seen many important changes which are affecting the way international law is conceived and operates. In Iraq, a government and ruler have been forcefully removed by a US-led coalition, in circumstances whose legality has been strongly disputed. This has brought twentieth-century notions of sovereignty and the rules for the international use of military force into question. The place of the United Nations is also in question, as is the broader picture of the world as a place of economic and political diversity. The power of the USA is unchallenged, and its will prevails in international relations. Unipolar military force may be imposing solutions that international law, lacking sanctions, is unable to achieve. In studying the basis and structures of international law in this course, therefore, we will continually be obliged to consider how international law can stand up to this challenge.

Learning outcomes
Byutheuenduofuthisuchapteruandutheurelevantureadingsuyouushouldubeuableuto:
uu uu uu

explainuwhyuinternationalulawuisulaw describeutheudistinguishingufeaturesuofutheuinternationalulawuregime explainuanduaccountuforutheudifferencesubetweenuinternationalulawuandudomesticu law appreciateutheubroaduchangesuinuinternationalulawusinceutheunineteenthucenturyu appreciateuthatuinternationalulawuwillualwaysuhaveuaupoliticaluaspect understanduthatuinternationalulawufunctionsubyumakingusituationsufituitsu categories. understanduwhyuitumayubeuseenuasuobjectiveuandupoliticallyuneutral.

uu uu uu

uu

Public international law 2 The distinctive nature of international law

page 17

2.1 What is international law?
Essential reading
¢u

Dixon,uChapteru1:u‘Theunatureuofuinternationalulawuandutheuinternationalusystem’,u pp.1–20. Cassese,uChapteru1:u‘Theumainufeaturesuofutheuinternationalucommunity’,upp.3–17. Kaczorowska,uChapteru1:u’Historyuandunatureuofuinternationalulaw’,upp.1–11.

¢u ¢u

Readutheseupagesunow. There is no agreed definition of international law and it is easier to describe the role of international law and the tasks it performs than to rely on a dictionary definition. The international legal regime (that is, the system of international law) may be described as ‘consisting of a body of laws, rules and legal principles (sometimes not easy to isolate or identify as one or the other) that are based on custom, treaties or legislation and define, control, constrain or affect the rights and duties of states in their relations with each other’. Unfortunately almost every meaningful statement in that description may be queried or require modification as this course will illustrate. It is, however, a working model. Among the things it fails to take account of is the dynamic quality of international law which has led – and is leading – to changes in both the subjects of international law and its content. Although states are still central to the international law regime there is no doubt that for some purposes at least, some international organisations such as the United Nations, the International Labour Organization and the World Bank are now subjects of international law. And individuals too have been granted subject status for some purposes. It was traditionally thought that because international law governed the relations between states it did not affect their domestic arrangements. Because each state was said to be sovereign, this suggested that internally a state could behave as it wished. If this was ever true in practice, it certainly requires modification now. In particular, the development of human rights law places obligations upon state governments to conform to international norms in their domestic governance. Sometimes international law is criticised for the lack of sanctions it is able to apply in the event of non-compliance or breach of obligation. Dixon, in your readings, answers this criticism by explaining that sanctions are not a necessary element of a legal regime. Nevertheless, as we shall see in the final chapter the criticism has not disappeared and remains relevant to the position adopted towards international law by some states. Some writers, of whom Cassese is one, regard the development of international law as rather disappointing. Many would prefer to see it as a stage on the way to world governance in which the role of law would be much more like that in a domestic legal regime. Such goals, however, also have their own severe critics. These regret the way in which international law has come to constrain states in their internal conduct and sense a conspiracy to remove power from democratic states to a central and largely unaccountable body. This perspective too will be more fully considered in Chapter 11.

Activity 2.1
Whatuisuinternationalulaw? Feedback:useeuenduofuguide.u

Self-assessment questions
1.u WhyudoesuDixonuargueuthatusanctionsuareunotuaunecessaryupartuofulaw? 2.u WhyudoesuCasseseuconsiderutheudevelopmentuofuinternationalulawutoubeu disappointing?

page 18

University of London External System

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu uu

explainuwhyuinternationalulawuisulaw describeutheudistinguishingufeaturesuofutheuinternationalulawuregime.

2.2 The differences between international law and domestic law
Essential reading
¢u

Cassese,uChapteru1:u‘Theumainulegalufeaturesuofutheuinternationalucommunity’,u pp.3–10.

Readutheseupagesunow. It is indisputable that there are significant and crucial distinctions between international law and domestic law. In international law there is of course no supreme legislature which can promulgate binding international laws. There is no international law-making body and no equivalent of a domestic legislature. The international legal regime is overwhelmingly, but not exclusively, one which requires the consent of those whom it would govern. International law can, by and large, be created only by consent – it can rarely coerce those state subjects who would not be bound. It is this that leads Cassese in your readings to suggest that the international law regime is best understood as a horizontal system of organisation rather than vertical. By this he means that whereas in domestic law, laws are passed down to the subjects from the law making body, in international law it is the parties themselves who make the law for themselves. Cassese regards this as unsatisfactory but it might be better seen as the necessary result of international law being concerned primarily with rules directed to sovereign states. Similarly there is no international court before which states in breach of international law may consistently be forced to appear. There is an International Court of Justice (which we will consider in Chapter 8) but this concerns itself only with disputes between parties who have standing before the Court (and only states do have standing if the Court is to make an authoritative ruling rather than giving an advisory opinion). The Court has no role in punishing states in breach of their international law obligations. Its role is to resolve disputes between states, and without use of sanctions. And although some states have accepted the compulsory jurisdiction of the International Court of Justice this will only be effective in disputes between states where all parties to the dispute have accepted that compulsory jurisdiction. A minority of states do so. More frequently the Court will have jurisdiction only where the parties to the dispute consent to the jurisdiction of the Court for a particular dispute. Thus here too the emphasis remains upon consent. This emphasis on consent rests upon two crucial, but not natural, facts. The first is that each state is said to be sovereign in its own territory. This does not mean that the rulers of any state can rule with utter impunity. Humanitarian law in particular has been accepted (generally, if not in particular cases) as constraining states in their internal governance. Nevertheless there is universal acceptance that while subject to some qualifications, sovereignty gives total control of domestic jurisdiction (discussed further in Chapter 5). This remains true even though a state may willingly accept limits upon its sovereignty, as have for instance the states of the European Union. The second fact is that there is universal acceptance of the sovereign equality of states – that is, each is equal in its sovereignty. Needless to say, and this does have implications for the arguments presented in this course, the sovereignty is formal and legal in its equality rather than actual. The relative power of states does not alter this aspect of equality. Just as under the rule of law, each individual has formal equality before the law, so in international law each state is equal. This acceptance of sovereignty and sovereign equality makes clear just why it is generally unrealistic to expect a greater level of coercion and sanction in international law than presently exists.

Public international law 2 The distinctive nature of international law

page 19

Activity 2.2
Explainuanduaccountuforutheudifferencesubetweenuinternationalulawuandudomesticulaw. Feedback:useeuenduofuguide.

Summary
It is because the world is not organised as if it were a single state that we should not and cannot expect to find state institutions in world organisation.

Self-assessment questions
1.u Stateutheumajorudifferencesubetweenudomesticulawuanduinternationalulaw. 2.u WhyudoesuDixonuargueuthatuinternationalulawuexistsuasuausystem ofulaw?

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

explainuanduaccountuforutheudifferencesubetweenuinternationaluandudomesticulaw.

2.3 The changing nature of international law
Essential reading
uu

Cassese,uChapteru2:u‘Theuhistoricaluevolutionuofutheuinternationalucommunity’,u pp.22–45.

Readutheseupagesunow. The reading you have completed from Cassese suggests that it is useful to recognise four major stages in the development of international law. His history will reinforce the argument that it is largely to be found in the history of Europe. This is certainly true of the first two stages and partly true of the third. What emerged as international law in the first period up to 1914 was almost exclusively rules governing the relations between states. Overwhelmingly this was inter-state regulation and individuals scarcely figured at all. Of course, in so far as states have always been inanimate entities, the reality was that international law governed the relationships between state governments (composed of people but in their official capacity). It has been suggested that this period should be seen as one in which international law was primarily descriptive in that it described how states generally conducted affairs with other states, but was hardly normative – it did not seek to direct states as to their conduct, but merely recognised practice. In particular there was little or no restraint upon the threat or use of force by states powerful enough to do as they wished. Such international rules as there were reflected the interests of those same states. Following the First World War, with the creation of the League of Nations and the Permanent Court of International Justice (PCIJ) (the forerunner of the International Court of Justice), perspectives on world organisation changed significantly. The creation of the League of Nations recognised for the first time the importance of a structure that could take part in the governing of relations between nations. One of its central goals was to limit the right of states to resort to war to a number of stated causes, and it also provided for cooling off periods before resort to war. The PCIJ was available for the adjudication of disputes. These changes could not be described as dramatic in their effect. And of course the League of Nations failed to preserve peace. Its efforts were hindered by the decision of the USA to remain outside of the League and by the non-participation of the Soviet Union. The Bolshevik revolution in Russia in 1917 also challenged such economic and political consensus as existed in Europe. The League did not challenge the European colonial empires and some argued that French and British influence in the League was excessive.

page 20

University of London External System
Nevertheless the War had concentrated minds to the extent that it became fashionable to emphasise the desirability of peace. In 1928 the Paris Pact on the Banning of War was signed, though its effects were hardly satisfactory. The judicial structure of the PCIJ survived although it achieved less than its advocates had anticipated. One aspect of the League’s functioning remains historically important. Under its auspices many Minority Treaties were negotiated. These were more important as precursors of human rights protection in international law than as successes in their own terms. Peace treaties negotiated at the end of the War insisted that certain nation states with significant ethnic minorities accepted, in return for recognition (discussed further in Chapter 4), agreements to protect the rights of these minority populations. The responsibility for guaranteeing and supervising these treaties was allocated to the League, which developed a (rather ineffective) ‘minority petition procedure’ which has been described as the procedure that initiated trans-national claims making. You should remember a final point. Although the Minority Treaties were implicitly about human rights, they were concerned not with the rights of individuals but with those of groups or collectivities. Developments in Cassese’s third period are continuing in their significance. The end of the Second World War led to:
u u

the creation of the United Nations the Nuremberg trials which asserted that individuals had responsibilities in international law the development of concepts of self-determination and an era of decolonisation with ex-colonies at last able to contribute to international law creation.

u

The principal goal of the UN was to be the preservation of peace, stimulated, as your reading observes, by the potential of nuclear weapons to annihilate humanity. Also of great and continuing international law significance was the drafting and signing of the Universal Declaration of Human Rights – not least for its assertion of individual human rights. Most of these developments will be discussed in subsequent chapters because they all remain of importance in the present role of international law. Much the same may be said of Cassese’s final period, from the end of the Cold War to the present, although the significance of the changes wrought by the end of the USSR is still by no means clear. What is clear, however, is that the end of the Cold War dramatically changed the balance of power between states. Because of the frequent use of the veto in the Security Council between 1948 and 1990, actions by the UN aimed at preserving or creating peace had been very limited. Many thought that the demise of the USSR would enable the UN to become much more powerful and active. The first Gulf War, aimed at restoring the sovereignty of Kuwait, seemed to suggest that this might be the case. In fact the outcome has been distinctly mixed, although as we will see in Chapter 9, changes have occurred both in the actions of the UN and in international law, prompted in part by the terrorist attacks upon the US in 2001. The other major change in inter-state power relations has been the rise of the USA to become the only world super-power. The significance of this for the international legal regime is discussed in Chapter 11.

Activity 2.3
Whyudouyouuthinkuinternationalulawuhasunotudevelopeduasuauformuofuworldu government? Feedback:useeuenduofuguide.

Summary
The development of international law has arisen from reactions to the results of historical events rather than as spontaneous legal reform.

Public international law 2 The distinctive nature of international law

page 21

Self-assessment question
WhatuareutheumajorufeaturesuofuCassese’sufourustagesuinutheudevelopmentuofu internationalulaw?

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu uu

appreciateutheubroaduchangesuinuinternationalulawusinceutheunineteenthucentury appreciateuthatuinternationalulawuwillualwaysuhaveuaupoliticaluaspect.

2.4 International law and common sense
Essential reading
¢u

Cassese,uChapteru3:u‘Theufundamentaluprinciplesugoverninguinternationalu relations’,upp.46–68.

Thisureadinguisuobliquelyurelevantutouthisusectionubutuauquickureadinguwilluhelpuyouutou understandutheusection. Readutheseupagesunow. One issue that is important to think about at the beginning of this course is the assertion that is sometimes made that the international law way of understanding the world is actually very ‘Eurocentric’. What is asserted is that although the method of international law looks very reasonable and obvious to those trained in the common law or civil law tradition, in fact it is important to be able to see it as something contingent rather than necessary. This means that we have to be able to appreciate that international law is not common sense but a particular way of attempting to deal with international relations and problems. The foundations of current international law were laid in an era which predates the creation of the majority of nation states. Equally clearly the antecedents of international law are overwhelmingly European (within which, for this purpose, we should include the United States) and the system was one which evolved in a time of European hegemony, most overtly expressed through colonialism. Because of this it can be persuasively argued that the international legal regime is crucially European in its method and in its ideology. What is meant by this is that an argument may be made (and probably should be made) to the effect that international law reflects one particular way of perceiving the world, in which even the most fundamental premises underlying the system – such as those of the nature of sovereignty, and even the acceptance of the principle of pacta sunt servanda (roughly translated as ‘treaties must be observed’ but with rather wider implications) – are arguably imbued with Western perceptions. Before discussing the significance of this further, a broader but related point must be made. It is not insignificant that most (British in particular) international law textbooks seem implicitly to reject the assumption that international law is intimately and necessarily interrelated with contemporary international events. The inference to be drawn from the content of some of the most eminent texts is not only that law is separate and distinct from political relationships and international relations, but because of this, a study of international law can be a very pure one indeed. (Rather like pure mathematics which remains a sensible subject even though its applications may be entirely absent.) To the extent that the political world does impinge upon such texts, it tends to be a historical rather than contemporary world, and it is a history which is usually decontextualised and ‘objective’. History, if necessary, is treated as an uncontested series of facts. Very often if the greatest international events appear at all, they appear only in the form of desiccated legal decisions or opinions.

page 22

University of London External System
The majority of such texts also have a remarkably standard set of contents, with the main differences to be found in the depth of analysis and variety of emphasis. Such orthodoxy should breed suspicion, particularly if it is accepted that any study of international law must be concerned with the politics that underlie it, the power relations that it may disguise, and the ideology that the law way of thinking conceals. In turn it should be clear that the ideological assumptions which underpin international law are not only to be found in the content of international law but equally in the very process and procedure of the law. To illustrate this proposition it is useful to consider one exception to the generalisation about British international law textbooks. This is Antonio Cassese’s International law in a divided world which, although written while the Soviet Union was yet extant (in 1986), remains pertinent. (Significantly perhaps, it is written by an Italian scholar who is also the author of one of your textbooks.) In this book written 20 years ago, Cassese does address the lack of universal acceptance of international law method. His argument with regard to the so-called ‘developing’ countries and the ‘socialist states’ (obviously inappropriately labelled but nevertheless significantly different from the liberal capitalist states of the West at the time when he was writing) is that there are crucial differences in perceptions in, or of, international law. At this point I mention only his assessment of the ideological perception of the governments of certain African states. Obviously, given the very different cultural traditions of these states and their inhabitants, with emphasis upon lineage and clan, a different perception of international law is not unlikely. Cassese suggests that for such states international law cannot be seen as an abstract problem solver (as it often appears in textbooks and international texts); rather ‘to them international law is relevant to the extent that it protects them from undue influence by powerful states and is instrumental in bringing about social change with more equitable conditions stimulating economic development’. Whether or not we are comfortable with such enormous generalisations is less important than the consequences that are drawn from the statement. Cassese argues that it is because of this generalisation that we can see many developing states very much preferring to ‘elaborate general principles as opposed to detailed and precise legal rules’, and he uses a telling quotation from an Egyptian international lawyer which requires comment:
…in dealing especially with the Western countries, anything which could be formulated in the very precise terms of an operational rule was considered nonsense [by developing countries] while Third World representatives in general attached great weight to general principles which sometimes could not be refined into operational rules. If we look at the same thing from a different point of view I would say that in most cases the attitude of the Third World was defined by the total effect of a proposed solution…I think that the Western powers put too much emphasis on the mechanistic elements [of law] while for Third World countries if by going through all the motions and respecting all the procedural rules you end up with an unjust solution, this would be bad law. And if you have a general directive, even if you cannot reduce it to very precise procedural rules, it is still good law, though it may be imperfect in terms of application.

In some ways that quotation summarises a fundamental distinction in perceptions of international law in particular (but also, to some extent, of municipal law). It is of the essence of the law way (meaning the ‘rule of law way’) of dealing with the world, that theurulesuprecedeutheufactsutouwhichutheyuareutoubeuapplied. Indeed it is this that makes the writing of ‘pure international law textbooks’ apparently sensible. It is also of the essence of both contract law and treaty law that in general, rules are laid down providing for future possibilities. To most of us this seems, no doubt, obvious and sensible but the quotation should highlight the potential shortcomings of the structuring of rules to ensure justiciable disputes (disputes in a form that allows law to

Public international law 2 The distinctive nature of international law
be applied). If the application of rules or treaty provisions, or even contracts, leads to results which one party is very unwilling to accept, particularly arising from situations unforeseen or unexpected at the time of the rule or contract formulation, then those who do not identify with the Western view of international law might well consider it dysfunctional. The preoccupation of international lawyers with the need to structure problems in a way which makes them justiciable is of central importance. Indeed, from the perspective of Western international lawyers, treaties, rules or resolutions which do not allow the formulation of problems in this way are often accorded significantly less respect. (A point to which we will return.) Crucially (and this proposition underlies much of the argument of this course), only if the ‘rule of law’ approach to international law is seen as a particular way of organising the world, rather than as common sense, can we begin to appreciate the significance of international law in the international community as a whole. What has been suggested to be singular about the international law way of encompassing the world is both:
u

page 23

‘rule magic’, by which I mean that situations in the future are governed by rules which, when made, had either not contemplated the facts of all future cases or, when they were made, they were made without the participation of a party now said to be subject to them and, the method by which social facts are translated (or selected) as legally relevant.

u

What always distinguishes legal disputes from other disputes will be the structuring of the issues whereby many of the facts which parties (or at least one party) to the dispute might think important are irrelevant for the purposes of legal resolution. What is the significance of this? Firstly it should be made clear that in translating social and political situations into the legal world, one effect is often to apparently de-politicise a dispute. Legal questions have an appearance of legal objectivity and political neutrality. It is the law which is being questioned and considered and this seems very different from political dispute. This will be further considered in Chapter 6. You should appreciate nevertheless that law questions do, in fact, always have a political dimension, as indeed does the law itself.

Activity 2.4
Areuthereuanyuconsequencesutouauconclusionuthatuinternationalulawureflectsuau ‘Western’uwayuofuunderstandingutheuworld? Feedback:useeuenduofuguide.

Summary
International law should be understood as a particular way of governing international relations rather than as common sense.

Self-assessment exercise
Explainuwhatuyouuunderstandubyutheustatementuthatuinternationalulawuoperatesubyu translatingusocialuandupoliticalueventsuintoulegalucases.

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

understanduthatuinternationalulawufunctionsubyumakingusituationsufituitsu categories.

page 24

University of London External System

2.5 Why should international law be defined as law?
Essential reading
¢u

AsuforuSectionu2.1,uespeciallyuDixon.

Most international lawyers would claim that what distinguishes international law from international relations and brings it within the definition of law is that it is a ‘distinctive mode of discourse’ – that is, the law way of discussing international issues is distinctive because of the rules, procedure and process which it brings to bear upon questions. Indeed even the formulation of the questions in a dispute will be affected by the input of international law knowledge. Secondly, every state does accept the existence of international law as something distinct from ordinary international intercourse. Dealing with the second point first, this acceptance of the reality of international law by states is important in the refutation of those who suggest that international law is not really law. In domestic law it can be argued that the fact that laws are often broken and wrongdoers often escape punishment is of only marginal importance to the existence of law. Much more significant is that most citizens have actually internalised the values of criminal law even if they do not agree with them. Domestic wrongdoers very seldom attempt to deny the authenticity of the law, rather they try to justify their transgression. This is just as true in international law. When Saddam Hussein ordered the invasion of Kuwait in 1990 he did not announce that he intended to flout or, worse still, ignore international law. Rather he attempted, perhaps not terribly convincingly, to defend his actions as being consistent with international law. Thus he not only suggested that the invasion was legitimate self defence but he also referred to historic Iraqi claims over the territory of Kuwait. When the United States invaded Grenada in 1983 it too, albeit belatedly and a little half-heartedly, attempted to justify the invasion legally. The fact that the ‘justification’ withstood little scrutiny is less important for our argument than the fact that the United States felt bound to make it. Very much the same was true of the US invasion of Panama to capture General Noriega. Even the claim by China that both Tibet and Taiwan are integral components of the Chinese territory is couched in terms calculated to appeal to international law. More recently the intervention by NATO in the territory of the former Republic of Yugoslavia was defended as being consistent with international law; while it is argued (at least by Israel and the United States) that Israel’s activities in Palestine are not necessarily a breach. Most recently of course has been the bitter legal debate concerning the intervention of the US ‘coalition’ in Iraq. Quite remarkably the debate over the legality of the intervention has been absolutely central to the debate over intervention itself. There are those, both teachers of international law and politicians, who argued forcefully that the matter should have been finally resolved by its persuasively argued illegitimacy. This debate was very important in the 2005 general election in the UK. And as Brierly (an eminent UK authority on international law) wrote in 1944:
The best evidence for the existence of international law is that every actual state recognises that it does exist and that it is itself under obligation to observe it. States may often violate international law, just as individuals often violate municipal law, but no more than individuals do states defend their violations by claiming that they are above the law.

As to the first point, the distinctiveness of international law derives in part from its sources and origin. International law and laws essentially came into existence either through treaties (which obviously require the consent of those who are to be bound by them) or through custom, and usually, but not always, custom which has been long established. Of course not all custom is held to be international law, rather only that which has been regarded by states as legally binding custom. Thus custom becomes international law only when the states observing the custom do so in the belief that the custom is indeed a part of international law. The fact that there is no law-creating legislature really, it can be argued, simply reflects the reality of sovereignty. As Shabtai Rosenne observes in a book published in 1984†, ‘International law is a law of coordination, not, as is the case of most internal law, a law of subordination. By law of coordination we mean to say that it is created and applied by its own subjects, primarily the independent states (directly or indirectly), for their own common purposes.’

Rosenne, S. Practice and method of international law. (Dobbs Ferry, NY: Oceana Publications, 1984) [ISBN 0379201402].

Public international law 2 The distinctive nature of international law
But let us return to the argument that the law way of dealing with international issues is a distinct way (that is to say that legal discourse is distinguishable from the language of general international relations). In domestic terms it can be argued that what distinguishes most clearly the law way from the social way of resolving disputes is that law always requires a translation of social facts in to legal facts. This is no less true of international law. But the argument also suggests that this necessary translation is both law’s greatest strength and paradoxically its greatest weakness. It is a strength in that when a dispute is put in legal terms with legal issues, it becomes legally resolvable in that there will be (almost invariably) a legal solution to the legal problem. It may also be a weakness because the resolution, while it will resolve the legal issue, may not resolve the social (untranslated) problem. The law way of resolving disputes works ‘best’ when all the parties to the dispute accept the legalisation of the dispute. Very much the same applies in international law, which is a central factor in explaining the reasons why only a minority of states accept the compulsory jurisdiction of the International Court of Justice. There is little point in having a dispute legally resolved if the underlying political problems remain. Unless the parties to the dispute, together with the constituencies they represent, accept that the legal outcome resolves the problem, the resolution itself may in fact simply lead to further disputes. In due course when we consider at some length the role, effect and politics of the International Court of Justice, this argument will be made by reference to selected cases which have come before it. Suffice to say at this point, that while any number of cases could be selected to illustrate the proposition, a crucial feature of the translation from social to legal dispute will always be concerned with the initial selection of legallyurelevantu facts. Almost invariably the selection of these facts not only structures the legal issues and thus the questions for judgment, but involves at the least a modification of the political arguments.

page 25

Activity 2.5
Whatudistinguishesuinternationalulawufromuinternationalurelations? Feedback:useeuenduofuguide.

Summary
International law is a way of regulating the relations between nations which is distinctively legal. The lack of sanction for non-compliance or breach, even where true, does not destroy the legal quality.

Self-assessment question
WhatuargumentsudouDixonuanduCasseseumakeuforuinternationalulawutoubeuaccepteduasu genuineulaw?

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

understandutheumethoduofuinternationalulaw.u

Sample examination questions
Question 1uuu‘Comparisonsubetweenudomesticulawuanduinternationalulawubringuoutu allutheureasonsuwhyusomeuwritersuhaveusuggesteduthatuinternationalulawuisunoumoreu thanuanuaspectuofutheustudyuofuinternationalurelations.uSuchuviewsuhoweverusimplyu misunderstandutheunatureuofulaw.’u Discuss. Question 2uuuWhatuargumentsucanubeumadeuforutheupropositionuthatuinternationalu lawuisuEurocentric?

page 26

University of London External System

Advice on answering the questions
Question 1uuuThis question requires a rehearsal of the differences between domestic and international law and an assessment as to whether these differences suggest that international law is not really law. This obviously depends on what is to be defined as law, but it is then necessary to consider the effect of the method of international lawmaking and the lack of a central sanctioning body. It could be argued that law does not require sanctions in order to be legal. It will also be appropriate to consider law as a distinct form of discourse and the method of ‘legal translation’. Question 2uuuIt would be useful to begin by discussing the meaning of ‘Eurocentric’. There may be more than one meaning. You might first refer to the fact that international law clearly has European origins – and these from a time of colonialism when the most powerful states were European. Or you could refer to how law operates, that is the method it utilises to analyse and resolve problems between states. Examples could be drawn from cases before the ICJ (these are discussed in Chapter 8). This could lead to a discussion of the significance of what is arguably ‘Eurocentric’.

3

The sources and method of international law

Contents
Introduction 31 32 33 34 35 36 37 Article 38 of the Statute of the International Court of Justice International treaties Treaties and jus cogens Treaties and reservations Customary international law Other sources of international law ‘Soft’ law 28 29 30 31 32 33 35 37

page 28

University of London External System

Introduction
The point has been made in earlier chapters that the sources of international law are not the same as those in domestic law. You should remember, too, that the two major sources creating legally binding rules of international law are treaty and custom. This chapter considers those sources and, briefly, other sources. In domestic law the question of the source of a rule or law is seldom controversial. Common law systems rely upon statutes and the decisions to be found in court judgments for evidence of the existence of the rule or law; civil law systems rely upon the appropriate legislation or Codes. It is rarely necessary in either system to inquire whether a legal rule is inufact a legal rule and its existence, if not its interpretation, will be uncontroversial. Exceptionally a further question may arise as to the legitimacy of the rule. If it does it will usually concern the status of the rule that might be affected by procedural defects, or be beyond the power of the body that purported to create it. When such a question does arise there are other rules and procedures that allow for the testing of the validity of the rule in question. Various authors have described such domestic systems in terms of primary and secondary rules. The rules that simply govern conduct are the primary rules, while the ‘rules about the rules’ (that is, those used to determine their legitimacy) are said to be secondary. International law presents different problems, which is why all international law textbooks have a section devoted to the question of sources. Significantly there is no agreed statement about what does constitute a source of international law. Thus questions relating to the secondary rules are not only more frequent, but also more difficult to resolve. The validity or reality of international customary rules is often contentious and many cases turn on whether the existence of a rule can be proven.

Learning outcomes
Byutheuenduofuthisuchapteruandutheurelevantureadingsuyouushouldubeuableuto:
uu

understanduwhyutheuquestionuofusourcesureceivesuaudifferentuansweruinu internationalulawufromuthatuinudomesticulaw understanduthatucustomaryuinternationalulawuisustilluaumatteruofucontentionubothu inutheumanneruinuwhichuituisucreateduanduinuitsuapplication describeutheucontentuofuArticleu38uofutheuStatuteuofutheuInternationaluCourtuofu Justice recogniseuthatutreatyuanducustomaryuinternationalulawuareuoverwhelminglyutheu majorusourcesuofuinternationalulaw understandutheumeaninguanduimpactuofutheuperemptoryunormsuofuinternationalu lawu(jus cogens)uuponutreaties understandutheumeaninguandusignificanceuofureservationsuinumultilateralutreaties understandutheuconceptuofucustomaryuinternationalulaw appreciateutheunatureuanduqualityuofusourcesubeyonducustomuandutreatyu appreciateutheunatureuanduqualityuofu‘soft’ulawuanduitsurelationshiputouhardulawuonu theuoneuhanduandupoliticaludiscourseuonutheuother.

uu

uu

uu

uu

uu uu uu uu

Essential reading
¢u ¢u ¢u

Cassese,uChapteru8:u‘Internationalulaw-creation:ucustom’,upp.153–69;u170–82. Dixon,uChapteru2:u‘Theusourcesuofuinternationalulaw’,upp.21–48. Kaczorowska,uChapteru2:u‘Sourcesuofumultinationalulaw’,upp.12–36.

Public international law 3 The sources and method of international law

page 29

3.1 Article 38 of the Statute of the International Court of Justice
Essential reading
¢u ¢u ¢u

Cassese,uChapteru8:u‘Internationalulaw-creation:ucustom’,upp.153–55. Dixon,uChapteru2:u‘Theusourcesuofuinternationalulaw’,upp.21–24. Kaczorowska,uChapteru2:u‘Sourcesuofuinternationalulaw’,upp.12–14.

Readutheseupagesunow. The closest approximation to an authoritative list of relevant sources, and the one usually quoted, is to be found in Article 38 of the Statute of the ICJ. This states:
1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, establishing rules expressly recognised by the contesting states b. international custom, as evidence of a general practice accepted as law c. the general principles of law recognized by civilized nations d. subject to the provisions of Article 59 [‘The decision of the Court has no binding effect except between the parties and in respect of that particular case’] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the parties agree thereto.

Of course what you will notice is that this is not a general statement of sources but an instruction to the ICJ as to the law the Court is to apply in disputes before it. It has been argued that even in its own terms as a general statement it is inadequate, because it is not complete. Nevertheless, so overwhelmingly dominant are the sources of treaty and ‘international custom, as evidence of a general practice accepted as law’ (customary international law) that it is these with which we will be primarily concerned. In your Cassese reading he makes the point that custom and treaty can be seen as closely related. Both rely upon the consent of the parties to be bound, but in customary international law the consent is tacit or implicit whereas in treaty it is expressed and explicit. Nevertheless they do differ, in that customary law comes to affect all states, whereas treaties are generally confined in their effect to the states that are parties. But sometimes a treaty may simply explicitly state a rule of customary international law and sometimes, where the terms of a treaty are very widely accepted by states that are not parties to the treaty, they may develop as customary international law. This will become clearer in your next readings.

Activity 3.1
WhatuisutheustatusuofuArticleu38uofutheuStatuteuofutheuInternationaluCourtuofuJustice?u Couldutheusourcesuofuinternationalulawubeuclarified?uHow? Feedback:useeuenduofuguide.

Summary
Article 38 indicates the sources of international law, but because it is directed to the ICJ it should not be regarded as definitive.

Self-assessment question
Whatuareutheusourcesuofuinternationalulaw?uIsuArticleu38usufficientutoudefineuthem?

page 30

University of London External System

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

understanduwhyutheuquestionuofusourcesureceivesuaudifferentuansweruinu internationalulawufromuthatuinudomesticulaw understanduthatucustomaryuinternationalulawuisustilluaumatteruofucontentionubothu inutheumanneruinuwhichuituisucreateduanduinuitsuapplication describeutheucontentuofuArticleu38uofutheuStatuteuofutheuInternationaluCourtuofuJustice.

uu

uu

3.2 International treaties
Essential reading
¢u ¢u ¢u

Dixon,uChapteru2:u‘Theusourcesuofuinternationalulaw’,upp.24–28. Cassese,uChapteru9:u‘Treaties’,upp.170–82. Kaczorowska,uChapteru2:u‘Sourcesuofuinternationalulaw’,upp.14–15.u

The major contemporary source of international law is the treaty. Treaties may be bilateral (between two states) or multilateral (where there are more than two states). Generally speaking, treaties will be binding only upon the state parties to any particular treaty and the nature of the obligation will be defined within the treaty. The generic term ‘treaty’ covers a multitude of international agreements and contracts between states. As well as those describing themselves as treaties the term may include conventions, pacts, declarations, charters, protocols and covenants. The binding nature of treaties lies at the very heart of international law and is derived from the pacta sunt servanda principle, which roughly translates as ‘promises must be kept’, or, more precisely with regard to treaties, as ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’. Quite what the status of this principle is, is a more complex question than it might appear. Some have argued that it is a basic customary international rule, others that it is simply a premise upon which the edifice of international law is built. Either way, although it may be criticised it is difficult to envisage any international legal system in which state promises were not overwhelmingly regularly kept, and even sometimes enforced. But it is important to realise that the principle is not as neutral as is often assumed. As will be seen in the ICJ case of the Gabcikovo-Nagymaros Project (discussed in Chapter 6), the effect of the principle may both directly impact upon and constrain democratic decision making. It was also argued in the previous chapter that the very concept of being bound by an agreement even when faced with changed (but not fundamentally changed) circumstances is a quintessentially Western legal way of interpreting the world. While there are obvious similarities with contracts in domestic law there is of course no need for consideration in the contractual sense, and the benefit may be all one way. And although Article 52 of the Vienna Convention on the Law of Treaties (1969) (which is considered in Chapter 6) provides that a treaty will be void if its conclusion ‘has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations’ this is the only sort of coercion accepted as necessarily voiding treaties according to the Vienna Convention. Indeed, the fact that the Vienna Conference issued a separate ‘Declaration on the Prohibition of Military, Political or Economic Coercion in the Conclusion of Treaties’ strongly suggests that such coercion, though it may not be acceptable, is nevertheless not (at least necessarily) contrary to international law and will not have the effect of making such a treaty void. This is important because mere sovereign equality cannot disguise extraordinarily unequal economic or other bargaining power in treaty negotiation. One recent example where a coerced treaty would not have been void had it been concluded was the so-called ‘Rambouillet Accords’ (Interim Agreement for Peace and Self-Government in Kosovo) of February 1999 which Serbia was pressed to accept. Others are less controversial because they are less well known, and this is particularly true of trade agreements. The result of a breach of a treaty obligation will often be defined by the terms of the treaty.

Public international law 3 The sources and method of international law

page 31

Activity 3.2
‘Internationaluconventionsuorutreatiesuareutheuonlyuwayustatesucanuconsciouslyucreateu internationalulaw.’u(Dixon,up.24.)u Discuss.u Feedback:useeuenduofuguide.

Summary
Treaties are voluntary (subject to some qualification) agreements between two or more states generally binding only upon the parties. Unlike contacts in domestic law there need be no consideration and all the benefit may flow to one party.

Self-assessment question
WhatudoesuDixonusayuofutheudebateubetweenuthoseuwhouargueuthatutreatiesucreateu lawuanduthoseuwhouargueuthatutreatiesuimposeuobligationsuwhichutheu‘law’usaysumustu beucarrieduout?

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

recogniseuthatutreatyuanducustomaryuinternationalulawuareuoverwhelminglyutheu majorusourcesuofuinternationalulaw.

3.3 Treaties and jus cogens
Essential reading
¢u

Cassese,uChapteru11:u‘Theuhierarchyuofurulesuinuinternationalulaw:utheuroleuofujus cogens’,upp.201–12. Dixon,uChapteru2:u‘Theusourcesuofuinternationalulaw’,upp.37–38. Kaczorowska,uChapteru2:u‘Sourcesuofuinternationalulaw’,upp.33–36.

¢u ¢u

There is one significant constraint upon terms which may be included within a treaty. Article 53 of the Vienna Convention provides that:
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 recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.

This is extended by Article 64 to provide that where new peremptory norms of international law arise, any existing treaty which is in conflict with the norm becomes void and terminates. What are such peremptory norms (also known as jus cogens) and what is their significance? At their broadest they are rules of almost international constitutional importance. Their significance is that there exists a body of principles accepted by the international community as a whole that are of such fundamental gravity as to ensure that no treaty which contemplated their breach would, or could, be valid. Examples would be ‘the establishment or maintenance by force of colonial domination, slavery, genocide or apartheid’ (from your Cassese reading), together with the crimes enumerated in the Geneva Conventions, 1949. Unfortunately, while some principles such as the prohibition of genocide are accepted and uncontroversial as peremptory norms, there is widespread disagreement as to the status of other norms. Thus while many would argue that the principle of the prohibition of the use of force in international relations as laid out in the United Nations Charter has achieved this status, subsequent practice makes this doubtful and less than clear. Surprisingly this is so notwithstanding the agreement between both parties in the Nicaragua (Merits) Case (referenced in your reading) that the prohibition of the use of force had come to be recognised as jus cogens.

page 32

University of London External System

Activity 3.3
Whyudouyouuthinkuperemptoryunormsuhaveudevelopeduinuinternationalulaw?uWhatu areutheupoliticaluviewsuthatucreateduaudebate? Feedback:useeuenduofuguide.

Summary
Customary international rules that are regarded as fundamental and have the status of peremptory norms may not be excluded by treaty. Any attempt to do so will arguably render such a treaty void.

Self-assessment question
WhatuargumentsudoesuCasseseumakeuforutheuviewuthatuautreatyubreachinguau peremptoryumayunotubeuwhollyuinvalid?

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

understandutheumeaninguanduimpactuofutheuperemptoryunormsuofuinternationalu lawu(jus cogens)uuponutreaties.

3.4 Treaties and reservations
Essential reading
¢u ¢u ¢u

Cassese,uChapteru9:u‘Treaties’,upp.173–75. Dixon,uChapteru3:u‘Theulawuofutreaties’,upp.61–65. Kaczorowska,uChapteru11:u‘Theulawuofutreaties’,upp.241–45.

The final aspect of treaties that must be considered in this guide concerns reservations, defined in Article 2(1)(d) of the Vienna Convention on the Interpretation of Treaties as meaning ‘a unilateral statement, however phrased or named, made by a State when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State’. Reservations are of significance here for two reasons. The first is that reservations essentially recognise the necessity of consent by a state to all the terms of a treaty by which it is bound. This in turn, because of the principle of reciprocity, means that a reservation established with regard to another party to the treaty:
a. modifies for the reserving State in its relations with that other party the provisions of the treaty to which the reservation relates to the extent of the reservation; and b. modifies those provisions to the same extent for that other party in its relations with the reserving State,

as is stated in Article 20 of the Convention. Thus no party to a treaty can be bound to a greater extent as against any other party than that party is itself bound. Any reservation by a state also limits the obligations of other states towards the reserving state to the same extent as the reservation. The second matter of note is that reservations are often used in a way which has a very significant effect upon the obligations apparently accepted and undertaken. The so-called compulsory jurisdiction provision in the Statute of the ICJ (Article 36(2)) which provides that the state parties to the Statute may at any time declare that they recognise as compulsory ipso facto and without special agreement, in relation to any other State accepting the same obligation the jurisdiction of the Court in all legal disputes concerning:

Public international law 3 The sources and method of international law
u u u

page 33

the interpretation of a treaty any question of international law the existence of any fact which, if established, would constitute a breach of an international obligation the nature or extent of the reparation to be made for the breach of an international obligation

u

has been accepted by some 65 states. But of these many have provided declarations which reserve substantial areas of dispute from compulsory jurisdiction. There is always a question as to when such reservations must be seen as incompatible with the treaty itself, as is discussed in your readings with regard to the Genocide Convention (Reservations) Case of 1951. Reservations will generally be acceptable so long as they are not incompatible.

Activity 3.4
Whatucomplicationsudouyouuenvisageuarisingufromutheuexistenceuofuseparateuandu differentuindividualustateureservationsutoumultilateralutreaties? Feedback:useeuenduofuguide.

Summary
Reservations to treaties allow states to accept treaties on their own specified terms. These will only be acceptable if they are compatible with the treaty itself. Reservations limit the obligations of other parties in their relations with the reserving state.

Self-assessment question
Inuwhatuwaysuandutouwhatuextentudoureservationsutoutreatiesubyuoneustateuaffectutheu obligationsuofuotherustates?

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

understandutheuroleuofureservationsuinumultilateralutreaties.

3.5 Customary international law
Essential reading
¢u ¢u ¢u

Dixon,uChapteru2:u‘Theusourcesuofuinternationalulaw’,upp.28–37. Cassese,uChapteru8:u‘Internationalulaw-creation:ucustom’,upp.153–69. Kaczorowska,uChapteru2:u‘Sourcesuofuinternationalulaw’,upp.16–22.

The concept of international customary law is not easy to understand. It is usually said (as in Article 38) that there are two elements required. The first is the custom itself, but only custom which evidences a general practice accepted as law. The second element, commonly entitled opinio juris sive necessitatis (opinion as to law or necessity), means that only where a state complies with custom inutheubeliefuthatuituisulegallyurequiredu toudouso will law be evidenced. As to the element of custom, it has been held by the ICJ that the requirement is that state practice should be ‘both extensive and virtually uniform’ (North Sea Continental Shelf Case (1969) as discussed in Dixon and Cassese), although it need not be absolutely consistent. On the assumption that this may be proven (evidenced by state practice), this element presents no difficulties. The second element, however, is sufficiently opaque to have warranted a plethora of academic articles and discussions within textbooks.

page 34

University of London External System
The concept of customary international law derives from a time when international law was overwhelmingly the law of (and between) nations. In the nineteenth century international law was very much more concerned with describing the actual conduct of states in their relationships with each other, rather than with prescribing, by which I mean that it was concerned to encompass what nations in fact did, rather than what they ought to do, or ought to have done. Under those circumstances it was perhaps easier to infer opinio juris from state conduct. But now the obvious difficulties are not readily resolved. The statement that it is necessary to show that compliance arose because of the state’s belief that it was legally required to comply, implies a mental element from a non-sentient legal personality which is merely an institution, albeit reified (turned in to a social fact). Institutions as such are capable of many things but such mental apprehension is not one of them. The opinio juris is to be inferred from the words and actions of personnel within the institution whose status so empowers them. More particularly, examples of state practice required to evidence opinio juris include official government statements, diplomatic exchanges between governments, the opinions of national legal advisers, national legislation, bilateral treaties, decisions of national courts, and possibly also voting patterns of a state in an international organisation. Even more significant is the difficulty of what Michael Byers, in a book on international law,† calls ‘the chronological paradox’ and which has been observed by many writers. If, as was stated in the North Sea Continental Shelf cases:
Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e. the existence of a subjective element is implicit in the very notion of the opinio juris sive necessitatis. The states concerned must therefore feel that they are conforming to what amounts to a legal obligation

Byers, M. Custom, power and the power of rules: international relations and customary international law. (Cambridge: Cambridge University Press, 1999) [ISBN 0521634083].

then it is difficult to see how new customary rules could ever develop since the required opinio juris could only exist where the custom or rules already had that legal element. You should also remember the concept of the persistentuobjector in international customary law. Because law requires consent to develop, it has been accepted (with some qualification) that where a state makes it clear that it does not agree with rules which appear to be crystallising into law, that objecting state will remain unbound. The qualification is that where a rule receives overwhelming acceptance over a period of time by very many states, then even a persistent objector may come to be bound. This in turn leads to a further problem. On the one hand customary international law is said to be constantly developing, and yet on the other hand, quite how it can develop is not clear. A former US Attorney-General, Bill Barr, was reported to have said, ‘Well, as I understand it, what you’re saying is the only way to change international law is to break it.’ This aptly captures the difficulty of creating new custom sufficient to gestate international law. Here too the question of power becomes relevant. Shabtai Rosenne once observed that the creation of customary international law was rather analogous to animals creating a track through a jungle, in that each animal following the trail left its imprint but the bigger the animal the bigger the impact on trail creation. Certainly since the intervention in Kosovo there have been arguments that new customary international law is developing concerning the use of force for purposes of humanitarian intervention. This, it has been argued, is more likely because of the weight of the states and the international organisation (NATO) involved. Malcolm Shaw, a writer in international law, provided the following example:
If a state proclaims a twelve mile limit to its territorial sea in the belief that although the three mile limit has been accepted law, the circumstances are so altering that a twelve mile limit might now be treated as becoming law, it is vindicated if other states follow suit and a new rule of customary law is established. If other states reject the proposition, then the projected rule withers away and the original law stands, reinforced by state practice and common acceptance.

Public international law 3 The sources and method of international law
Of course if new customary international law really can be created by ignoring the old, crucial problems arise concerning the quality of legality. This is one of the central arguments of John Bolton, US Ambassador to the UN†, who has argued forcefully that, at the least, customary international law should find no unlegislated place in US domestic law. (This point is discussed further in the final chapter.) There is one final problem with customary international law which is observed frequently by some writers. This concerns the proof of custom. The argument is that the ICJ has chosen (when it wished) to find the evidence of custom either in passive acquiescence by states or even in their inactivity. The difficulty here is that inactivity or passivity gives no evidence of reason or intent, either of which may have nothing to do with legal concerns. If this is the case then the notion of customary international law is further sullied. This issue will be considered further in later chapters.

page 35

At the time of writing in early 2006.

Activity 3.5
Whatuproblemsuareuinherentuinutheuconceptuofucustomaryuinternationalulaw? Feedback:useeuenduofuguide.

Summary
Customary international law with its requirement of custom and opinio juris is both central to international law and also difficult to explain cogently. This is largely because of the necessity to attribute a mental element to an institution (the state).

Self-assessment question
HowudoesuyourureadingufromuDixonusuggestuthatuconsistencyuandugeneralityuofu practiceuasurequireduforucustomaryuinternationalulawuisutoubeuestablished?

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

understandutheuconceptuofucustomaryuinternationalulaw.

3.6 Other sources of international law
Essential reading
¢u ¢u ¢u

Dixon,uChapteru2:u‘Theusourcesuofuinternationalulaw’,upp.38–47. Cassese,uChapteru10:u‘Otherulawmakinguprocesses’,upp.183–97. Kaczorowska,uChapteru2:u‘Sourcesuofuinternationalulaw’,upp.22–33.

It is important that you remember that international law is overwhelmingly concerned with treaty and custom, and that other international law ‘law-making processes’ are very much subsidiary to them. But as two further sources are mentioned in Article 38, for the sake of completeness it is necessary for us to briefly consider them here. They are:
u u

‘the general principles of law recognised by civilised nations’, and ‘judicial decisions and the teachings of the most highly qualified publicists of the various nations’.

The phrase ‘general principles of law’ refers to legal principles which exist in almost all domestic legal systems. These principles will be applied (if their existence can be proven) where neither treaty nor customary international law seems applicable to a particular event. Because the international law regime is not totally comprehensive (that is, it does not have ready international law for every unique event), general principles are sometimes necessary. Examples of such principles used in international law include:
u

recognition of the principle that violation of an obligation leading to injury or damage should lead to reparation

page 36
u u

University of London External System
the right of parties to a dispute to be heard before judgment is given the concept of limited liability.

The general principles also probably include principles of equity, in the sense of legal fairness rather than the rather refined UK area of law. In your reading Dixon makes the very sensible point that even if such ‘principles’ do not qualify as binding law, it is clear that they may have a profound impact on the development of international law, either as furnishing a reason why specific norms should be adopted or as the catalyst for state practice leading to the creation of customary and treaty law (p.40). The second subsidiary source is said to be judicial decisions and the teachings of the most highly qualified publicists of the various nations. Debate as to the meaning of this has been lengthy and intense. It is stated in Article 38 as being only a subsidiary means forutheudeterminationuofurulesuofulaw – that is, it is not the rules themselves. What does this mean? The first point you should understand here is that international law makes no use of the common law system of stare decisis. In international law no court binds itself or any other court by its decisions and it is explicitly stated in the Statute of the ICJ that decisions have no binding quality beyond the parties to a particular case. Nevertheless, as you will quickly appreciate if you read some ICJ cases, they do refer to earlier relevant cases in order to identify the law. Although the analogy is not exact, in international law judicial decisions and the writings of the highly qualified publicists are used as, in the common law system, decisions from different jurisdictions and the writings of legal academics are used. That is, they may be more or less persuasive not because of their status but because of the logic in their reasoning and argument. Finally there are some resources recognised as potential sources of international law which do not appear in Article 38. The most important of these are Resolutions of international organisations which may carry weight of their own in addition to evidencing state practice.

Activity 3.6
What,uifuanything,unecessitatesutheuuseuofusourcesuoveruandubeyondutreatyuandu custom? Feedback:useeuenduofuguide.

Summary
The importance of the general principles of law lies in their ability to indicate international law where both custom and treaty are inadequate. They are however less easily identified and more problematic for those seeking to identify international law.

Self-assessment question
Howudifferentuisucustomaryuinternationalulawufromutheugeneraluprinciplesuofulaw?

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

appreciateutheunatureuanduqualityuofusourcesubeyonducustomuandutreaty.u

Public international law 3 The sources and method of international law

page 37

3.7 ‘Soft’ law
Essential reading
¢u ¢u ¢u

Cassese,uChapteru10:u‘Otherulawmakinguprocesses’,upp.196u–97. Dixon,uChapteru2:u‘Theusourcesuofuinternationalulaw’,upp.47–48. Kaczorowska,uChapteru2:u‘Sourcesuofuinternationalulaw’,up.33.

In the previous chapter, in discussing the singular nature of international law we saw that not everyone agrees with the law way of resolving disputes. We saw that some have suggested that rather than attempting to lay down binding rules for future situations foreseen and unforeseen, an obligation to conform only when the rules lead to an acceptable outcome might seem fairer. Such arguments have in part been encompassed by the recent development of what has come to be known as ‘soft’ law. But it is here that we can observe ‘law’ moving away from our usual understanding and back towards the political world. A number of meanings may be assigned to ‘soft’ law, some seemingly more legal in character than others. At its most nearly ‘legal’ soft law may encompass agreements between states which simply have no provision for enforcement, regardless of any default. Frequently they do not explicitly define rights or obligations. These will often arise from agreements where the parties simply want to oblige themselves in good faith to endeavour to promote a particular objective. Sometimes agreements which look orthodox and appear as treaties will come within ‘soft’ law definitions because they contain a provision stating explicitly that they are not intended to create legal relationships, but more often the status will depend upon the intentions of the parties inferred from the document and the circumstances as to whether they intended to create legal relations. It is important to realise that such law is not without consequences. One of the earliest examples is to be found in the Helsinki Final Agreement of 1975 which established the Conference on Security and Co-operation in Europe. Cassese also suggests that ‘soft’ law often has the potential to crystallise into hard law but that will almost always require a change in the intentions of the parties.

Activity 3.7
Whatumightubeutheureasonsuforutheudevelopmentuofu‘soft’ulaw?u Feedback:useeuenduofuguide.

Summary
‘Soft’ law lies between the world of politics and the world of law. It is apparently less coercive than law and it does not require a reinterpretation of the political world. It exists where the parties do not intend to create legal relations but do wish to record their agreement.

Self-assessment question
Foruwhichusortsuofuagreementsumightu‘soft’ulawubeuappropriate?

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

appreciateutheunatureuanduqualityuofu‘soft’ulawuanduitsurelationshiputouhardulawuonu theuoneuhanduandupoliticaludiscourseuonutheuother.

page 38

University of London External System

Sample examination questions
Question 1uuuWhatuproblemsuariseuinuattemptingutoudefineutheusourcesuofu internationalulaw? Question 2uuu‘Inualluofuinternationalulawunoumoreucuriousuconceptuexistsuthanu customaryuinternationalulaw.uItuseemsuthatuitsumethoduofucreationuisuuncertain,uitsu methoduofudevelopmentumysteriousuanduitsuapplicationuarbitrary.’uDiscuss.

Advice on answering the questions
Question 1uuuA sensible approach to this question would begin with an examination of Article 38 and an observation of its apparently limited application. It could continue with the difficulties in discovering (identifying) and asserting customary international law and then look at the uncertainties surrounding the general principles of law. A practical example from an ICJ decision would be appropriate. Question 2uuuSome detailed knowledge of customary international law is required here. Once it has been described, an answer could analyse each of the observed problems in the question (with examples). Problems in discovering could relate to conflicting traditions, persistent objectors and uncertain status. This could be followed by examples of the problems involved with changing customary international law and could then proceed with examples of the ICJ deciding whether or not custom had developed in a particular area. Finally some assessment of the accuracy of the statement should be made.

4

The dynamic quality of international law

Contents
Introduction 41 42 43 44 The concept of sovereignty Legal personality in international law The place of the individual in international law The interrelationship between sovereignty, personality and the individual in international law 40 41 43 45 49

page 40

University of London External System

Introduction
This chapter is intended to introduce you to three concepts that are central to an understanding of international law. They are introduced in the same chapter because they interrelate and overlap in their significance, but they are also distinct. The reason why they are introduced here is that not only are they central but their meaning and relationship has altered significantly over the last 150 years. This historical change was alluded to in Chapter 2, section 3, and discussed broadly in the relevant readings. Each of the concepts is also of relevance to other chapters. In particular the concept of sovereignty is important in the discussion of self-determination (Chapter 7); the concept of personality is crucial to an understanding of the discussion of jurisdiction in international law (Chapter 5); and the place of the individual in international law is relevant to the consideration of international human rights law (Chapter 10).

Learning outcomes
Byutheuenduofuthisuchapteruandutheurelevantureadingsuyouushouldubeuableuto:
uu

understandutheumeaning,usignificanceuanducentralityuofutheuconceptuofu sovereigntyu explainutheurelationshipubetweenusovereigntyuandujurisdictionu understanduthatutheumeaninguofusovereigntyuisunotufixeduanduexplainuwhyutheu changesuinumeaninguhaveuoccurred appreciateutheusignificanceuofutheuUNuCharteruinuitsuassertionuofutheuequalityuofu states understandutheumeaninguofulegalupersonalityuinuinternationalulaw appreciateuthatutheuconceptuofuinternationalulegalupersonalityuhasuchangeduoveru timeuanduisustillucapableuofufurtheruchange explainutheuplaceuofutheuindividualuinuinternationalulawuanduwhyuituhasuchanged understandutheurelationshipubetweenutheuconceptsuofusovereignty,upersonalityu andutheuplaceuofutheuindividual understandutheurelationshipubetweenuchangesuinusovereigntyuandulegalu personality.

uu uu

uu

uu uu

uu uu

uu

Public international law 4 The dynamic quality of international law

page 41

4.1 The concept of sovereignty
Essential reading
¢u ¢u

Dixon,uChapteru6:u‘Jurisdictionuandusovereignty’,upp.144–56. Cassese,uChapteru3:u‘Theufundamentaluprinciplesugoverninguinternationalu relationships’,upp.48–55. Kaczorowska,uChapteru6:u‘Sovereigntyuanduequalityuofustates’upp.95–97.

¢u

Readutheseupagesunow. Although this section is concerned with defining sovereignty we will not deal with all aspects in detail. In particular the question of the limits of jurisdiction implied by sovereignty, which is of major importance, will only be alluded to here as it is more fully considered in Chapter 5. (Here obviously the arrangement of this subject guide differs from Dixon’s choice of order – his discussion of jurisdiction precedes that of sovereignty.)

Sovereignty and the state
A first obvious but important point to remember is that the concept of sovereignty in international law is intimately related to the concept of a state. Sovereignty is what independent states are said to possess. In international law sovereignty is the power possessed by such states and the right or ability to exercise it. Typically such power includes the ‘power to wield authority over all the individuals living in the state’s territory’ (Cassese). This power, although once regarded as at least theoretically absolute (the sovereign, or rulers of a state could do as they wished in their own state and to their own citizens), was probably never quite as broad as this. The political reality has always exercised some constraint over the conduct of state rulers either by resistance from subjects or by ‘influence’ from other states. Nevertheless such was the theory of sovereignty that, as an example, when the British first learned of the atrocities being committed in Germany against Jewish people in the 1930s, not even a note of protest was sent by the British Government because it was thought that such intervention breached German sovereignty!

The acquisition of statehood and territory
Because sovereignty has close links with physical territory it is important to understand how statehood and territory are acquired. Acquisition of statehood will be considered in Chapter 7, when we consider self-determination. Subject to what is said in future chapters, ordinarily questions of a state’s acquisition of territory are largely academic. The United Nations Charter proscribing as it does ‘the threat or use of force against the territorial integrity or political independence of any state’ (Article 2(4)) implicitly outlaws the acquisition of territory by a state except through peaceful agreement. This position is reinforced by an important Declaration of the General Assembly of the UN known as the Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the UN (Resolution 2625 of 1970). Here it is stated that ‘The territory of a state shall not be the object of acquisition by another state resulting from the threat or use of force’ and although the exact legal status of the declaration remains controversial, the statement was relied upon in the ICJ when in the case of Nicaragua v USA (which we will consider in a later chapter) it concluded that international customary law also proscribed the threat or use of force. This, together with the ICJ’s Palestinian Advisory Opinion of 2004 which made it clear that lawful title to territory could not be obtained by force of arms and/or effective occupation, leads to a clear position in international law which you should remember – namely ‘Title to territory cannot be achieved by conquest’. As Dixon puts it, ‘from the moment aggressive force becomes unlawful it has been impossible for a state to acquire title to territory by conquest’. Given the nineteenth century’s recognition of a right to colonise by conquest this is a remarkable change in international law.

page 42 The principle of sovereign equality

University of London External System

Sovereignty has two other important aspects. The first lies in the principle of sovereign equality. This lies at the heart of the present international law regime. The second, which is closely related and will be discussed in the next section, is that states have a duty of non-intervention in any area that falls within the exclusive jurisdiction of other states. The traditional view of sovereignty is usually traced back to the Treaty of Westphalia of 1648. This is a little arbitrary but convenient because the Peace of Westphalia, of which the Treaty was a part, did create the foundations of a new European system that has, since the creation of the United Nations, developed into a world system of independent and separate states. In the words of one author, the Treaty may be said to have ‘created the basis for a decentralisedusystemuofusovereignuanduequalunationu states’. This reaction to the Thirty Years War, which had devastated Europe, was a move to enable separate states to co-exist with a reciprocal prohibition on interference with the internal affairs of other states. Thus the foundations were laid for a state to enjoy unlimited power over its own territory without interference. The agreement effectively recognised that inter-state wars could only be avoided by recognition of this principle. Needless to say, this Treaty was not entirely effective and there were many subsequent wars and interventions, though possibly fewer than would have occurred without it. The acceptance of at least the theory of sovereign equality is now enshrined in the UN Charter, where Article 2(1) states that ‘The Organisation is based on the principle of the sovereign equality of all its members’. I say ‘at least the theory’ because of course the reality of a Security Council with permanent members having special powers does seem to undercut such equality. This feature of sovereign equality is of fundamental importance in the international legal regime because it is this which ensures a form of ‘Rule of Law’ in that system. Just as in domestic law each individual (that is, each subject of the legal system) enjoys formal equality before the law, so in international law each state, as a subject of the international legal system, enjoys formal equality. We will see the significance (and limitations) of this proposition when we consider the methodology of the ICJ. We will also consider the opposition to the idea of sovereign equality in the final chapter.

The authority of sovereignty
Sovereignty also brings with it total discretion for the government of a state to decide matters that are essentially within domestic jurisdiction. Again this is an important principle also enshrined in the UN Charter in Article 2(7) but the meaning of the principle has not remained unchanged. In the early days of the UN some states argued that for their internal policies even to be discussed internationally was a breach of the principle. Needless to say, the states that held that view usually pursued policies which were anathema to the majority. Apartheid states were prominent proponents of this interpretation of the principle.

Activity 4.1
Whatuisusovereignty? Feedback:useeuenduofuguide.

Self-assessment questions
1.u Whatuhistoricalufactorsumeantuthatusovereigntyuwasuneveru(orualmostunever)u absolute? 2.u Explainutheusignificanceuofutheusovereignuequalityuofustates.

Public international law 4 The dynamic quality of international law

page 43

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

understandutheumeaning,usignificanceuanducentralityuofutheuconceptuofu sovereigntyu explainutheurelationshipubetweenusovereigntyuandujurisdictionu understanduthatutheumeaninguofusovereigntyuisunotufixeduanduexplainuwhyutheu changesuinumeaninguhaveuoccurred appreciateutheusignificanceuofutheuUNuCharteruinuitsuassertionuofutheuequalityuofu states.

uu uu

uu

4.2 Legal personality in international law
Essential reading
¢u ¢u ¢u ¢u

Cassese,uChapteru4:u‘Statesuasutheuprimaryusubjectsuofuinternationalulaw’,upp.71–72. Cassese,uChapteru7:u‘Otheruinternationalulegalusubjects’,upp.124–50. Dixon,uChapteru3:u‘Theulawuofutreaties’,upp.103–17. Kaczorowska,uChapteru4:u‘Internationalupersonality’,upp.52–72.

Readutheseupagesunow. As Cassese points out, domestic legal systems have as their primary objective the governance of individuals within their jurisdiction. Thus the primary subjects of domestic law are individuals, although other created entities such as partnerships, companies and local authorities may also both be governed by the domestic law and have ‘legal personality’ which allows them to sue or be sued under defined circumstances. Obviously such entities have no real personality at all in the sense that unlike individuals, created organisations have no mind or consciousness of their own. Nevertheless they are treated as though they have an existence independent of the individuals within them. In international law the primary subjects are not individuals but states, and traditionally international law regarded states as the only subjects of international law.

4.2.1 States and legal personality
Of course states themselves might seem to us no less and no more than a collectivity of individuals occupying a defined territory. But while in some senses this is true, just as in domestic law corporations are regarded as real entities, so too are states in international law. Actions and reactions by states are regarded as the acts of those states, divorced from the individuals responsible for the state action. In the nineteenth century few would have argued that international law was about anything more than the international regulation of state conduct. Domestic law governed individuals, but the individuals of international law were states and states alone. The question of the role of real individuals in international law led to rather arid discussions which often concluded that while only states were the subjects of international law, individuals were the objects of international law. This was supposed to suggest that international law was for the benefit of individuals through the medium of the regulation of states. While such a perspective is now of little significance, it does remain the case that only states are said to be full subjects of international law because only states have complete legal capacity in that regime. This complete legal capacity means that they have the power to exercise legal rights in international law and are subject to the duties prescribed by international law. This position is most easily understood by contrasting it with the position of other actors in the international law regime.

page 44

University of London External System

Activity 4.2
Whatuareutheuimplicationsuofuregardingustatesuasutheuonlyusubjectsuofuinternationalu law? Feedback:useeuenduofuguide.

4.2.2 Non-state actors and international law
Your reading from Dixon provides a very clear discussion of the concept of personality in international law. Most importantly he points out that the answer to the question as to whether a particular entity is to be regarded as a subject of international law is seldom capable of a simple positive or negative response (except in the case of states). This is because many entities may be subjects for some purposes and yet not for others. Dixon explains this by outlining the main capacities of a subject of international law. These include:
u

the ability to make claims to directly establish rights granted under international law being subject to some or all of the obligations imposed by international law the capacity to make binding treaties under international law ‘to enjoy some or all of the immunities from the jurisdiction of the national courts of other states’ (see Chapter 5).

u u u

While only states enjoy all these capacities to the full, other entities will enjoy some of the rights or be subject to some of the duties. To have international legal personality is to be able to participate in some ways within the system of international law. The non-state actors within international law are basically threefold. Firstly there are individuals, particularly private persons but sometimes private corporations. These are considered in section 4.3. Secondly there are intergovernmental international organisations, and thirdly are the so-called NGOs – international non-governmental organisations. An obvious example of the second category (which includes myriad organisations) is the United Nations itself. In an early case in the newly reconstituted International Court of Justice (1949) the Court was called upon to define the status of the UN. It did this in its Advisory Opinion on Reparation for Injuries Suffered in the Service of the United Nations. The Opinion held that it was indispensable to attribute international personality to the UN because its Charter assigned to it specific tasks such as international peace-keeping together with the promotion of international economic, social, cultural and humanitarian co-operation. In concluding that the UN was an international person the Court went on to say:
That is not the same thing as saying that it is a State, which it certainly is not, or that its legal personality and rights and duties are the same as those of a State. Still less is it the same thing as saying that it is a super-State, whatever that expression may mean. It does not even imply that all its rights and duties must be upon the international plane, any more than all the rights and duties of a State must be upon that plane. What it does mean is that it is a subject of international law and capable of possessing international rights and duties, and that it has capacity to maintain its rights by bringing international claims.

In addition to the requirement that when the organisation was set up it was intended to have international functions and obligations in order to have international personality, is the need to show that the organisation also enjoys autonomy from its member states. In that same case, the Court added that it must be shown that such an organisation constitutes a ‘collective unity detached from the member states’. Sometimes international legal personality may be explicitly provided for in the enabling document. Cassese gives the example of the Statute of the International Criminal Court where Article 4.1 states that ‘The Court shall have international legal personality. It shall also have such legal capacity as may be necessary for the exercise of its functions and the fulfilment of its purposes.’

Public international law 4 The dynamic quality of international law
But there are clear limits to such personality in relation to international organisations. In particular only states and never international organisations are allowed to bring claims in the International Court of Justice. International organisations may sometimes have standing before regional international courts – as an example the Council and Commission of the European Union may appear before the European Court of Justice. In addition any international agreements they make do not come within the definition of ‘treaties’ within the Vienna Convention on the Law of Treaties (discussed in Chapter 6), although there is a separate Convention (the Vienna Convention on Treaties Concluded Between States and International Organisations or Between International Organisations, 1986) governing such agreements. You should also appreciate that not all international inter-governmental organisations have identical capacity in international law. The EU along with the United Nations most nearly approach the status of a state in international law while other organisations will have much more limited capacity. Very much more limited is the status of international NGOs in international law. They certainly have a part to play in international law – particularly in standard setting and in contributing to the drafting of international documents – and most recently in the creation of the International Criminal Court. However, they seldom enjoy rights in international law as defined by Dixon. In spite of such limited capacity in international law such international bodies as the International Red Cross and Amnesty International, to mention but two, influence both the creation and the administration of international law concerned with human rights in particular.

page 45

Activity 4.3
Whatuisulegalupersonality?uWhyuisuanuunderstandinguofuinternationalulegalu personalityucrucialuforuanyuappraisaluofuinternationalulaw? Feedback:useeuenduofuguide.

Summary
Whereas in the nineteenth century only states were thought to be subjects of international law, by recognising different aspects of legal personality it is now clear that non-state actors also have a role in international law.

Self-assessment exercise
Defineuanduexplainutheudifferentuattributesuofulegalupersonality.u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu uu

understandutheumeaninguofulegalupersonalityuinuinternationalulaw appreciateuthatutheuconceptuofuinternationalulegalupersonalityuhasuchangeduoveru timeuanduisustillucapableuofufurtheruchange.

4.3 The place of the individual in international law
Essential reading
¢u ¢u ¢u

Dixon,uChapteru5:u‘Personality,ustatehooduandurecognition’,upp.114–16. Cassese,uChapteru7:u‘Otheruinternationalulegalusubjects’,upp.142–50. Kaczorowska,uChapteru19:u‘Criminaluresponsibilityuofuindividualsuunderu internationalulaw’,upp.521–49.u

Readutheseupagesunow.

page 46

University of London External System

4.3.1 The place of the individual in international law before 1945
The idea that international organisations would ever acquire international legal personality, albeit limited, would have been quite alien to nineteenth century international law writers. The idea that individuals would ever acquire such standing would have been simply incredible. There were a number of reasons for this perspective. The first was that the international legal regime was obviously (at that time) concerned only with states and related to this was the view that states, by definition, had the right to deal with their own nationals and an obligation to respect that right of other nations. In addition there were really no international organisations capable of imposing obligations on or granting rights to individuals in international law. This does not mean that international law ignored individuals entirely. Questions which affected them were often the concern of the international regime. Questions of international commerce, marine matters and rules relating to ‘passports, rights of ambassadors and piracy’ were all, according to Blackstone writing in the eighteenth century, matters for the concern of the law of nations. But Blackstone also maintained that such international law was directly applicable only through municipal courts. His view was that because the law of nations was (according to him) a full part of the common law and the law of England, its principles could be directly applied by English courts. Even so, if this were true, international law could affect individuals but was still seen as a law for states alone. Because such a position left the use of international law in the hands of state courts it was also consistent with the Westphalian rules prohibiting interference in the affairs of one sovereign state by another. At the same time, this view of the state as solely responsible for its nationals did give international law an indirect means of providing remedies to individuals for claims which they could not themselves enforce. It was held in a case heard in the Permanent Court of International Justice in 1924 (Mavrommatis Palestine Concessions Case) that doctrine and procedure provided for states to protect their individual nationals in an international arena. The Court justified this position as follows:
It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law. The question, therefore, whether the present dispute originates in an injury to a private interest, which in point of fact is the case in many international disputes, is irrelevant from this standpoint. Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant.

It is when one realises the indirect effect of international law upon individuals before the Second World War that sense can be made of the proposition that whereas states were the subjects of international law, individuals were its objects.

4.3.2 The place of the individual in international law after 1945
Such perspectives have been dramatically transformed since (and to a considerable extent, because of) the Second World War. Whereas in the past it had been accepted that it was states that waged war, in the aftermath of the Second World War, with its appalling humanitarian cost and the events of the Holocaust, international individual responsibility even for the acts of states seemed not only appropriate but essential. The development of an international law of human rights (substantively discussed in Chapter 10) has now rendered obsolete the view that individuals had no direct place in international law.

Public international law 4 The dynamic quality of international law
Critical in this fundamental change were the events surrounding the creation and operation of the International Military Tribunal at Nuremberg in 1945. The dilemma for the victorious Allied Powers who wished to punish individual German Nazis responsible not only for waging an aggressive war but for the mass murder of German and other nationals who were categorised as Jewish, homosexual, Gypsy, Communist, or other groups regarded as unacceptable to the Reich, was that the perpetrators of these atrocities had broken no national German laws. They had, of course, actually written the laws which were intended to make legal their foul deeds themselves. Legal positivists (those who argued that international law was for states alone and that for individuals there was no law above domestic law) found it difficult to come up with a basis for prosecution. Nevertheless, pursuant to promises made by the Allies during the War, the USA, the Soviet Union, Great Britain and France created the International Military Tribunal for violations of international law perpetrated by individuals. This Tribunal established irrevocably that rules of international law not only should, but in fact did apply to individuals. In a ringing endorsement of the role of individuals in international law the Tribunal asserted, ‘Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced’. While the truth of that statement is self-evident, the legal basis for it was not, but that international assertion of control and authority over those who committed the most appalling acts has come to be accepted as representing contemporary international law. In the now accepted words of the International Military Tribunal which have echoes in the Statute of the International Criminal Court,
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: a. ‘Crimes against peace:’ namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; b. ‘War crimes:’ namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; c. ‘Crimes against humanity:’ namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

page 47

This position was further developed, initially by the UN General Assembly in its Universal Declaration of Human Rights of 1948 asserting many rights belonging to all individuals. At the time the Declaration was not intended to be a legal document; a legal Covenant would be drafted to encompass the rights enumerated in the Declaration. (This is further considered in Chapter 10.) Also in 1948 the Convention on the Prevention and Punishment of the Crime of Genocide was created (commonly referred to as the Genocide Convention). This did create legally binding obligations and was explicit in its attribution of international legal responsibility to individuals. Article IV provided:
Persons committing genocide…shall be punished, whether they are constitutionally responsible rulers, public officials or private individuals.

Thus by the second half of the twentieth century the fact of a status for individuals in international law could not be doubted, though it remained confined to the arena of human rights.

page 48

University of London External System

4.3.3 The individual in international law as exemplified by the European Convention on Human Rights and Fundamental Freedoms
The history of the place of the individual in international law is well illustrated by the development of the European Convention, especially as it affected individuals in the United Kingdom. It was drafted under the auspices of the Council of Europe, which at that time was an intergovernmental organisation the purpose of which was to facilitate European co-operation over a broad range of subjects. When the Convention was drafted in 1950 there were 25 members of the Council and a requirement under the Council’s Statute (Article 3) provided that each member, upon joining, must ‘accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms’. The motivation underlying the Convention was clear. It was to further democracy, guard against the rise of any totalitarian regime (either Nazi or Communist), and protect human rights. Many argued that these goals were all interrelated. For our purposes what is significant is the role assigned to the individual in all this. When drafted, provision was made within the Convention for one member state to petition against another if the petitioner considered the respondent state to be in breach of its obligations. It was probably the case that this was seen as the appropriate method under international law to achieve enforcement. Such petitions were to be judged by an adjudicatory body and significant sanctions were available. A respondent state was not permitted to assert that matters complained of were within its domestic jurisdiction and so unavailable for external review. But while it was thought that inter-state petition would be the central mechanism of enforcement, this has proved not to be the case. Article 25 of the Convention provided that the European Commission of Human Rights (a body created by the Convention) could receive petitions from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the state parties of the rights guaranteed in the Convention. Before this could happen, however, each state was given the right to decide whether to grant this right of individual petition to those within their jurisdiction. With the passage of time more and more states accepted this right, some initially for limited periods but most finally and irrevocably. The United Kingdom accepted the right only in 1966. But even then the UK position was curious to those not familiar with international law. An individual was entitled to bring an application to Strasbourg, where the Commission and European Court of Human Rights resided, having exhausted the possibility of a domestic remedy. Such an applicant could not however invoke the guarantees of the Convention before UK courts because, although the UK was a party to the Convention, the provisions of the Convention had not been made a part of the domestic law. Furthermore, having taken a case to Strasbourg and having won, the successful applicant had no way of enforcing the judgment through UK courts. Rather he or she must rely upon the UK fulfilling its international obligations under the Convention in providing the remedy ordered, and only other parties to the Convention could insist upon that obligation. The UK did in fact give effect to judgments against it, but that nevertheless was the legal position. It was only with the passage of the UK Human Rights Act of 1998, which effectively incorporated the provisions of the Convention into domestic law, that UK courts could give effect to Convention content. This digression into the status of the individual under the European Convention highlights the relationship between the citizen and his state on the one hand – a direct relationship within which rights are directly provided; and on the other hand the relationship between a citizen and other states and international bodies with whom his own state has entered into international legal relations. This is to be contrasted with those international legal documents which provide for direct individual responsibility (as opposed to rights) for international crimes. The Genocide Convention, together with the Statute of the International Criminal Court, both provide for such responsibility unmediated by the state.

Public international law 4 The dynamic quality of international law
The conclusion you should draw, therefore, regarding the place of the individual in the international legal regime is that individuals may be given rights in international law with the acquiescence of their state but responsibilities may be imposed irrespective of the position adopted by a national’s state.

page 49

Activity 4.4
WhyuhaveuindividualsucomeutouoccupyuauplaceuinuinternationalulawusinceutheuSecondu WorlduWar?u Feedback:useeuenduofuguide.

Summary
Although it is clear that individuals now have a status in international law that they did not enjoy before the Second World War, it is also clear that this status is limited. It gives individuals responsibility for international crimes and, with state acquiescence, individual rights to protect guaranteed human rights.

Self-assessment question
Douyouuthinkuthatutheuroleuofutheuindividualuinuinternationalulawuisurational?uHowucanu itubeujustified?u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu uu

explainutheuplaceuofutheuindividualuinuinternationalulawuanduwhyuituhasuchangedu understandutheurelationshipubetweenuchangesuinusovereigntyuandulegalupersonality.

4.4 The interrelationship between sovereignty, personality and the individual in international law
Essential reading
Thereuisunoureadinguofudirecturelevanceutouthisusectionubututheureadinguthatuyouuhaveu alreadyucompleteduforuthisuchapteruneedsutoubeureconsidered.u Re-readuthoseupagesunow. Obviously the first thing that the concepts we have considered have in common is that they are all in a state of change or have in fact changed. What we will consider here is whether that change is simply coincidental or whether it illustrates some general phenomena of relevance to a study of international law. My argument is that by examining the changes we can gain some idea of the relationship between the social and political world and the world of international law. What were the major political and social changes from the nineteenth to the twenty-first century that necessitated major international legal change? At one level this question is too broad to be sensible but some generalisations are important. The nineteenth century was dominated by European states and it was from these that nineteenth century international law emanated. Not surprisingly, therefore, international law reflected the wishes and needs of these states as perceived by those who ruled them. In turn these wishes and needs reflected a very idiosyncratic perception of the world. Colonialism was accepted as unproblematic and sovereignty was defined accordingly. Along with this concept was carried the right to use what we would now call ‘gun-boat diplomacy’ (or unrestricted force) in order to assert possession of colonial territory. The ideology that accompanied colonialism could be described as socialDarwinism – a stated belief in the superiority of European development and a belief that colonial societies required development before they could reach such a stage. Indeed many Europeans saw no possibility of ‘primitive’ peoples ever reaching a point where they would be capable of running their own affairs. Deeply offensive as these views now appear, it is important to realise that they underpinned much international law. European empires and their preservation lay at the heart of international law.

page 50

University of London External System
Changes in the concept of sovereignty accompanied the period of decolonisation (as we shall discuss in Chapter 7) and it reflected the new-found voice of colonial peoples in their self-assertion. From the concept of sovereignty being entirely at home with empire it was redefined so that it legitimated and sustained anti-colonial freedom movements. As the power of empire waned, so sovereignty as the guarantor of state independence grew. Yet even as it did so its nature modified as the human rights era qualified its previously arguably absolute character. The nineteenth century also saw the beginnings of a system of intergovernmental organisations that foreshadowed a role for such bodies in international law. Improvements in transport, communications and trade led in the second half of the nineteenth century to a plethora of these organisations, beginning with the 1865 founding of the International Telegraphic Union and the 1874 Universal Postal Union. This precursor of ‘globalisation’ made it inevitable that such bodies, created with the express consent of states, yet having an independent existence, were obvious candidates for at least limited international legal personality. As for individuals in international law, as long as one attribute of sovereignty was complete and exclusive control over those within a state’s jurisdiction, there could be no place for the individual in international law. Such an attribute however rendered the international community entirely legally impotent in the face of atrocities committed by a government against its own people (or in occupied territories). Whereas this had been accepted with something approaching equanimity in colonial legal circles, social pressures arising especially from Nazi atrocities dictated reconsideration, manifested both at Nuremberg and in the Universal Declaration. What should be clear, then, is that in spite of there being no mechanism for enacting new international law, through the medium of treaties, and through the development of customary international law, it is possible for international law to at least reflect changing times, changing power structures and changing international public opinion.

Activity 4.5
Whatuifuanythinguisutheurelationshipubetweenusovereigntyuandupersonalityuinu internationalulaw?u Feedback:useeuenduofuguide.

Summary
The dynamic nature of international law is clearly related to changes in world society, both political and social. International law is able to reflect these changes either by explicit decision-making by the international community, as in the Universal Declaration of Human Rights, or by decisions of the International Court of Justice or its predecessor (when for instance it accepts a role in international law for intergovernmental organisations).

Self-assessment question
Inuwhatuwaysudouyouuthinkuinternationalulawurespondsutoupoliticaluchangesuinutheu world?u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

understandutheurelationshipubetweenuchangesuinusovereigntyuandulegalupersonality.u

Sample examination questions
Question 1uuuWhatuisutheustatusuofutheuindividualuinuinternationalulaw?uGiveuexamplesu whereuappropriate.u Question 2uuu‘Allustatesuareuequaluinutheirusovereigntyubutusomeuareumoreuequaluthanu others.’u Discuss.u

Public international law 4 The dynamic quality of international law

page 51

Advice on answering the questions
Question 1uuuAlthough one of the major developments in international law over the last century has undoubtedly been the change in the status of the individual, this should not be exaggerated. Individuals still have no standing before the International Court of Justice and such rights and obligations as they have acquired are largely confined to the human rights field. Here they have been given both direct international law obligations – in particular not to commit international crimes – and responsibility should they do so; and usually indirect rights to bring applications against states alleging breaches of state human rights obligations. Your answer might then consider the individual’s rights under the European Convention and how they are protected and/or consider the authority providing the rights. Finally it would be relevant to explain why the status of individuals is limited as it is. Question 2uuuThe problem in defining sovereignty is both that the concept has changed and that it may be argued that different states enjoy different levels of sovereignty. While modern notions of sovereignty may be traced to Westphalia, suggesting that each state is sovereign and interference in the internal affairs of one state by another is forbidden, in fact the constraints on sovereignty are much greater than this would suggest. These should be discussed (particularly limitations because of treaties, human rights regimes and powerlessness in the face of powerful neighbours). The point that the more powerful a state the greater is its control over its own domestic affairs means that a single definition of sovereignty might be inappropriate. Sovereign equality can be seen to be a minor feature of sovereignty, except in the event of international disputes before a judicial body.

page 52

University of London External System

Notes

5

Jurisdiction in international law

Contents
Introduction 51 52 53 54 Jurisdiction to prescribe and jurisdiction to enforce Uncontroversial bases for international jurisdiction Controversial bases for international jurisdiction Immunity from jurisdiction 54 55 56 58 63

page 54

University of London External System

Introduction
In Chapter 4 we considered the meaning of sovereignty and suggested that it may be understood as ‘the power possessed by states and the right or ability to exercise it’. The purpose of this chapter is to consider more closely just what this power is and the limits or constraints which circumscribe it. The central consideration will be the issue of when a state may claim authority, derived from sovereignty, to act in accordance with international law. In other words, under what circumstances does a state have legal competence to make, apply and enforce rules of conduct? Clearly this question may have different answers in different circumstances. We would probably assume that, generally speaking, a state may do what it wishes in its own territory – though there are obvious qualifications to that statement arising not least either from international treaty obligations or international human rights law. More significant for international law purposes is the question of when a state may exercise power beyond its borders and what justification can be provided for doing so. While we will see that principles have developed that define the occasions when such an exercise of power is regarded by the international community as legitimate, it is important to remember that the reality of power imbalance between states (notwithstanding the principle of sovereign equality discussed in Chapter 4) means that some states will be better able to exercise power beyond their borders than others. After we have considered the principle of jurisdiction in international law we will proceed to examine the circumstances in which states or individuals or other bodies may claim to have immunity from such jurisdiction. Much of the basis for a claim of immunity may also be traced to the concept of sovereign equality. One of the implications of this, it has been argued, is that no state has the right to adjudicate upon another state’s internal policies or actions. This in turn means that no state can require another state to appear as a party before its domestic courts. Some individuals, because of their position within their own state, and most obviously diplomats, will enjoy similar immunity. Throughout this chapter it should be borne in mind that answers to questions of jurisdiction are never final in a world of constant change. Most recently the rise of the global Internet has necessitated reconsideration of some aspects of jurisdiction, particularly concerning criminal matters.

Learning outcomes
Byutheuenduofuthisuchapteruandutheurelevantureadingsuyouushouldubeuableuto:
uu uu uu uu uu uu

seeuwhyuanduhowuquestionsuofujurisdictionurelateutoutheuconceptuofusovereigntyu distinguishubetweenujurisdictionutouprescribeuandujurisdictionutouenforce recogniseutheunaturalulinkubetweenuterritoryuandujurisdiction understandutheunationalityuprincipleuinuinternationalulaw explainuprotectiveujurisdiction appreciateutheucontroversialunatureuofutheupassiveupersonalityuprincipleuandutheu effectsudoctrine discussutheumeaninguandusignificanceuofuuniversalujurisdiction explainutheubasisuandueffectuofustateuimmunityufromujurisdiction explainutheubasisuandueffectuofuindividualuimmunityufromujurisdiction describeudiplomaticuimmunity.

uu uu uu uu

Public international law 5 Jurisdiction in international law

page 55

5.1 Jurisdiction to prescribe and jurisdiction to enforce
Essential reading
¢u ¢u

Dixon,uChapteru6:u‘Jurisdictionuandusovereignty’,up.133. Cassese,uChapteru3:u‘Theufundamentaluprinciplesugoverninguinternationalu relations’,upp.49–50. Kaczorowska,uChapteru8:u‘Jurisdiction’,upp.121–22.

¢u

If you have already studied public law you will probably remember that as a matter of constitutional principle a state may pass any laws it wishes. Most students remember the statement that the UK parliament could, if it so wished, pass a law banning smoking in the streets of Paris. The point made by this rather extraordinary statement is that the ability to legislate is not limited. This too is a premise of international law, as was expressly recognised in one of the most famous cases to come before the PCIJ – The Lotus Case (1927). The facts are not difficult, but unfortunately the questions of exactly what propositions of international law the case stands for continues to exercise legal academics. It is however comparatively clear concerning the jurisdiction to prescribe and the jurisdiction to enforce. The case concerned a collision between ships on the high seas (that is, beyond territorial jurisdiction) between a French steamer, the Lotus, and a Turkish steamer, the Boz-Kourt. Eight people died in the collision, the Boz-Kourt sank, and having rescued the survivors the Lotus entered Constantinople (now Istanbul) where the Turkish authorities arrested and charged Lieutenant Demons, the officer of the watch on the Lotus (they also arrested the captain of the Boz-Kourt). M. Demons was convicted of manslaughter and after prolonged French objection to the Turkish exercise of jurisdiction over him the Turkish Government accepted a reference concerning jurisdiction to the PCIJ. By the President of the PCIJ’s casting vote the Court held that Turkey had not acted contrary to the principles of international law. It stated as follows:
Now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense, jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention. It does not, however, follow that international law prohibits a State from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to States to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory and if, as an exception to this general prohibition, it allowed States to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that States may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect, a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every State remains free to adopt the principles which it regards as best and most suitable.

What this seems reasonably clearly (and in my view, clearly reasonably) to assert is no more than the proposition that sovereignty includes the right to prescribe almost as the state wishes. But there is an equally clear difference between a right to prescribe jurisdiction and a right to enforce jurisdiction. While a UK parliament may legislate to criminalise Parisian smokers, it does not have the right to enforce such legislation against French citizens – although if such a smoking Parisian came into UK territory and was charged the position would require further consideration (see below). Thus there is a crucial distinction between the almost unfettered right to prescribe and the much more limited right to enforce. In the first case sovereignty allows the exercise of right which comes with territory, but once action takes place beyond the territory – that is, where there is no longer sovereignty – other rules recognising this difference apply.

page 56

University of London External System

Activity 5.1
Explainuandujustifyutheudistinctionubetweenujurisdictionutouprescribeuandujurisdictionu touenforce.u Feedback:useeuenduofuguide.

Self-assessment exercise
Paraphraseu(i.e.umakeuaushorteruandusimpleruversionuof)utheuaboveuquotationufromu The Lotus Case.

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu uu

seeuwhyuanduhowuquestionsuofujurisdictionurelateutoutheuconceptuofusovereigntyu distinguishubetweenujurisdictionutouprescribeuandujurisdictionutouenforce.u

5.2 Uncontroversial bases for international jurisdiction
Essential reading
¢u ¢u

Dixon,uChapteru6:u‘Jurisdictionuandusovereignty’,upp.136–37. Kaczorowska,uChapteru8:u‘Jurisdiction’,upp.122–23.

Readutheseupagesunow.

5.2.1 Territorial jurisdiction
Dixon is adamant that territorial jurisdiction is complete and absolute. This is because, as he would argue, sovereignty is at least co-extensive with jurisdiction. They are aspects of the same phenomenon of statehood which implies power and authority over all persons, property and events occurring within its territory. The fact that a state may grant, by treaty or otherwise, limitations upon this right, does not affect its absolute nature. There is therefore no contentious issue of jurisdiction if an act is perpetrated within a state’s territorial jurisdiction (which includes both its territorial sea and its airspace). If the act is criminal, prosecution may follow regardless of other factors such as the nationality of the perpetrator (subject only to what is said below about individual immunity from prosecution, particularly for diplomats). Slightly more problematic are criminal acts that are not confined to the territory of a single state. For example, if a criminal act is planned in Pakistan and executed in India; or, to take a real case, if a bomb is planted on an aircraft in Malta and explodes while the aircraft is in UK airspace, where does the criminal act take place and which country has jurisdiction? In fact states have adopted a flexible approach with the assistance of two concepts which usually enable a single state to at least take the lead in the investigation and prosecution of an offence. The concepts are ‘subjective territorial jurisdiction’ and ‘objective territorial jurisdiction’. Because of objective territoriality a state will have jurisdiction over all offences that are completed within its territory. Thus in the Lockerbie bombing where an American passenger aircraft crashed in Scotland on 21 December 1988 following the explosion of a bomb on board, the UK clearly had jurisdiction over the perpetrators because this was where the murders took place. On the other hand, subjective territorial jurisdiction will allow a state to exercise jurisdiction where a crime has been set in motion within its territory but completed elsewhere. The UK had not always exercised jurisdiction in such cases but with the great rise in cross-border crime, it chose to do so and explicitly enacted legislation – The Criminal Justice Act, 1993 – enabling courts in England and Wales to exercise jurisdiction for some crimes where an element of the crime had occurred within the UK. The recent rise in the fear of international crime has reinforced the trend of states asserting jurisdiction in such cases.

Public international law 5 Jurisdiction in international law

page 57

5.2.2 Nationality jurisdiction
Essential reading
¢u ¢u

Dixon,uChapteru6:u‘Jurisdictionuandusovereignty’,up.137. Kaczorowska,uChapteru8:u‘Jurisdiction’,upp.123–24.

Readutheseupagesunow. A national (or subject) of a state is subject to that state’s jurisdiction wherever in the world he may be, and a state is entitled to prosecute and punish its nationals for crimes committed anywhere in the world. It is said that this is the corollary of the privilege of citizenship which offers the diplomatic protection of the state to its nationals wherever they may be. And it is because allegiance is owed by a national to his state that the state in turn may exercise jurisdiction over him wherever in the world he is. Such a position is exemplified by the UK case of Joyce v DPP [1944] AC 347. William Joyce had voluntarily made propaganda broadcasts from and for Germany during the Second World War. (He was popularly known in wartime Britain as ‘Lord Haw Haw, the Humbug† of Hamburg’.) After Germany’s defeat he was returned to England and charged with treason. Joyce’s defence was that he had in fact been born in the USA of Irish parents and therefore as a US citizen he owed no loyalty to the British Crown. However, he had not only lived in the UK for a considerable period but had also (improperly) obtained a UK passport which was still current at the time of his broadcasts. The House of Lords held that Joyce’s assertion of nationality in obtaining the passport indicated the acceptance of a duty of allegiance as he would have been entitled to claim the protection of the Crown. Joyce was convicted and executed. Obviously the nationality principle gives rise to important questions as to who is to be defined as a national of a state (as Joyce makes clear). In fact international law does not define the conditions an individual must satisfy before becoming a national. Each state is left to decide this for itself and such a decision is within its internal jurisdiction. The role of international law is, however, of importance where one state objects to the granting of nationality by another state. For one state to be compelled to recognise the granting of nationality to an individual by another state it has sometimes been suggested that there must exist a real link between the national and his state. In fact this is doubtful and almost invariably the question of nationality remains at the discretion of the awarding state. The only exception would seem to be where a state has attempted to impose nationality upon an unwilling subject in order to gain nationality jurisdiction.

‘Humbug’: a traditional English boiled sweet; also an unreliable and hypocritical person.

5.2.3 Protective jurisdiction
Essential reading
¢u ¢u

Dixon,uChapteru6:u‘Jurisdictionuandusovereignty’,upp.139–41. Kaczorowska,uChapteru8:u‘Jurisdiction’,upp.124–25.

Readutheseupagesunow. International law reflects and accepts the reality that states will act to punish deeds committed beyond their borders which they regard as prejudicial to their security, regardless of the nationality of the perpetrators. It is the so-called protective principle that legitimates this fact. In the case of Joyce v DPP (above) this was accepted as an alternative basis for Joyce’s conviction. Whereas in the past the principle was most applied to such acts as espionage, the counterfeiting of currency or attempts to evade immigration regulation, more recently the ‘vital interests’ of concern to a state have been interpreted more widely. Both acts of terrorism and international drug offences are accepted as acts coming within the protective principle.

page 58

University of London External System
While the UK had traditionally been conservative in its use of this principle, preferring to find other bases where possible, the Privy Council decision in Liangsiriprasert v Government of the USA [1991] 1 AC 225 signalled a change of policy which indicated that this may no longer be the case. In that case the defendant was a Thai national suspected of drug smuggling. A US agent lured him to Hong Kong on the pretext of a possible drug deal. While in Hong Kong, where he had committed no offence under Hong Kong law, he was arrested although the charges which were the basis for an extradition request concerned offences committed outside of the Territory. Indeed the defendant’s only connection with Hong Kong was the fact that he was temporarily there. This notwithstanding, the Privy Council permitted his extradition, implying that the protective principle was relevant to the recognition that the common law had to adapt to the new reality of crime being no longer largely local in origin and effect. There is little doubt that such a view enjoys widespread support among the international community of states.

Activity 5.2
Defineutheuconceptuofujurisdiction. Feedback:useeuenduofuguide.

Summary
The three uncontroversial bases of jurisdiction in international law are territorial jurisdiction, jurisdiction based on nationality and protective jurisdiction. In each case there is a clear and close connection between the state and either the person or the act giving rise to jurisdiction. In each case the international community is effectively unanimous in its acceptance of these bases.

Self-assessment questions
1.u Whyuisuitunecessaryutoudistinguishubetweenujurisdictionutouprescribeuandu jurisdictionutouenforce? 2.u Whyuisuitunecessaryutoudistinguishubetweenuobjectiveuterritorialityuandusubjectiveu territoriality?

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu uu uu

recogniseutheu‘natural’ulinkubetweenuterritoryuandujurisdictionu understandutheunationalityuprincipleuinuinternationalulaw explainuprotectiveujurisdiction.

5.3 Controversial bases for international jurisdiction
Essential reading
¢u ¢u

Dixon,uChapteru6:u‘Jurisdictionuandusovereignty’,upp.137–42. Kaczorowska,uChapteru8:u‘Jurisdiction’,uppu124–44.

Readutheseupagesunow.

5.3.1 The ‘effects’ doctrine as an extension of protective jurisdiction
In the last section we defined protective jurisdiction as jurisdiction necessitated by the reality that states will act to protect themselves from extra-territorial acts that they regard as prejudicial to their security. More controversially some states have, as Dixon observes, ‘enacted legislation designed to give themselves jurisdiction over any matters which produce an effect in their territory’. Obviously, for a state to make such legislation meaningful, that state must have either substantial international power or substantial international co-operation, or both. Thus it is not surprising that the USA has been

Public international law 5 Jurisdiction in international law
the main claimant of such a basis of jurisdiction. There are two major aspects to such jurisdiction as claimed by the USA, both intended to further its economic and political interests. The first is complicated and a detailed examination is beyond the parameters of your syllabus. It concerns US anti-trust legislation. This is legislation intended to prevent anti-competitive measures in business, and abuse of monopoly/oligopoly business positions. The US has enacted legislation under which foreign companies that also operate, or have business interests, in the US may receive heavy penalties for business activities taking place wholly outside US territory. Such penalties could become payable even though the actions of the offending company not only took place outside of the US but were actually quite lawful in the state where they did take place. Not surprisingly, other states (and the European Union in particular) have objected strenuously. If such legislation became normal for states, international trade and cooperation would be greatly hampered and Dixon’s comment that ‘These difficulties, and the tensions they produce between trading partners, mean that negotiation and self-restraint among states will be necessary if jurisdictional disputes of this nature are to be minimised’ is entirely accurate. The second aspect to such extra-territorial claims to jurisdiction is situations where the US has sought to enforce a trading embargo against states of which it disapproves. The most extraordinary of these was directed towards Fidel Castro’s Cuba. In 1996 Congress passed the Cuban Liberty and Solidarity Act (also known after its promoters as the ‘Helms-Burton’ Act). The stated purpose of this Act is to help the Cuban people ‘to restore its freedom’, to which end it provides for unilateral measures against foreigners or foreign companies engaging in commercial activities involving assets ‘confiscated’ (arguably ‘nationalised’ is the more appropriate term) in Cuba in the early 1960s. Such attempts to prohibit trade by foreign companies with states which the US disapproves of have been bitterly resented and criticised by most other states. Cassese simply asserts that such jurisdictional claims are contrary to international law. Nevertheless the fact that they have been asserted by the world’s only super-power is important and will receive further consideration in Chapter 11.

page 59

Self-assessment questions
1.u CanuyouuconceiveuofuaujustificationuforutheuUniteduStates’uassertionuofujurisdictionu underutheuHelms-Burtonulegislation?u(TheuAct,uwhichuisuwelluworthureading,uisu availableuonutheuInternet.) 2.u Isutheu‘effects’udoctrineueverujustifiable?

5.3.2 Passive personality jurisdiction
Whereas protective jurisdiction asserted rights in situations where the acts outside a state’s territory were prejudicial to its security, the so-called ‘passive personality’ jurisdiction claims to allow jurisdiction over foreigners, committing acts beyond the territory of the asserting state, where their acts have an effect not upon the national territory but upon the subjects (nationals) of that state. As an example, the French Civil Code gives jurisdiction to French courts over persons anywhere who are legally responsible to French nationals even concerning obligations incurred outside France. More usually the passive personality principle is framed in terms of a state asserting a right to punish aliens for crimes committed abroad against its nationals. Such a jurisdictional claim is controversial and not all states regard it as compatible with international law. Traditionally it has been opposed by the common law countries while countries such as Italy and Turkey have asserted it. Nevertheless even in common law jurisdictions there have been rare occasions where the principle has formed at least an alternative basis for the assertion of jurisdiction. One such case was that of US v Yunis 681 F Supp 896 (1988) where a Lebanese national was prosecuted in the US for his alleged part in the hijacking of a Jordanian aircraft in the Middle East. The only connection between the US and the airliner was that there were a number of US citizens on board the hijacked aircraft. It was accepted by the court that the passive personality principle did provide an appropriate basis for jurisdiction.

page 60

University of London External System

Dixon explains the theoretical objections to this jurisdictional justification. In particular as he says, most criminal acts will give rise to liability in a state more intimately connected with the offence and clearly able to exercise jurisdiction under a noncontroversial head. Secondly, the passive personality principle effectively means that each national carries the protection of his home state wherever he goes, in that anyone committing an offence against him anywhere becomes liable under his national law. These theoretical objections notwithstanding, my view is that at least on some occasions this basis is not only acceptable but desirable, but only if the defendant arrives voluntarily or lawfully (that is, pursuant to extradition proceedings) in the state of the offended national. It would seem appropriate when the offence is a serious one, and for whatever reason the state of the offender is unwilling to prosecute.

5.3.3 Universal jurisdiction
A claim of universal jurisdiction as the basis of a prosecution is seldom made but its place is nevertheless important as it highlights once more the relationship between international law and international relations. Most writers claim to find the history of universal jurisdiction in the treatment meted out to pirates in and after the seventeenth century. International law accepted that every state had jurisdiction over pirates, partly because the pirate was to be regarded as hostis humani generi (meaning ‘an enemy of all mankind’) but more practically because by plying their ‘trade’ upon the high seas pirates would, or could, otherwise have remained beyond the jurisdiction of territorial states, and states capturing pirates might have been unable otherwise to punish and prevent piracy. In the contemporary world the concept of universal jurisdiction has little to do with piracy. Rather it proposes that so-called international crimes are so heinous that each state has an interest and a right to prosecute such an enemy of all mankind. The most important discussion of universal jurisdiction (at least until the case concerning General Pinochet, on which, more later) is to be found in, and was a result of, the trial of Adolf Eichmann (Attorney General of Israel v Eichmann [1961] ILR 18). Eichmann had been unlawfully abducted from Argentina where he was living, by members of the Israeli secret service. During the Second World War Eichmann’s post in the Third Reich made him responsible for organising the deaths of many hundreds of thousands of Jewish people in concentration camps. Following Germany’s defeat he escaped to Argentina where he lived with his family until his abduction. He was charged and convicted by the Israeli court on counts of war crimes and crimes against humanity under an Israeli Act of 1950. In the course of his trial Eichmann’s defence counsel challenged the jurisdiction of the court, arguing not only that he had been unlawfully abducted, but that he was charged with crimes that did not exist at the time he was supposed to have committed them, and furthermore, in and by a state, Israel, which did not then exist. Not surprisingly, given the enormity of the effect of Eichmann’s deeds, all these arguments were rejected and the court held that the crimes committed by Eichmann were crimes known to international law, and therefore the principle of universal jurisdiction enabled the court to hear the case. In its judgment the court stated:
The crimes defined in this [Israeli] law must be deemed to have always been international crimes, entailing individual criminal responsibility; customary international law is analogous to the common law and develops by analogy and by reference to general principles of law recognised by civilised nations, these crimes share the characteristics of crimes…which damage vital international interests, impair the foundations and security of the international community, violate universal moral values and humanitarian principles… and the principle of universal jurisdiction over ‘crimes against humanity’…similarly derives from a common vital interest in their suppression. The state prosecuting them acts as agent of the international community, administering international law.

Since Eichmann, which was accepted overwhelmingly by the international community, further application of universal jurisdiction has not been extensive, in spite of marked enthusiasm from human rights activists. But some states have explicitly legislated to provide universal jurisdiction for their courts in the event of grave international crimes. Belgium in particular used such legislation as the basis upon

Public international law 5 Jurisdiction in international law
which to prosecute (and convict) a number of Rwandan nationals in Belgium who had significant responsibility for the massacres of Tutsi people in Rwanda in 1994. According to Amnesty International, some 120 states have passed acts that provide for universal jurisdiction over war crimes, crimes against humanity, genocide and torture. Nevertheless prosecutions have not been numerous. There are a number of reasons for this. The first is that the creation of the International Criminal Court provides what many consider to be a more appropriate forum for such trials (see further Chapter 10). Secondly, states such as Belgium that have attempted to promote universal jurisdiction have come under substantial political pressure from states that fear what they regard as unfortunate possibilities (on one occasion an attempt was made to have the then Prime Minister Ariel Sharon of Israel prosecuted). Thirdly, questions of immunity from prosecution arise, as we will see later in this chapter. Rather than utilising universal jurisdiction, many states, including the UK, have elected to enact the provisions of international treaties that prohibit international crimes and have thereby provided themselves with jurisdiction where appropriate. Thus, for example, the provisions of the Torture Convention, 1984 and the Genocide Convention, 1948 have both been explicitly incorporated into the domestic law of the UK. In 2002, when the ICJ had the opportunity to consider the status of universal jurisdiction it rather avoided the issue. The Case Concerning the Arrest Warrant of 11 September 2000 (Congo v Belgium) arose as a result of a Belgian attempt to have an ex-foreign minister of the Congo arrested in order to be charged with grave violations of human rights. The attempt was based upon the principle of universal jurisdiction. (It was perhaps politically unfortunate that such a case arose between Belgium and a state it had cruelly administered as a colony.) There was strong evidence to support the Belgian allegations but the Court upheld the ex-minister’s claim of immunity from prosecution and so it was not necessary to determine the validity of universal jurisdiction in such a case. As Dixon observes in your readings (p.138), the majority of the Court ‘assumed for the purpose of the case that universal jurisdiction was established as a principle of customary law’, whereas the minority took the view that while historically universal jurisdiction had been exercised where there was some positive tie between the state exercising the jurisdiction and the individuals charged, they did not conclude that this necessarily remained the case, and effectively elected to stand back and await developments.

page 61

5.3.4 Universal jurisdiction and customary international law
It is clear, at least in the UK, that treaties entered into by the state are binding upon the state but do not, without more being done, automatically become a part of the domestic law. This was exemplified in Chapter 4 when we considered the place of the European Convention on Human Rights in UK domestic law. The position is less clear with regard to customary international law which many argue to be a part of the common law and therefore may, and should, be applied in domestic courts without the need for legislation. An example of the debate is to be found within the saga of attempts by the Spanish government to extradite General Pinochet to Spain to face charges arising from his period in office as Head of State of Chile. Among the international criminal charges against him was the crime of torture. Under the requirements of extradition law, extradition may only be granted where the alleged offence was, at the time of commission, an offence under the law of both the state requesting extradition and the state to whom the request is made. Thus in Pinochet’s case it was necessary to show that in the UK at the time of the alleged torture, it was a crime to torture a non-UK citizen outside of UK territory. In fact the position was that while the UK had been party to the Torture Convention it had not enacted its provisions into domestic law until the passage of an Act which provided for criminalisation of acts of torture occurring after 28 September 1988. In its final judgment the House of Lords concluded that extradition was possible only for acts of torture for which General Pinochet was allegedly responsible occurring after that date.

page 62

University of London External System
Only Lord Millett took a significantly different view. He was of the opinion that torture by public officials, carried out as an instrument of state policy, was already an international crime attracting universal jurisdiction by 1973 when General Pinochet had seized power. Writing of the events later, Lord Millett explained his position:
On the question of jurisdiction, five of the six ruled that there was no jurisdiction over offences committed by foreigners abroad before the Criminal Justice Act 1988 conferred extraterritorial jurisdiction on the English courts, At first sight, the difference between us appears to be a technical one. We all agreed that torture by public officials carried out as an instrument of State policy was already an international crime of universal jurisdiction by 1973. The majority considered that this meant that, as a matter of international law, the United Kingdom was free to assume extraterritorial jurisdiction, which it eventually did in 1988. I considered that it meant that, as a matter of customary international law, which is part of the common law, the United Kingdom already possessed extraterritorial jurisdiction. But the difference really goes far deeper than that. The majority considered that torture by foreigners abroad was not a crime at all under English law before the 1988 Act made it one. I could not accept that. In my opinion torture has always been a crime under every civilised system of law. It is just that, until 1988, our courts had no jurisdiction over it if it was committed abroad.

Thus even he (contrary to Dixon’s comments on p.92) conceded that courts required the statutory incorporation of this international crime before they would be able to hear cases. This position has also been confirmed in Australia, where it was held that the admittedly international crime of genocide which, if any crime does, gives rise to universal jurisdiction was nevertheless not a crime under Australian federal law because there was no enactment by the Australian parliament. The conclusion must therefore be that, at least for common law states, international crimes give rise to universal jurisdiction but domestic courts will only be able to hear such cases where the international provisions and definitions have explicitly been made a part of the domestic law.

Activity 5.3
Whatudouyouuconsiderutoubeutheuessentialudifferencesubetweenutheunoncontroversialuandutheucontroversialubasesuforuinternationalujurisdiction?u Feedback:useeuenduofuguide.

Summary
Controversial bases for international jurisdiction include situations where there is no direct or obvious link between the state wishing to assert jurisdiction and the event or individuals over which or whom it wishes to assert it. The more powerful a state the more likely it is to assert international jurisdiction, even where this is opposed by some, or many, other states.

Self-assessment questions
1.u When,uifuatuall,umightuuniversalujurisdictionubeuimportant? 2.u Shoulduaustateubeuableutoumakeuuseuofutheu‘effects’udoctrine?uUnderuwhatu circumstances?

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

appreciateutheucontroversialunatureuofutheupassiveupersonalityuprincipleuandutheu effectsudoctrine discussutheumeaninguandusignificanceuofuuniversalujurisdiction.u

uu

Public international law 5 Jurisdiction in international law

page 63

5.4 Immunity from jurisdiction
Essential reading
¢u ¢u

Dixon,uChapteru7:u‘Immunitiesufromunationalujurisdiction’,upp.163–94. Cassese,uChapteru6:u‘Limitationsuonustateusovereignty:uimmunitiesuandutreatmentu ofuindividuals’,upp.98–23. Kaczorowska,uChapteru9:u‘Immunityufromujurisdiction’,upp.145–73.

¢u

Readutheseupagesunow. The necessary counterpart to a discussion of jurisdiction is a consideration of immunity from municipal jurisdiction. Immunity from jurisdiction provides the exception to the permissive rules of jurisdiction discussed thus far. Such immunity from suit (meaning an immunity from being called upon to appear in the domestic courts of a state) is most widely and most importantly extended to all other states. Under international law, because states are equal in their sovereignty, no state is entitled to call another state before its courts. This sovereign immunity also extends to diplomatic representatives. Originally sovereign immunity was almost always granted on an absolute basis and this was the case in the UK. Such broad-based immunity however gave rise to some problems. The first was that, particularly after the Russian revolution of 1917, and then in the period of decolonisation, many activities that had been private commercial activities attracting no immunity became state enterprises whose commercial dealings were immune from suit. Even states which were not command economies extended their commercial activities and interests. This brought problems both for those who would otherwise have been able to sue on a breached contract and for states enjoying immunity, as other parties would be unwilling to enter into contracts where there was no remedy in the event of breach. These problems led to provision for immunity being modified.

5.4.1 Sovereign immunity
There is a Latin maxim which neatly summarises the justification for sovereign immunity. It states ‘par in parem non habet imperium’, usually translated as ‘one equal cannot exercise authority over another’. It was also said in earlier English cases that a sovereign was not to be ‘impleaded’ (meaning ‘brought into litigation’) in the court of another sovereign. In addition it was accepted that where some act of a foreign sovereign fell for consideration in a domestic court, that court could not pronounce upon the legality of that act in the foreign jurisdiction. It did not have the power to make such a judgment and an issue of this kind is said to be ‘non-justiciable’. Whereas the immunity was once absolute, the reality of states being heavily involved in commerce made the rule increasingly difficult to justify. Although the precise scope of the immunity depends upon the domestic law of each state, the principle of state immunity remains. A very brief history of the change from absolute immunity to restricted immunity should help you to understand this rather arcane (but important) area of international law. There are many examples of immunity in action. One of the earliest, later accepted into British law, which well illustrates the principle and the rationale of immunity is the decision of the US Supreme Court in 1812, in The Schooner Exchange v McFadden. The trading vessel The Exchange had been seized on the high seas by persons acting on the orders of the French Emperor, Napoleon Bonaparte, taken to France, confiscated under French law, and then fitted out as a French warship. Bad weather later forced her into the port of Philadelphia. While there, the plaintiffs, who were the owners of the vessel at the time of its seizure on the high seas, issued a writ for the return of the schooner. Without sovereign immunity the position at law would have been clear and the boat restored to the owners from whom it was improperly appropriated. Marshall CJ, however, giving the judgment of the Court, held that a vessel of a foreign state with which the USA was at peace, and which the US Government allowed to enter its harbours was exempt from the jurisdiction of the courts. He stated:

page 64

University of London External System
The full and absolute territorial jurisdiction being alike the attribute of every sovereign, and being incapable of conferring extraterritorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as its objects.

Further, he added that there was a ‘perfect equality and absolute independence of sovereigns’ from which it was inferable that no state could exercise territorial jurisdiction over another. (Interestingly for later developments, it was submitted in argument that if a sovereign engaged in trade he would enjoy no immunity in respect of his trading operations, but that question was left open in the judgment.) Typical of the UK cases following The Schooner Exchange was The Parlement Belge of 1880, another case concerning a ship. The Parlement Belge was a Belgian vessel which carried mail and passengers between Ostend and Dover. Through incompetence and negligence by her crew she collided with the British sea tug Daring, whose owners sought to recover damages. It was argued in defence that The Parlement Belge was the property of the King of the Belgians, and was therefore immune from such an action. The Court of Appeal, reversing the decision of the court below and granting immunity, stated that the court could not exercise jurisdiction if either an attempt was being made to sue a foreign sovereign in person, or an action ‘in rem’ (an expression from Latin meaning that the action is ‘against or about a thing’, in this case the vessel) was brought where the ship was being used substantially for public purposes, as was the case with The Parlement Belge. Again, in later cases the question of immunity in The Parlement Belge had the ship been wholly or substantially in ordinary commerce was left open. Nevertheless it was widely accepted that at least in the UK such sovereign immunity was absolute. This was not the way the law was developing in all countries. With the dramatic increase in state involvement in commercial deals, particularly in an era of decolonisation where many new states nationalised significant commercial enterprises, it was difficult to defend total immunity and not helpful to trade or international contracts. Some states (particularly ‘first world’ or developed states) moved towards a position of accepting only a restricted doctrine of immunity. They did this by providing that a state has immunity for only a limited class of acts. The distinction is between acts jure imperii, and acts jure gestionis. In Dixon’s appropriate explanation the purpose is to ensure ‘that the state is treated as a normal litigant when it behaves like one, and as a sovereign when it exercises sovereign power’. Thus the first category, acts jure imperii, are acts in and of public authority for which there would still be immunity; whereas acts jure gestionis are acts which are commercial or private where immunity would not apply. Policy in some countries and in the USA began to restrict immunity in this way as early as 1950 but the change to restrictive immunity in the UK started through judicial decision only in the 1970s leading to legislation in the State Immunity Act, 1978. The cases which led to the passage of this Act well illustrate the urge for modification but we will briefly examine only two. The first, significantly, was a decision of the Privy Council – significant because the Privy Council was able to decide not to follow previous House of Lords decisions that appeared to compel absolute immunity. In The Philippine Admiral [1977] AC 373, the Privy Council determined that a ship that had been operated throughout its life as an ordinary merchant ship, earning freight by carrying cargo, was beyond sovereign immunity. This was consistent with decisions elsewhere and probably reflected the appreciation that jurisdictions, not limiting immunity, stood to lose business to those states that did and where those trading with foreign governments were given more protection. Shortly after that case, an action giving rise to the same questions fell to be decided in an English court, which was of course technically still bound by House of Lords decisions thought to assert absolute liability. The case was Trendtex Trading Corp. v Central Bank of Nigeria [1977] QB 529. Both the facts and the decision are memorable. In the 1970s Nigeria suffered a significant and destructive scandal concerning the importation of cement. While there was a considerable need for cement for Nigeria’s extensive building projects, orders were placed for cement delivery in 1976 of some twenty million tons. This was approximately ten times the capacity of Nigeria’s ports for the whole year. The result was that many ships arrived carrying cement which could not be unloaded (and, apparently, because of the delay in discharge and the humid conditions much of the cement ‘went off’ (hardened) in the ships’ holds).

Public international law 5 Jurisdiction in international law
Trendtex was one of the companies that had a contract for the delivery of cement. They were to be paid against a letter of credit issued via a London bank, from the Central Bank of Nigeria. The Bank of Nigeria effectively prevented payment for the unwanted and undeliverable cement and when sued sought to rely upon state immunity. The Court of Appeal held that the Central Bank of Nigeria was a separate entity from the Government of Nigeria (a rather strained interpretation) and thus was not entitled to immunity. (The effect of this decision was consistent with similar cases heard in other European jurisdictions.) Lord Denning, however, went further than was strictly required and through remarkable judicial gymnastics concluded that past House of Lords decisions applying international law were no longer relevant as, he argued, international law had developed to accept restricted immunity. Precedents based on outdated principles of international law could, he said, be ignored. And he added:
…It follows, too, that a decision of this court – as to what was the ruling of international law 50 or 60 years ago – is not binding on this Court today. International law knows no rule of stare decisis. If this Court today is satisfied that the rule of international law on a subject has changed from what it was 50 or 60 years ago, it can give effect to that change – and apply the change in our English law – without waiting for the House of Lords to do it.

page 65

Doubtful though Lord Denning’s arguments were (earlier cases had determined what English law held concerning immunity, not what international law said), the conclusion he reached was followed in the House of Lords in a case in 1981, I Congreso del Partido, when applying the law as it was before legislation. Trendtex did highlight the need for legislation, and this came in the State Immunity Act, 1978. This Act effectively enacted the provisions of the European Convention on State Immunity, 1972, which had been intended to harmonise European perspectives on immunity. Like the Convention, the Act begins by providing for general sovereign immunity before proceeding to list exceptions which accord with the restrictive immunity perspective. Under the Act a plaintiff must show that the action complained of by a foreign state comes within these exceptions. In essence, where the transaction is commercial, immunity is excluded. Nevertheless it is provided that the ‘exception to the exception’ is where although the transaction is commercial, it was entered into ‘in the exercise of sovereign authority’. The test really is as follows, as quoted in I Congreso del Partido:
…it is not just that the purpose or motive of the act is to serve the purposes of the state, but that the act is of its own character a governmental act, as opposed to an act which any private citizen can perform.

Dixon also refers to and considers the International Law Commission’s Draft Articles on Jurisdictional Immunities of States and Their Property (Draft UN Convention) (p.174). This has now become the UN Convention on Jurisdictional Immunities of States and Their Property, adopted by General Assembly Resolution on 2 December 2004 and now open for signature. Although the Convention represents a compromise between states favouring something approaching absolute immunity (primarily developing states) and others, existing UK legislation seems to be compatible with its provisions.

5.4.2 Head of state immunity
So far in considering state immunity we have considered the state itself, and indeed historically the state and its sovereign were regarded as the same entity. The ruler was the state, in the sense that he (or rarely she) personified the territorial entity. Of course this rather strains language, as most of us would readily distinguish between persons and things. It is apparent, though, that state or sovereign immunity would only be meaningful if it extended to those people who by their actions determine the actions of the state. For this reason s.14(1)(a) of the State Immunity Act, 1978 explicitly states what had already been accepted in both international and domestic law, namely that the immunities granted to a foreign state extend to ‘(a) the sovereign or other heads of that State in his public capacity, (b) the government of that State, (c) any department of that government’, but do not extend to any separate entity which is distinct from the executive organs of the government of the state.

page 66 The Pinochet case

University of London External System

The extent of the immunity granted to a head of state was at issue in the case of General Pinochet, referred to earlier in the chapter. The final decision of the House of Lords in this case is well worth reading – see R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 3) [1999] 2 All ER 97. In brief the well known facts were that General Pinochet led a violent right wing military coup in Chile in 1973. The elected President, Allende, was deposed and killed and General Pinochet became Head of State of Chile until he resigned in 1990. In 1998 while on a private visit to the UK he was arrested after a Spanish request for his extradition to Spain to face a wide range of alleged crimes including torture and conspiracy to torture. A first and important question for the House of Lords was whether General Pinochet, by reason of his position of Chilean Head of State, enjoyed, and continued to enjoy, immunity from UK domestic courts even for acts as extreme as torture. (As explained earlier in this chapter when discussing universal jurisdiction, the Court decided that extradition would only be possible, if at all, for acts of torture committed after the date on which the Torture Convention was incorporated into domestic UK law.) The case was extraordinarily important. This was the first time it had been suggested that a domestic court could refuse head of state immunity on the basis that there could be no immunity against prosecution for serious international crimes. There would seem to be little doubt that if General Pinochet had still been Chilean Head of State at the time of his arrest he would have enjoyed immunity. While this is manifestly unfortunate and harsh towards those tortured, it represents the law, because international relations could hardly survive otherwise. If the position was not as it is, heads of state, whether of Israel, Zimbabwe, USA, Pakistan, the UK or Russia, to name but a few, could scarcely venture beyond their borders without fear of arrest. Thus the House of Lords (Lord Browne-Wilkinson) stated:
…This immunity enjoyed by a head of state in power and an ambassador in post is a complete immunity attaching to the person of the head of state or ambassador and rendering him immune from all actions or prosecutions whether or not they relate to matters done for the benefit of the state. Such immunity is said to be granted ratione personae.

But what is the position of a head of state who is no longer in office? Here the Court found the position of ex-heads of state to be identical to ex-ambassadors. Lord Browne-Wilkinson said:
The continuing partial immunity of the ambassador after leaving post is of a different kind from that enjoyed ratione personae while he was in post. Since he is no longer the representative of the foreign state he merits no particular privileges or immunities as a person. However in order to preserve the integrity of the activities of the foreign state during the period when he was ambassador, it is necessary to provide that immunity is afforded to his official acts during his tenure in post. If this were not done the sovereign immunity of the state could be evaded by calling in question acts done during the previous ambassador’s time. Accordingly under Article 39(2) [of the Vienna Convention on Diplomatic Relations, 1961] the ambassador, like any other official of the state, enjoys immunity in relation to his official acts done while he was an official. This limited immunity, ratione materiae, is to be contrasted with the former immunity, ratione personae which gave complete immunity to all activities whether public or private. In my judgment at common law a former head of state enjoys similar immunities, ratione materiae, once he ceases to be head of state. He too loses immunity ratione personae on ceasing to be head of state…

You will probably realise that there is some parallel between absolute as opposed to restricted immunity for states and the distinction between acts ratione peronae and acts ratione materiae for ex-heads of state and ambassadors in that immunity continues to attach to ex-heads of state and ambassadors for things they did in an official capacity, that is, ‘both enjoy [continuing] immunity for acts done in performance of their respective functions whilst in office’. As with absolute and restricted immunity the test is concerned with the nature of the act performed.

Public international law 5 Jurisdiction in international law
In the Pinochet case, however, a further question arose. Could it ever be said that the alleged organisation of torture would constitute an act committed by General Pinochet as part of his official functions as head of state? The Court recognised that ‘Actions which are criminal under the local law can still have been done officially and therefore give rise to immunity ratione materiae’. The House of Lords concluded that there were strong grounds for concluding that the implementation of torture, as defined by the Torture Convention, could not be a state function and there could be no surviving immunity because the acts were contrary to international criminal law.

page 67

5.4.3 Diplomatic and consular immunity
The previous section briefly alluded to the position of ambassadors with regard to judicial immunity. Here we will consider diplomatic immunity in a little more depth. Again the position is largely dictated by the history of international relations. This has long recognised that reciprocal respect for those representing foreign states in the territory of another is fundamental to international intercourse. In the words of the ICJ, diplomatic immunity is ‘essential for the maintenance of relations between states and is accepted throughout the world by nations of all creeds, cultures and political complexions’. As with the head of state, the immunities granted to diplomatic and consular officers are personal and enjoyed by individuals, but it is of course because they are an integral part of the government of the state they represent that immunity extends to them. UK legislation protecting diplomats goes back to the Diplomatic Privileges Act, 1708 and is currently governed by the Diplomatic Privileges Act, 1964 which is based upon the Vienna Convention on Diplomatic Relations, 1961. The latter has been ratified by more than 180 nations. Dixon’s summary (on pp.189–90) of the immunities granted to such persons is accurate and brief. One point that should be noted, however, when he suggests that such officials have immunity from all criminal prosecutions is that, while this is true, such an official will remain liable to prosecution in the state that he represents on the nationality principle of jurisdiction. Again the immunity is closely related in definition to the distinction between absolute and restricted state immunity. Immunity will not be available only where there is a civil action which arises from an enterprise unrelated to the diplomat’s official position. The immunity provided extends to other matters as well. In particular diplomatic premises are inviolable and can only be entered with the permission of the head of mission. Freedom of movement (though not totally free movement, see Article 26 of the Convention) is assured and free and secret communication between mission and home state is permitted. Diplomatic bags intended for official use may not be searched. (‘Bag’ is a euphemism for any container, including even containers from a container ship.) Nevertheless the receiving state retains the ultimate sanction of being able to ask, without cause, for the withdrawal of any person enjoying diplomatic privilege and they may be declared ‘persona non grata’.

Activity 5.4
Whatuareutheujustificationsuforuimmunityufromujurisdiction?uExplainutheudoctrineuofu sovereignuimmunityuasuappliedubyutheuEnglishucourts,umakingureferenceutoutheuStateu ImmunityuAct,u1978.u Feedback:useeuenduofuguide.

page 68

University of London External System

Summary
The immunity of states was once generally absolute and this was the position adopted by the English courts. But at the time when this rule developed, state governmental activities overwhelmingly remained in the public sphere. This position changed with both the creation of socialist states after 1917 and decolonisation following the Second World War. States came to participate much more directly in commercial activities to which state immunity seemed less appropriate. These different circumstances were recognised both by the English courts and by the State Immunity Act, 1978. This Act reflected the European Convention on State Immunity, 1972 and ensured that European states harmonised their state immunity law.

Self-assessment questions
1.u HaduEnglishucourtsualreadyuachieveduthroughutheucommonulawuthatuwhichuwasu enacteduinutheuStateuImmunityuAct?u 2.u Summariseutheulawuconcerningutheuimmunityuofuauheaduofustateuinutheulightuofutheu Pinochet decision.u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu uu uu

explainutheubasisuandueffectuofustateuimmunityufromujurisdictionu explainutheubasisuandueffectuofuindividualuimmunityufromujurisdictionu describeudiplomaticuimmunity.

Sample examination questions
Question 1uuu‘Universalujurisdictionuisumuchumoreusignificantuinutheoryuthanuinureality.’u Discuss. Question 2uuuWhatuprinciplesuunderlieutheudoctrineuofusovereignuimmunity?uDoesutheu doctrineuofusovereignuimmunityuachieveuitsugoals?

Advice on answering the questions
Question 1 This question requires an explanation of universal jurisdiction in order to consider its significance. You might begin by considering the history of universal jurisdiction and its development as a means to prosecute those who commit international crimes anywhere. A discussion of the Eichmann case would highlight the potential. This could be followed by a consideration of the problems associated with universal jurisdiction, the ambivalence of the ICJ, and the threat posed for international relations if nationals of one state are to be tried in another state for crimes committed perhaps in yet another state against nationals of other states. Such potential complexity reinforces the need for the International Criminal Court and its usefulness. Additionally a satisfactory answer would consider where universal jurisdiction has been considered but rejected as a basis in itself for prosecution. This would probably focus on Pinochet and the Australian court’s rejection of the possibility of a prosecution for genocide where Australia, although a party to the Genocide Convention, has not yet enacted the provisions of the Convention into domestic law. The conclusion would probably confirm the quotation but suggest that the need for the exercise of universal jurisdiction should be obviated by other developments in international law.

Public international law 5 Jurisdiction in international law
Question 2uu Sovereign immunity is said to be an implicit aspect of sovereign equality. The understanding is that one state cannot compel another equal state to submit itself to the jurisdiction of the former. Traditionally this immunity was absolute and any act of a state was protected from jurisdiction. This understandably led to problems where the acts in dispute were purely commercial. The result of the immunity was that if one party to a commercial contract was a state which then breached its agreement, the innocent party might have no enforceable redress. This position was not only manifestly unjust but was probably commercially undesirable and would discourage such contractual relations. It should be added that many states before the UK had moved to restrict the sovereign immunity proffered, by restricting such immunity to those state activities that could not be regarded as purely commercial. A brief discussion of sovereign immunity in the UK courts would then be appropriate, with a concluding discussion of the provisions and effect of the State Immunity Act, 1978, in turn leading to consideration of whether this fulfils the goals of sovereign immunity. In fact it probably does, at least for the UK, but the opposition of the ‘developing’ countries should be noted and explained.

page 69

page 70

University of London External System

Notes

6

The law of treaties

Contents
Introduction 61 62 63 64 65 66 The formation and formalities of treaties Treaties and reservations The validity of treaties The interpretation of treaties The amendment and termination of treaties Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) 1997 72 73 75 76 79 80 81

page 72

University of London External System

Introduction
In Chapter 3 we briefly considered treaties as a major source of international law. We observed that it may be argued that treaties are now the most important of all sources of international law. While much customary international law remains contentious (and contended) treaties are supposed to be explicit and clear, expressing the will of the parties who wish to be bound by agreement to the negotiated terms stated in the document.† That at least is the theory. States voluntarily commit themselves to perform in accordance with the negotiated terms. And underlying international law is this obligation – pacta sunt servanda – which was suggested to be a legal principle which takes such obligations beyond ‘mere’ international relations. Although that is the theory the reality is much less clear and remains controversial. Indeed such is the potential for dispute that the International Law Commission spent much time codifying and drafting rules that finally received significant international approval in the form of the Vienna Convention on the Law of Treaties (VCLT), 1969 which came into force in January 1980. This Convention is an attempt to clarify rules of both interpretation and definition with the intention of ensuring a uniform approach to problems arising out of treaties, whether concerned with the formation of the treaty, the content of the treaty, or the continuation or termination of the treaty. This might seem a rather dull topic. It is not. Crucially important questions of policy and politics arise in cases concerned with the interpretation of treaties. In order to exemplify this aspect we will consider in some depth in Section 6.6 the ICJ’s decision in the 1997 Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia). This case not only further exemplifies the method of the ICJ but, more importantly for this chapter, demonstrates the attitude of international law to international treaties.

Although you should remember that agreements not reduced to writing may still be binding.

Learning outcomes
Byutheuenduofuthisuchapteruandutheurelevantureadingsuyouushouldubeuableuto:
uu uu uu uu uu

defineuautreatyu describeutheuplaceuandueffectuofutheuViennauConventionuonuTreaties,u1969u understandutheulegaluqualityuofupacta sunt servanda explainuwhyuautreatyuisunotuidenticalutouaucontract describeutheumeansubyuwhichutreatiesuareuconcludeduanduunderstandutheuformalu requirementsu defineuanduexplainutheusignificanceuofutreatyureservationsu understandutheumeaninguanduimpactuofutheuperemptoryunormsuofuinternationalu lawu(jus cogens)uuponutreaties outlineutheurulesuforutreatyuvalidity describeutheurulesuofutreatyuterminationu understanduanduexplainutheurestrictionsuonutheupossibilitiesuofutreatyu terminationu beufamiliaruwithuanducriticaluofutheulawuofutreatyuinterpretationuasuexemplifieduinu theuCase concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia).

uu uu

uu uu uu

uu

Essential reading
¢u ¢u ¢u ¢u

Cassese,uChapteru9:u‘Treaties’,upp.170–82. Dixon,uChapteru3:u‘Theulawuofutreaties’,upp.49–78. Kaczorowska,uChapteru11:u‘Theulawuofutreaties’,upp.231–62. Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) 1997u (availableuonutheuweb). ViennauConventionuonutheuLawuofuTreaties,u1969u(VCLT).

¢u

Public international law 6 The law of treaties

page 73

6.1 The formation and formalities of treaties
Essential reading
¢u ¢u ¢u ¢u

Cassese,uChapteru9:u‘Treaties’,upp.172–73. Dixon,uChapteru3:u‘Theulawuofutreaties’,upp.57–61. Kaczorowska,uChapteru11:u‘Theulawuofutreaties’,uppu231–40. VCLTuArticlesu1–18.

This section summarises the ways by which treaties may be concluded and their formal requirements. These are both remarkably few and extraordinarily flexible. The Vienna Convention on the Law of Treaties, Article 2(1)(a) defines a treaty to which the Convention applies as follows:
…an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation.

It also provides, however, that this does not affect the legal force of other agreements between states and other bodies having international legal personality, or agreements between states not in written form. For our purposes, though, it is only agreements between states that are of interest and only those in written form. Because Article 102 of the UN Charter provides for all treaties to be registered with the UN Secretariat (without which a treaty may not be invoked before any organ, including the ICJ) it is clear that this may only be done if the agreement was in writing, and there are thus very few unwritten treaties; these too we will ignore. Furthermore, as Cassese points out in your reading, political positions and considerations had much to do with the eventual formulation of the Vienna Convention and it finally represented a shift in thinking about treaties. Whereas traditionally the emphasis in treaty law was upon the equivalent of ‘freedom of contract’ in that states could enter any treaty of any terms under any circumstances in the expectation that it would be upheld, the Vienna Convention introduced constraints and controls that had not previously existed. Of course, just as in ‘freedom of contract’ theory, so too in international treaty-making the freedom was not what it seemed. The effect of upholding such treaties was often a wilful refusal to see the unequal bargaining power which had led to the treaties. In colonial times particularly, strong states were able to impose ‘agreements’ upon weaker states. The spirit of the Convention is very much opposed to validating such coercion, although this remains controversial. It is controversial because strong states consider coercion of weaker states to be a normal aspect of international relations. The Convention also limited the terms a treaty might include by proscribing the inclusion of terms in contravention of the ‘central core of international values’ from which no country, however great its economic and military strength, may deviate. It is essential to understand that the Convention contains both codification of existing customary law and also innovative new provisions. The effect of this must be remembered. Obviously codification of existing law makes no change and ordinarily all states will be bound as they were before. Where, however, the provision is innovative, under the Convention’s provisions it will apply when interpreting only those treaties made after its entry into force (27 January 1980). Under these circumstances too, it will apply only where the parties to a disputed treaty are themselves parties to the Convention. (And remember that the United States is not a member.) Nevertheless it has been argued that the exception to this final point is where innovative provisions of the Convention can be shown to have developed into customary international law, affecting even those states not party to it.

page 74

University of London External System
One further important difference between treaties and contracts should be remembered. Although not formally defined as a treaty, it is possible in international law for a unilateral statement made by one state in the expectation that another state or states will rely upon it to have legal effect as though it were a treaty. Thus in the Nuclear Test Cases (Australia v France, New Zealand v France) (1974) the ICJ held that when France, through both its President and Foreign Minister, issued a statement to the effect that its current round of atmospheric nuclear tests would be its last, this was a statement upon which the international community could rely. Here obviously, unlike contract, there is no need for reciprocity or even acceptance by other states. Because the Convention refers to agreements ‘governed by international law’ it is possible to infer the requirement of the need to create legal relations (and thus legal obligations). Agreements which do not meet this requirement are not without effect but have no legal content. An example of such an agreement was the Final Act of the Helsinki Conference on Security and Co-operation of 1975 which was stated in the final document to be ‘not eligible for registration under art 102 of the Charter of the United Nations’ and this was understood to mean that the Act was not legally enforceable. It was, however, a document of immense political significance which came to influence international law. The making of a treaty is usually a three-stage process involving:
u u u

the negotiation of the treaty the authentication of the drafted document (usually by signature or initialling) ratification.

Article 12(1) of the Convention nevertheless provides that if a treaty does not require ratification and the signature was intended to express the consent of a state to be bound, then the signature shall have that effect. Much more commonly the signature represents a step along the way to treaty creation and the treaty will require ratification.

Ratification
There are two aspects of importance in ratification. For domestic law purposes in the UK, ratification is effected by the Crown. How this is done in other states depends upon their domestic law. Once ratified, the treaty exists in domestic law as an international treaty to which the UK is bound. Without more, however, it will not be a part of domestic law and it will thus not be enforceable in municipal courts. The second aspect of ratification is ratification in international law. This ratification, which brings the treaty into force, is a procedure usually requiring the deposit of ratification documents or their exchange. This common two-stage process of signature and ratification allows time for domestic consideration of a signed treaty. The only obligation of a signatory before ratification (where this is required) is not to work against the signed but unratified treaty. This is why when the US signed the Rome Statute of the International Criminal Court in 1988 in the last days of the Clinton presidency, the incoming Bush administration took steps to ‘un-sign’ (withdraw signature) to enable it to oppose the effect of the treaty. Finally it should be noted that the question of when a treaty enters into force will usually be resolved by provision in the treaty document itself. This will often be explicitly stated, such as, for example, upon the deposit of the 60th ratification, or on a date some time after such ratifications are received. If the treaty is silent as to when it is to enter into force, the date will be inferred.

Activity 6.1
ExplainutheustatusuofutheuprovisionsuofutheuViennauConventionuonutheuLawuofuTreaties.u Isutheupresentupositionusatisfactory?u(Giveuyourureasons.) Feedback:useeuenduofuguide.

Public international law 6 The law of treaties

page 75

Summary
Treaties represent the explicit intention of states to be bound to agreed terms within the treaty document. It is this voluntary assumption of obligation that lies at the heart of international law. The Vienna Convention on the Law of Treaties, 1969 is an important Convention, codifying some aspects of treaty law and innovative in other aspects.

Self-assessment question
WhichuprovisionsuinutheuViennauConventionucodifyuanduwhichuareuinnovative,uandu whatuareutheuconsequences?u(SeeuDixon,upp.55–61.)u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu uu uu uu

defineuautreatyu describeutheuplaceuandueffectuofutheuViennauConventionuonutheuLawuofuTreatiesu understandutheulegaluqualityuofupacta sunt servanda explainuwhyuautreatyuisunotuidenticalutouaucontract.

6.2 Treaties and reservations
Essential reading
¢u ¢u ¢u ¢u

Dixon,uChapteru3:u‘Theulawuofutreaties’,upp.61–65. Cassese,uChapteru9:u‘Treaties’,upp.173–75. Kaczorowska,uChapteru11:u‘Theulawuofutreaties’,upp.241–45. VCLTuArticlesu19–23.u

Reservations to treaties are obviously relevant only to multilateral treaties. In a bilateral treaty each party will be bound to the same terms. Where there are more than two parties, however, there are many occasions when not all parties will be prepared to accept all the provisions of a treaty as drafted. The Vienna Convention codifies customary law in defining a reservation to a treaty in Article 2(1)(d) 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 modify the legal effect of certain provisions of the treaty in their application to that state.

The status and effect of a reservation is not exactly the same in customary international law as it is under the Convention and it is necessary to understand both. The traditional approach to reservations was that they would be valid only if permitted by the treaty terms, and if all other parties to the treaty accepted the reservation. Such an approach, which seemed consistent with principle, was not well suited to multilateral treaties with large numbers of states where such total agreement would be unlikely. The approach was reviewed in an important ICJ advisory decision of 1951 – Reservations to the Convention on the Prevention and the Punishment of the Crime of Genocide. Here the General Assembly of the United Nations had adopted the Convention on the Prevention and Punishment of the Crime of Genocide in 1948 and a dispute arose over whether reservations to the Convention could be accepted. There was no provision for reservation within the Convention. The majority of the Court held that a state could be ‘regarded as a party to a treaty, even if its reservation had not been accepted by all other parties, so long as that reservation [was] compatible with the object and purpose of the Convention’ (Dixon, p.62). Where, however, another state would not accept such a reservation the refusing state would be entitled to regard the reserving state as not being in a treaty relationship with itself. Although the International Law Commission thought the compatibility test too subjective, the Convention, in Articles 19–23, followed the principles of the Reservations Case, but with a slight modification in that it accepted that for some treaties every reservation will be held incompatible except where all treaty parties unanimously agree otherwise.

page 76

University of London External System
The effect of valid reservations in a multilateral convention must be clearly understood. The effect is not only to restrict the obligation of the reserving state in accordance with the reservation but also effectively to redraft the treaty as between the reserving state and all others so that all have the same reservation. In other words, because treaties must affect all parties equally among each other, no party can rely upon a reservation to give it an advantage against a state that has not made a similar reservation. This is stated in Article 21 of the Vienna Convention, which explains the legal effect of reservations, stating that a reservation not only modifies for the reserving State the provisions of the treaty to which the reservation relates to the extent of the reservation, but also modifies those same provisions to the same extent for other parties in their relations with the reserving state. There are occasions when a state does not want to make a formal reservation but does want to make explicit its interpretation of a provision. These so-called ‘interpretive declarations’ may on occasion be interpreted as reservations. In the words of the International Law Commission, ‘Such a declaration may be a mere clarification of a state’s position or it may amount to a reservation, according to whether it does or does not vary or exclude the application of the terms of the treaty as adopted’. This test remains and what matters is not the form of words used, but the effect of those words.

Activity 6.2
‘Theuacceptanceuofureservationsuinutreatyulawumeetsuauneeducreatedubyumultilateralu treatiesuwithumanyupartiesu(oftenumoreuthanuoneuhundred).uUnlessureservationsu wereuaccepted,uagreementubetweenusoumanyustatesuwouldubeualmostuimpossible.u Thatunotwithstanding,ureservationsudouseverelyucompromiseutheugoaluofuconsistencyu anduuniformityuinutheucreationuofuinternationaluobligations.’u Discuss.u Feedback:useeuenduofuguide.

Summary
Reservations enable one state party to a multilateral treaty to modify the terms of the treaty for itself and yet remain a party to the treaty, although on different terms from other parties. Not all reservations are valid or permissible. If they are in conflict with the object and purpose of the treaty they will not be valid, nor yet if the treaty prohibits reservations. In addition, where another party to the treaty objects to the reservation, the effect, depending on the intentions of the objecting state, will either be that the treaty does not operate between itself and the reserving state, or that while the treaty remains in force the provision to which reservation is made is not operative between those two parties.

Self-assessment question
Whenuanduunderuwhatucircumstancesumayuautreatyuaffectustatesunotupartyutouit?u(Seeu Dixon,uChapteru3:u‘Theulawuofutreaties’,upp.70–71.)u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

defineuanduexplainutheusignificanceuofutreatyureservations.u

6.3 The validity of treaties
Essential reading
¢u ¢u

Cassese,uChapteru9:u‘Treaties’,upp.176–78. Dixon,uChapteru2:u‘Theusourcesuofuinternationalulaw’,upp.36–38;uChapteru3:u‘Theulawu ofutreaties’,upp.72–77.

Public international law 6 The law of treaties
¢u ¢u ¢u

page 77

Kaczorowska,uChapteru11:u‘Theulawuofutreaties’,upp.246–50. VCLTuArticlesu26–30. VCLTuArticlesu42–53.

Article 26 of the VCLT formally states the principle of pacta sunt servanda. It provides that every treaty in force is binding upon the parties to it and must be performed by them in good faith. The strength of the principle is reinforced in the following article, which forbids any state from relying on the provisions of its domestic law as justification for its failure to perform its obligations under a treaty. Questions as to the validity of a treaty again may resonate with considerations concerning the validity of contracts in domestic law. Unfortunately the parallels, while attractive, are not exact and it is better to consider treaty validity quite separately. Under the VCLT the validity of a treaty can only be impeached by using the provisions of the VCLT. Similarly the termination of a treaty, its denunciation or the withdrawal of a party will be valid only if it is consistent with the provisions of the treaty itself, or the provisions of the Convention. The application of this principle is illustrated in our case study at the end of this chapter.

Error, fraud and corruption
The VCLT states the reasons and causes that may justify a treaty being held invalid. The first is that under Article 48 error may be invoked if the ‘error relates to a fact or situation which was assumed by that state to exist at the time when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty’, but this will not apply if the state in error ‘contributed by its own conduct to the error’ or should have been aware of the mistake. Article 49 provides for invalidating an expressed consent to be bound to a treaty if a state has been induced to conclude it by the fraudulent conduct of another negotiating party, and Article 50 provides similarly where a state’s consent has been procured by the corruption of its representative.

Coercion of a state or its representative
Much more significant are the provisions of Articles 51 and 52 concerning the coercion of a state or its representative. Article 51 states that where a state’s consent to be bound by a treaty has been procured by the coercion of its representative through acts or threats directed against him, that expression of consent shall be without any legal effect. Article 52 states that a treaty is void if its conclusion has been procured by the threat or use of force ‘in violation of the principles of international law embodied in the Charter of the United Nations’. Such coercion of a state has been widely considered. As the Law Commission observed, prior to the Covenant of the League of Nations it had not been thought that the validity of a treaty could be affected because it had been concluded where one party was under threat from another. Many treaties had been concluded by powerful states insisting upon acquiescence from weaker ones and this had simply been accepted as a description of how international relations were conducted. Article 2(4) of the Charter of the United Nations proscribing the threat or use of force had however recognised a major change in such relations and the emphasis upon sovereign equality in the Charter was also important. Furthermore, the VCLT was negotiated during a period of decolonisation and the newly independent states wanted their independence to be real. Within the International Law Commission there were arguments as to what sort of coercion should be proscribed. Pressure to define coercion beyond ‘threat or use of force in violation of the principles of the Charter’ was resisted. While the Soviet Union existed, international law writers from there often argued that the crucial principle determining the binding nature of a treaty should be that it was concluded on the basis of the equality of the parties; and that unequal treaties were not legally binding.

page 78

University of London External System
At the Vienna Treaty Conference a compromise was reached with the provisions being reinforced by a Declaration on the Prohibition of Military, Political or Economic Coercion in the Conclusion of Treaties, adopted by the Conference and stating that the Conference:
Solemnly condemns the threat or use of pressure in any form, whether military, political or economic, by any state in order to coerce another State to perform any act relating to the conclusions of a treaty in violation of the principles of the sovereign equality of States and freedom of consent.

That notwithstanding, the exact scope of the provisions remains uncertain. Many states have been forced to conclude treaties with other states or to assume obligations required by such international bodies as the International Monetary Fund or the World Bank because their parlous financial position left them with little alternative. There is no indication that the ICJ will accept such economic reality as coercion.

Treaties conflicting with a peremptory norm of international law (jus cogens)
Article 53 is another provision of the Convention over which debate has been long. It provides that a treaty will be void if it conflicts with a peremptory norm of international law, which is defined within the Article as ‘a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted…’. This was a provision that attracted strong support from Eastern European countries and from developing countries but was resisted by others. It was included because of the widespread acceptance of the reality of jus cogens which at the least included the prohibition on the unlawful threat or use of force, genocide, slavery or piracy. The Commission considered listing examples of peremptory norms but concluded that to do so might appear to prioritise or privilege those listed. The effect of the provision is to recognise that under the rules and principles of international law there are some (generally humanitarian) principles that are so basic to international relations that their exclusion could not be permitted. Thus a treaty intended to further aggression against another state or to forcibly acquire territory from another is to be void regardless of the level of support and acceptance it receives internationally.

Activity 6.3
Whyudouyouuthinkuperemptoryunormsuhaveudevelopeduinuinternationalulaw?uWhatu areutheupoliticaluviewsuthatucreateduaudebate? Feedback:useeuenduofuguide.

Summary
The principle of pacta sunt servanda underlies treaty law. Nevertheless there is a recognition that rules are necessary to ensure the validity of treaties and to provide the circumstances in which an apparent treaty may be void. Customary international rules that are regarded as fundamental and have the status of peremptory norms may not be excluded by treaty. Any attempt to do so will arguably render such a treaty void.

Self-assessment question
WhatuargumentsudoesuCasseseumakeuforutheuviewuthatuautreatyubreachinguau peremptoryunormuofuinternationalulawumayunotubeuwhollyuinvalid?

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

understandutheumeaninguanduimpactuofutheuperemptoryunormsuofuinternationalu lawu(jus cogens)uuponutreaties.

Public international law 6 The law of treaties

page 79

6.4 The interpretation of treaties
Essential reading
¢u ¢u ¢u ¢u

Cassese,uChapteru9:u‘Treaties’,upp.178–80. Dixon,uChapteru3:u‘Theulawuofutreaties’,upp.65–70. Kaczorowska,uChapteru11:u‘Theulawuofutreaties’,upp.255–56. VCLTuArticlesu31–33.

The art of treaty interpretation is not dissimilar from that of statutory interpretation in domestic law. Problems of interpretation arise where treaty provisions are ambiguous, unclear or contested. Historically in international law different rules of interpretation were applied in particular circumstances. That said, the first and most common principle was that the words of a treaty should be given their common meaning, provided this was uncontroversial. Thus in the Interpretation of the Peace Treaties Case (1950) the ICJ decided that the case was at an end if the language of the text was clear. Nevertheless other considerations might be relevant, especially if the objective is to give effect to the obligations intended by the parties when concluding their agreement. It has also been suggested that a ‘teleological’ approach might on occasion be helpful. This would consider the objectives of a treaty and what interpretation or construction of the treaty would best satisfy those objectives. Article 31 of the VCLT adopts a sensible and modified ‘ordinary meaning’ approach. It states that 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’. Thus object and purpose will not be irrelevant. The Article also allows, in order to understand the context, reference to matters in addition to the text of the treaty with its preamble and annexes, including other agreements and instruments between the parties relating to the treaty; any instrument made by the parties (such as letters or declarations) in connection with the negotiation and conclusion of the treaty; and any subsequent agreements or practice between the parties concerning the interpretation or application of the treaty. Furthermore, if the parties intended any special meanings to be given to any term these too will be applied. As a supplementary means to interpretation, recourse may be had to other sources including the travaux préparatoires† but only to confirm the meaning or to resolve ambiguity.

Activity 6.4
ParaphraseuArticleu31uofutheuVCLT.u Douyouuthinkuituactuallyugoesufurtheruthanudeclaringuthatutreatiesuareutoubeu interpreteduusingucommonusenseuinutheulightuofutheuintentionsuofutheuparties?u Noufeedbackuprovided.

Travaux préparatoires (French) = ‘preparatory works’. Travaux or documentation of a treaty may serve as an aid to interpretation of the treaty in the same way as legislative or drafting history might shed light on the wording of a statute.

Summary
Treaties are interpreted by applying a number of not necessarily consistent rules. While the first task is to give the words of the treaty their ordinary meaning, it is equally important that the intentions of the parties be identified and the object and purpose of the treaty be achieved.

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

outlineutheurulesuofutreatyuinterpretation.u

page 80

University of London External System

6.5 The amendment and termination of treaties
Essential reading
¢u ¢u ¢u

Dixon,uChapteru3:u‘Theulawuofutreaties’,upp.72–77. Cassese,uChapteru9:u‘Treaties’,upp.180–82. Kaczorowska,uChapteru11:u‘Theulawuofutreaties’,upp.253–61.

Remembering that all treaty law is based upon the consent of the parties, it is not surprising that this is the first source by which treaties may be amended, suspended or terminated. Broadly speaking, the parties to a treaty may agree between or among themselves to treat a treaty as at an end, or modify it, or suspend it. Often the treaty itself will provide either for its termination or will define the circumstances that will bring it to an end. It may also provide for the withdrawal of one or more parties. Difficulties arise when not all parties are agreed and it is here that rules become important. Most of these are customary international law rules that have been codified in the VCLT. Again the case study concerning the Danube dams in the next section will exemplify the law. What reasons then may be advanced to justify the termination of a treaty? The three main non-consensual grounds that may lead to termination are material breach, supervening impossibility of performance, and fundamental change of circumstances.

Material breach
The VCLT defines a material breach as ‘a repudiation not sanctioned by the present Convention’ or ‘the violation of a provision essential to the accomplishment of the object or purpose of the treaty’. Such a material breach of a bilateral treaty entitles the party not in breach to ‘invoke the breach as a ground of terminating the treaty or suspending its operation in whole or in part’. Where one party to a multilateral treaty is in material breach, this allows all the other parties by unanimous agreement to suspend the treaty in whole or in part, or to terminate it either as between themselves and the defaulting party, or as amongst all parties. A single state especially affected by material breach may invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between it and the defaulting state; and otherwise allows any party not in breach 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’ (Article 60). As we will see in the case study, the ICJ is reluctant to accept that a breach is sufficiently material to permit termination. There seems to be no objective definition of ‘material breach’, and when a breach is to be deemed material has not been defined. Emphasis always seems to remain upon the performance of treaty obligations wherever possible.

Supervening impossibility of performance
Once more the interpretation of this Article (Article 61) is to be understood in the light of a determination to ensure performance except in the most extraordinary circumstances. While it is provided that there is a right to terminate where there is impossibility of performance resulting from ‘the permanent disappearance or destruction of an object indispensable for the execution of the treaty’ it may not be invoked if the impossibility is the result of a breach by the party wishing to terminate either an obligation under the treaty or any other international obligation owed to any other party to the treaty. Again the case study will show just how high the ICJ will set the criteria before permitting termination. The fact that performance has become considerably more difficult than could have been (or was) foreseen by the parties at the time of negotiation and agreement has been held to be insufficient.

Public international law 6 The law of treaties Fundamental change of circumstances (rebus sic stantibus)
Once more it is clear that while Article 62 provides for termination in the event of a fundamental change of circumstances, instances of termination are few and far between. Indeed the Article is drafted to emphasise this negative attitude, stating as it does that an unforeseen (by the parties) change of circumstances may only be invoked as a ground for terminating or withdrawing from a treaty if the existence of those circumstances constituted an essential basis of the consent of the parties to be bound and also the effect of the change is to radically transform the extent of obligations still to be performed under the treaty. As an additional qualification, under Article 62(2) fundamental change of circumstance cannot be invoked to challenge the validity of a treaty establishing a boundary or if the change results from the breach of the party seeking relief. Thus once more the emphasis of Article 62 and the customary international law it codified is upon performance of treaty obligations wherever possible. The perils of this course of action are all too apparent (in my opinion) in the case study that follows.

page 81

Activity 6.5
Whatuargumentsucanubeumadeuinufavouruofutheurestrictiveuapproachuofuinternationalu lawutouallowinguunilateraluwithdrawalufromutreatyuobligations?uIsuitusufficientutousayu (withuDixon)uthatutheuobjectuisutouexcuseustatesufromuobligationsuthatuhaveuchangedu beyonduallurecognition,uratheruthanutouprovideuanuescapeufromuwhatuhasuturneduoutu toubeuauhardubargain?u Feedback:useeuenduofuguide.

Summary
The possibility of being excused performance of treaty obligations is extremely restrictive. Pacta sunt servanda is elevated in a way that may be more consistent with a contract way of understanding the world than a recognition that it is not always appropriate to enforce obligations that have, for whatever reason, become more difficult or impossible to perform.

Self-assessment exercise
Formulateutheuprinciplesuthatuunderlieutheuterminationuofutreaties.u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu uu

describeutheurulesuofutreatyuterminationu understanduanduexplainutheurestrictionsuonutheupossibilitiesuofutreatyutermination.u

6.6 Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) 1997
Essential reading
¢u ¢u

Dixon,uChapteru3:u‘Theulawuofutreaties’,upp.74–78. Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia) 1997u (availableuonutheuweb).

In September 1977, Hungary and the then Czechoslovakia entered into a major and significant treaty providing for the construction and operation of the GabcikovoNagymaros system of locks on the Danube river. The agreement was for the creation of a typically ‘Communist’ East European ‘modernist’ project, never known for their environmental or social sensitivity. According to the preamble to the treaty the barrage system was designed to attain ‘the broad utilisation of the natural resources of the Bratislava-Budapest section of the Danube River for the development of water resources, energy, transport, agriculture and other sectors of the national economy of the Contracting Parties’. The utilisation was primarily to result in hydro-electric power generation and supposed or intended improvements to navigation and flood defences.

page 82

University of London External System
The two states agreed that the development was to be a joint investment and ‘a single and indivisible operational system of works’. The intended control of this section of the Danube was to be achieved by damming it at Dunakiliti on Hungarian territory with the majority of the river flow diverted through a constructed asphalt-lined bypass canal to Gabcikovo in Czechoslovakia where electricity was to be generated twice daily (‘peak power generation’). The intended intermittent damming and releasing of water in this way necessitated a further dam downstream of Gabcikovo to regulate flow. This was to be built at Nagymaros in Hungary where electricity was also to be generated, though on a smaller (non-peak power) scale. Although environmental protection was hardly central in the treaty provisions, it did nevertheless provide that the development was not to compromise water control in the Danube (Article 15) and that it should ‘ensure compliance with the obligations for the protection of nature’ (Article 19), and that the parties should protect fishing interests in conformity with a 1958 Convention concerning fishing in the waters of the Danube. Whether, however, the completion of the construction could ever have been achieved while giving effect to these provisions is highly doubtful. Work on the project began in 1978, but while Czechoslovakia made rapid progress, work at Nagymaros by the Hungarians began only in 1986. By this time concerns had already surfaced, especially in Hungary, about the potentially damaging nature of the project on the environment. In addition to the direct environmental impact of the construction, concerns centred on the reduction in quantity and quality of surface and ground waters and the consequences thereof. Decreasing the flow in the Danube by 95 per cent through the use of the asphalt-lined bypass canal threatened to dry up the last inland delta in Europe, comprising the islands of Szigetkoz (in Hungary) and Zitny Ostrov (in Slovakia), and hosting unique wetland ecosystems. Eutrophication (an excess of nutrients) leading to changes in the nature of surface water quality was also feared. It was also argued that damming the river would lead to a slow but certain deterioration in water quality in the aquifer under the inland delta (one of Europe’s largest and used to supply the Hungarian capital, Budapest) due to the accumulation of pollutants so that the drinking water source would be either undrinkable, or drinkable only after prohibitively expensive treatment. As a final threat, damage to biodiversity at the delta wetlands, due to the lowering of the water table and the lack of floods, was likely. These wetlands have been referred to as the ‘fish-crib† of the Danube’, and it is an area of exceptional importance for biodiversity. There were also fears of risks to fisheries and the loss of recreational amenities. These concerns finally gave rise to large-scale public demonstrations in Budapest against the project. Despite agreeing in February 1989 to accelerate the project, in May of that year the Hungarian government suspended work at Nagymaros and then extended the suspension of operations to all works on its territory until a full investigation into the environmental consequences of the project had been completed. Despite ongoing negotiations between Czechoslovakia and Hungary† in September 1991, the Czechoslovakian government proceeded to provide its own ‘provisional solution’ to the inactivity of the Hungarians and their failure to proceed as required. This ‘provisional solution’ came in the face of now considerable opposition to the scheme in Czechoslovakia itself. This solution came to be known as ‘Varient C’ and it involved the Czechoslovakian government doing as much as it could to maximise the benefits of the scheme in the face of Hungarian inactivity. ‘Varient C’ provided for the completion of the Gabcikovo reservoir and all works on Slovak territory originally envisaged downstream, together with the construction of a dam at Cunovo on Czechoslovak territory where the Danube would be diverted into the headrace canal leading to Gabcikovo. As work at Nagymaros had ceased, peak power production had to be abandoned. Although further negotiations were held, in May 1992 the Hungarian government issued a written termination of the 1977 Treaty.

Crib: a place or object where young creatures are nurtured.

This was at a time of unprecedented political upheaval for both countries, culminating in the dissolution of the COMECON (the East European economic organisation, disbanded in 1991) and the Warsaw Pact, and the demise of the Soviet Union which had greatly encouraged the original project with an eye to increased integration of Eastern European economies.

Public international law 6 The law of treaties
On 24 October 1992, despite the involvement of the European Commission as mediator, the damming of the Danube at the diversion weir at Cunovo began and the vast majority of flow was directed through the artificial bypass canal to Gabcikovo. Thereafter a temporary water management plan was put in place pending final reference to the International Court of Justice. Under this plan Slovakia (which peacefully separated from the Czech Republic on 1 January 1993) was committed to maintaining 95 per cent of the flow in the Danube and to refrain from operating the power plant, yet it continued to divert more than 80 per cent of flow to Gabcikovo for power production. The environmental consequences were stark. In November 1992 the Danube floodplain dried out completely. From 1993 both countries instigated artificial floodplain water supply systems, as well as joint monitoring of environmental impact, and in 1995 Slovakia guaranteed a minimum flow into the original Danube bed below Cunovo. Together with the construction of a new Hungarian weir near Dunakiliti, this would enable water to be supplied to the side-arms of the Danube at Szigetkoz. Yet there is evidence of considerable drought stress to large forest areas as a result of the two-to-four metre drop of river and ground water levels in the Danube floodplains after diversion. It is obvious that the consequent dispute, which the International Court of Justice was called to resolve, was of immense complexity. A construction treaty had been entered into by two so-called communist states, both of whose governments had given way to democratically elected regimes by the time the case fell for judgment. In addition Czechoslovakia had divided into two new states – the Czech and Slovak Republics. Czechoslovakia had expended large sums of money in respect of its obligations, Hungary very much less. Evidence was increasingly available to suggest that if construction were to be completed environmental damage could be catastrophic. There were also social considerations concerning the people who would be adversely affected by this development. In fairness to the parties and to the Court, an obvious and just solution was not apparent. Nevertheless the subsequent events do much to suggest the shortcomings of legal dispute resolution concerned with possible treaty termination. The very questions agreed by the parties (obviously on the advice of their lawyers) exemplify just what was gained and lost by translating the complex dispute in to one which the Court could be called upon to resolve. The questions referred to the Court on 2 July 1993 by agreement of the parties were as follows:
u

page 83

Was Hungary entitled to suspend and subsequently abandon, in 1989, the work on the Nagymaros Project and on its part of the Gabcikovo Project? Was Czechoslovakia entitled to proceed, in November 1991, to the ‘provisional solution’ and to put this system into operation from October 1992 (that is, by the damming of the Danube at Cunovo on Slovak territory)? What were the legal effects of the notification of the termination of the Treaty by Hungary?

u

u

The parties also asked the Court to rule on their respective legal obligations arising from its answers to those three questions. You will immediately notice how restricted those legal questions were – even though they could not be answered satisfactorily without a consideration of at least some of the social questions. In particular, the first question should have been answerable only if there was in-depth consideration of the environmental risks posed by the completed (or even incomplete) project. In considering that element of risk, however, the Court answered it simply by considering in the main, the law relating to treaties. The judgment considered the status of the contract (treaty) and gave a judgment as narrow as the questions asked.

page 84

University of London External System
In terms wider than simply legal terms, the decision of the Court suffers from two significant defects. The first arises from the application of the law itself; the second from an inability to determine environmental issues concerned with water. As to the first, the questions posed by the parties seemed far removed from the realities of environmental and health concerns, from commercial and development matters, political and social concerns, and of course from a post-communist East Europe with new democracies and market economies. The questions addressed were concerned with treaty law. Given the way the questions for the Court were termed, it would have been difficult for the Court to give centrality even to the crucial environmental issues. Difficult – but not impossible, however. In the four and a half years between the date the legal questions were jointly submitted and the date judgment was given, 10,000 pages of supporting evidence had been provided, much of which the Court considered superfluous to its needs and did not consider. Even though the questions were narrow, the Court should have found it necessary to ask itself whether the treaty might be incapable of performance in conformity with the environmental provisions it contained. Legally those provisions are not simple for they provide (Article 15) that the Contracting Parties shall ensure byutheumeansuspecifieduinutheujointucontractualuplan that the quality of water inutheuDanube is not impaired as a result of the envisaged construction, and (Article 19) that the Contracting Parties shall throughutheumeansu specifieduinutheujointucontractualuplanuensure compliance with the obligations for the protection of nature. Thus the underlying assumption of the Treaty is that construction of the locks and dams will be possible, if necessary after research and negotiation, in a way which compromises neither water resources nor conservation. Evidence was, however, provided which suggested that these provisions were simply incapable of being complied with. The evidence was not incontrovertible but is nonetheless formidable. Given the perils to the environment, it might be thought to have been appropriate to have required clear evidence, acceptable to neutral experts, that neither water quality, conservation nor fisheries would be affected in a way which breached the important articles. In answer to Hungary’s contention that the Treaty had become impossible to perform because ‘the essential object of the Treaty – an economic instrument which was consistent with environmental protection and which was operated by the two contracting parties jointly – had permanently disappeared…’ the Court was dismissive. It stated that the Articles concerned with environmental protection ‘actually made available to the parties the necessary means to proceed at any time, by negotiation, to the required readjustments between economic imperatives and ecological imperatives’. The idea that those two imperatives may always be amenable to compromise and ‘adjustment’ fundamentally ignores the potential impossibility of reconciliation. Hungary had put forward evidence, which the Court found it unnecessary to consider, suggesting that the inevitable result of the constructions proposed was a risk of irreversible ecological and environmental damage, no matter how the ‘economic imperatives’ were adjusted. Not surprisingly, then, the Court’s answer to the three questions were narrow answers applying the provisions of the Vienna Convention on the Law of Treaties. It held that Hungary was not entitled to terminate the Treaty, there being no sufficient legal grounds for termination. It also held that the purported termination could not justify Czechoslovakia’s ‘provisional solution’ which was a clear violation of the express provisions of the Treaty and thus an internationally wrongful act. Having answered the first two questions the Court avoided detailed findings as to the respective future obligations of the parties. It did stress the need, unless the parties agreed otherwise, for the joint regime to be restored, taking into account ‘essential environmental concerns’. As to the basis upon which any compensation should be payable, the Court held that given the intersecting wrongs of both parties the issue of compensation could be resolved if each of the parties were to renounce or cancel all financial claims and counterclaims. But in relation to the settlement of accounts for the construction of the works, this was to be resolved in accordance with the 1977 treaty and related instruments: ‘If Hungary is to share in the operation and benefits of the Cunovo complex, it must pay a proportionate share of the building and running costs.’

Public international law 6 The law of treaties
As to the solution to the dispute itself, in essence the Court instructed the parties to negotiate an agreement in the light of the Court’s legal findings, but gave little indication as to how such an agreement could be reached. Thus the legal questions were answered but the resolution of the dispute remained elusive, if not illusory. A final parenthetic point should also be made. One of the arguments made by Hungary was that it should have been able to invoke the legal concept of fundamental change of circumstances to justify termination. A part of the claimed fundamental change was advances in scientific environmental understanding which suggested that the Treaty was incapable of performance in a way that complied with the environmental provisions. Another argument, however, was that the change of governmental system from ‘communist’ dictatorship to democracy, together with the change of economic system, might be sufficient to absolve Hungary from its obligations under the law of treaties. This was rejected by the Court which continued to lay primary emphasis upon the crucial premise of international law – that of pacta sunt servanda. Few international lawyers would question that rejection but the emphasis does perpetuate, through the concept of international legal personality, the injustice by which democratic governments and the people they represent, remain bound by contracts and treaties signed by dictators or non-representative governments (as in the case of apartheid South Africa) which they have overthrown or replaced, even when the other party to such a treaty or contract was well aware of the non-representative nature of the previous regime. The result of the emphasis upon pacta sunt servanda is well summed up by Professor Eyel Benvenisti (in Byers, M. (ed.) The role of law in international politics. (Oxford: Oxford University Press, 2000) [ISBN 0198268874] p.121) as follows:
In reaching [its] conclusion the Court deliberately emphasised international undertakings at the expense of domestic pressures. It rejected Hungary’s claim that a ‘state of ecological necessity’, if it existed, precluded the wrongfulness of the unilateral suspension of the project, and did so because Hungary could instead have recourse to negotiations to reduce the environmental risks. It similarly rejected Hungary’s claim to impossibility of performance, fundamental change of circumstance, and of a lawful response to Czechoslovakia’s earlier material breach (namely, Slovakia’s construction of the provisional diversion project). The ICJ also found that Slovakia’s diversion of the Danube waters breached its obligation towards Hungary to respect the right to an equitable and reasonable share of the river. Despite its findings to the effect that both sides failed to comply with their obligations under the treaty, the ICJ concluded that ‘this reciprocal wrongful conduct did not bring the Treaty to an end nor justify its termination’. Finding the agreement flexible and therefore renegotiable, the ICJ held that the 1977 treaty continued to apply, requiring both sides to negotiate its implementation, taking into account current standards on environmental protection and sustainable development, and to regard Slovakia’s diversion dam and canal as a ‘jointly operated unit’ under the treaty regime.

page 85

Without entering into the doctrinal aspects of the judgment, it is revealing to examine its implications for the interface between domestic and international politics. The judgment clearly seeks to insulate international politics from the influence of domestic politics. Notwithstanding momentous internal political, economic and social changes affecting both countries, and despite strong public pressure and even parliamentary resolutions, domestic options remain constrained by an international agreement entered into during a past era. Even when one government breaches its obligations to renegotiate in good faith, the other government cannot bow to internal public pressure and take unilateral action.

Activity 6.6
AssumeuthatuituisupossibleutouappealufromutheudecisionuofutheuICJuinutheuGabcikovo/ Nagymaros Dam Case. DraftutheugroundsuofuappealuforuHungary. Feedback:useeuenduofuguide.

page 86

University of London External System

Summary
The International Court of Justice in its decision in the Gabcikovo/Nagymaros Case re-emphasised the importance of pacta sunt servanda. The effect of this course of action, while understandable, really did not resolve the issues. The decision rests on the doubtful assumption that it could be possible to perform the treaty in accordance with its terms. It was arguable that the environmental protection provided for in the treaty was simply impossible to achieve if the central purpose of the Treaty was to be performed. The Court ignored this possibility.

Self-assessment question
‘Theupurposeuofutheurebus sic stantibusudoctrineuisutouexcuseustatesufromuobligationsu thatuhaveuchangeduoutuofuallurecognitionuratheruthanutouprovideuanuescapeufromu whatuhasuturneduoututoubeuaubadubargain.’u(Dixon,up.75.)u Discuss.

Reminder of learning outcomes
Byuthisustageuyouushouldube:
uu

familiaruwithuanducriticaluofutheulawuofutreatyuinterpretationuasuexemplifieduinutheu Case concerning the Gabcikovo-Nagymaros Project (Hungary/Slovakia).

Sample examination questions
Question 1uuuCriticallyuconsiderutheucircumstancesuunderuwhichuautreatyumayubeu terminateduorususpendeduagainstutheuwishesuofuoneuparty.u Question 2uuuWhatuwasuinnovativeuaboututheuViennauConventionuonutheuLawuofu Treaties?uHowusignificantuareutheuinnovations?u

Advice on answering the questions
Question 1uuuWhat is required here is a discussion of material breach, supervening impossibility of performance and rebus sic stantibus (fundamental change of circumstance). A discussion of the position in both customary international law and Articles 60, 61 and 62 of the Vienna Convention is necessary. It will be important to emphasise the centrality of pacta sunt servanda in treaty interpretation and the insistence of international law that treaties be performed except in the most unusual circumstances. It would be appropriate to use the Gabcikovo-Nagymaros case study to exemplify the position of the ICJ. Because you are asked to consider the matter critically you need to have some views on whether the emphasis on pacta sunt servanda is justifiable and wise. To do this you should consider the impact of the decisions upon the interests of the states in dispute. Reference should also be made to the effect of state succession upon treaty obligations, especially where democratic governments replace non-democratic regimes. Question 2uu This requires an outline of the history of the Vienna Convention and the reasons for its drafting. An explanation of why it was considered that some innovation was required will enable a directed response. Particular provisions may then be discussed and a discussion of why states objected to certain provisions would be helpful. A brief explanation of the status of different provisions is appropriate and an explanation of which provisions codified customary international law, which were innovative but have developed into customary international law and which remain effective only in cases between parties to the Convention will clarify the position.

7

Self-determination and territory in international law

Contents
Introduction 71 72 73 74 75 The concept of self-determination in international law before the creation of the United Nations The United Nations Charter, self-determination and decolonisation Self-determination after the Cold War States, territory and recognition Territorial and other rights over the sea and its bed 88 89 93 100 103 106

page 88

University of London External System

Introduction
In this chapter you are required to think about the relationship between people and territory as understood in international law. Probably for most of us, most of the time, the concept of identity as a national of a state is common sense and unproblematic. We simply know and accept that we are Pakistani, Singaporean Chinese or whatever. Particularly in Europe few people question their national identity even if they recognise that they are, in addition to being French, Polish or whatever, European by residence, regardless of ethnicity. Obviously in theory and in some cases in fact, individuals may have more than one national identity, but what is significant for us is that for most inhabitants of most long established states, the link between identity and state, captured in nationality, is unproblematic. This is not necessarily so in every part of the world. Within Europe the fact that territory, especially at the margins or borders, has belonged to different states at different times over the last century indicates that an easy identification of an individual with a state, as opposed to identification with territory, is not always simply common sense. Beyond Europe in much of the world within existing states, the ‘natural’ identification of person with state often has no great history. Decolonisation brought with it state independence, but of course almost invariably within the pre-existing colonial borders. It was the state that achieved independence rather than the state’s inhabitants – an important fact that we will explore later. It is sufficient here to observe that in such states it is not unusual for persons to regard the fact of their nationality as much less significant than ethnic, religious or tribal allegiance.

Learning outcomes
Byutheuenduofuthisuchapteruandutheurelevantureadingsuyouushouldubeuableuto:
uu

traceutheudevelopmentuofutheuconceptuofuself-determinationuasuauprincipleuofu limiteduapplication recogniseutheutensionubetweenusovereigntyuanduself-determinationu explainutheusignificanceuofutheuUNuCharteruinutheuchangeufromuself-determinationu asuauprincipleutouself-determinationuasuauhumanurightu recogniseutheulimitationsutouthisurightucreatedubyutheuprincipleuofuuti possidetisu explainutheucontributionuofutheurightuofuself-determinationutoutheuprocessuofu decolonisationu understandutheulimitationsuofutheurightutouself-determinationuinuanyuclaimuforu secessionu explainutheusignificanceuofutheuenduofutheuColduWaruandutheudisintegrationuofutheu SovietuUnionuforutheuconceptuofuself-determinationu appreciateuthatusecessionuwilluusuallyuonlyubeuaccepteduwhenuituhasubecomeuanu accomplishedufactu explainutheurelevanceuofurecognitionutoustateuidentityu explainutheumeansubyuwhichusovereignuterritoryumayubeugaineduorudisposeduof outlineutheuchangesuinutheulawurelatingutoutheuexploitationuofutheuseauandutheuseau bedusinceutheuSeconduWorlduWar discussutheudebatesuconcerningunewlyucreatedurightsuoverutheuseauanduseaubed.u

uu uu

uu uu

uu

uu

uu

uu uu uu

uu

Public international law 7 Self-determination and territory in international law

page 89

7.1 The concept of self-determination in international law before the creation of the United Nations
Essential reading
¢u ¢u

Kaczorowska,uChapteru14:u‘Self-determinationuofupeoples’,upp.333–40. Cassese,uChapteru3:u‘Theufundamentaluprinciplesugoverninguinternationalu relations’,upp.60–68. Dixon,uChapteru6:u‘Jurisdictionuandusovereignty’,upp.153–55.

¢u

It is difficult now to imagine a time when the ordinary population was regarded as of no consequence when it came to determining the state to which the territory they inhabited should belong. Yet for much of history this was overwhelmingly the case. The disposition of territorial sovereignty was within the exclusive power of those (or he) who ruled it – often royalty but always aristocrats in the widest sense. Often the sovereignty of territory was disposed of after, or as the result of, war in which territory was conquered, and this was indeed the most common method by which territory was acquired. The wishes of the inhabitants of such territory, even if known, were simply ignored as being utterly irrelevant. These ‘rules’ of territorial acquisition (and accepted as rules in international law) were simply extended to facilitate and legitimate colonisation. States with sufficient power, or by agreement, asserted title over what became colonial possessions and this ownership came to be recognised both in law and in fact by other independent states. Such was the state of international law. But the seeds of the concept of self-determination were sown even in the earliest days of colonisation, particularly through the medium of the French Revolution as well as the American War of Independence with the latter asserting that rulers were effectively legitimated by the ‘consent of the governed’. Such developments had their origins in renewed interest in the classical heritage and ‘Athenian democracy’, the writings of political philosophers and a heritage (at least in the UK) of a limited role for parliament. All of these militated towards concern for the role of the populace – or some part of it – in government. That few thought in terms of this consideration extending to colonised peoples reflected a European attitude to race that remained largely unchallenged until the twentieth century, notwithstanding the abolition of slavery. Such an attitude was well expressed in the Treaty of Berlin of 1885, a treaty concerned with the allocation of rights and responsibilities of the European powers (and King Leopold II of Belgium) in Central Africa. Article VI stated:
All the Powers exercising sovereign rights or influence in the aforesaid territories bind themselves to watch over the preservation of the native tribes, and to care for the improvement of the conditions of their moral and material well-being, and to help in suppressing slavery, and especially the slave trade. They shall, without distinction of creed or nation, protect and favour all religious, scientific or charitable institutions and undertakings created and organized for the above ends, or which aim at instructing the natives and bringing home to them the blessings of civilization.

Patronising and hypocritical though such sentiments seem today, paving as they did the way for the famous ‘3 Cs’ – commerce, Christianity and civilisation – they yet, as Pakenham points out, provided a commitment of sorts not to be forgotten by humanitarians. (Pakenham, T. The Scramble for Africa. (London: Weidenfeld and Nicolson, 1991) [ISBN 0394515765] p.254.) More immediately the idea of self-determination did play a part in the creation of European nation states in the nineteenth century, and in the First World War it fell to President Wilson of the US to extol its virtues. (In fact it seems that initially his purpose for doing so was, at least in the understanding of his allies, to score propaganda points against an enemy that contained within its empires many disparate minority peoples who wished for self-government. This was thought to be true especially of the Ottoman Empire and the Austro-Hungarian Empire. Within the latter there were, apart from Germans and Hungarians, Poles, Croats, Bosnians, Serbians, Italians, Czechs, Ruthenes, Slovenes, Slovaks and Romanians. Overall, 15 different languages were spoken in the Austro-Hungarian empire.)

page 90

University of London External System

In January 1918 in Wilson’s address to Congress – the famous ‘Fourteen Points Address’ – his fifth point stated the need for
A free, open-minded, and absolutely impartial adjustment of all colonial claims, based upon a strict observance of the principle that in determining all such questions of sovereignty the interests of the populations concerned must have equal weight with the equitable claims of the government whose title is to be determined.

This is significant for two reasons. Firstly, the colonial claims he spoke of did not include the colonies of the victorious allies, and secondly, the principle of selfdetermination is obviously not absolute but merely one factor of importance. The conclusion of the First World War brought no right of self-determination to colonial peoples and while the maps of Europe and the Middle East were redrawn there was no great consultation with inhabitants. Rather than provide plebiscites or even consultation with such people generally, the Treaty of Versailles only prescribed this process for those living in disputed areas. In other cases minorities were to be protected through ‘minority treaties’ where states were required to enter into agreements to guard and protect minority rights – a process of limited effect. Colonial peoples were not granted any right of self-determination, but those that were in what were defined as colonies of the defeated states were brought within the ‘mandate system’ whereby territories that were not self-governing were allocated to the victorious powers. This, it was stated, was to provide ‘tutelage’ so that such territories might ‘advance’ to a stage where independence was appropriate. Article 22 of the League of Nations Covenant stated:
To those colonies and territories which as a consequence of the late war have ceased to be under the sovereignty of the States which formerly governed them and which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world, there should be applied the principle that the well-being and development of such peoples form a sacred trust of civilisation and that securities for the performance of this trust should be embodied in this Covenant. The best method of giving practical effect to this principle is that the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it, and that this tutelage should be exercised by them as Mandatories on behalf of the League. The character of the mandate must differ according to the stage of the development of the people, the geographical situation of the territory, its economic conditions and other similar circumstances. Certain communities formerly belonging to the Turkish Empire have reached a stage of development where their existence as independent nations can be provisionally recognised subject to the rendering of administrative advice and assistance by a Mandatory until such time as they are able to stand alone. The wishes of these communities must be a principal consideration in the selection of the Mandatory. Other peoples, especially those of Central Africa, are at such a stage that the Mandatory must be responsible for the administration of the territory under conditions which will guarantee freedom of conscience and religion, subject only to the maintenance of public order and morals, the prohibition of abuses such as the slave trade, the arms traffic and the liquor traffic, and the prevention of the establishment of fortifications or military and naval bases and of military training of the natives for other than police purposes and the defence of territory, and will also secure equal opportunities for the trade and commerce of other Members of the League. There are territories, such as South-West Africa and certain of the South Pacific Islands, which, owing to the sparseness of their population, or their small size, or their remoteness from the centres of civilisation, or their geographical contiguity to the territory of the Mandatory, and other circumstances, can be best administered under the laws of the Mandatory as integral portions of its territory, subject to the safeguards above mentioned in the interests of the indigenous population.

Public international law 7 Self-determination and territory in international law
In every case of mandate, the Mandatory shall render to the Council an annual report in reference to the territory committed to its charge. The degree of authority, control, or administration to be exercised by the Mandatory shall, if not previously agreed upon by the Members of the League, be explicitly defined in each case by the Council. A permanent Commission shall be constituted to receive and examine the annual reports of the Mandatories and to advise the Council on all matters relating to the observance of the mandates.

page 91

There were three categories of mandate. The first was for those considered almost ready for independence, all of which did achieve self-government between 1932 and 1947. Such states, with boundaries redrawn without plebiscite, primarily by France and the UK, included Syria and Lebanon (both under French mandate), and Iraq, Trans-Jordan and Palestine (under British mandate). The second category covered German colonies in central Africa. These were considered to be further from possible independence and were allocated to the UK, France or Belgium. The third category, consisting of territories thought by the Council of the League of Nations to be incapable of independence and self-government in the foreseeable future, included the former German colonies of South West Africa, mandated to South Africa, and Pacific and other colonies in the Southern hemisphere mandated to Japan, Australia and New Zealand. With the exception of South West Africa (now Namibia), all mandated territories of the second and third categories became ‘trust territories’ under the Charter of the United Nations. The mandates were important because they provided, probably inadvertently, the basis for the subsequent movement towards decolonisation. If independence was to be the goal for mandated territories it was difficult to argue that it should not also be the goal for colonies of the victors of the First World War.

The Aaland Islands Case†
In the aftermath of the creation of the League of Nations a case arose that has continued contemporary significance. It concerned the sovereignty of the Aaland Islands. These islands occupy a site in the Gulf of Bothnia in the Baltic Sea, between Finland and Sweden. There is one main island and an archipelago of over 6,000 small islands and skerries (small rocky islands usually too small for habitation). Ninety per cent of the population, which is only 27,000, live on the main island. The population is overwhelmingly Swedish speaking. The recent history of the islands is that in 1809 they were ceded by Sweden to Russia and they became a part of the semi-autonomous Grand Duchy of Finland. In 1832 the Russians began to fortify the islands but these fortifications were destroyed by the British and French in 1854 as part of the campaign relating to the Crimean War. In the Finnish Civil War of 1918 Swedish troops briefly intervened as a peacekeeping force but were quickly replaced by German troops on behalf of the Finnish ‘White’ government. The inhabitants of the islands wished for the islands to be returned to Swedish sovereignty. Indeed in a petition it was said that more than 95 per cent of the adult population supported this change. Finland resisted such a cession but did offer autonomy. The dispute was referred to the Council of the League of Nations for resolution. In essence the question was whether in such circumstances the wishes of the inhabitants of a territory overcame the territorial rights of the sovereign state of which it was a part. The Swedish government responded to the decision of the Council by stating that in supporting the cause of the people of the Aaland Islands before Europe and the League of Nations, Sweden was not influenced by the desire to increase her territory. She only wished to support noble and just aspirations and to defend the right of an absolutely homogenous island population to reunite itself to its mother-country, from which it had been detached by force, but to which it is still united by the ties of a common origin, a common history, and a common national spirit. This population has declared to the whole world its unanimous wish not to be bound to a country to which it had been joined by force of arms alone.

Sometimes spelled Aland (or in Swedish, Åland).

page 92

University of London External System
The Swedish government had hoped that an institution established to assist in the realisation of right in international relationships would have favoured a solution of the Aaland question in conformity with the principle of self-determination, since, although not recognised as a part of international law, it has received so wide an application in the formation of the New Europe. The decision itself stated unequivocally as follows:
1. The sovereignty of the Aaland Islands is recognised to belong to Finland. 2. Nevertheless, the interests of the world, the future of cordial relations between Finland and Sweden, the prosperity and happiness of the Islands themselves cannot be ensured unless (a) certain further guarantees are given for the protection of the Islanders; and unless (b) arrangements are concluded for the non-fortification and neutralisation of the Archipelago. 3. The new guarantees to be inserted in the autonomy law should specially aim at the preservation of the Swedish language in the schools, at the maintenance of the landed property in the hands of the Islanders, at the restriction, within reasonable limits, of the exercise of the franchise by newcomers, and at ensuring the appointment of a Governor who will possess the confidence of the population. 4. The Council has requested that the guarantees will be more likely to achieve their purpose, if they are discussed and agreed to by the Representatives of Finland with those of Sweden, if necessary with the assistance of the Council of the League of Nations, and, in accordance with the Council’s desire, the two parties have decided to seek out an agreement. Should their efforts fail, the Council would itself fix the guarantees which, in its opinion, should be inserted, by means of an amendment, in the autonomy law of May, 7th, 1920. In any case, the Council of the League of Nations will see to the enforcement of these guarantees.

In effect, then, the Council of the League elevated existing territorial sovereignty above the wishes of a people even where their physical location and ethnic and linguistic identity were undeniably distinct. Sovereignty originally acquired by force remained sacrosanct. (It is however important to observe that through the good will of the Finnish and Swedish governments the guarantees provided for the autonomous rights of the population have been maintained in an unexceptionable manner.) The decision has been accepted as being of relevance in all contemporary cases of attempted or projected secession.

Decolonisation and the Indian sub-continent
One other development before the UN Charter concerning self-determination should be remembered. Although the Indian sub-continent did not achieve independence until 1947, its struggle to that end was well-established in the 1930s. This movement enjoyed overwhelming support on the sub-continent and not inconsiderable support in the colonial power, the UK. Independence and self-government was the inevitable end and it is clear that the wishes of the people were irresistible. What is important for the development of self-determination in this example is that it showed that if a people had sufficient power and unity a colonial state would have no alternative but to grant what was demanded. Here it was less the exercise of a right than an exercise of power that developed into a right after the creation of the UN. Indeed, it might be argued that the concept of self-determination simply channelled the results of the struggle towards independence.

Activity 7.1
Canuitubeuargueduthatutheuprocessuofuself-determinationuwasuinadvertentlyuinitiatedu withutheumandateusystemuofutheuLeagueuofuNations?u Feedback:useeuenduofuguide.

Public international law 7 Self-determination and territory in international law

page 93

Summary
The early history of the principle of self-determination is important because it illustrates an accidental historical process. On the one hand the development was not planned nor its significance understood by those responsible for it, but on the other hand it did reflect a change in the power relations in international relations brought about particularly by the First World War. Even so, it should be noted that the international community placed great significance upon sovereignty and there was no suggestion that where sovereignty was settled the wishes of a people or peoples might be able to change this.

Self-assessment question
WhyudouyouuthinkuthatutheuCounciluofutheuLeagueuofuNationsudecidedutouignoreutheu wishesuofutheuinhabitantsuofutheuAalanduIslands?uWereutheyurightutoudouso?u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

traceutheudevelopmentuofutheuideauofuself-determinationuasuauprincipleuofulimitedu applicationu recogniseutheutensionubetweenusovereigntyuanduself-determination.u

uu

7.2 The United Nations Charter, self-determination and decolonisation
Essential reading
¢u ¢u

Kaczorowska,uChapteru14:u‘Self-determinationuofupeoples’,upp.340–52.u Cassese,uChapteru16:u‘TheuroleuofutheuUniteduNations’,upp.328–29.

The draft of the UN Charter did not contain any suggestion that the recognised principle of self-determination would ever be conceived of as a right, let alone a human right, and certainly not as a peremptory norm of international law. Nevertheless to some extent this development was foreshadowed by the Atlantic Charter of 1941 when Roosevelt and Churchill stated the reasons why the Second World War was being fought. The second and third principles stated:
Second, they desire to see no territorial changes that do not accord with the freely expressed wishes of the peoples concerned. Third, they respect the right of all peoples to choose the form of government under which they will live; and they wish to see sovereign rights and self government restored to those who have been forcibly deprived of them.

Within the Charter the principle of self-determination received acknowledgement, but not as a legal right. Its first mention is as a principle in Article 1(2) where it is stated that one of the purposes of the UN is ‘to develop friendly relations among nations based on the respect for the principle of equal rights and self-determination of peoples’. There is a similarly oblique reference in Article 55, while Chapter XII which concerns trusteeship territories explicitly requires that action be taken by those states charged with administering trustee territories to promote the welfare of the native inhabitants and to steer them towards self-government. (The trusteeship territories included those previously mandated but not yet independent – except South West Africa – together with dependent territories previously held by the defeated states of the Second World War. All territories in this system had either achieved independence or had chosen otherwise by 1995. South West Africa remained under mandate and became independent in 1990.)

page 94

University of London External System
From the earliest days of the UN two issues preoccupied firstly the non-aligned states (see p.123) and secondly newly independent states. These were decolonisation and the apartheid regimes. Much energy was directed at ensuring that these two issues remained at the forefront of all UN concerns. Indeed the reason for the very long delay (18 years) between the Universal Declaration of Human Rights and the signing of the International Covenants of Human Rights of 1966 arose from what was seen as persistence to that end on the part of non-aligned and newly independent states, and ‘bloody-mindedness’ by the developed UN states.

7.2.1 The process of decolonisation
While Chapter XII of the Charter dealt with the mandated territories and territories detached from the states defeated in the Second World War, Chapter XI was concerned with other non-self-governing territories which remained outside of the trusteeship system. Chapter XI is entitled ‘Declaration Regarding Non-Self-Governing Territories’ and was intended to provide for colonial matters. As Cassese points out, this was a provision in which the contribution of small and medium-sized countries was important (Cassese, p.319). Article 73 provided as follows:
Members of the United Nations which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self-government recognize the principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred trust the obligation to promote to the utmost, within the system of international peace and security established by the present Charter, the well-being of the inhabitants of these territories, and, to this end: a. to ensure, with due respect for the culture of the peoples concerned, their political, economic, social, and educational advancement, their just treatment, and their protection against abuses; b. to develop self-government, to take due account of the political aspirations of the peoples, and to assist them in the progressive development of their free political institutions, according to the particular circumstances of each territory and its peoples and their varying stages of advancement; c. to further international peace and security; d. to promote constructive measures of development, to encourage research, and to co-operate with one another and, when and where appropriate, with specialised international bodies with a view to the practical achievement of the social, economic, and scientific purposes set forth in this Article; and e. to transmit regularly to the Secretary-General for information purposes, subject to such limitation as security and constitutional considerations may require, statistical and other information of a technical nature relating to economic, social, and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters XI and XII apply.

While the requirements placed upon colonial powers were scarcely onerous, the very fact that they moved towards accountability of such states to the international community lent a substantial impetus to decolonisation. Cassese explains the reasons for this impetus (pp.328–29) but while I agree with his factors I think that they should be ordered differently. The crucial factors were the liberation movements in colonies and the support they derived from non-aligned and newly independent states within the UN. At the Bandung Conference of 1955, 29 African and Asian countries met (with China, India and Indonesia playing a prominent role) and agreed to resist colonialism. This conference led to the formation of the ‘Non-Aligned Movement’ in 1961, which was also dedicated to decolonisation. The other factors – the support of the ‘Second World’ (that is, the USSR and its allies) for decolonisation, the economic and social cost to colonial states, the waning support of the USA for European colonial empires and the rise to power of European parties that favoured decolonisation – were important, but less so. And Article 73, as drafted, certainly played its part.

Public international law 7 Self-determination and territory in international law
But while decolonisation was one of the great triumphs for the United Nations with the process being largely complete by 1975, self-determination brought a number of substantial problems, to which we will turn shortly. First it is necessary to consider the role of the UN in this remarkable process. Even the light obligations imposed by Article 73 were regarded as unacceptable by some colonial states and they attempted through a variety of rationalisations to avoid the reporting obligation. Portugal and Spain claimed that they were without colonies because their ‘overseas territories’ were in fact an integral part of the European state itself (thus Mozambique and Angola were argued to be a part of Portugal!). France argued that as its overseas territories were a part of the French Union they too were beyond the scope of Article 73, and the UK said that the article did not apply to territories that had local autonomy. Really the question was whether the power to define territories as colonies was to lie with the colonial powers themselves or with an external body. By 1960, the newly independent and non-aligned states were in the majority in the UN General Assembly and promoted a Declaration on the Granting of Independence to Colonial Countries and Peoples that was passed as Resolution 1514 by a vote of 89 in favour and none against. There were, however, nine significant abstentions including the US, the UK, Portugal, Spain and Belgium. This Resolution, together with the subsequent Resolution 1541, greatly altered and advanced the cause of decolonisation. Resolution 1514 provided:
1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and cooperation. 2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 3. Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence. 4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease in order to enable them to exercise peacefully and freely their right to complete independence, and the integrity of their national territory shall be respected. 5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories which have not yet attained independence, to transfer all powers to the peoples of those territories, without any conditions or reservations, in accordance with their freely expressed will and desire, without any distinction as to race, creed or colour, in order to enable them to enjoy complete independence and freedom. 6. Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations. 7. All States shall observe faithfully and strictly the provisions of the Charter of the United Nations, the Universal Declaration of Human Rights and the present Declaration on the basis of equality, non-interference in the internal affairs of all States, and respect for the sovereign rights of all peoples and their territorial integrity.

page 95

Thus it called for immediate decolonisation, regardless of the colonial power’s view of ‘readiness’ or ‘maturity’. At the same time it reinforced the view discussed below that territorialuintegrity implied that self-determination would be exercised within colonial borders. Resolution 1541 complemented this by providing that acts of selfdetermination must be exercised by the people to whom it applied, by free and fair elections by which they might choose either to constitute themselves as a sovereign independent state, or to associate freely with an independent state, or to integrate with an already existing state.

page 96

University of London External System

Other important developments in the United Nations were to be found in the finally signed two International Covenants on Human Rights of 1966 which had a common first Article, namely:
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development. 2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence. 3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and Trust Territories, shall promote the realisation of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations.

The significance of these common provisions in the Covenants intended to give legal effect to the UDHR cannot be over-emphasised. Not only is a right of political selfdetermination asserted but it is asserted as a human right. Of equal importance to the right of political self-determination is that of economic self-determination, on which more later. One other development is also crucial. As we observed earlier, the preoccupations of the newly independent states and the Non-Aligned Movement lay not only with decolonisation but with states in which apartheid was accepted. The latter situation was encompassed by a determination by the General Assembly that those living under racist regimes or those living in occupied territories (especially but not exclusively Palestinians) also had a right to self-determination even where they were in an established state such as South Africa. While all these developments increased the rate of decolonisation and kept international attention focused upon the topic, they were not unproblematic in their results. Three features presenting problems must be considered – the operation of the principle of uti possidetis, the methods by which the wishes of people claiming the right of self-determination were to be ascertained and guaranteed, and finally the operation of a proclaimed right of economic self-determination.

7.2.2 The principle of uti possidetis
This principle, derived from Roman law and meaning (as Cassese says at p.83) ‘you will have sovereignty over those territories you possess as of law’, has now been adapted and absorbed from the principles upon which Latin American states obtained independence in the early nineteenth century. Independence was acquired within the frontiers of the pre-existing colonial territory and these could not be altered unilaterally but only in agreement with adjacent states. Following the Second World War it was quickly accepted both by the colonial powers and by colonies seeking independence that this was an appropriate general principle and in turn this was accepted both by the Organisation of African Unity and by the ICJ (in the Frontier Dispute Case (Burkina Faso v Mali) [1986] ICJ Rep 554). No doubt this seemed sensible in the interests of stability. It has, however, had a great number of unfortunate consequences, many of which continue to plague African states in particular. The most cursory glance at a political map of contemporary Africa will reveal the number of boundaries that often extended in a straight line for hundreds of kilometres. Such boundaries were drawn by colonial draftsmen without reference either to the physical features of the territory being bounded, or to the people and their ethnicity who might live either side of the line. In fact straight African

Public international law 7 Self-determination and territory in international law
borders indicate that when they were drawn there was total ignorance of topography, geography or inhabitants (or, usually, all three) on the part of the draftsmen. Not surprisingly, then, many African borders unintentionally contain disparate ethnic groups or, probably more seriously, cut through tribal territories, dividing people from their kith and kin and imposing different nationalities on them. The result of the first, the containing of disparate people, led to substantial secessionist problems, most acutely in Biafra’s attempt to secede from Nigeria, from 1967–70, and Katanga’s attempt to secede from the Congo after its independence from Belgian rule. In fairness to those who rejected such secession it should be said that both of the above examples concerned the richest parts of ex-colonial states attempting to secede, and both movements were supported by states that hoped to profit. The result of the application of uti possidetis has been a series of frontier disputes coming before the ICJ in which we see the rather unedifying spectacle of the disputes being resolved in a way thought to conform with colonial intention and evidenced by the earliest colonial maps or treaties. Many contemporary disputes in Africa, both internal and external, have their origins in colonial frontier drawing. Examples range from the civil strife within Ivory Coast to the frontier dispute between Eritrea and Ethiopia. Thus the effect of uti possidetis has greatly constrained the proclaimed right of selfdetermination. Although value judgments may be inappropriate, some have argued that while the concept of decolonisation and self-determination was progressive, the consequent constraints of uti possidetis were distinctly conservative and prevented many peoples from breaking free from the colonial borders that had been imposed upon them. Certainly many minority peoples in African states have continued to experience subjugation. At the same time it remains obvious that statehood can never be equated with ethnic homogeneity. Arguably almost all states contain diverse ethnic groups and what is important is the access such people have to government participation and transparency.

page 97

7.2.3 Methods of self-determination and consequences
Once the reality of decolonisation had been conceded by the colonial power there were still two issues to be resolved. The first was the means by which the future of the decolonised territory was to be resolved, and the second was to be the role of the colonial power in defining the terms under which self-government was granted. As to the first, in retrospect it seems obvious that some act expressing the will of the people being decolonised should have been sought. Usually this was the case and plebiscites were often the means by which this was determined. Within African states receiving independence this was unproblematic. There was little doubt that the overwhelming majority of inhabitants would, and did, prefer domestic rule to that of colonial masters. There the question was rather about the constitutions with which such states were to be provided rather than determining wishes. This was not always the case, and on occasion events occurred that were difficult to reconcile with the spirit of decolonisation, and indeed its reality. Two examples indicate once more the significance of power in any analysis of international law. The first example is that of Goa, an enclave on the West Coast of the Indian subcontinent. Goa was a thriving Portuguese colony for some 450 years. Portugal was arguably in breach of its UN obligations in not taking steps to ascertain the wishes of the people of the colony. In 1961 India entered and annexed Goan territory which it claimed was an integral part of ‘Mother India’. This being the case it refused a referendum and the de facto result was accepted by the UN, a draft resolution condemning the annexation having been vetoed by the USSR.

page 98

University of London External System

The second example concerns what was once West New Guinea, a Dutch colony from 1883. It was the western half of the second largest island in the world, the other half of which became independent Papua New Guinea in 1975. When in 1949 the independent state of Indonesia was formed from the Dutch colonies known as the Dutch East Indies, West New Guinea was retained by Holland with a view to preparation for independence. Indonesia, under President Sukarno, and with the support of the NonAligned Movement in which he was influential, laid claim to all former Dutch territory. It had already successfully incorporated the Molucca Islands, although the Dutch decolonisation agreement had provided for the possibility of Moluccan secession – a fact subsequently ignored by the United Nations. Sukarno’s claim to West New Guinea was no more attractive or reasonable than Dutch colonial occupation. There was no natural link between West New Guinea and Indonesia and the claim can be seen as an attempt at late colonisation. Nevertheless, after armed confrontation by Indonesia in 1962, the Dutch entered negotiations which led to the transfer of the territory and its sovereignty to UNTEA (the United Nations Temporary Executive Authority) for six years, after which period it was to determine the people’s preference between independence and Indonesian integration. Almost immediately Indonesia began to direct events and finally, in 1969, a referendum of 1,205 delegates was organised in a vote that was neither representative, free nor fair. This vote in favour of integration into Indonesia was accepted by the United Nations, to its shame and notwithstanding misgivings, and the territory was unhappily transferred to Indonesia in November 1969. Needless to say, the change in sovereignty has brought no happiness to the ordinary people of West New Guinea (known now as Irian Jaya) and opposition to the regime continues. What should be understood, therefore, is that although self-determination is portrayed as always beneficial to those enjoying the right, this is not necessarily inevitable, unless the process is carried out in the manner supposedly intended. As to the role of the colonial power in defining subsequent constitutional arrangements, we turn to two other examples: Burma (Myanmar) and Indonesia. (More detailed information is to be found in an article by Karen Parker entitled ‘Understanding self-determination: the basics’, at http://www.webcom.com/hrin/ parker/selfdet.html). Both are examples of attempts by departing colonial powers to leave a constitutional legacy in the form of a written constitution intended to constrain the sovereignty of newly independent states. This was a typical process but the two chosen examples were early ones that foreshadowed the impossibility of the task, even if well meant. Burma gained independence from Great Britain in 1948 with a constitution that had been drafted in 1947. This provided for a parliamentary democracy and also, in recognition of the different peoples within Burma, provided for states within Burma for each of the Karen, Kachin and Shan people. Although the parliamentary democracy was to be unitary, Article 201 provided that any of the above groups would have a right to secede after 10 years of constitutional rule. As you might know, within that 10 year period the majority Burmese seized power and unilaterally removed the right to secession even though it had been thought that it had been effectively entrenched. Two points should be noted. Firstly, although constitutions usually continue to operate ‘beyond the grave’ (obviously the US constitution is an example of this), where a constitution is left as an imposed colonial legacy it is likely that its prestige will be greatly diminished. Secondly, the effect of constitutional changes by the newly independent state might be (as happened in Burma) to extinguish the very ‘self-determination rights’ of minority peoples, supposedly achieved through decolonisation. Indonesia too was formed from many different peoples in what had previously been the Dutch East Indies. The Dutch used many soldiers from the Moluccan islands in the struggle against decolonisation. In 1949 there was a Round Table Conference between the Netherlands, the Javanese (leaders of the Indonesian independence movement) and the United Nations, which agreed upon a de-colonisation instrument. It too included the possibility of ‘opt-outs’ providing for plebiscites for territories

Public international law 7 Self-determination and territory in international law
not wishing to be a part of the ‘United States of Indonesia’. Plebiscites were never permitted and when the Moluccan leadership declared independence in 1950, the islands were invaded by Indonesian forces. The matter was taken up by the United Nations Commission for Indonesia but the UN did nothing and the Commission ceased to exist five years later – no doubt reflecting the wishes of both newly independent states and those of the Second World who were more concerned with decolonisation than true self-determination. There are also parallels to be discovered in African decolonisation and state constitutions.

page 99

Economic self-determination
As is clear from Article 1 of the International Covenants on Human Rights, there was recognition that political self-determination in itself was insufficient. Thus there was an insistence that independent states should have the right to control both their economies and their resources without external interference. What was claimed was both the right to nationalise property within the new state regardless of ownership and title, and the right to economic development on equitable terms. (At this time it was not expressed in such terms but was implicit in the request of many independent but disadvantaged countries for financial and technical assistance.) Cassese (pp.507– 08) observes how from the 1960s newly independent states perceived the damage done to their economies by the terms under which they traded. Industrial prices rose persistently while primary produce and raw materials, the major exports of decolonised states, remained at or fell below the prices achieved at independence. Although nationalisation of foreign property remained an option, the reality of the consequences detracted from the attractiveness of this option, and to make matters worse, developed states took the view that the corollary of the right to nationalise was the obligation to pay ‘fair’ compensation. Efforts by the newly independent states to achieve a ‘New International Economic Order’ through a General Assembly resolution in 1974 were successful in a resolution but had little real effect. Attempts to redress the wealth disparity between North and South made little progress in spite of having the concept of ‘the common heritage of mankind’ adopted within a Law of the Sea Convention in 1982 (discussed later), and in spite of achieving a UN General Assembly Declaration recognising a ‘human right to development’. All these attempts to argue for economic redress for the debilitating effects of colonialism by way of fair trade and development, while very successful in obtaining widespread UN support, achieved very little in real terms. Indeed it is possible to argue that while self-determination brought political control, at least to parts of the indigenous population, one of its major effects was to remove the administrative burden and cost of colonialism from the colonial states and to place it directly upon ex-colonies. Such a generalisation demands discussion and thought beyond the scope of this guide, and it would be unfortunate to conclude this section on a negative note. The fact is that many states decolonised since 1945 have made much greater strides towards economic independence and prosperity than they could have expected had their colonial status continued. Few would now maintain that a system whereby territory and peoples are administered by foreign nationals with whom sovereignty resides is anything other than unacceptable and immoral. That colonialism was for so long accepted as unproblematic by European empires seems, in retrospect, almost unbelievable. This has been the great achievement of decolonisation.

Activity 7.2
Canuoneuprovideugeneraluanswersuasutouwhyudecolonisationuanduself-determinationu achievedulessuthanumightuhaveubeenuhopeduoruexpected?uInuyouruviewudoesu responsibilityulieuwithudevelopeduoruunderdevelopedustates?u Feedback:useeuenduofuguide.

page 100

University of London External System

Summary
This section has been concerned to consider the change in the principle of selfdetermination that existed at the time of (and in) the UN Charter to a ‘human right of self-determination’ in the 1966 International Covenants on Human Rights. The argument is that rapid decolonisation was both remarkable and generally in the interests of indigenous inhabitants. Nevertheless it is important to recognise the limitations of the right and the fact that some people got as little from ‘decolonisation’ as they had from colonial administration. This stems in part from the application of the principle of uti possidetis, and in part from the factual lack of economic selfdetermination which impeded economic development.

Self-assessment questions
1.u WhyuwereuattemptsuthroughutheuUNutouasserturightsutoudevelopmentuandufairu tradinguconditionsuneverusuccessful,uexceptuinutheupassageuofutheuresolutionsu themselves?u 2.u Isuituconceivableuthatuaurightuofusecessionucouldueveruhaveubeenuaupartuofuaurightutou self-determination?u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

explainutheusignificanceuofutheuUNuCharteruinutheuchangeufromuself-determinationu asuauprincipleutouself-determinationuasuauhumanurightu recogniseutheulimitationsutoutheurightucreatedubyutheuprincipleuofuuti possidetis.

uu

7.3 Self-determination after the Cold War
Essential reading
¢u ¢u

Kaczorowska,uChapteru14:u‘Self-determinationuofupeoples’,upp.352–65.u Cassese,uChapteru16:u‘TheuroleuofutheuUniteduNations’,upp.328–29.

By the end of the Cold War in 1990 most people thought that the concept of selfdetermination had almost fulfilled its purpose. This was because it had been accepted as being of relevance only to colonial or occupied peoples and there were few of these left. One obvious remaining problem was that presented by the Palestinian situation, particularly after the war of 1967 in which Israel captured and continued to occupy the West Bank and Gaza. Many resolutions were passed by the UN recognising the right of Palestinian self-determination, but unwavering support by the US for whatever position the Israeli government adopted in order to resist, left the Palestinians frustrated and the Israelis building more and more settlements in the occupied lands. Israel has remained intransigent notwithstanding international pressure and, as we have seen, has continued to defy an ICJ decision, with the construction of a ‘security fence’ largely built in the occupied land. Regrettably, this is one right of selfdetermination that still remains to be exercised. As we have seen above, any right of self-determination was subordinate to the principle of the territorial integrity of a state, and hence there was no right of secession. Academic writers suggested that where secession was sought this would only be arguable where those wishing to secede were deprived of their civic rights within the state in which they existed. A right of internal self-determination meant that all peoples within a state should have equal rights of access to the means of government, but not a right to their own government. In some ways this emphasis upon territorial integrity was understandable. The feeling was that if distinct ethnic groups, religious groups or language groups were to be able to argue for independence, the resulting fragmentation of states would have no end. It was also recognised that if secession was tolerated, most secessions would themselves lead to the creation of a new minority within the seceding state.

Public international law 7 Self-determination and territory in international law
Nevertheless the events at the end of the Cold War forced a reconsideration of the place of self-determination. The disintegration of the Soviet Union into 15 independent states was a remarkable event. That it was accomplished with so little violence was nothing short of astounding. The disintegration brought about not only new institutions of government but agreement about the division of both the Soviet Union’s assets and its debts. Again the principle of uti possidetis was applied, with the new states appearing within their erstwhile federal frontiers. Eleven of the states that replaced the Soviet Union remained in loose alliance with Russia, in a Commonwealth of Independent States (CIS), while the Baltic states, Latvia, Estonia and Lithuania, together with Georgia, rejected such links. Immediately following the break up of the Soviet Union came the disintegration of Yugoslavia. It is notable that at least in the early stages of the crisis international emphasis was upon the territorial integrity of Yugoslavia and there was no assertion of a right to secession. It is still widely argued that the recognition of the independent states of Croatia and Slovenia occurred only when the disintegration was an accomplished fact. (While there can be no right to secession, sufficient power to assert the fact of secession may suffice for recognition! This is discussed further below.) The contemporary dilemma at the time of writing concerns the status of Kosovo. Intervention by NATO, unsanctioned by the UN Security Council, had prevented Serbian forces from asserting authority over what Serbia regarded as Serbian territory. While there is little doubt that a referendum would favour Kosovan independence, with 92 per cent of the population of Albanian Muslim loyalty, the international community is yet to decide whether (optimistically) to reach an Aaland Islands solution with autonomy guaranteed within a Serbian federation, or whether to accept the fact of disintegration and partition.

page 101

Contemporary rules on secession
While there have been many secessionist movements since the Cold War they tend to be diverse in their nature, cause and hopes. They range from attempts by Tamils to create an independent state in Sri Lanka to Somalis attempting to create a sate of Somaliland, from attempts by those in Western Sahara to achieve independence to Chechnyans fighting for independence from Russia, from Quebecois wishing to separate from Canada to the Scottish National Party seeking independence from the United Kingdom. When considering any of these cases it is useful to refer to the conclusions reached by the Canadian Supreme Court when it was asked by the Federal Government to consider the legitimacy of any Quebecois declaration of independence if it was successful in obtaining a positive vote for independence in a referendum. (When the question was asked there had already been two such referenda, in 1980 and 1995, and although independence was rejected, the second vote was very close with a majority of only 1 per cent.) The Supreme Court decision is available in full at http://scc. lexum.umontreal.ca/en/1998/1998rcs2-217/1998rcs2-217.html The most important point it makes is consistent with the Aaland Islands decision of 1923. The Supreme Court had been asked to consider both whether such a declaration of independence would be legal under the Canadian Constitution and whether it would be consistent with international law. The Court’s answer was that such unilateral secession was not consistent with either, and emphasised that territorial integrity prevails over any right of external self-determination. Effectively it stated that where rights of internal self-determination were protected so that the ‘government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of selfdetermination in its own internal arrangements, [it] is entitled to the protection under international law of its territorial integrity’. In other words, as we have seen above, a right of external self-determination can exist only where a people or peoples are denied equal access to the machinery of government and civil rights.

page 102

University of London External System

Of course in some ways Quebec is a unique situation. It is not a case where a territory at the extremity of the state is seeking to detach itself. The geographical position of Quebec in the centre of Canada means that were it to achieve independence the implications for the remainder of Canada would be severe. In addition, as with the Aaland Islanders, not only were the inhabitants not discriminated against but their language and culture received real protection. The contemporary position is accurately stated (though with a caveat (which we shall add at the end) in the summary of legal advice given by Professor James Crawford of Cambridge University in answer to a request from the Canadian Department of Justice in 1997. These were his conclusions:
a. In international practice there is no recognition of a unilateral right to secede based on a majority vote of the population of a sub-division or territory, whether or not that population constitutes one or more ‘peoples’ in the ordinary sense of the word. In international law, self-determination for peoples or groups within an independent state is achieved by participation in the political system of the state, on the basis of respect for its territorial integrity. b. Even where there is a strong and sustained call for independence (measured, for example, by referenda results showing substantial support for independence), it is a matter for the government of the state concerned to consider how to respond. It is not required to concede independence in such a case, but may take into account the national interest and the interests of all those concerned. c. Even in the context of separate colonial territories, unilateral secession was the exception. Self-determination was in the first instance a matter for the colonial government to implement; only if it was blocked by that government did the United Nations support unilateral secession. Outside the colonial context, the United Nations is extremely reluctant to admit a seceding entity to membership against the wishes of the government of the state from which it has purported to secede. There is no case since 1945 where it has done so. Where the parent state agrees to allow a territory to separate and become independent, the terms on which separation is agreed between the parties concerned will be respected, and if independence is achieved under such an agreement, rapid admission to the United Nations will follow. But where the government of the state concerned has maintained its opposition to unilateral secession, such secession has attracted virtually no international support or recognition. d. This pattern is reflected in the so-called ‘safeguard’ clause in the United Nations General Assembly Resolution 2625 (XXV), the Friendly Relations Declaration of 1970. In accordance with this clause, a state whose government represents the whole people on a basis of equality complies with the principle of self-determination in respect of all of its people and is entitled to the protection of its territorial integrity. The people of such a state exercise the right of self-determination through their equal participation in its system of government. [A copy in full of the advice is to be found at http:// canada2.justice.gc.ca/en/news/nr/1997/factum/craw.html]

In spite of these conclusions it is possible to infer from the first and fourth sections that a right of external self-determination might exist where a people or peoples enjoy no participation in the political system and/or are subject to discrimination. Such examples could arguably be found in Chechnya or Tibet. But these two examples make a different but familiar point. No secession will ever be permitted from a strong state regardless of the political conditions obtaining. Finally, notwithstanding Professor Crawford’s conclusions, the example of Eritrea’s independence should be mentioned. At the end of the Second World War Eritrea became a trust territory administered by the UK. In 1952 control was transferred to Ethiopia by the UN where it retained full autonomy until annexed by Ethiopia in 1962. It remained an Ethiopian province with UN acquiescence until a prolonged war of resistance, and independence was finally gained in 1993 with the downfall of the Ethiopian dictator, Mengistu. An Eritrean plebiscite under the supervision of the UN was held, as a result of which independence was declared and the new state was

Public international law 7 Self-determination and territory in international law
recognised by Ethiopia. What this example demonstrates is that where a territory is physically able to insist upon its demands for secession, the de facto position will gain recognition. The state from which secession has taken place will have no realistic alternative to acceptance and recognition.

page 103

Activity 7.3
Isutheuideauofuauhumanurightutouself-determinationuofuanyucontinuingurelevanceuafteru decolonisation?uShoulduitube?u Feedback:useeuenduofuguide.

Summary
Two factors affected the use of the concept of self-determination at the end of the Cold War. The first was the disintegration of the Soviet Union and the reasonably amicable creation of new independent states. New limitations on the concept of territorial integrity became necessary upon the subsequent dissolution of Yugoslavia – though in both cases the principle of uti possidetis was applied. The fact of the disintegration could not be denied. The second factor was that because self-determination had been confined to decolonisation and this process was almost complete, the concept required a new definition if it was to have any continuing relevance. This has been achieved, at least theoretically, by distinguishing a right of internal self-determination from a right of external self-determination. As always in international law, the question of power is central in any purported exercise of self-determination. This is nowhere better illustrated than in the Palestinian people’s frustrated but acknowledged right to self-determination.

Self-assessment questions
1.u SummariseuCrawford’suconclusionsuconcerningutheucontemporaryumeaninguofu self-determination.uAreutheyuadequateuandusufficient?u 2.u Hasutheucontinuinguuseuofutheuprincipleuofuuti possidetis proveduhelpfuluinutheu creationuofunewustatesusinceutheuColduWar?

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

explainutheucontributionuofutheurightuofuself-determinationutoutheuprocessuofu decolonisationu understandutheulimitationsuofutheurightutouself-determinationuinuanyuclaimuforu secessionu explainutheusignificanceuofutheuenduofutheuColduWaruandutheudisintegrationuofutheu SovietuUnionuforutheuconceptuofuself-determinationu appreciateuthatusecessionuwilluusuallyuonlyubeuaccepteduwhenuituhasubecomeuanu accomplishedufact.u

uu

uu

uu

7.4 States, territory and recognition
Essential reading
¢u ¢u

Kaczorowska,uChapteru5:u‘Recognition’,upp.73–94,upp.98–120.u Cassese,uChapteru4:u‘Statesuasutheuprimaryusubjectsuofuinternationalulaw’,u pp.73–80. Dixon,uChapteru5:u‘Personality,ustatehooduandurecognition’,upp.117–30.

¢u

The discussion of the right of self-determination has so far left unconsidered two major areas of international law that are crucial for a full understanding of territory and international law. The first relates to the principle of uti possidetis and answers the question as to how a state either upon creation or later may acquire or dispose of territory. The second looks at the topic of recognition of a state’s claim to territory and its importance.

page 104

University of London External System

7.4.1 State acquisition or disposal of territory in international law
Until the formulation of the UN Charter, this was a complex topic with abstruse rules. A world in which territory was won by conquest, or the planting of a flag, or international agreement of European colonial powers, or indeed by purchase regardless of the wishes of inhabitants, or simply by occupying territory previously uninhabited, at least by ‘civilized’ people, called for rules of an elaborate nature. Those that existed were based initially upon Roman law. On occasions they remain relevant even post-Charter, as for instance when frontier disputes exist between decolonised states leading to uncertainty as to where the borders are to which uti possidetis applies, or should have applied upon independence. These cases are, however, so rare that it is enough for you to be aware that such questions might arise and to know that most international law texts spend a disproportionate amount of time discussing law that is largely irrelevant to the twenty-first century. Article 2(4) of the UN 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.

Having recalled this provision, the ICJ, in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories – an advisory judgment in 2004, stated in para 87 as follows:
On 24 October 1970, the General Assembly adopted resolution 2625 (XXV), entitled ‘Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States’ (hereinafter ‘resolution 2625 (XXV)’), in which it emphasised that “No territorial acquisition resulting from the threat or use of force shall be recognised as legal.” As the Court stated in its Judgment in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), the principles as to the use of force incorporated in the Charter reflect customary international law (see I.C.J. Reports 1986, pp. 98-101, paragraphs 187–190); the same is true of its corollary entailing the illegality of territorial acquisition resulting from the threat or use of force.

This unequivocal statement contains the law of territorial transfer in the present day. Transfer can only be legitimate if it comes with the agreement of the sovereign parties to the deal. Such a conclusion has manifest consequences for the future of Israeli settlements in the Occupied Territories. Only Israel and the United States have argued that ‘facts on the ground’ might replace international law. It is also relevant to remember that Israel’s purported annexation of the Golan Heights and all of Jerusalem has received no external support (or recognition – see below). Nevertheless, it should be noted in passing that challenges to colonial acquisition of title continue in the claims of indigenous peoples in such countries as Canada, New Zealand, Australia and the USA.

7.4.2 Recognition in international law
Because the world of states is not one which is irrevocably settled, new states and new configurations of old states have been a constant feature of international relations. Thus apart from decolonisation, we have seen the creation of new independent states arising from the dissolution of the Soviet Union and the former Yugoslavia, and we have seen the amicable division of what was Czechoslovakia into the Czech Republic and Slovakia. Such changes in statehood necessitate a response from other states taking cognisance of the new realities. It is here that recognition is important. Recognition by one state of another state implies that the recognising state is willing to enter into relations with the entity that is being recognised. The recognition may be of either a state or the government of a state. Where it is the state that is being recognised, recognition implies that the recognising state accepts that the recognised state has the attributes of a state and will be treated as such. The recognition of a government formally acknowledges that the recognising state accepts that the

Public international law 7 Self-determination and territory in international law
recognised regime is the effective government and will be treated on that basis. In addition the recognition may be express, as for instance by a formal announcement, or it may be by implication through an act which of itself implies recognition unequivocally, particularly by entering a bilateral treaty. Very often the recognition will be collective, as when a state is newly admitted to membership of the UN under the procedure set out in Article 4 of the Charter. Once a state has been admitted to the UN it becomes subject to, and benefits from, sovereign equality (Article 2(1)). Indeed it was the fact of Kuwait’s membership of the UN that made Iraq’s purported annexation before the first Gulf War subject to almost unanimous condemnation. There is also an academic debate as to whether recognition is ‘declaratory’ or ‘constitutive’. In other words, does recognition simply recognise an existing reality or is it the act(s) of recognition that creates the reality of statehood? The Montevideo Convention on the Rights and Duties of States stated the generally accepted criteria for statehood as requiring (a) a permanent population, (b) a defined territory, (c) a government and (d) capacity to enter into relations with other states; it went on in Article 3 to add, ‘The political existence of a state is independent of recognition by the other states’. This is clearly an acceptance of the declaratory thesis but it is equally clearly largely obsolete. Those who argue that recognition is more than this point firstly to Article 4 of the UN Charter, which provides for admission only to those states willing to accept the Charter obligations. They are able to reinforce this position by considering the events leading to the recognition of states formed from the dissolving Soviet Union and the Former Yugoslav Republic. Here the EC had determined that recognition was to be granted only upon important specified conditions. To this end the foreign ministers of the member states of the EC adopted the following ‘Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union’ in 1991:
In compliance with the European Council’s request, Ministers have assessed developments in Eastern Europe and the Soviet Union with a view to elaborating an approach regarding relations with new states.

page 105

In this connection they set out the following guidelines:
The Community and its Member States confirm their attachment to the principles of the Helsinki Final Act and the Charter of Paris, in particular the principle of self-determination. They affirm their readiness to recognise, subject to the normal standards of international practice and the political realities in each case, those new States which, following the historic changes in the region, have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations.

Therefore, they adopt a common position on the process of recognition of these new states, which requires:
u

respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights guarantees for the rights of ethnic and national groups and minorities in accordance with the commitments subscribed to in the framework of the Commission on Security and Co-operation in Europe respect for the inviolability of all frontiers which can only be changed by peaceful means and by common agreement acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation as well as to security and regional stability commitment to settle by agreement, including where appropriate by recourse to arbitration, all questions concerning state succession and regional disputes.

u

u

u

u

The Community and its member states will not recognise entities which are the result of aggression. They take account of the effects of recognition on neighbouring states.

page 106

University of London External System

Thus the position would seem to be that states are not under an obligation to recognise a state merely because of a political reality. East Germany was not recognised as a state by the West until 1973 and the ‘Turkish Republic of Northern Cyprus’ received recognition only from Turkey. Finally, you will probably not be surprised to learn that there remains one anomalous territory, that of Palestine. A State of Palestine was proclaimed in November 1988, establishing it in the land of Palestine with a capital at Jerusalem (Al-Quds Ash-Sharif), though of course it is difficult to reconcile with the Montevideo criteria for statehood. Nevertheless the State has been recognised by almost half of the nations of the world and all of the Arab League. Obviously such recognition is a politically motivated action reflecting the frustration of many states at the Middle Eastern impasse.

Activity 7.4
Explainutheudebateuaboutuwhetherurecognitionuisudeclaratoryuoruconstitutive.uIsutheu debateusignificant?u Feedback:useeuenduofuguide.

Summary
In this section has we have considered how sovereign territory may be acquired or disposed of. Since the UN Charter, acquisition or disposal is only possible by agreement. Even prolonged occupation will no longer suffice and purported annexation is unlawful. When considering the role of recognition in international law it was necessary first to explain the effect of recognition and how it is granted either of a state or a government. It was also important to understand that de facto situations cannot compel recognition and that it is not uncommon for a recognising state to impose conditions before recognition.

Self-assessment exercise
Summariseutheupositionuofurecognitionuinumunicipalulawuasudescribeduinu Kaczorowskau(pp.82–91).u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu uu

explainutheurelevanceuofurecognitionutoustateuidentityu explainutheumeansubyuwhichusovereignuterritoryumayubeugaineduorudisposeduof.

7.5 Territorial and other rights over the sea and its bed
Essential reading
¢u ¢u

Cassese,uChapteru5:u‘Theuspatialudimensionuofustateuactivities’,upp.81–94. Dixon,uChapteru8:u‘Theulawuofutheusea’,upp.195–224.

So far in discussing self-determination and the acquisition and disposal of territory we have confined ourselves to a consideration of land. Until well into the twentieth century this would have been sufficient. Whereas territorial rights over land were highly developed, questions of ownership of and rights over the sea and its bed remained largely unasked. This was for a number of important reasons. The first concerned the rights of passage of ships. So important was merchant shipping that all powerful nations had an interest in protecting the rights of ships to the freedom of the seas. The only real limitation lay over the territorial sea where it was generally accepted that states could claim three nautical miles from the coastline as part of national territory. Because of this status the state enjoyed full sovereignty over the territorial sea, the airspace above it, the seabed and all that lay below it. Even then, however, the sovereignty was subject to the right of innocent passage that lay with all foreign merchant shipping and warships. ‘Innocent passage’ meant that the right could be exercised if passage was not prejudicial

Public international law 7 Self-determination and territory in international law
‘to the peace, good order or security of the coastal state’. While the right has sometimes been contested, usually the power of states in whose interests the rule operates has been sufficient to ensure innocent passage. The 1982 Convention on the Law of the Sea determined that coastal states should be able to claim up to 12 nautical miles of territorial sea (one nautical mile is 1.852 kilometres, or 1.508 land miles). This development was very much a part of the process by which property rights were being asserted over what had previously been available to all. Typically, property claims are made over resources that have scarcity value. As long as the sea was seen as primarily a route for shipping and a place for fishing, with enough fish for all, there was no need to make property claims. By the end of the Second World War coastal states had come to realise that the seabed and what lay below it could be extraordinarily valuable. Then followed a ‘property grab’, unseen since the scramble for colonies. It began with President Truman’s Proclamation of September 1945 which stated:
Having concern for the urgency of conserving and prudently utilising its natural resources, the Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. In cases where the continental shelf extends to the shores of another State, or is shared with an adjacent State, the boundary shall be determined by the United States and the State concerned in accordance with equitable principles. The character as high seas of the waters above the continental shelf and the right to their free and unimpeded navigation are in no way thus affected.

page 107

Very quickly customary international law followed the proclamation, to the great benefit of all coastal states fortunate enough to have a continental shelf. In turn the Geneva Convention on the Continental Shelf (1958) (and the later 1982 Convention on the Law of the Sea) regularised the position and as a result states are able to claim up to 200 nautical miles of continental shelf, not as sovereign territory but as territory that the coastal state has an exclusive right to explore and exploit. Such rights do not affect the status of the high seas nor the air space above the continental shelf. Initially coastal states without significant continental shelf appeared to be prejudiced by that fact in that the ability to exploit the sea was not initially extended in the same way. This disadvantage was corrected with the creation of an ‘exclusive economic zone’ (EEZ). The 1982 Convention defined this EEZ as ‘an area beyond and adjacent to the territorial sea’ which was not to extend beyond 200 nautical miles. Again sovereignty is limited – in this case to rights ‘for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the seabed and subsoil and the superjacent waters’. Most importantly, even if there is no continental shelf the rights include the right to regulate fishing within the EEZ. What will be apparent, then, is that within 30 years of the UN Charter the law of the sea had undergone an immense change to the considerable benefit of most coastal states (not all, because some that had been involved in distance fishing found their rights restricted). Particularly through off-shore oil exploitation many coastal states had title to resources to which a claim was recognised only in the second half of the twentieth century. Land locked states received no such benefit of course, and it was this that persuaded many of the delegations at the Law of the Sea conferences to attempt to distribute at least the proceeds of the exploitation of the deep seabed in a way dictated more by need than luck. While this was the view of developing states who argued that the benefits of deep sea exploitation should be recognised as ‘the common heritage of mankind’, the developed states (not altogether coincidentally the states with the ability to exploit the deep seabed) argued merely for regulation and licensing. The 1982 Convention provided that all deep seabed exploration should be carried out and controlled by an ‘International Sea Bed Authority’. Cassese explains the subsequent events (p.92–94). Whereas the Convention paved the way for the deep seabed to be used ‘in the interest of mankind’, this was firmly rejected by industrialised countries, and the Convention did not enter into force until 1994 when considerable concessions were made to the perspective of the developed countries.

page 108

University of London External System

Activity 7.5
‘TheuwholeudevelopmentuofutheulawuofutheuseauwasuthusudictatedubyuStateu sovereignty,unationalism,uanduaulaissez-faireuattitude.uInutheuscrambleuforueconomic,u scientificuorumilitaryucontroluoverutheunewuresources,ualmostuallunewunotionsuwereu inspiredubyuselfuinterestuandugearedutoucompetition.’u(Cassese,up.82.)u Doesuthisuquotationuaccuratelyureflectudevelopmentsuconcerningutheulawuofutheuseau afterutheuSeconduWorlduWar? Feedback:useeuenduofuguide.

Summary
Changes in the law of the sea over the last 60 years have been dramatic. This has been to the great advantage of many coastal states and to no real advantage to others. To a large extent the size of the benefit has corresponded to the length of coastline, although some states have found their continental shelf to be much richer in natural resources than others. Attempts to distribute these ‘windfall’ profits more equitably proved significantly unsuccessful. This was the case despite attempts to secure the benefits of the deep sea bed for distribution in accordance with need.

Self-assessment exercise
Defineuandudistinguishubetweenutheufollowing:
uu uu uu uu uu uu uu

theuterritorialusea internaluwaters theucontiguousuzone theuexclusiveueconomicuzone theucontinentalushelf theuhighuseas theuinternationaluseabed.

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

outlineutheuchangesuinutheulawurelatingutoutheuexploitationuofutheuseauandutheuseau bedusinceutheuSeconduWorlduWaru discussutheudebatesuconcerningunewlyucreatedurightsuoverutheuseauanduseaubed.u

uu

Sample examination questions
Question 1uuu‘Theuconceptuofuself-determinationuhasuchangedufromuaubroadubutu reasonablyuwell-defineduprincipleutouau“humanurightutouself-determination”uthatuisu almostuimpossibleutoudefineuoruapply.’u Discuss.u Question 2uuu‘Theulegitimacyuofusecessionuhasualwaysuposeduanualmostuinsuperableu problemuforuinternationalulaw.uHavinguemphasiseduforusoulongutheusanctityuofu sovereignty,uinternationalulawuhasubeenuunableutoudevelopucriteriautoudistinguishu betweenuacceptableuanduunacceptableusecession.uTheuresultuisuthatusecessionumustu beuachievedubyuforce.’ Discuss.u

Public international law 7 Self-determination and territory in international law

page 109

Advice on answering the questions
Question 1uuuThis question requires a discussion of the development of the concept of self-determination. A satisfactory structure would be to describe what the principle of self-determination meant and its limitations. Thus it would be appropriate to speak of its philosophical underpinnings and the reasonable inference that sovereign territory was not only about territory but also about the interests of inhabitants. At the same time the tension between territorial integrity and accepting the political wishes of a minority of citizens should be observed. This is well illustrated by the Aaland Islands Case where sovereignty was allowed to prevail over the wishes of the islanders. Although self-determination was still regarded as a principle when the UN Charter was accepted, it was only a short time later that it was being accorded the status of a right by the majority of the members of the General Assembly and utilised in the process of decolonisation. At this point it is appropriate to explain the benefits and limitations in the process with special consideration of uti possidetis. Some discussion could then cover the elevation of the ‘right’ to a ‘human right’ in the International Covenants in 1966 and the significance of this. Finally an analysis of the right after the Cold War should be made, emphasising how the right remained largely unchanged in theory even though it no longer concerned decolonisation. This could be followed by an indication of where and when the right is still sought and the likely outcome. The conclusion could concern itself with the question of whether self-determination as defined in international law really is capable of definition and application. Question 2uuuA right to secede would surely be the antithesis of territorial integrity. It is because territorial integrity is one of the cornerstones of sovereignty in international law that any notion of a right to secede would have to be extremely narrow and well-defined. It is clear that there remain situations where secession would be an appropriate response to an unjust situation – West Papua would be a good example. Many people would argue that the oppression directed towards the Chechnyan people historically provides justification for their efforts to secede. Equally clearly, however, the ability to secede will be more significant than any ‘right’ to secede. It remains inconceivable that Russia will in the foreseeable future be prepared to accept Chechnyan secession just as it is equally inconceivable that China would contemplate Tibetan secession. At this point it would be relevant to consider the Canadian Supreme Court decision concerning Quebec, also drawing upon the Crawford discussion. The conclusion might be either that there could never be any unilateral right to secession for the reasons expressed in those two sources; or that secession will always have to remain a political act which can be made lawful only upon recognition by other states or admission into the UN.

page 110

University of London External System

Notes

8

The peaceful settlement of disputes in international law

Contents
Introduction 81 82 83 84 85 Legal method and international dispute resolution The limited use historically made of the ICJ The contentious jurisdiction of the ICJ exemplified by Nicaragua v USA The advisory jurisdiction of the ICJ International arbitration 112 114 116 118 122 126

page 112

University of London External System

Introduction
The Charter of the United Nations places considerable emphasis upon the obligation of member states to avoid conflict and to settle disputes through peaceful means. Article 1(1) states that it is a purpose of the UN to:
bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace

while Article 2(2) places an obligation upon members to:
settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

Every member of the United Nations is of course a party to this Charter and is bound by it. The means of the pacific settlement of disputes is the subject of Chapter VI of the Charter. Such means include, under Article 33, ‘negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice’. You should notice immediately that the means suggested for resolving disputes, while they are all obviously lawful, are not all, strictly speaking, legal means as we defined them in Chapter 2. Negotiation, enquiry, mediation and conciliation, while they do have definitions in international law, seem, at least in my view, to lack the quality of legal means. This, as suggested in Chapter 2, requires some ‘translation’ from the social and political world to a legal frame in which legal issues are isolated and answered. For this reason we will primarily be concerned with judicial resolution, especially through the ICJ, and to a lesser extent with arbitration. The chapter will begin with a discussion of legal method and international dispute resolution, and will then proceed to a rather critical analysis of the International Court. It will consider the history of the Court, its composition and Statute, and some cases will exemplify the points made. Nevertheless, for the sake of completeness, mention is required of the non-legal methods. These are well explained in Dixon but summarised here. Negotiation is obviously the means by which most international disputes are resolved. This is usually, but not necessarily, diplomatic and face to face, and any agreement will have the status intended by the parties. It will be legally binding if this is what the parties intend. Mediation and good offices involve a third party or third parties. ‘Good offices’ from a third party precede negotiation, and mediation is a third party attempting to mediate, or be an intermediary between disputing parties. A commission of inquiry is usually a preliminary means by which facts may be impartially found in order to provide the basis for a resolution to the dispute.

Public international law 8 The peaceful settlement of disputes in international law

page 113

Learning outcomes
Byutheuenduofuthisuchapteruandutheurelevantureadingsuyouushouldubeuableuto:
uu

recogniseutheusignificanceuofutheuemphasisuplacedubyutheuinternationalu communityuuponutheupeacefulusettlementuofudisputesu explainutheumeansuenumerateduinuArticleu33uofutheuUNuCharteruforutheupeacefulu settlementuofudisputesu explainuwhyusomeumeansuofusettlementucanubeucategoriseduasulegalumethodsuandu someunot understandutheuICJuinuitsuformuandustructureu describeutheulegalumethoduofutheuCourt explainutheuroleuanduscopeuofutheuICJ’suadvisoryujurisdictionu formulateucriticismsuofubothutheuCourtuanduitsumethods appreciateutheuroleuofutheuICJuinucontentiousucases,uandugiveuexamplesuofuhowuituisu limitedubyupoliticalurealitiesu appreciateutheupossibilitiesuandulimitationsuofuarbitrationuinuinternationalu disputeuresolutionu understandutheuadvantagesuandudisadvantagesuofuarbitrationuasuopposedutou judicialusettlement.u

uu

uu

uu uu uu uu uu

uu

uu

Essential reading
¢u

Cassese,uChapteru14:u‘Promotingucomplianceuwithutheulawuandupreventinguoru promotingudisputes’,upp.278–95. Dixon,uChapteru10:u‘Theupeacefulusettlementuofudisputes’,upp.259–88. Kaczorowska,uChapteru15:u‘Peacefulusettlementuofudisputesubetweenustates’,u pp.366–409.

¢u ¢u

page 114

University of London External System

8.1 Legal method and international dispute resolution
Essential reading
¢u

Cassese,uChapteru14:u‘Promotingucomplianceuwithutheulawuandupreventinguoru promotingudisputes’,upp.278–95. Dixon,uChapteru10:u‘Theupeacefulusettlementuofudisputes’,upp.259–64. Kaczorowska,uChapteru15:u‘Peacefulusettlementuofudisputesubetweenustates’,u pp.366–68.

¢u ¢u

It was observed in Chapter 2 that international law is a phenomenon without compulsory jurisdiction in the event of disagreement or dispute. This is in spite of the fact that compulsory and binding jurisdiction was perceived as desirable by many writers for most of the twentieth century. Many argued that an international court with the ability to hand down authoritative judgments which would finally decide the rights and wrongs of issues which threatened world peace, and also with the moral or physical standing to ensure compliance, would contribute directly to the United Nations, objective of maintaining international peace and security. Often, it is argued, legal dispute resolution is the only alternative to the resolution of the dispute by force, often meaning war. There have historically been many efforts to persuade states that their interests lay in accepting this compulsory jurisdiction and the obligation to give effect to judgments even when inconvenient or worse. In retrospect this attempted persuasion seems to have been doomed to failure. The reasons are briefly alluded to in Chapter 2 but now require further discussion. The assumptions of those who advocated the acceptance of compulsory jurisdiction were over-optimistic for two central reasons. The first lies in the distinction between politics and law, and the second (which is related) is concerned with the belief in the objectivity of law and its ability to provide justice. These reasons may be exemplified through discussion of the significance of two decisions of the International Court of Justice. The first concerns the USA and its ‘relations’ with the government of Nicaragua; the second, the advisory opinion given by the Court in 1996 after considering whether the threat or use of nuclear weapons is, in any circumstances, permitted under international law. Both cases illustrate the advantages, and also the pitfalls of putting international problems into legal form.

8.1.1 The history and structure of the ICJ
The ICJ is the judicial organ of the United Nations and was the successor to the Permanent Court of International Justice (PCIJ), which was established in the aftermath of the First World War in 1921. There were however some significant differences between the two which indicate changing attitudes to adjudication in international law. As Judge Bedjaoui observed when he was President of the ICJ, the PCIJ was more of a precursor than a predecessor. This, he explained, was because of one striking difference between the Courts. Whereas the PCIJ, not an organ of the League of Nations, ‘aimed essentially to do no more than establish peace in order to preserve the status quo’, the ICJ was an integral part of the United Nations with the framers of the UN Charter directing their efforts towards the establishment ‘of an entirely new international society – a society consistently moving towards progress; a society more just, more egalitarian, more wont to show solidarity, more universal; a society all of whose members were to engage in an active and collective endeavour to usher in a full and lasting peace’. Thus he suggests that the ICJ was to be fully integrated into the concerns and purposes of the United Nations Organisation.

Public international law 8 The peaceful settlement of disputes in international law
While both Courts were given the authority to give final judgments, neither was given the power to create new international law. Decisions of the Courts do not, at least technically, create precedents as they would if they were given in domestic common law jurisdictions, although their importance will in fact extend beyond the instant case. The impetus for the creation of both Courts came from the reasonable sentiment that the use of force to settle disputes should be avoided as a matter of both policy and choice. As Judge Weeramantry often observed while a judge of the ICJ, there was a recognition that all major international disputes are finally concluded by negotiations and adjudication, and this in itself suggests that it is advantageous to have the negotiations and adjudication before, rather than after, the use of force. The creation of both Courts was stimulated by senseless and revolting carnage and the reaction thereto. The Statute of each Court provided that states could at any time declare that they recognised the jurisdiction of the Court as compulsory ipso facto in relation to any other state accepting the same obligation, in all legal disputes concerning a wide range of topics. In such a case it is provided that if the dispute is of a legal character and concerns the interpretation of a treaty; any question of international law; the existence of any fact which, if established, would constitute a breach of an international obligation; or the nature or extent of reparation to be made for the breach of an international obligation, then the Court’s jurisdiction becomes compulsory (Article 36(2) of the Statute of the Court). Most disputes between states would come within at least one of these provisions.

page 115

8.1.2 Criticisms of the ICJ
For various important reasons this acceptance of compulsory jurisdiction has not proved popular and hence the role of the ICJ in world affairs remains limited, although not inconsequential. Why should this be? A first answer lies in the composition and structure of the Court itself. The Statute of the Court provides that appointed judges are to be qualified for the highest judicial offices in their own state, or that they should be jurisconsults of recognised competence in international law (Article 2). There are 15 judges from 15 different states, elected by the UN General Assembly and the Security Council, and they sit as independent judges for nine year terms. The intricate voting procedure elaborated in Articles 3–12 ensures that each elected candidate has received majority support in both the General Assembly and the Security Council. It is provided also that at every election (these are staggered) the electors are to ‘bear in mind not only that the persons to be elected should individually possess the qualifications required, but also in the body as a whole theurepresentationuofutheumainuformsuofu civilizationuanduofutheuprincipalulegalusystemsuofutheuworldushouldubeuassured’. Perhaps the use of ‘the main forms of civilization’ might not give great confidence to the poorest states and the suspicion is always that ‘civilisation’ is equated with power and wealth, rather than culture. It is not without significance that the two working languages of the ICJ are English and French. And it is certainly true that the composition of the ICJ has remained contentious, with the view often being expressed that the Court was dominated by the North and by the powerful states in particular. There has recently been increased diversity in the judges chosen but this has certainly not met all of the objections. The problems lie rather deeper and lead to inherent contradictions. Such diversity as there is comes from a system which has evolved de facto. In this system, probably not incorrectly labelled as a ‘gentlemen’s agreement’, there is a regional distribution of judges with three from Africa, three from Asia, two from Latin America, two from Eastern Europe, and five from Western Europe and other countries. Within that regional distribution there is a ‘convention’ which ensures that a judge from each of the states which hold permanent membership of the UN Security Council will be elected.

page 116

University of London External System

Only one female judge has been elected in the history of both the PCIJ and the ICJ (Judge Rosalyn Higgins). Just as significant is the difficulty in actually achieving the diversity apparently envisaged. Although the judges sit as independent it is obvious that candidates will only be selected if they have shown a significant commitment to the structure, form and methodology of international law asuituis. Neither rebels nor iconoclasts will conceivably be elected no matter what state they come from or with what support. Thus it may be argued that notwithstanding the diversity of states from which judges come, the ICJ will continue to reflect a very Western perception of the way in which courts should operate and the sort of legal perspective that is brought to bear. Furthermore, although the judges are nationals of 15 states, overwhelmingly they have received at least some part of their legal education in the USA, the United Kingdom or France. This homogeneity of judicial identification is reinforced by the status, salary and privileges which are a part of their appointments. With the status of eminent people of ambassadorial rank, constantly reinforced by procedures which emphasise their exalted positions, their diversity tends to evaporate. This of course is only significant if it is accepted, as has been argued, that the international law way of proceeding is in fact not objective or neutral but imbued with the ideological perceptions of the West.

Activity 8.1
WhatucriticismsumayubeumadeuofutheuformuandustructureuofutheuInternationaluCourtuofu Justice?uDouyouuagreeuwithuthem?u Feedback:useeuenduofuguide.

Summary
Arguably the scope for judicial resolution of international disputes is limited. This is because judicial resolution will seldom resolve political issues. The structure and form of the ICJ can, anyway, be seen as reflecting Western perspectives on judicial resolution and although the Court is drawn from many states this remains the case.

Self-assessment questions
1.u HowuareujudgesuforutheuICJuchosen?u 2.u Howudouyouuthinkutheyushouldubeuchosen?u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

recogniseutheusignificanceuofutheuemphasisuplacedubyutheuinternationalu communityuuponutheupeacefulusettlementuofudisputesu explainutheumeansuenumerateduinuArticleu33uofutheuUNuCharteruforutheupeacefulu settlementuofudisputesu explainuwhyusomeumeansuofusettlementucanubeucategoriseduasulegalumethodsuandu someunot understandutheuICJuinuitsuformuandustructure describeutheulegalumethoduofutheuCourt.

uu

uu

uu uu

8.2 The limited use historically made of the ICJ
The fact that there are concerns over the structure and composition of the Court only partly explains the reluctance of states to grant jurisdiction. More fundamental is the very real apprehension about the usefulness of litigation and adjudication as a method of dispute resolution. By its very nature a legal case may be won by either party, and it is obvious, if usually unobserved, that no party if given a choice would choose to litigate unless that party believed it had a very real chance of success. Indeed even then it might well choose negotiation and mediation rather than the risk of adjudication.

Public international law 8 The peaceful settlement of disputes in international law
It was observed in Chapter 2 that the legal method of resolving disputes brings other problems as well. In the selection of the ‘legally relevant’, many social facts of significance to the parties or their constituents may simply be ignored, bringing political danger to governments. And because of the adversarial method of the ICJ this in itself often has the effect of aggravating disputes rather than mitigating them. Finally there is the well founded fear that the application of international law will generally preserve the status quo rather than promoting change which might arguably be desirable. (One alleged example of this concerned the legality of the NATO intervention in Kosovo. When the government of Yugoslavia attempted to have the legality of the intervention considered by the ICJ the UK government refused to allow the case to be heard as they were entitled to do. One reason advanced for the refusal to accept was that the law relating to humanitarian intervention was still developing and to allow the ICJ to determine the existing position might set back this development.) And it is seldom forgotten that international law governed the colonial world just as ‘objectively’ as it now governs a world of independent states. Considering the cost and the time involved in litigation, if the outcome is unpredictable, usually only those states unlikely to prevail in other forums will be prepared to chance all before the ICJ. Two significant qualifications to this critique must however be addressed and allowed. The first is that while the disadvantages of the legal method of dispute resolution are clear, so too are the advantages. In structuring a dispute in terms of questions of international law, while much of the political reality and context may be lost, the advantage is that a question is formulated that is answerable. At least the dispute asuformulatedubyulaw may be resolved. A sometimes quoted example suggests that there are disputes in which both parties welcome any solution because of the intransigence of the argument. In the words of Nagendra Singh, a judge at the ICJ from 1973 until his death in 1988:
The successful resolution of the border dispute between Burkino Faso and Mali in the 1986 Frontier Dispute Case illustrates the utility of judicial decision as a means of settlement in territorial disputes. The case was submitted to a Chamber of the ICJ pursuant to a special agreement concluded by the parties in 1983. In December 1985 while written submissions were being prepared, hostilities broke out in the disputed area. A ceasefire was agreed, and the Chamber by an order of 10 January 1986 directed the continued observance of the ceasefire, the withdrawal of troops within twenty days, and the avoidance of actions tending to aggravate the dispute or prejudice its eventual resolution. The case proceeded, and in its judgement of 22 December 1986 the Chamber determined the overall course of the frontier line. The Presidents of Burkino Faso and Mali publicly welcomed the judgement and indicated their intention to comply with it.

page 117

Thus the legal method may be useful where resolution plus authority is in the interests of all parties, and it may also be appropriate in disputes between friendly states prepared to accept outside jurisdiction, as in several cases concerning the law of the sea. The second qualification to the critique is that the record of the ICJ (such as it is, given that until recently very few cases had been referred to it) does not suggest that it has been less than independent. Its activities with regard to South West Africa (now Namibia) in 1966 did cause international concern, particularly in the non-Western world, when it held that it enjoyed no jurisdiction to determine whether South Africa was in violation of its mandate from the League of Nations in maintaining a system of apartheid within the territory. Certainly many African and Asian states regarded this decision as unacceptable and doubt was cast upon both the credibility of the Court and its ability to move easily into a post-colonial era. Some of the lost ground was recovered when in 1971, in an advisory opinion given at the request of the Security Council dealing with some aspects of the status of Namibia in international law, the Court upheld the obligation of states to give effect to a Security Council Resolution declaring the continued presence of the South African authorities to be unlawful. Sound though this may have seemed, its merit was greatly diminished by South Africa’s continuation of occupation until 1990. The ability to ignore an advisory opinion and to flout the ruling did little to increase the standing of the Court in the eyes of those consistently offended both by apartheid and by the Western friends of the South Africa government.

page 118

University of London External System

Overall, however, it is difficult to assess and appraise the Court because it is obviously constrained by the cases referred to it. But the fact that there have been so few must obviously represent either a distrust of legal method and international law as a suitable dispute resolution method or a sense that law is not relevant to political disputes. Such suspicion and scepticism can only have been increased by the effects of the ruling of the ICJ in the case between Nicaragua and the United States. For many reasons, this is one of the most significant cases to have been heard by the ICJ. But as will be seen, it is at least as significant for what it failed to achieve as for what it decided. And parenthetically it is not unimportant in assessing this case to observe the difficulty of discovering the facts which gave rise to this case, both in British international law textbooks and even in collections of cases and materials. While there are myriad references to the law applied in that case, the factual reality of the aggression of the United States against Nicaragua is made to appear quite peripheral. There are few better examples of how ‘pure’ international law can be with the legal being severed from the political context.

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

formulateucriticismsuofubothutheuCourtuanduitsumethods.

8.3 The contentious jurisdiction of the ICJ exemplified by Nicaragua v USA
Essential reading
¢u

Kaczorowska,uChapteru15:u‘Peacefulusettlementuofudisputesubetweenustates’,u pp.382–401. Cases:uNicaragua v United States (Jurisdiction)u[1984]uICJuReportsu392;uNicaragua v United States (Merits)u[1986]uICJuReportsu14;uCase Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo vuUganda ICJ,u19u Decemberu2005uhttp://www.icj-cij.org/icjwww/idocket/ico/ico_judgments/ ico_judgment_20051219.pdfu

¢u

Nicaragua brought its action against the United States making some of the gravest allegations known to international law. The history of the antagonism between these two states had begun its latest chapter very shortly after the Nicaraguan Sandinistas overthrew General Somoza, the dictator of Nicaragua from 1967 to 1979. Somoza, even when judged by the low standards of military dictators, excelled in both human rights abuse and avarice. The kindest thing US President Johnson had reportedly been able to say of him was, ‘He may be a son of a bitch, but he’s our son of a bitch’. Almost any overthrow would have been an improvement, but in fact the Sandinistas arrived with policies of land reform, public health care and education. These were policies calculated at once to appeal to the populace and to appal the government of the United States of America, which not only feared for the security of foreign investment in Nicaragua but was seemingly apprehensive about another ‘threat of a good example’ to other Central and South American dictatorships and their populations. It is not an exaggeration to assert that the policy of the USA towards Nicaragua was directed at making the humanitarian goals pursued by the Sandinistas impossible to attain. Not only did the USA train, arm and pay for the ‘Contras’ (in the main, remnants from Somoza’s oppressive army who, when he was still in power, had indulged in every form of torture and human rights abuse directed at the peasants who were thought to support the Sandinistas) who were determined to make reform impossible; it was also found by the ICJ to have mined Nicaraguan harbours, attacked oil installations, ports and shipping and even permitted the distribution of a manual on guerrilla warfare techniques which the Court found to be contrary to ‘general principles of humanitarian law’.

Public international law 8 The peaceful settlement of disputes in international law
The United States argued vehemently that the ICJ was not the appropriate forum within which to consider its ‘differences’ with Nicaragua. Because the strife between the countries was political, and in so far as this was alleged to threaten international peace and security, this was, it was argued, a matter not for the ICJ but rather for the Security Council of the United Nations which is charged under Article 24 of the UN Charter with ‘…primary responsibility for the maintenance of peace and security…’. This argument did have its merits. There was clearly a threat to international peace and security and in other circumstances the Security Council would have been the obvious main forum. In this situation, however, the argument was disingenuous because as long as the matter was within the Security Council the United States would be able, if necessary, to exercise its veto to prevent any action which might constrain its political goals (for example, the destruction of the Sandinista government of Nicaragua). When the US government decided to withdraw from further proceedings in the ICJ it made a public statement explaining its position. This pronouncement declared that the continuing proceedings constituted a ‘misuse of the Court for political purposes… the Court lacks jurisdiction and competence over such a case’. Why, then, did the ICJ feel able to consider the problem notwithstanding the Security Council involvement? The ICJ is declared in the Charter of the United Nations to be the principal judicial organ of the UN and according to the Statute of the ICJ was given jurisdiction over all cases referred to it by state parties. Once the Court found that the United States had, under Article 36(2) of the Court’s Statute, accepted the compulsory jurisdiction of the Court (as, it was held, had Nicaragua) it was scarcely open to it to suggest that the appropriate forum for dispute resolution lay elsewhere. Given that the allegations were of grave breaches of international law the ICJ could not plausibly have declined jurisdiction within the terms of its own Statute. The position of the United States, had it not been so utterly untenable, would have bordered on the ludicrous. Initially its position was to vehemently dispute the jurisdiction of the ICJ, claiming that its qualified acceptance of Article 36(2) of the Court’s Statute was not matched by Nicaragua’s qualified acceptance (a position rejected by the Court). When this argument did not prevail the United States simply announced that it would no longer recognise the compulsory jurisdiction of the Court, with immediate effect, and so withdrew. Such an act was patently in breach of treaty obligations voluntarily entered into. It was also a devastating and cynical act by the world’s most powerful nation and betrayed the long held position of the United States which had favoured compulsory jurisdiction. No-one more clearly highlights just what the United States’ reaction to the action begun by Nicaragua meant than D.P. Moynihan in his book On the law of nations (Cambridge, Mass: Harvard University Press, 1990) [ISBN 0674635760]. This is an impressive source because Moynihan, a sometime Senator from New York, had also been both Professor of Government at Harvard, and US Ambassador to the United Nations. Moynihan uses two quotations to show how the thinking of the United States had changed. He quotes President Eisenhower in 1959 stating that ‘the time has come for mankind to make the role of law in international affairs as normal as it is now in domestic affairs…’ and supporting global acceptance of ICJ compulsory jurisdiction, adding that it would be far ‘better to lose a point now and then in an international tribunal and gain a world in which everyone lives at peace under the rule of law’. He then adds a quotation from then Vice-President Richard Nixon where he observed that the United States ‘should be prepared to show the world by our example that the rule of law, even in the most trying circumstances, is the one system which all free men of good will must support’. One final quotation from Moynihan is relevant because of its poignant accuracy (and continuing pertinence). He quotes Professor Louis Henkin of Columbia University as summarising the inferable position of the United States government towards international law at this time as follows:

page 119

page 120

University of London External System
The United States appears to have adopted the view that under international law a state may use force in and against another country for the following reasons: i. to overthrow the government of that country in order to protect lives there ii. to counter intervention there by another state and carry the attack to the territory of the intervening state iii. to overthrow the government of that country on the ground that it is helping to undermine another friendly government iv. in reprisal for that country’s suspected responsibility for terrorist activities in the hope of deterring such acts in the future v. to overthrow a communist (or pro-communist) government or to prevent a communist (or pro-communist) government from assuming power, even if it was properly elected or emerged as a result of internal forces.

To its credit, the ICJ ruled against the USA in 1986, notwithstanding the refusal of that state to appear. The ICJ refused to decline jurisdiction as the USA had hoped. Undoubtedly the judgment is highly significant for international law and international lawyers. Typically a book of cases and materials in international law will have some seven excerpts from the Merits judgment considering the sources of international law, the relationship between custom and treaty, jus cogens, sovereignty over air space, state responsibility and private persons, the use of force, and self-defence. The benefits to the state of Nicaragua were rather less than those to international lawyers and writers. While at least some of the latter observe in passing that the United States rejected the decision of the Court and refused to accept its ruling, few actively considered the aftermath. Yet this is surely crucially important both for the Nicaraguan citizens and for other states contemplating adjudication of international issues through the World Court. Supposedly one great merit of the ICJ and the rule of law is that in legal proceedings states are equal before the law. In this case of exceptionally high visibility the United States showed itself able to ignore the Court with impunity, and even avoid Security Council condemnation for the clearest breach of treaty obligation. Article 94 of the Charter of the United Nations is unequivocal:
1. Each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party. 2. If any party to a case fails to perform the obligations incumbent upon it under a judgement rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgement.

Yet the aftermath seems to be seen by most international law writers as a matter for political, rather than legal, commentators. Although Noam Chomsky’s writing (beyond the field of linguistics) is sometimes more emotive than ‘dispassionate’ academic audiences are used to, his comments about the decision of the ICJ seem justified:
The World Court condemnation of the United States evoked further tantrums. Washington’s threats finally compelled Nicaragua to withdraw the claims for reparation awarded by the Court, after a US-Nicaragua agreement ‘aimed at enhancing economic, commercial and technical development to the maximum extent possible’, Nicaragua’s agent informed the Court. The withdrawal of just claims having been achieved by force, Washington moved to abrogate the agreement, suspending the trickle of aid with demands of increasing depravity and gall. In September 1993, the Senate voted 94-4 to ban any aid if Nicaragua fails to return or give adequate compensation (as determined by Washington) for properties of US citizens seized when Somoza fell – assets of US participants in the crushing of the beasts of burden by the tyrant who had long been a US favourite. (From Chomsky, N. World orders, old and new. (London: Pluto Press, 1994) [ISBN 0745313205].)

Public international law 8 The peaceful settlement of disputes in international law
Even before these developments, Nicaragua had clearly found itself with a Pyrrhic victory (or worse). After the rejection by the USA of the decision in 1986, Nicaragua had referred the matter to the Security Council pursuant to Article 94(2) of the Charter. Here the United States vetoed a resolution calling on all states to observe international law! In the General Assembly a call for compliance with the ICJ ruling was passed by 94-3 with only Israel and El Salvador supporting the USA and a year later passed a resolution calling for ‘full and immediate compliance’ with the ICJ decision, with only the USA and Israel voting against. As will be well known, US policy towards Nicaragua finally bore fruit, with the electorate ultimately persuaded that the realities of the world meant that an acceptance of American hegemony was preferable to the level of suffering which resistance brought. Predictably, health care has declined, infant mortality has risen, and disparities in wealth continue to increase. The ICJ case is a continuing reminder that legal victory is illusory unless there is both consent and co-operation from the disappointed party, or the international community is willing and able to insist upon compliance. What conclusions may be drawn regarding the significance of this case in an understanding of international law? The first repeats that while legal method allows for the de-politicisation of a dispute, the price paid might be that the legal decision will not be seen as a real resolution to the problem. Secondly, it has become clear through the writings of textbooks that for lawyers the judgment of the Court is an end in itself. The decision is significantly more important than the illusory nature of the relief granted and the aggression directed towards Nicaragua. Thirdly, it may be seen that the ability of the law to resolve disputes in favour of the powerless is always dependent upon the acquiescence of the powerful. This does have implications for the rule of law in the international arena. Interestingly, in Moynihan’s wonderfully indignant book, On the law of nations, his indignation is not directed at the foreign policy of the USA but rather at its inability to achieve – or to attempt to achieve – goals in a manner which is consistent (or at least arguably consistent) with international law. It is not the attempt to remove the Sandinistas from power with which he disagrees, but the patent illegality of the methods used in that attempt. Like Richard Nixon he clearly believes that international law is an important weapon in the armoury of a powerful nation, particularly where the use of force is impractical or undesirable. That the USA had usefully used the ICJ in seeking the return of the US diplomatic and consular staff being held hostage in Iran in violation of several international treaties seems to add weight to his views. In the Case Concerning US Diplomatic and Consular Staff in Iran (USA v Iran) [1979] ICJ Reports 7, the US had, within two weeks of applying to the ICJ, received a provisional order establishing that the rights of the USA had been violated and that the government of Iran should restore the embassy to the USA and release the hostages. Although not immediately complied with, there is no doubt that the final decision had put the USA itself in a position, pursuant to Article 94 of the Charter, to refer the matter to the Security Council. Moynihan’s view that had the Security Council not then taken action, the United States itself would have been entitled to, is certainly arguably correct. (Here of course there was no fear of a veto.)

page 121

Conclusion
In some ways, using Nicaragua v USA to exemplify the use of the ICJ in contentious cases might be argued to be misleading. This was, after all, one of the few cases where the Court’s ruling had been rejected with impunity and without direct sanction. But the advantages of its use outweigh the disadvantages. It highlights both the possibilities and the limitations of the judicial method of international dispute resolution.

page 122

University of London External System

What pertinent generalisations may one then make about the ICJ? The first is that because of the nature of sovereignty and the reality of power, the legal method of adjudication is inherently unlikely to be effective unless the parties have agreed to this form of settlement. As we have seen, they are only rarely likely to do so. The acceptance of compulsory jurisdiction, accepted by fewer than 50 states, and then very often with significant reservations, has not proved successful, and with states which had accepted compulsory jurisdiction feeling able to withdraw acceptance when decisions of which they disapproved were made (as in the case of the USA and France), it is unlikely to increase. Theoretically at least, this should be bad news for states with little power. For them the great advantage of legal adjudication should have been that in translating international agreements into legal argument, the reality of the physical disparities in power between the disputants should have been irrelevant. This indeed was what happened in Nicaragua v USA, but although the power was irrelevant in the adjudication, it was critical in the inability to give effect to the decision. This fact, together with the very Western jurisprudence and methodology of the Court, makes it unlikely that poor states will find the justice they think they deserve in the United Nations judicial organ.

Activity 8.2
WhatuisutheusignificanceuofutheudecisionuofuNicaraguauv USA foruinternationalulaw?u Feedback:useeuenduofuguide.

Summary
Adjudication in contentious cases before the ICJ is not always successful. To be so the parties must not only accept the jurisdiction of the Court but be ready to accept an adverse decision. These requirements are highlighted in Nicaragua v USA, where not only did one party refuse to accept the jurisdiction of the Court but it also had sufficient power to be able to resist the judgment. This suggests that particular features are necessary for effective adjudication.

Self-assessment questions
1.u ExplainutheuUSuargumentuinuNicaragua v USA aboutuwhetheruorunotutheuCourtu enjoyedujurisdictionuinuthisucase.uInuparticular,udidutheuargumentsuhaveuanyu arguableumerit? 2.u DoesutheuICJudecisionuinuCase Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda)ureinforceuorumodifyutheu decisionuinuNicaraguauvuUSA?u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

appreciateutheuroleuofutheuICJuinucontentiousucases,uandugiveuexamplesuofuhowuituisu limitedubyupoliticalurealities.u

8.4 The advisory jurisdiction of the ICJ
Essential reading
¢ ¢

Legality of the Threat or Use of Nuclear Weaponsu[1996]uICJuReportsu66. Palestinian Wall Advisory Opinionu[2004]uICJuReports.uSee:u http://www.icj-cij.org/icjwww/idocket/imwp/imwpframe.htm Kaczorowska,uChapteru15:u‘Peacefulusettlementuofudisputesubetweenustates’,u pp.401–06. Dixon,uChapteru10:u‘Theupeacefulusettlementuofudisputes’,upp.285–88. Articlesu65–68uofutheuStatuteuofutheuInternationaluCourtuofuJustice.

¢u

¢u ¢u

Public international law 8 The peaceful settlement of disputes in international law
In this chapter we look at the advisory jurisdiction of the ICJ, exemplified by the Legality of the Threat or Use of Nuclear Weapons Case and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory Case.

page 123

8.4.1 Legality of the Threat or Use of Nuclear Weapons Case
The second case to be used to illustrate points concerning the ICJ is concerned with the legality of the threat or use of nuclear weapons in which judgment was given in 1996. This was an advisory opinion given pursuant to Article 65 of the Statute of the ICJ which allows authorised bodies of the United Nations (primarily the Security Council and the General Assembly, but also other organs of the UN if authorised by the General Assembly) to request an opinion on any legal question. In this case both the World Health Organization (WHO) and the General Assembly had separately asked questions concerning the legality of the threat or use of nuclear weapons. The question posed by the WHO was asked particularly at the behest of Pacific state members and was framed as follows:
In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?

The majority of the 14 judges of the ICJ decided, for reasons that will be addressed shortly, that the WHO did not have competence to seek such an advisory opinion. The General Assembly question was asked in a resolution of 1994. It simply asked:
Is the threat or use of nuclear weapons in any circumstances permitted under international law?

The majority of the Court was prepared to entertain this question. No doubt readers of a legal training will already have begun to ask questions of the ‘So what?’ kind. That is, they will be asking what the practical consequences of the Court’s decision would be, whatever was decided. If the Court was to answer in the negative, was it really conceivable that states possessing nuclear weapons such as Israel or Pakistan, let alone the major nuclear powers, would surrender their nuclear weapons for destruction, accepting that they could neither be used nor threatened to be used? Accepting the improbable nature of this outcome, what if anything was to be gained by a legal answer to a legal question which was so isolated from political reality? The answer to this is to be found in the impressive submission of the Pacific states brought together in a book entitled The case against the bomb (Clark, R.S. (ed.), Newark, NJ: Rutgers University School of Law, 1996 [ISBN 0965557804]). One reason for formulating the WHO question was that some of the Pacific states are members of the WHO but not the United Nations – a position dictated by financial considerations and expenditure constraints. The small Pacific states feel themselves extremely vulnerable to things nuclear. Not only has much of the testing of nuclear weapons by the USA, France and the UK taken place in the Pacific, but also many of the smallest states, because of their size and limited elevation above sea-level, are sensitive to environmental change in a way that larger states are not. Within the Court there were some judges, particularly Judge Oda from Japan, who seemed to feel that the question posed was really an attempt to force the court to become a vehicle by which a political point could be made. This view was arguable. It is correct in that it recognised that a decision in favour of illegality could not, of itself, alter the ‘defence’ policies of those states with nuclear capability; but it is wrong to imagine that such a decision would either ‘open the floodgates’ to innumerable questions or, more importantly, be inconsequential. Its effect would be to reinforce with law the arguments of those who wanted the inherent immorality and inhumanity of weapons of immense mass destruction to be recognised and acted upon.

page 124

University of London External System

This is yet again an example of the legal method of translation. All those involved in the case knew that what was being argued in fact, though not in law, was whether the possession and potential use of nuclear weapons could be justified – but not justified in law, or not only law but also in reality. Here was a political question par excellence; political in the sense of being imbued with policy. Debates on this policy have been prolonged and bitter both between states with and without nuclear weapons and within states with and without nuclear weapons. Movements for compulsory nuclear disarmament have a history which begins almost with the first nuclear explosion. Their success has, however, been limited by their inability to gain democratic mandate for disarmament. Given that every member of the Court was aware of this reality, it is not surprising that some felt discomfited with the problem’s presentation as a legal one. Nor is it surprising that the decision of the Court was neither unanimous nor consistent. The refusal of the majority to accept the WHO question for opinion must be seen in this light. Significantly too, in the advisory opinion that was given, views were very different. Generalised to the greatest possible extent it may be put in the words of Professor R.S. Clark (Counsel for Samoa in the case), when he says of the ICJ opinion:
While the opinion strongly reflects the argument made on behalf of the Pacific coalition, what those States would have liked was a statement that the use or threat of use of nuclear weapons is illegal per se (illegal in itself), any time any place.

Three of the 14 judges – Judges Weeramantry (Sri Lanka), Koroma (Sierra Leone), and Shahabuddeen (Guyana) – said exactly that. Seven more – Judges Bedjaoui (Algeria, the President of the Court), Ranjeva (Madagascar), Herczegh (Hungary), Ski (China), Fleischhauer (Germany), Vereshchetin (Russia) and Ferrari Bravo (Italy) – said that it would ‘generally’ be contrary to the laws of war to use or threaten to use nuclear weapons. These judges were not sure, however, whether such a use ‘would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake’. Four judges – Judges Schwebel (United States), Oda (Japan), Guillaume (France) and Higgins (United Kingdom) – disagreed with both of these positions. While they conceded that a threat or use of nuclear weapons could be made only when it was compatible with the requirements of international law applicable to armed conflict, they believed that each individual case has to be considered against the relevant standards and that no general rule is possible. It is difficult not to infer, except in the cases of the judges from Sri Lanka, Sierra Leone and Guyana, that the judges were not entirely happy with what they had been called upon to answer. The result was a cynical reception by at least some observers. The title of Professor Vaughan Lowe’s note in one legal journal (ICLQ) sums up much of the response: ‘Shock decision: nuclear weapons may or may not be illegal’. The Court must also have been unhappy with the way in which it divided, as, although there is no complete correlation, the division does not seem to reflect the independence of the 15 judges. Rather, but not exactly, the differences reflect the different attitudes of states with no nuclear capability and no prospect of it, or even the ‘protection’ of a nuclear power’s umbrella, at one extreme; and states with nuclear capability or concerned with the protection it supposedly offers at the other. It may not be entirely coincidental that two of the judges (Judge Weeramantry and Judge Shahabuddeen) most adamantly in favour of the law clearly declaring the illegality of the threat or use of nuclear weapons were exceptionally not re-elected to the Court.

8.4.2 Advisory opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory
To further exemplify the process of advisory opinions we will briefly consider the recent case in which the General Assembly called upon the ICJ, in a resolution of 8 December 2003, ‘to urgently render an advisory opinion on the legal consequences arising from the construction of the wall being built by Israel, in the occupied Palestinian territories, including in and around East Jerusalem, considering the rules and principles of international law’. The resolution arose from the decision by the Israeli government to construct what they claimed was a defensive wall which

Public international law 8 The peaceful settlement of disputes in international law
would enable them to protect themselves from violence coming into Israel from the occupied West Bank. The intended wall did not however follow the ‘Green Line’ which was the Israeli boundary before the conquests of 1967. Rather it cut, sometimes deeply, into the occupied land and also cut off some Palestinians from access to their land. As was made clear in Chapter 7, the acquisition of title to territory by force or conquest is clearly not allowed in international law. (Since the United Nations Charter this has been unarguable.) Not surprisingly the Court was robust in its opinion. Only the American Judge Buergenthal voted against all of the conclusions of the otherwise generally unanimous Court. However, he did so not because he considered the wall lawful but because he was of the opinion that the Court should have declined jurisdiction unless it could take into account all of the evidence relating to what he referred to as ‘Israel’s legitimate right of self-defence’. In the view of most commentators such a consideration would have been relevant only if the wall being constructed followed the Green Line scrupulously. Further, consideration would in any case have been impossible as Israel elected not to appear before the Court to provide evidence to support its contentions. (As this was an advisory opinion Israel was within its rights to choose this course of action.) In fact, of those states making submissions to the Court, 22 did argue that the political nature of the case suggested that the ICJ was an inappropriate forum. The Court was not persuaded. The Court’s decision was that the construction of the wall being built by Israel, the occupying power in the Occupied Palestinian Territory, was contrary to international law; that Israel was under an obligation to terminate its breaches of international law and to cease construction immediately; that Israel had an obligation to make reparation for all damage caused; that all States are under an obligation not to recognise the illegal situation and have an obligation, while respecting the UN Charter, to ensure compliance by Israel with international humanitarian law as embodied in the Fourth Geneva Convention; and that the UN should consider what further action is required to bring the illegal situation arising from the construction of the wall to an end. The reasoning of the Court was in three parts. The first considered whether the request for opinion should be accepted, the second considered the legality of the construction of the wall, and the third considered the legal consequences of the breaches found. On the first point the Court found it proper to give an opinion as it had been legitimately requested by the General Assembly after the US had vetoed a Security Council resolution concerning the construction of the wall. Further it said that here it was not exercising its advisory jurisdiction in a way which effectively adjudicated upon a dispute between Israel and Palestine. The question was wider and of importance to the United Nations as a whole. The Court also rejected the contention of some states that its opinion could impede a political, negotiated settlement to the conflict and found no compelling reason precluding it from giving the requested opinion. The Court had little difficulty in concluding that the construction of the wall was contrary to international law. Indeed it seemed to contravene every rule of international law that the Court considered. Further, it held that Israel could not rely on either a right of self-defence or a state of necessity in order to preclude the wrongfulness of the construction of the wall. The question of legal consequences was more interesting. The Court observed that its opinion now allowed the General Assembly and the United Nations generally to use it as it wished – that is, it could be used as authority for General Assembly conclusions consistent with it. As we saw above, however, it did suggest that the consequences placed an obligation on Israel to cease the building of the wall and to make reparation. The obligation for other states was to not recognise the illegal situation and not to provide any aid or assistance in maintaining the illegal situation. In addition they should seek compliance with the Fourth Geneva Convention. The UN, it was said, should give further consideration to action intended to bring to an end the illegal situation resulting from the construction of the wall. Israel immediately denounced the opinion and indicated that it intended to ignore it.

page 125

page 126

University of London External System

There has seldom been such an adamant and explicit advisory opinion. It was of course a moral victory for those opposed to Israeli action, but was it more? Shortly after the judgment the General Assembly voted overwhelmingly to demand that Israel accept the opinion and cease work on the wall and do as the Court had suggested international law required. The resolution was passed by 150 states in favour, 10 abstentions and six against. Those against were Australia, the Federated States of Micronesia, Israel, the Marshall Islands, Tuvalu and the United States. On 10 July 2005, the Israeli cabinet approved the construction of the wall in Jerusalem and stated that the entire wall was to be completed as intended with only minor modification as required by the Israeli Court. Politically it would be unrealistic to have expected an ICJ advisory opinion to have resolved the dispute between the Palestinians and Israel. Nevertheless the strength of feeling both from the Court and from the General Assembly might have been expected to give Israel pause for thought. So far there is no indication that it has done so. An authoritative statement of international law has been ignored by those who were able to ignore it. And while advisory opinions may on occasion provide a political forum for political points to be made and they may reinforce moral positions, in time their efficacy is crucially limited in the face of resistance from rich and powerful states.

Activity 8.3
WhatuargumentsumayubeumadeuforutheuuseuofutheuadvisoryujurisdictionuofutheuICJ?u Whatuareutheuconsequences,utheoreticaluandureal,uthatuflowufromusuchuaudecision?u Feedback:useeuenduofuguide.

Summary
The advisory jurisdiction of the ICJ has often given rise to cases in which political considerations made the isolation of legal issues difficult. Nevertheless the Court has determined that a mixed question of law and fact does amount to a legal question. And as Dixon observes (p.288) the Court is not concerned with ‘the motives for a request, even if these are political’. This does however affect the effect of the decision.

Self-assessment question
Isuthereuanyupointuinugivingudecisionsuwithoutudirectuconsequence?u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

explainutheuroleuanduscopeuofutheuICJ’suadvisoryujurisdiction.u

8.5 International arbitration
Essential reading
¢u

Kaczorowska,uChapteru15:u‘Peacefulusettlementuofudisputesubetweenustates’,u pp.366–76. Dixon,uChapteru10:u‘Theupeacefulusettlementuofudisputes’,upp.264–67. Cassese,uChapteru14:u‘Promotingucomplianceuwithulawuandupreventinguorusettlingu disputes’,upp.281–88.

¢u ¢u

International arbitration has been defined by the International Law Commission as ‘a procedure for the settlement of disputes between States by a binding award on the basis of law and as a result of an undertaking voluntarily accepted’. You will notice that this definition of arbitration in international law is significantly narrower than the common meaning of arbitration. The crucial difference between judicial settlement and arbitration lies in the role played by the parties to the dispute and the degree of control they can exercise over the process. Arbitration allows the parties to select

Public international law 8 The peaceful settlement of disputes in international law
the tribunal, whereas parties have no control over the composition of a judicial body. In addition, in arbitration the parties may decide the law to be applied while the applicable law in the International Court is always the principles of international law. The modern history of arbitration began with procedures established in 1794 under the Jay Treaty between the United States and United Kingdom for the settlement of bilateral disputes. This provided for the creation of mixed Commissions, to which each state nominated an equal number of members with an umpire. In 1871 in an innovatory move, arbitration took place concerned to determine breaches of neutrality by Britain during the American Civil War. What was novel was that not only were there British and American nominees but there were also three independent nominees from other states (Brazil, Switzerland and Italy). Following the 1899 Convention on the Pacific Settlement of International Disputes an institution known as the Permanent Court of Arbitration was created (actually, as international lawyers like to observe, neither permanent, nor a court) whose organisation and composition was modified in 1907. The Permanent Court of Arbitration is still in existence. Relying as does the ICJ upon the consent of the states that use it, it actually has some features often preferred to the International Court of Justice. Each of the contracting parties is entitled to nominate up to four persons to be members of the PCA panel (there are more than 300 nominated from some 90 states). Any of these may be selected by the parties for any particular dispute. Once the parties to a dispute have agreed to arbitration they must agree a compromise. In essence this is an instrument that contains the agreement to arbitrate and will specify agreements as to the form the arbitration is to take. Thus it will name the selected arbitrators, define the questions the tribunal is to address, define the law and procedure that is to be applied, and state the period within which the award is to be made. Model rules exist as a basis for the drafting of the compromise. Arbitration awards are usually binding and final except in the event of some substantial procedural error, or manifest error of fact. Should an appeal be possible and successful, the result will be to render the award of the tribunal null and void. Although the use of arbitration is not extensive (there seem to be a much larger number of members of the Permanent Court of Arbitration available to arbitrate than the number of disputes submitted for arbitration) it is clear that it does have a place. Arbitration is possible in some disputes between a state and an individual. Thus the Convention on the Settlement of Investment Disputes between States and Nationals of Other States, 1965 makes conciliation and arbitration possible (with consent) between contracting parties and companies of the nationality of another contracting party. And perhaps the best known arbitral settlement of private claims of nationals has been the Iran-United States Claims Tribunal. A perusal of the current and recent claims at the Permanent Court seems to imply that in disputes between states, those most likely to be arbitrated are disputes between states generally otherwise enjoying close relations. There is also a close relationship between the ICJ and the PCA which is more than physical (both having homes in The Hague) and almost half the judges of the ICJ are also among the more than 300 members of the PCA available as arbitrators.

page 127

Summary
International arbitration under the Permanent Court of Arbitration is ‘quasi-judicial’ but provides parties who have consented to arbitration with significant control over the selection of arbitrators and over the procedure and law to be applied. While there are nevertheless fewer cases than might be anticipated, this is again because of the shortcomings of a process where parties must undertake to accept a result which is uncertain.

Self-assessment exercise
Defineuanduexplainutheumeansucontemplateduforutheupeacefulusettlementuofu internationaludisputesuinuChapteruVIuofutheuCharteruofutheuUniteduNations.u

page 128

University of London External System

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

appreciateutheupossibilitiesuandulimitationsuofuarbitrationuinuinternationalu disputeuresolutionu understandutheuadvantagesuandudisadvantagesuofuarbitrationuasuopposedutou judicialusettlement.u

uu

Sample examination questions
Question 1uuu‘TheuroleuofutheuInternationaluCourtuofuJusticeuhasubeenumuchumoreu restrictedubothuinutheunumberuofucasesudecideduanduinutheueffectuofutheuCourt’su decisionsuthanuhadubeenuanticipated.uThisuisuregrettableubutupossiblyuinevitable.’u Discuss. Question 2uuuAssessutheusignificanceuofutheuadvisoryujurisdictionuofutheuInternationalu CourtuofuJustice.u

Advice on answering the questions
Question 1uuuFrom the end of the nineteenth century increasing attention was paid in international relations to the possibility of having disputes between states resolved through the application of international legal principles. The use of arbitration had become relatively commonplace and judicial resolution probably seemed the next logical step. In retrospect it can be seen that judicial method is not always appropriate to inter-state disputes. There are cases where the decisions of the ICJ and before that the PCIJ have been effective in resolving disputes, but these probably contained one or more of a number of special factors. Judicial method is appropriate if the parties enjoy good relations that will not be disrupted by an adverse decision. The North Sea Continental Shelf Cases are a good example of this. It may also be appropriate where the parties are willing to accept the possibility of an adverse decision in order to resolve an intransigent problem. Various border and boundary disputes could be quoted here. On the other hand, Nicaragua v USA shows all too clearly the pitfalls of judicial decision. This case could be profitably analysed in some detail and the causes of its limited authority discussed. Question 2uu The advisory jurisdiction of the International Court of Justice is to be found in Articles 65–68 of the Court’s Statute. It is provided that the Court may give an advisory opinion on any legal question at the request of any body authorised by or in accordance with the Charter of the United Nations. This refers to Article 96 of the Charter. Advisory opinions are not binding but have nevertheless played a part in the development of international law. In particular the Reparations Case, the Certain Expenses Case and the Western Sahara Case have all contributed to international jurisprudence. (An indication of the significant points of these cases is relevant.) Nevertheless there are cases which exemplify the limitations of the process. It could be argued that problems typically arise where the question asked is held to be impossible to answer in the abstract (Legality of the Threat or Use of Nuclear Weapons) or where the case is in fact intended to avoid the requirement of state consent to adjudication – probably the Eastern Carelia Case and arguably the Western Sahara Case and possibly the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The Court was however aware of this possible criticism in the last case but rejected it forcefully. That case may be said to have greatly strengthened the moral arguments of the Palestinians and, but for the power of Israel’s allies, might have had even more significance.

9

Use of force in international law

Contents
Introduction 91 92 93 94 95 96 97 The use of force in international law before the creation of the United Nations The Charter of the United Nations Chapter VII of the UN Charter Self-defence in international law Self-defence and terrorism in international law Humanitarian intervention Rules constraining the sort of force permissible 130 132 135 138 140 145 148 151

page 130

University of London External System

Introduction
In default of the resolution of disputes by peaceful means discussed in the previous chapter, states may well resort to force. In international law no topic is more important than the control of this use of force by states. Whereas in the context of domestic law governments have a monopoly over the legitimate use of force, in international law sovereign equality and the lack of a supra-national government provides no such legitimacy. Further, in so far as international law has sought to govern the use of force by states it has no power in the form of military forces to assert its authority. International law requires the consent and co-operation of states in its attempts to curb and constrain violence with an international dimension. This chapter will begin with a brief analysis of the (restricted) role of international law before the creation of the United Nations. This history illustrates the problems in both defining ‘force’ and its use, and also in creating rules for many different sorts of situation where the question of the use of force requires consideration. While there are two separate matters for regulation – firstly the use of force as in recourse to war, usually described as jus ad bellum (the justification for going to war), and secondly the regulation of the sort of force permitted, usually covered by the term jus in bello (the law of war that includes rules concerning the conduct of war and the protection of war victims) – there are also many distinct situations requiring different rules. Thus, in considering the constraints on the use of force we must first identify the category to which the force is related. Does the matter concern intervention in a civil war? Does it concern the provision of help, military or otherwise, in such a situation? Does it concern an act of aggression or an act of self-defence? Is it concerned with the legitimacy of forcible intervention to save nationals or to prevent crimes against humanity or even genocide? Is it concerned with the question of when a state may legitimately come to the assistance of one side in an existing war? Is it claimed to be a legitimate response to an act or acts of terrorism, or could it be legitimate action in an attempt to pre-empt such conduct? Is it a reprisal for acts committed by another state? On each and all of these matters international law has been developing rules but obviously some are clearer than others and some remain contentious. When NATO intervened in Kosovo in 1999 for ‘humanitarian reasons’, the legality of the operation remained debatable. Similarly the actions of the United States and United Kingdom after establishing ‘no-fly zones’ through Security Council Resolution 688 in 1991, in carrying out air strikes against Iraq in 1998 and 2001 are controversial. Even more obviously controversial in international law has been the invasion and occupation of both Afghanistan and later Iraq by the United States and its few allies.

Public international law 9 Use of force in international law

page 131

Learning outcomes
Byutheuenduofuthisuchapteruandutheurelevantureadingsuyouushouldubeuableuto:
uu

describeutheudevelopmentuofuinternationalulawuconcerneduwithutheuuseuofuforceu beforeutheuUNuCharteru distinguishubetweenujus ad bellum andujus in bello explainutheusignificanceuofutheuUNuCharteruinurestrictingutheuuseuofuforceuinu internationalulawu recogniseutheuexceptionsutoutheuproscriptionuofutheuuseuofuforceuinutheuu UNuCharter explainutheueffectuofuGeneraluAssemblyuresolutionsupurportingutouinterpretuu theuCharter explainutheuliteralumeaninguofuArticleu51uanduitsuconstraintsuuponutheuinherentu rightuofuself-defenceu explainuwhyureprisals,uapparentlyuclearlyuunlawful,uareuoftenucarrieduoutuwithoutu condemnation outlineutheudebateuconcerningutheuscopeuofuArticleu51uinuresponseutouu terroristuactsu appreciateuwhyupowerfulustatesufavouruanuexpansiveuinterpretationuofuu Articleu51u explainutheudebateuaboututheulawurelatingutouhumanitarianuintervention discussutheusignificanceuofutheudebateuconcerningutheurightuofuhumanitarianu interventionuwithoutuSecurityuCounciluauthorisationu explainutheubasisuandueffectuofurulesuconstrainingutheusortuofuforceupermissibleu (whenuituisupermissible).u

uu uu

uu

uu

uu

uu

uu

uu

uu uu

uu

page 132

University of London External System

9.1 The use of force in international law before the creation of the United Nations
Essential reading
¢u ¢u ¢u

Dixon,uChapteru11:u‘Theuuseuofuforce’,upp.289–92. Cassese,uChapteru15:u‘Enforcement’,upp.296–301. Kaczorowska,uChapteru16:u‘Theuuseuofuforce’,upp.410–16.

9.1.1 Before the First World War
In a book published by the United States Council on Foreign Relations entitled Right v Might the Foreword begins:
Man’s readiness to settle differences by force of arms has been a feature of society since prehistory. Man’s attempt to place rational bounds on the use of force, emerging from his revulsion against the scourge of war, is almost as old. This struggle to impose ‘rationality on reality’ was a central feature of the Enlightenment and the ‘Age of Reason’ in the eighteenth century.†

While this is undoubtedly true, the fact is that a right to wage war remained unconstrained until after the First World War. One might have thought that the Treaty of Westphalia, bringing as it did the concept of sovereign equality, might have at least implicitly affected this position. How, after all, could sovereignty be equal if the powerful states were entitled to wage war on the powerless? Such inconsistency was at the very heart of the Westphalian system however and the idea that international law could constrain the prerogative of sovereign states to wage war would have been unimaginable. Endemic European wars were an enduring feature of the seventeenth, eighteenth and nineteenth centuries, waged both within and without Europe. Conquest was the means by which territory was acquired and colonies won. But the ferocity of battle came to be greatly enhanced by the development of ever more fearful weaponry and the beginnings of the ‘weapons of mass destruction’. The ability to kill and maim enemies and civilians alike progressed in a remarkable way. The revulsion at the result of this ‘progress’ led to the founding of the International Red Cross in 1863. Nevertheless, while many armies remained essentially mercenary (and where not, the overwhelming percentage of casualties remained impoverished recruits) there was little impetus to develop rules as to when war might be waged. A further separate development was important. As Oppenheim observes, whereas in the Middle Ages ‘war was a contention between the whole populations of the belligerent States…[and] in time of war every subject of one belligerent, whether an armed and fighting individual or not, whether man or woman, adult or infant, could be killed or enslaved by the other belligerent at will’, by the twentieth century war had become almost invariably ‘a contention of States throughutheiruarmeduforces’. This led to an increase in awareness that private subjects of belligerent states, not involved in the ‘contention’, could reasonably expect some protection. International law responded with states developing customary international laws not as to when war might or might not be waged but concerning how it might be waged and, to a lesser extent, against whom it might be waged. These were ultimately codified in treaties beginning only in the second half of the nineteenth century. The first of these was the 1856 Paris Declaration on maritime war, and it was followed by the 1864 Geneva Convention on wounded and sick and the St. Petersburg Declaration of 1868 concerned with explosive projectiles. In 1874, at the instigation of Russia, an international conference was held in Brussels which adopted an International Declaration Concerning the Laws and Customs of War. While a lack of ratifications meant that it never entered into force, it was important as a precursor to the crucial Hague ‘First International Peace Conference’ of 1899, and the ‘Second International Peace Conference’ of 1907. These Conferences, again held at the invitation of the

Henkin, L. Might v right. (Washington, DC: Council on Foreign Relations, 1989) [ISBN 0876090676].

Public international law 9 Use of force in international law
Russian Government, adopted numerous international instruments codifying (and sometimes adding to) international law. The 1907 Conference alone adopted 13 conventions and a declaration. Because these Conventions primarily codified the existing customary international law relating to warfare they were, when this was the case, binding on all states. Prominence was also given here to the so-called ‘Martens Clause’ which appeared in the Preamble in 1899. While the origin of this clause is disputed, what it did was to assert that where law was not yet sufficiently complete, the parties nevertheless wished to declare that in cases outside those covered by the declarations and regulations, populations and belligerents remained under the protection of international laws ‘as they result from usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience’. This clause was later to be reformulated in the 1949 Geneva Conventions, where it is stated that ‘in cases not covered by [the Geneva Conventions and Protocols] or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience’.

page 133

9.1.2 Efforts of the League of Nations
Thus before the First World War serious attempts had been made to control the form of warfare, but attempts to control recourse to war received serious consideration only after the War. Initially this was through the creation of the League of Nations and then with the negotiation and adoption of the General Treaty for the Renunciation of War, 1928, also known as the Kellogg-Briand Pact, and also the Pact of Paris. The Covenant of the League of Nations of 1919 did not purport to abolish war but it did attempt firstly to provide a permanent forum where states could negotiate and discuss differences rather than resorting to war; and secondly it placed limitations upon the use of force. Member states agreed that where they had serious disputes with one or more other states they would submit the dispute to arbitration or judicial settlement or inquiry by the Council of the League. There was to be no resort to war until three months after the completion of such a process. Thus the League’s aim was to provide time for reflection before recourse to war – a cooling off period for the disagreeing states. Members also undertook not to go to war with another member who complied with either an arbitral award, a judicial decision or a unanimous report from the Council. Finally they agreed to ‘respect and preserve as against external aggression, the territorial integrity and political independence of all Members of the League’. One further innovation of the Covenant is to be found in Article 16 which is not unrelated to the development of the later Chapter VII of the United Nations Charter. Article 16 provides for collective security for League members and the first paragraph states:
Should any member of the League resort to war in disregard of its covenants under Articles 12, 13 or 15, it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the covenant-breaking State, and the prevention of all financial, commercial or personal intercourse between the nationals of the covenantbreaking State and the nationals of any other State, whether a Member of the League or not.

Of course the League’s attempts even to limit recourse to war were scarcely successful. Unfortunately members of the League proved unwilling to sanction a state acting in defiance of the Covenant. Other paragraphs of Article 16 had empowered the League to take such decisions and also to use military sanctions. The provisions were never effective and even economic sanctions were irregularly applied, with the Assembly of the League voting in 1921 to make such economic sanctions optional for each member rather than compulsory.

page 134

University of London External System

9.1.3 General Treaty for the Renunciation of War, 1928 (the KelloggBriand Pact)
Whereas the Covenant of the League of Nations had sought to limit recourse to war, the Kellogg-Briand Pact sought to reject it. Originally created at the behest of the French Foreign Minister, Aristide Briand, who wanted it as a bilateral treaty with the United States, this optimistic document became multilateral and after an original 15 states signed when it was concluded, 63 were parties by 1939, including Germany, Japan and Italy. This in itself hints at its effectiveness. It was inspired by a liberal internationalist view that war could be prevented and abolished with a combination of enlightened diplomacy and collective solidarity. War was renounced as an instrument of national policy. It was accepted by the US Senate by 85-1 (though admittedly with the qualifications that it neither affected the US right of self-defence, nor yet committed the US to action to enforce the Treaty). The Treaty has but two brief substantive articles. Article 1 states:
The High Contracting Parties solemnly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.

Article 2 provides:
The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.

Although the Pact has been superseded by the UN Charter, it does remain in force. The reason for its substantial failure is significant. It remained a Pact without enforcement provisions and it was violated frequently. Its importance, however, was twofold. Firstly, this was the first treaty to suggest that recourse to war could be a breach of international law. Secondly, it was used as an important legal base for the prosecution in Nuremberg of those held responsible for starting the Second World War. In the Nuremberg judgment, in considering the Pact it was stated as follows:
The question is, what was the legal effect of this pact? The nations who signed the pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy, and expressly renounced it. After the signing of the pact, any nation resorting to war as an instrument of national policy breaks the pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing. War for the solution of international controversies undertaken as an instrument of national policy certainly includes a war of aggression and such a war is therefore outlawed by the pact. As Mr Henry L. Stimson, then Secretary of State of the United States said in 1932: ‘War between nations was renounced by the signatories of the Kellogg-Briand Treaty. This means that it has become throughout practically the entire world…an illegal thing. Hereafter, when engaged in armed conflict, either one or both of them must be termed violators of this general treaty law…We denounce them as law-breakers.’

Activity 9.1
ConsiderutheusignificanceuofutheuHagueuPeaceuConferencesuandutheiruoutcome.u Feedback:useeuenduofuguide.

Self-assessment exercise
ExplainutheureasonsuforutheuineffectivenessuofutheuLeagueuofuNationsuinutheu preservationuofupeace.

Public international law 9 Use of force in international law

page 135

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

describeutheudevelopmentuofuinternationalulawuconcerneduwithutheuuseuofuforceu beforeutheuUNuCharteru distinguishubetweenujus ad bellum andujus in bello.

uu

9.2 The Charter of the United Nations
Essential reading
¢u ¢u

Dixon,uChapteru11:u‘Theuuseuofuforce’,upp.292–309. Cassese,uChapteru3:u‘Theufundamentaluprinciplesugoverninguinternationalu relations’,upp.55–57. Kaczorowska,uChapteru16:u‘Theuuseuofuforce’,upp.416–19.

¢u

The conclusion of the Second World War gave rise to a renewed determination to use international law to prevent war, and, where it had begun, to terminate it. The opening of the Preamble to the UN Charter states the determination ‘to save succeeding generations from the scourge of war’, and the first purpose in Article 1(1) is:
To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

while Article 2(3) commits UN member states to settle their international disputes by peaceful means in order to ensure that international peace and security, and justice, are not endangered. Article 2(4) commits members to 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’. All of these provisions need to be read together with General Assembly Resolutions and Declarations that have sought to interpret them. A first point to be noted is that it was held in Nicaragua v USA (Merits) by the ICJ that Article 2(4) states the customary rule of international law and is therefore now applicable to all states. Its effect is to prohibit all measures of force other than those permitted by the Charter. These exceptions are:
u u u

self defence (Article 51) collective self-defence (also under Article 51) measures taken pursuant to Chapter VII of the Charter as authorised by the Security Council.

The 1970 General Assembly Resolution 2625 – Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter of the United Nations – is important in the interpretation of Article 2(4). While it is of course only a Resolution it is nevertheless regarded as expressing the consensus of member states regarding the way in which Article 2(4) is to be interpreted. This Resolution identifies the following duties:
Every State has the duty to refrain in its 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. Such a threat or use of force constitutes a violation of international law and the Charter of the United Nations and shall never be employed as a means of settling international issues. A war of aggression constitutes a crime against the peace, for which there is responsibility under international law.

page 136

University of London External System
In accordance with the purposes and principles of the United Nations, States have the duty to refrain from propaganda for wars of aggression. Every State has the duty to refrain from the threat or use of force to violate the existing international boundaries of another State or as a means of solving international disputes, including territorial disputes and problems concerning frontiers of States. Every State likewise has the duty to refrain from the threat or use of force to violate international lines of demarcation, such as armistice lines, established by or pursuant to an international agreement to which it is a party or which it is otherwise bound to respect. Nothing in the foregoing shall be construed as prejudicing the positions of the parties concerned with regard to the status and effects of such lines under their special regimes or as affecting their temporary character. States have a duty to refrain from acts of reprisal involving the use of force. Every State has the duty to refrain from any forcible action which deprives peoples referred to in the elaboration of the principle of equal rights and self-determination of their right to self-determination and freedom and independence. Every State has the duty to refrain from organising or encouraging the organization of irregular forces or armed bands, including mercenaries, for incursion into the territory of another State. Every State has the duty to refrain from organizing, instigating, assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organised activities within its territory directed towards the commission of such acts, when the acts referred to in the present paragraph involve a threat or use of force.

Obviously Article 2(4) goes beyond proscribing war, referring as it does to the ‘threat or use of force’. ‘Force’ however is undefined and opinions differ as to the interpretation it should be given. Clearly both political force and economic force could be interpreted as coming within Article 2(4). Not surprisingly, those states with the capability of exercising economic or political force (or coercion, to use one possible interpretation of ‘force’) have resisted such an interpretation, while those lacking such capability (primarily smaller and developing states) did not want ‘force’ confined to ‘armed force’. General Assembly Resolution 2625 does, in its interpretation of Article 2(7) (the duty not to interfere in matters within the domestic jurisdiction of any state) proscribe ‘economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights [or] to secure from it advantages of any kind’. But it has been held in the case of Nicaragua v USA (Merits) that economic sanctions by the US against Nicaragua did not constitute a breach of the customaryulawuprinciple of non-intervention. The generally held view (and one consistent with the interests of the powerful) is that Article 2(4) cannot encompass situations beyond armed force. Another General Assembly Resolution relevant to the interpretation of Article 2(4) is GA Resolution 3314 of 1974 – Resolution on the Definition of Aggression. This defines aggression as follows: ‘Aggression is the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any manner inconsistent with the Charter of the United Nations.’ It goes on to state that first use of armed force against Article 2(4) is deemed to be prima facie evidence of an act of aggression. Acts identified as aggression include an invasion or armed attack; any annexation of territory; bombardment by the armed forces of a state against the territory of another state; an attack by the armed forces of a state on the land, sea or air force, marine and air fleets of another state; and the sending, by or on behalf of a state, of armed bands, groups, irregulars or mercenaries who carry out acts of armed force against another state ‘of such gravity as to amount to acts defined as aggression’.

Public international law 9 Use of force in international law
The Declaration also significantly states that ‘no consideration of whatever nature, whether political, economic, military or otherwise, may serve as a justification for aggression’. The proposed defined acts of aggression were explicitly claimed not to be exhaustive and the task of determining the existence of any act of aggression remains with the Security Council under Article 39 of Chapter VII of the UN Charter. This, then, is the framework provided by the United Nations for the elimination of the use of force in international relations. The fact that provision was made for exceptions makes clear that this was not simply a utopian document. The Charter’s drafters recognised that situations contravening these provisions would arise and that it was necessary also to provide for lawful and legitimate responses where breaches did occur. If the chapter has been rather arid so far it is necessarily so because of the need to appreciate the dramatic aims of the Charter in proscribing war and yet the very real difficulties of achieving these goals. But I hope that as you have done the reading concerning international law and the use of force, you will have been trying to apply what is said to any or all of the cases of international strife we see about us, and to consider its relevance.

page 137

Activity 9.2
ShouldutheuCharteruofutheuUniteduNationsubeuseenuasuprovidinguaudramaticuchangeu inutheuinternationalulawuconcerningutheuuseuofuforce,uorumerelyuasuaulogicalu developmentufromuwhatuhadugoneubefore?u Feedback:useeuenduofuguide.

Summary
Perhaps the most important theme of the United Nations Charter lies in the preservation of peace and the proscription of war. The Charter reflects the reaction to a second World War in less than 40 years and a determination that international law had a role to play in avoiding a third. The position reached is related to the General Treaty for the Renunciation of War, 1928 but such is the membership of the UN accepting its Charter provisions that there can be no doubt that it represents customary law too. As interpreted in General Assembly Resolutions there can be no justification for instigating war. The exceptions to the proscription are limited and temporary.

Self-assessment questions
1.u WhyudoesuDixonusuggestuthatuArticleu2(4)uisuopenutouinterpretation?u 2.u WhyuisuituofuimportanceuthatuArticleu2(4)ubeuseenuasucustomaryuinternationalulaw?u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

explainutheusignificanceuofutheuUNuCharteruinurestrictingutheuuseuofuforceuinu internationalulawu recogniseutheuexceptionsutoutheuproscriptionuofutheuuseuofuforceuinutheuu UNuCharteru explainutheueffectuofuGeneraluAssemblyuresolutionsupurportingutouinterpretuu theuCharter.u

uu

uu

page 138

University of London External System

9.3 Chapter VII of the UN Charter
Essential reading
¢u ¢u ¢u

Dixon,uChapteru11:u‘Theuuseuofuforce’,upp.295–98. Cassese,uChapteru18:u‘Unilateraluresortutouforceubyustates’,upp.354–56. Kaczorowska,uChapteru17:u‘Collectiveusecurity’,upp.451–63.

What should now be clear is that at the formation of the United Nations the intention was that this body would have the role of ensuring international peace and security. Both the prohibition on the threat and use of force (Article 2(4)) and the prohibition on intervention in matters essentially within domestic jurisdiction (Article 2(7)) were intended to do so. Those who drafted the Charter, however, recognised that these provisions in themselves would be insufficient to prevent or halt international strife and thus placed the responsibility to make these provisions effective in the hands of the Security Council. The Security Council is defined and created by Chapter V of the Charter. This not only defines membership, both permanent and elected, and confers the power of veto on permanent members, but, crucially, gives the Security Council ‘primary responsibility for the maintenance of international peace and security’ (Article 24). Article 25 obliges all members to accept and carry out Security Council decisions. Its powers with regard to threats to the peace, breaches of the peace and acts of aggression are to be found in Chapter VII of the Charter. Chapter VII gives the Security Council the power to determine the existence of any threat to the peace, breach of the peace, or act of aggression and it is then empowered, upon such a determination, to make recommendations, or decide what measures shall be taken to maintain or restore international peace and security. It is important to realise that this power ‘to determine’ is unfettered. Once the Security Council has so determined there is no possibility of review by any judicial or other body. While some writers have argued that the position should be otherwise, being of the view that the power of the Security Council should be constrained in order to ensure that there is some objective evidence for such a determination, this does not seem to be a plausible interpretation of the power given to it. The measures available to the Council under Chapter VII to achieve its goals range from the imposition of economic sanctions to authorising the use of military force against states not complying with its decisions. Because of the power of veto and the Cold War, the Security Council’s Chapter VII powers were largely unused until 1990. The two occasions on which the powers were used were wholly exceptional. The first was when after conflict between North and South Korea the Security Council ‘recommended’ that the member states of the UN give such assistance to South Korea ‘as may be necessary to repel the armed attack [by North Korea] and to restore international peace and security in the area’. This, then, was a recommendation rather than an authorisation and furthermore it was passed in the absence of the one Security Council permanent member who would have exercised the veto (the Soviet Union). (The Soviet Union was absent because it was boycotting the Security Council in protest at the Chinese seat in the General Assembly and the Security Council being held by the nationalist Chinese, of Taiwan, rather than the communist government of mainland China.) Although Article 27 provides that decisions on such matters shall include ‘the concurring votes of the permanent members’, it seems now to be accepted that abstention for whatever reason is not to be equated with a veto. The second exceptional case concerned the attempt by Ian Smith’s government of Rhodesia to claim independence with a white minority government in 1965. Here the Security Council deemed the resulting situation a ‘usurpation of power by a racist settler minority’ and in a later resolution deemed imminent supply of oil to Rhodesia a ‘threat to the peace’ and called upon the UK ‘to prevent by the use of force if necessary, the arrival of vessels† reasonably believed to be carrying oil destined for Southern Rhodesia’. Later the Security Council imposed mandatory economic sanctions.

Vessels arrived at Beira in Mozambique, Rhodesia’s main port of access.

Public international law 9 Use of force in international law
The end of the Cold War brought hope to many that a new era had dawned in which the Security Council might at last perform the role allocated to it in 1945. This has proved over-optimistic for significant reasons. The first is structural. It had been intended under Article 43 that all member states would, ‘in order to contribute to the maintenance of international peace and security, undertake to make available to the Security Council…armed forces, assistance, and facilities…’. In fact the intentions of Articles 43–47 were never fulfilled and while action has been sanctioned by the Security Council it has always been entirely under the control of the participating states. Not surprisingly it has often proved difficult to gain the agreement of all permanent members when the action is to be under the control not of the UN but designated coalitions of members. It should be added, however, that even if this had not been the case there is little evidence to suggest that the international community is sufficiently united for the UN to have been more effective. That notwithstanding, Chapter VII has been used more widely since the Cold War and in 1990 the Security Council authorised member states to use ‘all necessary means’ to restore international peace and security in the Gulf by forcing Iraq to withdraw from Kuwait, the result of which was to return sovereignty to that occupied state. Other Resolutions have authorised particular states or sometimes organisations of states (such as the Organisation of American States) to use all necessary means to achieve particular ends. The two principle provisions under which the Security Council takes enforcement decisions are Article 41 (enforcement not involving the use of armed force) and Article 42 (providing for enforcement with the use of armed force).

page 139

Article 41
Article 41 provides:
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

The Cold War had prevented much use of this provision, although it had been used against Rhodesia in 1965 and South Africa in 1977. Its effect when used against Rhodesia was limited by the refusal of Portugal, then a colonial power with control over Mozambique and Angola, and South Africa to support UN sanctions. Against South Africa the operative Resolution 418 called for an arms embargo but there was little enthusiasm among powerful states for monitoring to ensure implementation. Wider sanctions have always been controversial, partly because many state governments were cynical about their effect, partly because many were unwilling to give up trade, and partly because many states thought that the effect of sanctions most directly affected the poorest citizens of the sanctioned state. The recent exposure of the corruption and graft that accompanied the sanctions against Iraq after its expulsion from Kuwait will have strengthened the arguments of those opposed to sanctions in principle. Nevertheless between 1990 and January 2005 sanctions had been imposed on 16 occasions and subsequently lifted in nine.

Article 42
Article 42 provides:
Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

page 140

University of London External System

This provision has never, strictly speaking, been applied. While the Resolution concerning Korea in 1950 was, as has been said, a ‘recommendation’, when it came to authorising the use of force against Iraq in 1990 Article 42 was not referred to (leaving some cynics to speak of action under ‘Article forty one and a half’). This was because of the lack of structure under Articles 43–47 forcing the Security Council to authorise a state, a group of states or a regional organisation to use armed force to restore international peace and order. This has had the effect of passing the control of such exercises of force away from the United Nations Organisation to other states or bodies. This was not envisaged in the Charter but the authority to act in this way is arguably implicit within Chapter VII.

Summary
Chapter VII of the UN Charter was intended to allocate power and responsibility to the Security Council both to determine the existence of any threat to the peace, and to decide what forcible or other measures should be taken to resolve the situation. The results have been less successful than anticipated, partly because of deep divisions among the veto states in the Council, and partly because of the failure ever to provide the UN with its own military forces, as had been envisaged. Nevertheless it remains arguable that any use of force, except for reasons of self-defence, remains unlawful unless sanctioned by the Security Council.

9.4 Self-defence in international law
Essential reading
¢u ¢u ¢u ¢u

Dixon,uChapteru11:u‘Theuuseuofuforce’,upp.295–98. Cassese,uChapteru18:u‘Unilateraluresortutouforceubyustates’,upp.354–56. Kaczorowska,uChapteru16:u‘Theuuseuofuforce’,upp.419–40. Case Concerning Oil Platforms: Islamic Republic of Iran v USA ICJu(2003).u

9.4.1 Self-defence under Article 51
The other main exception to the UN Charter’s proscription of the use of force is concerned with self-defence and is to be found in Article 51. It states:
Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

A number of points need to be made. Firstly and quite obviously, historically as long as recourse to war was not inconsistent with international law, there was no need for any right of self-defence. It was no more and no less lawful than the act that provoked it. Having said that, it is equally clear that the principles of this ‘inherent right’ were in fact laid down in an era when war remained lawful. The identification of the rights and limitations of self-defence first appeared in a rather oblique way after an incident concerning the destruction of a steamboat – the Caroline – in 1837. The Caroline was a US boat that was being used by US private militia to provide aid to rebels (against the British) in Upper Canada. While the boat was docked in New York State the British set the boat on fire and then sent it over the Niagara Falls. Two were killed and two taken prisoner. In response to a US protest the British said that the act was one of ‘necessary self-defence’. The dispute was resolved in 1842 when Daniel Webster, the then US Secretary of State, accepted that self-defence should be restricted to ‘cases in which the necessity of that self-defence is instant, overwhelming, leaving no choice of means, and no moment of deliberation’.

Public international law 9 Use of force in international law
Of course this was a peculiar case because property belonging to citizens of a third entity (the US) was destroyed in that third state in order to prevent interference by those citizens in a rebellion in a second entity (Upper Canada) against a first (Great Britain). Nevertheless these principles of necessity and proportionality have come to be accepted as appropriate criteria with which to judge the lawfulness of a claimed act of self-defence. Even so, Article 51 exists within the Charter, the intention of which was essentially to acquire a monopoly over the use of force in international relations. Thus although a right of self-defence is recognised as ‘inherent’, it is a right that was expected to exist only until such time as the Security Council was able to take the measures necessary to maintain (or restore) international peace and security. Such is the theory, but the failure to create the structures that would have enabled the Security Council to play this role, together with political disagreements, have meant that the exercise of self-defence is less brief than the Charter contemplated.

page 141

Armed attack and Entebbe Airport
Unfortunately Article 51 fails either to define ‘armed attack’ or to specify whether the attack must be upon the territory of the state under attack. What, for instance, of the situation where it is the nationals of a state who are being attacked beyond its borders? This situation arose in 1976 when an Air France aircraft with 251 passengers on board was hijacked by pro-Palestinians and taken to Entebbe in Uganda. The hijackers released the majority of the passengers but continued to hold some 60, most of whom were Israeli citizens. The Ugandan Government (under Idi Amin) did little to bring the hijacking to an end and shortly before a deadline set by the hijackers an Israeli commando raid took place. Commandos arrived unannounced at Entebbe where they stormed the hijacked craft, released the passengers and killed the hijackers (and some 45 Ugandan soldiers) before returning with the passengers to Israel. Did international law permit such a rescue? Israel claimed that Article 51 permitted it to use force in such circumstances in order to protect its citizens abroad if the state in which they found themselves was either unable or unwilling to protect them. International opinion was divided (less along the lines of international law than of individual states’ attitude to Israel) but since then it has become at least implicitly accepted that in such circumstances, if a state has sufficient power to rescue its citizens, then if the intervention does not exceed what is a proportionate response it will not be regarded as inconsistent with Article 51. But it is clear once more that the ability to exercise such a right belongs only to powerful states. It is equally clear that claims of such a right are obviously open to abuse (as for instance when the US invaded Grenada in 1983 supposedly to rescue its nationals, or when it intervened in Panama in 1989 – certainly in neither case was the primary objective of the US actions the rescue of nationals). It is probably correct to conclude that intervention to rescue nationals will not be contrary to Article 2(4) only if:
u u u u

the threat to nationals is real and imminent the state where they are being held is unwilling or unable to protect them the sole purpose of the intervention is rescue the response is proportionate in the sense that more lives may be expected to be saved than lost.

Delayed response and reprisals
On occasions the justification of self-defence has been used when the response to the original offensive act is nevertheless delayed. At first sight this might seem clearly contrary to Article 51, since it would seem that if there is time for reflection there is time to refer the matter to the Security Council. The advantage of treating the matter as within Article 51, rather than referring it to the Security Council, is that no Security Council action (such as a Resolution) will be required, and if the right of self-defence is being exercised, only a Security Council Resolution will suffice to order a halt to the act of defence.

page 142

University of London External System

Two examples are instructive. The Argentinean invasion of the Falkland Islands/ Malvinas in 1982 led to no immediate response. This was because of the time required to assemble and dispatch a substantial naval force and the time required to reach the South Atlantic once the force had been assembled. It could have been argued that this delayed ‘act of self-defence’ should have been replaced by putting the matter in the hands of the Security Council, but for transparent political reasons this course of action was rejected. This was probably inevitable given the inability of the United Nations and the Security Council to fulfil the intentions of the drafters of the Charter. Had the matter been referred to the Council, a Resolution empowering action would have been most unlikely – a veto would have prevented it. The second example arose from the attempted assassination of former President George H.W. Bush in 1993 when a car bomb was discovered in Kuwait. Some two months later the US launched a substantial cruise missile attack against Iraqi Military Intelligence Headquarters in Baghdad, causing death and destruction. Although this appeared to be much more like an act of reprisal in retaliation for an attributed act the US argued that it was a response permitted under Article 51. The delay in the act of self-defence arose, it was claimed, because of the need to obtain proof of Iraqi involvement. This position received considerable support from within the Security Council but the international community was deeply divided at such a unilateral use of force without Security Council authorisation. Reprisals are generally considered to have been outlawed by the United Nations Charter, but they do still occur. Because they are unlawful, very often in the past they have been cloaked in the hopeful garb of self-defence, although this stance seems to be changing. Certainly Israel is currently much less likely to bother attempting self-defence justifications and is content to accept the fact of reprisal. When in 1969, in response to the action of Palestinian guerrillas in destroying an El Al aircraft in Athens, Israeli commandos destroyed 13 civil aircraft valued at more than $40 million in Beirut, the Israeli Chief of Staff simply said that the objective was to make clear ‘to the other side that the price they must pay for terrorist activities can be very high’. Notwithstanding Security Council condemnation for Israel’s ‘premeditated military action in violation of its obligation under the Charter’, no further price was exacted, despite a call for compensation. Thus to conclude this section it is essential to recognise the limits of the right to self-defence and to recognise that theory does not necessarily coincide with reality. The theory is that self-defence is limited to a necessary and immediate (and proportionate) response until such time as the matter can be considered by the Security Council. The reality is that if states have sufficient power or support it is possible either to put forward the justification of self-defence even where it is strictly inappropriate or, more simply, to accept explicitly that an act is one of reprisal in the knowledge that Security Council condemnation is highly improbable.

9.4.2 Collective self-defence
As you will have realised, Article 51 contemplates collective self-defence, by which is meant the right of each state to use force in order to defend another state. Such collective self-defence is most common where there are alliances formed with the intention of mutual protection. In the Cold War, the Warsaw Pact and the North Atlantic Treaty Organisation were the most prominent of these, but they were certainly not unique. Under Article 5 of the North Atlantic Treaty it is provided that the Contracting Parties:
agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Public international law 9 Use of force in international law
Because Article 51 applies, the same obligation to report to the Security Council exists and the requirement of an armed attack remains. (The use of force in Kosovo is considered under ‘humanitarian intervention’ later.) As to the right of states to make regional arrangements, Article 52 of the UN Charter states:
1. Nothing in the present Charter precludes the existence of regional arrangements or agencies for dealing with such matters relating to the maintenance of international peace and security as are appropriate for regional action, provided that such arrangements or agencies and their activities are consistent with the Purposes and Principles of the United Nations. 2. The Members of the United Nations entering into such arrangements or constituting such agencies shall make every effort to achieve pacific settlement of local disputes through such regional arrangements or by such regional agencies before referring them to the Security Council.

page 143

Again, given Article 51, the actions of such regional arrangements must either be an act of collective self-defence or an action consistent with the purposes and principles of the UN. Most importantly, the power of the Security Council remains superior to any regional arrangement.

9.4.3 Pre-emptive self-defence
Because Article 51 refers to the situation where ‘an armed attack occurs’, this might seem to confine the right of self-defence to a response to an attack that has happened. This has been the view of most commentators since the creation of the Charter. The ‘inherent right’ seems so confined by the ordinary meaning of the words of Article 51. For this reason, states have seldom attempted to justify any use of force as an act of pre-emptive self-defence, and when Israel did so in its bombing of the Osirak nuclear reactor in Iraq in 1981 its action was condemned unanimously by the UN Security Council as illegal. Even the US supported this Resolution. Nevertheless it might be thought unreasonable that states should have no right to take action from some threatened attacks. It has been suggested that the Caroline principle might be called into play, recognising a right of pre-emptive self-defence only where the need for self-defence is ‘instant, overwhelming, leaving no choice of means and no moment of deliberation’ and where the response is proportionate to this imminent threat. Any attempt to define such a right is, however, fraught with difficulty. Because it has such potential for abuse, and often by states in unstable relationships (India and Pakistan, Israel and Iran/Syria, or North and South Korea) and with powerful, even nuclear weaponry, its use must be heavily circumscribed. Most states accept this and of course few states have the armed forces to make such pre-emptive strikes anyway. But recently, and particularly since the events of the terrorist attacks upon the US in 2001, the United States has asserted new rights of ‘pre-emptive self-defence’. We shall return to this point in the final chapter, but the position taken by the Bush administration is spelt out in a document – The National Security Strategy of the United States of America – published under the presidential seal in September 2002. Although many would query some of the assertions, what is said does represent the US view. It is startling. On page 15 it states:
For centuries, international law recognized that nations need not suffer an attack before they can lawfully take action to defend themselves against forces that present an imminent danger of attack. Legal scholars and international jurists often conditioned the legitimacy of pre-emption on the existence of an imminent threat – most often a visible mobilization of armies, navies, and air forces preparing to attack. We must adapt the concept of imminent threat to the capabilities and objectives of today’s adversaries. Rogue states and terrorists do not seek to attack us using conventional means. They know such attacks would fail. Instead, they rely on acts of terrorism and, potentially, the use of weapons of mass destruction – weapons that can be easily concealed and delivered covertly and without warning.

page 144

University of London External System
The targets of these attacks are our military forces and our civilian population, in direct violation of one of the principal norms of the law of warfare. As was demonstrated by the losses on September 11, 2001, mass civilian casualties is the specific objective of terrorists and these losses would be exponentially more severe if terrorists acquired and used weapons of mass destruction. The United States has long maintained the option of pre-emptive actions to counter a sufficient threat to our national security. The greater the threat, the greater is the risk of inaction – and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To forestall or prevent such hostile acts by our adversaries, the United States will, if necessary, act pre-emptively. The United States will not use force in all cases to pre-empt emerging threats, nor should nations use pre-emption as a pretext for aggression. Yet in an age where the enemies of civilization openly and actively seek the world’s most destructive technologies, the United States cannot remain idle while dangers gather.

Significantly, the US used this position as one justification for its unauthorised invasion of Iraq in 2003. More significantly, its major allies chose to justify their part only by a reading of Security Council resolutions. Yet again this is a situation where the power of the US enables it to assert a position in international law not shared by other states and certainly rejected by the United Nations.

Activity 9.3
‘Whileutheurequirementsuofuself-defenceuforuaujustificationuofutheuuseuofuforceuareu theoreticallyuclearuituseemsuallutoouapparentuthatuthisudefenceuisuusedubyustatesu withusufficientupowerutouassertuaurightutouuseuforceuforuotherureasonsu–uevenuifuthoseu reasonsuseemuincompatibleuwithutheuCharter.’uuDiscuss.u Feedback:useeuenduofuguide.

Summary
Self-defence in international law was intended in the Charter to be a restricted justification for the use of force. It was intended to legitimate forceful resistance to armed attack until such time as the Security Council could be notified so that it might resolve the conflict. Unfortunately the Security Council has never had the power required to play its assigned role. Now it is not unusual for states to define their own understanding of self-defence and effectively to challenge the Security Council to condemn them. Powerful states or states with powerful allies have not been constrained as intended.

Self-assessment question
Whatuisutheuevidenceuforutheuviewuthatureprisalsuareuonceumoreupermissibleuunderu internationalulaw?u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

explainutheuliteralumeaninguofuArticleu51uanduitsuconstraintsuuponutheuinherentu rightuofuself-defenceu explainuwhyureprisals,uapparentlyuclearlyuunlawful,uareuoftenucarrieduoutuwithoutu condemnation.u

uu

Public international law 9 Use of force in international law

page 145

9.5 Self-defence and terrorism in international law
Essential reading
¢u ¢u ¢u

Dixon,uChapteru11:u‘Theuuseuofuforce’,upp.301–04. Cassese,uChapteru18:u‘Unilateraluresortutouforceubyustates’,upp.449–50,upp.463–81. Kaczorowska,uChapteru16:u‘Theuuseuofuforce’,upp.432–37.

The 11 September 2001 act of Al-Qaida against the United States which killed almost 3,000 people was of course not the first major act of terrorism. But it was seminal in the effect that it had upon international law. Until that date the typical response to acts of national or international terrorism was to interpret the conduct as that of individuals and thus as acts of a criminal nature. This recognised that while different states might support different acts of terrorism, it would be rare indeed that acts of terror could be attributed to such a state. As we will see shortly, however, that position was not absolute, nor were responses to terrorism uniform. International law has had considerable difficulty in providing a definition of terrorism. Some thought such a definition unnecessary as any act of so-called terrorism was better defined depending upon the circumstances. An act of terrorism might be murder, arson, causing explosions or whatever, each giving rise to charges of recognised crimes. There were also some state representatives who were unwilling to define terrorism in a way that condemned the ‘freedom fighter’ – those concerned with pursuing a legitimate goal of self-determination – as well as the religious fanatic or politically disaffected. In Cassese’s words (p.449), ‘Third World countries staunchly clung to their view that this notion [terrorism] could not cover acts of violence perpetrated by the so-called freedom fighters, that is individuals and groups struggling for the realisation of self-determination’. (In fact more recently it has been the 56 members of the Organization of the Islamic Conference who have continued to insist that the armed struggle ‘for liberation and self-determination’ be excluded from a definition of terrorism because of their empathy with the Palestinian cause.) Nevertheless it was recognised that acts of terrorism seemed to be more than simple, if terrible, crimes under other names. In 1994 in GA Resolution 49/60 passed by consensus, there was an attached Declaration which, in paragraph 3 referred to terrorism as:
Criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or any other nature that may be invoked to justify them.

And there have been other attempts at definitions, both earlier and later. In an unadopted League of Nations Convention of 1937 terrorism was defined as:
All criminal acts directed against a State and intended or calculated to create a state of terror in the minds of particular persons or a group of persons or the general public.

General Assembly Resolution 51/210 of 1999 (Measures to eliminate international terrorism) read as follows: The GA
1. Strongly condemns all acts, methods and practices of terrorism as criminal and unjustifiable, wherever and by whomsoever committed; 2. Reiterates that criminal acts intended or calculated to provoke a state of terror in the general public, a group of persons or particular persons for political purposes are in any circumstance unjustifiable, whatever the considerations of a political, philosophical, ideological, racial, ethnic, religious or other nature that may be invoked to justify them.

Finally it is worthuquoting a comparatively short legal definition proposed by A.P. Schmid in 1998†:

Schmid, A.P. ‘Terrorism and human rights: a perspective from the UN’ in Terrorism and political violence, 1–2, 17, 2005. See: http://www.unodc.org/ unodc/terrorism_definitions. html

page 146

University of London External System
Terrorism is an anxiety-inspiring method of repeated violent action, employed by (semi-) clandestine individual, group or state actors, for idiosyncratic, criminal or political reasons, whereby – in contrast to assassination – the direct targets of violence are not the main targets. The immediate human victims of violence are generally chosen randomly (targets of opportunity) or selectively (representative or symbolic targets) from a target population, and serve as message generators. Threat- and violence-based communication processes between terrorist (organization), (imperilled) victims, and main targets are used to manipulate the main target (audience(s)), turning it into a target of terror, a target of demands, or a target of attention, depending on whether intimidation, coercion, or propaganda is primarily sought.

The need for a definition of this kind arises from the legal consequences of acts of terrorism. If acts fulfil the criteria, they will be regarded as international crimes (discussed elsewhere). But of most importance here is the question of when acts of terrorism might give rise to the use of force in international law and whether that use of force is to be regarded as lawful. You will no doubt quickly realise that an assertion of a right of international self-defence in relation to a terrorist attack does not dispose of the question of legality. The claim was often made particularly by the United States, Israel and South Africa (when under the apartheid regime). Israel used this justification when invading the Lebanon in 1982, arguing that the invasion was an act of self-defence in response to terrorist attacks, and again when attacking the PLO headquarters in Tunis and killing 60 people in 1985 after the murder of three Israeli citizens on a yacht in Larnaca harbour in Cyprus supposedly by a Palestinian task force. In 1986 a terrorist bomb exploded in a West Berlin nightclub frequented by US service people. Two Americans were killed and there were many injuries. Ten days later the United States bombed Tripoli in Libya, claiming to have information that Libya was the source of the Berlin terrorist act. Fifteen people were killed. The then US Secretary of State George Shultz asserted that this action was within Article 51 but there was little international support for his argument. Both Israel and the US have insisted that this right of self-defence even covers attacks upon states not directly involved in the terror, as for instance Tunisia in 1985. The prelude to 11 September may be seen in the bombing of United States embassies in Nairobi and Dar es Salaam in August 1998. Twelve Americans were killed but more than 200 non-Americans also lost their lives while thousands were injured. The response clearly illustrates the importance of power in determining action appropriate to the terror attack. While the governments of Kenya and Tanzania whose innocent citizens had suffered so grievously were incapable of mounting a response by way of self-defence (had that been available to them, as it almost certainly would have been if the identity of the bombers could be ascertained), the US concluded that responsibility lay with Osama bin Laden and Al-Qaida. Some two weeks later it launched 79 cruise missiles at what it claimed were terrorist training camps in Afghanistan and against a factory in Sudan. As in Israel’s attack in Tunis the claim was that Article 51 justified a self-defence response even against the territory of a state where the attack had been mounted by a group not identified with the state under attack itself. Michael Byers, in his book War law (2005)† points out with regard to this action that in an attempt to defuse any international reaction, President Clinton had taken the precaution of communicating with close allies (the UK, France and Germany) to advise of his plans for these strikes. Protest was therefore generally muted. Byers suggests that at least until the second Bush administration, ‘Whenever the US government wishes to act in a manner that is inconsistent with existing international law, its lawyers regularly and actively seek to change the law. They do so by provoking and steering changing patterns of state practice and opinio juris, with a view to incrementally modifying customary rules and accepted interpretations of treaties such as the UN Charter’. He goes on to suggest that this is the best explanation of the course of action adopted by the US after the 11 September attacks. This is because

Byers, M. War law. (London: Atlantic Books, 2005) [ISBN 1843543389].

Public international law 9 Use of force in international law
other more obviously legitimate courses of action were available to the US rather than the position adopted. The US chose to base the justification for its subsequent attack on Afghanistan purely upon the right of self-defence. Most obviously it would have been possible to obtain a Security Council resolution, probably in almost any terms the US requested. The undesirability of this course of action however lay in the fact that it would recognise the authority of the Security Council over US action. As we will discuss in the final chapter, this would not have been acceptable to the Bush administration. How much better, therefore, to justify the response as an act of self-defence. Although this was against the Taliban, then in control of most of Afghanistan, this course of action was made more acceptable by the refusal of the Taliban to co-operate with the US in apprehending and handing over those thought to be responsible. It is Byers’ argument that this extended meaning given to ‘self-defence’ is capable of claims of further extension. Thus perhaps (although this is highly contentious and will be considered in the final chapter) it might be extended even to justify ‘targeted assassinations’ as carried out by Israel against those it considers to be involved in violence against its citizens. To conclude this section, it may be seen that the precise scope of Article 51 in defining permissible responses to terrorist attacks is unclear. Two final points need to be remembered. The first is that any ‘right’ of self-defence will always also depend upon the means to respond, whether directly or through powerful friends. Secondly, terrorism is almost always a manifestation of an asymmetric struggle between irregular and often ill-equipped forces on the one side and a state with access to armed forces and weapons on the other. While this makes no comment about the ‘rightness’ of any irregular terrorist action, it might give rise to the view that simply to label one side of a struggle as ‘terrorists’, as for instance with Palestinians or Chechnyans or Tamil Tigers, while exonerating the other of terrorism because of its governmental legitimacy is excessively simplistic. Indeed some of the most repressive states have been enthusiastic about the so-called war against terror, precisely because it can be used to justify additional repression and a refusal to negotiate in response to important demands. What can be stated with some certainty, however, is that Article 51 is being used to justify responses never contemplated by the drafters of the Charter.

page 147

Activity 9.4
ShoulduactsuofuterrorismueverujustifyutheuuseuofuforceuasudefineduinuArticleu51uofutheu UNuCharter?u Feedback:useeuenduofuguide.

Self-assessment exercise
Considerutheudebateubetweenuthoseuwhouargueuthatualluactsuofuterrorismueverywhereu areualwaysucontraryutouinternationalulawuanduconstituteuinternationalucrimes,uandu thoseuwhouargueuthatubeforeusuchuauconclusionutheucontextuofutheuterroristuactumustu beuconsidered.u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

outlineutheudebateuconcerningutheuscopeuofuArticleu51uinuresponseutouu terroristuactsu appreciateuwhyupowerfulustatesufavouruanuexpansiveuinterpretationuofuu Articleu51.u

uu

page 148

University of London External System

9.6 Humanitarian intervention
Essential reading
¢u ¢u ¢u

Dixon,uChapteru11:u‘Theuuseuofuforce’,upp.304–05. Cassese,uChapteru18:u‘Unilateraluresortutouforceubyustates’,upp.366–68. Kaczorowska,uChapteru16:u‘Theuuseuofuforce’,upp.442–46.

We have already seen in this chapter how international law seems generally to permit the use of force by a state to rescue its citizens who are being improperly held in the territory of another state, though of course the usual qualifications relating to necessity and proportionality, not to mention ability, apply. The question of humanitarian intervention is related to this proposition, but differs in that questions of the need for one state to intervene in the affairs of another state for humanitarian reasons are unlikely to concern the safety of the intervening state’s nationals. Discussion as to when, if ever, one or more states are entitled to forcibly intervene in the affairs of another is often coloured by the rather mixed history of such interventions. In particular the intervention in Somalia in 1992, which was authorised by the Security Council, is widely accepted to have been a fiasco, and the non-intervention in Rwanda in 1994 where some 800,000 were massacred is widely portrayed as utterly shameful. Opinion is still divided over the NATO intervention in Kosovo in 1999, conducted by an alliance of states but without Security Council authorisation. Even the way in which humanitarian intervention is described is controversial, ranging from ‘forcible intervention’ to a ‘responsibility to protect’. Within the debate over such intervention opinions range all the way from those who consider that ‘humanitarian intervention’ is always necessarily wrong, to those who argue that it should be extended much further to enable regime change to be effected where a government is ruling without a democratic mandate. Those of the former opinion point out both that only some states are ever vulnerable to humanitarian intervention and that the number of such situations that have brought long-term improvements are few and far between; while those of the latter have suggested that it is a lack of democracy in states that is largely responsible for international instability. It is important at the outset to distinguish humanitarian intervention that is pursuant to a Security Council Resolution from other interventions. Although some authors are unhappy with the situation, the position in international law is as follows: where, as in Somalia, Haiti or East Timor, intervention complies with a specific Security Council Resolution, it is to be regarded as legitimate (if not necessarily wise). The reservation held by some commentators is that in fact these situations should not have been held to be threats to the peace and the Security Council was wrong in declaring them to be so. But as we have observed, there is no body with the power to review Security Council Resolutions and the concept of ultra vires is not relevant. Thus the contentious question in international law concerns the situation where a state or a number of states wish to intervene militarily in order to save or protect either nationals of the state where intervention is contemplated or nationals of states other than those contemplating intervention. At first sight the legal position appears to be clear. It seems that the ‘Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty’ adopted in 1965 by the General Assembly (and restated in a further declaration in 1981), and intended to interpret Article 2(7) of the UN Charter should govern the position. Article 1 provides:
No state has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other state. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the state or against its political economic and cultural elements, are condemned.

Public international law 9 Use of force in international law
The demonstrated strength of international feeling on this subject is probably why there was so little evidence of a developing law permitting international humanitarian intervention until the 1999 intervention in Kosovo. Indeed it is important to see that in each case before then, the intervening state defended its actions not in terms of any right to humanitarian intervention but as an act of self-defence. While this is no doubt partly due to the determination to intervene before seeking Security Council consideration as discussed in the last section, the refusal to attempt to rely upon any justification of humanitarian intervention has had the effect of negating any evidence of changing opinio juris. Thus when each of the cases usually put forward to suggest a history of humanitarian intervention is examined, it seems to do no such thing. Three cases typically quoted are:
u

page 149

India’s intervention in what was then East Pakistan (now Bangladesh) in 1971 after widespread atrocities carried out by the army of West Pakistan Vietnam’s invasion of Kampuchea (now Cambodia) in 1978 where the Kampuchean army had been responsible for the murder of hundreds of thousands of its own citizens Tanzania’s 1979 invasion of Uganda overthrowing the regime of Idi Amin, which was also responsible for the humanitarian outrages and murders of so many Ugandans.†

u

u

Not only did each invading state rely upon self-defence, but none suggested that humanitarian motives were of any influence. The removal of tyrants, tyrannical regimes or marauding armies was never argued as justification, nor yet did such a happy result receive approval in those terms. Vietnam was roundly criticised for its use of force against the territorial integrity and political independence of Kampuchea even as the atrocities of the Pol Pot government were condemned. In fact before the intervention by NATO in Kosovo there had been only one occasion when a state had been prepared to justify such actions as a response to a humanitarian crisis. When the UK deployed forces along with the US, Italy, Holland and France in Northern Iraq after the first Gulf War of 1991, in order to provide safe havens for the Kurdish people under attack from Saddam Hussein, it was the British Foreign Office that stated, ‘We believe that international intervention without the invitation of the country concerned can be justified in cases of extreme humanitarian need’. Significantly, it was not suggested that the justification amounted to ‘legal’ justification. Such a proposition would seem immediately incompatible with Article 2(4) of the UN Charter. How then should the intervention in Kosovo be characterised? Could it, and did it, represent a change in international law? Brief facts are relevant. When the Constitution of Yugoslavia was drafted in 1945, Kosovo was included as an autonomous region. It was inhabited by people who were divided by their religion and to some extent by their ethnicity. Some 90 per cent of the population (of 2.2 million) by the 1990s were Muslim and ethnically Albanian. The remaining 10 per cent were Serbs who were Orthodox Christians. Many of the religious and national sites most revered by the Serbs are to be found in Kosovo and there were tensions between the two groups. Significantly Kosovo was the poorest part of Yugoslavia and the Serbs had had little success in persuading ethnic Serbs to live there. A major reason for the election of Slobodan Milosevic as President in 1989 was his promise to promote Serbian interests in Kosovo. After his election he immediately withdrew Kosovo’s autonomous status and this led to increasing tension and violence between the two communities. While opinions differ, the evidence seems to prove that Serbian aggression was provoking defensive action which in turn provoked more Serb violence with allegations of ‘ethnic cleansing’ and other atrocities, including both murder and rape. In fact it is difficult to obtain clear evidence of exactly what was done to either community by the other but the Security Council was concerned by the violence and in 1998 imposed a mandatory arms embargo. A series of resolutions followed. Resolution 1199 of September 1998, expressly referring to the authority of Chapter VII, determined that the situation in Kosovo was one that was a threat to peace and security in the region. Nevertheless it was clear that no Resolution could be obtained that would expressly authorise the use of force because Russia

Uganda had invaded the Kagera region of Tanzania the previous year.

page 150

University of London External System

would exercise its veto. Under threat from NATO for failing to comply with Resolution 1199’s demand for the cessation of hostilities and a return to negotiations, the Serbian dominated Federal Republic of Yugoslavia (FRY) eventually agreed to comply. Resolution 1203 followed in October 1998, again under Chapter VII, endorsing the two agreements made by the FRY to comply with Security Council Resolutions and to accept a verification mission from the Organisation for Security and Co-operation in Europe (OSCE), and also an agreement with NATO creating an air verification mission. That notwithstanding, the violence escalated, NATO resumed its threats and after the failure of talks aimed at resolving the Kosovan problem held in Rambouillet near Paris, NATO began its campaign of aerial bombardment against FRY targets on 23 March 1999, which lasted until the withdrawal of Serbian forces after an agreement of 9 June 1999. The agreement was notified to the UN and the Security Council passed Resolution 1244 endorsing both the ending of hostilities and the plan for the restoration of peace. This action by the states of NATO caused immense concern to international lawyers. Few argued (or could argue) that the action came within the rules of the UN Charter, yet many felt that the correct moral decision to intervene had been taken. Some suggested that although it was not legal, the intervention was justifiable and justified by subsequent international reaction. In particular the attempt by Russia and Belarus to have the NATO bombing declared illegal was rejected by the Security Council with a large majority and the General Assembly did not condemn NATO’s actions. What is once more usefully illustrated here is the difference between international law and international morality. The fact is that international humanitarian intervention is legal only if consistent with the UN Charter. But the question of legality does not finally dispose of the matter, though many might think it should. International law is a major factor in determining a course of action but other facts might outweigh illegality in the eyes of statesmen and diplomats, particularly where egregious breaches of humanitarian law are claimed to exist. Here we can also observe the different weight of veto. The knowledge that Russia would prevent any resolution (with or without support from China) empowering forcible intervention did not amount to a threat of war if the authority of the Charter was ignored. The use by the USA of the veto to prevent the condemnation of Israel under Chapter VII is altogether more powerful. Even where the USA is alone in the Security Council no other party or parties would challenge that veto.

Activity 9.5
DouyouuagreeuthatutheuinterventionubyuNATOuinuKosovouwithoutuSecurityuCouncilu authorisationustrikesuatutheuheartuofuinternationalulaw,uorushoulduitubeuseenumerelyu asuoneuofutheurareusituationsuinuwhichutheuuseuofupoweruforutheucommonugoodushouldu beuaccepteduasuillegalubutumoral? Feedback:useeuenduofuguide.

Summary
In proscribing the use of force in international law the UN Charter made no allowance for humanitarian intervention except upon authorisation of the Security Council. Clear though this is, it is equally clear that veto powers may prohibit intervention even where preventable atrocities are being carried out. In Kosovo an anticipated veto did not dissuade NATO from an intervention that lacked legality, though arguably not morality. Although this action was not condemned by the majority of the international community this does not make it retrospectively lawful. Enthusiasm for such action should be tempered by a realisation that few states or regional organisations will have the power or will to intervene in states in breach of human rights obligations. Darfur in the Sudan represents a situation even worse than Kosovo but one where there is little prospect of intervention. Additionally some states, because of their power (or their powerful allies), will never be subject to humanitarian intervention no matter how deplorable their human rights record. Chechnya and the Israeli Occupied Territories are two such examples.

Public international law 9 Use of force in international law

page 151

Self-assessment questions
1.u MightutheuGeneraluAssemblyu‘UnitinguforuPeace’uResolutionuofu1950u(Resolutionu 377)ubeuusefulutouovercomeutheueffectuofuauSecurityuCounciluveto?u(SeeuCassese,u p.351uanduDixon,upp.314–15.)u 2.u Formulateutheuargumentsuforuanduagainstutheudevelopmentuofuinternationalulawu toumakeulawfuluatuleastusomeuhumanitarianuinterventionsuwithoutuauSecurityu CounciluResolution.u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu uu

explainutheudebateuaboututheulawurelatingutouhumanitarianuinterventionu discussutheusignificanceuofutheudebateuconcerningutheurightuofuhumanitarianu interventionuwithoutuSecurityuCounciluauthorisation.u

9.7 Rules constraining the sort of force permissible
Essential reading
uu uu

Cassese,uChapteru19:u‘Theuprotectionuofuhumanuurights’,upp.399–434. Kaczorowska,uChapteru18:u‘Internationaluhumanitarianulaw’,upp.474–520.

As we observed at the beginning of this chapter, historically international law was more concerned with the rules of warfare, that is how wars are to be fought, than with the question of when, if ever, it was permissible to go to war. In a further development because wars between states became less common whereas civil strife increased, rules relating to the use of force came to be concerned with armed conflict rather than confined to war. Because this question of international humanitarian law will also receive mention in the chapter on human rights, this section will be brief. As we have also said, the rules of international humanitarian law are to be found primarily in the four Geneva Conventions of 1949, and the Hague Conventions of 1899 and 1907. The two sources are concerned with different dimensions of the rules of armed conflict. The Hague Conventions are primarily concerned with the methods and means of warfare, and limiting (though not to a very great extent) the sorts of ‘acceptable’ weapons. The Geneva Conventions have as their central concern the protection of persons who are not participating in the armed conflict or who have ceased to do so, whether because of injury or surrender. It is sometimes said that ‘Hague law’ encompasses the laws of war or the law of armed conflict, whereas ‘Geneva law’ is concerned with humanitarian law. Underlying all of the rules are firstly the principle of humanity and secondly that of the protection of non-combatants and civilians. As it suggests, the principle of humanity is intended to ensure that individuals are treated humanely in all circumstances. Although ‘humane warfare’ might seem an oxymoron,† it is not. In essence it means that any violence not justified by ‘military necessity’ is prohibited by the law of armed conflict. In particular if violence or destruction is unnecessary, disproportionate, indiscriminate or intended to spread terror it will not meet the criteria of lawful armed conflict. Similarly, particular kinds of weapons are unlawful in their use. Both chemical and biological weapons are incompatible with international law while the use of nuclear weapons remains apparently unprohibited, at least in some imaginary scenarios, according to the ICJ. Conventional weapons may be unlawful if those weapons are disproportionately inhumane (such as ‘dum-dum’ bullets, designed to expand upon impact, or, arguably, anti-personnel land mines).

Oxymoron – two words used together which have, or seem to have, opposite meanings, e.g. ‘open secret’.

page 152

University of London External System

The four Geneva Conventions were drafted after the Second World War, but they drew upon earlier international law developments. The first Geneva Convention is the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field and this was the natural successor to the Geneva Convention of 1864 which had a similar name. The second Convention developed the first to provide similar protection for those concerned with maritime warfare, that is those wounded, sick or injured at sea or shipwrecked. The third concerned prisoners of war and was based upon the Prisoners of War Convention of 1929, while the fourth was the Geneva Convention Relative to the Protection of Civilians in Time of War. This in turn was developed from the draft Tokyo Convention of 1934. In excess of 180 states are party to these Conventions, which are therefore unarguably customary international law for any state which is not a party. Supplementing the Geneva Conventions are two Protocols of 1977, each with more than 150 parties. These provide enhanced protection for, in the first Protocol, victims of international armed conflicts, and in the second, victims of non-international armed conflicts. It is probably accurate to state that until the aftermath of the US-led invasion of Iraq in 2003, no international lawyer considered that the Geneva Conventions were other than binding on all parties to any conflict. It was surprising, therefore, to hear some lawyers representing the Bush administration suggesting that as neither the Taliban (in Afghanistan) nor members of Al-Qaida were parties to the Conventions, they were not entitled to claim their protection. This seems demonstrably wrong. The Conventions were for the protection of all, not simply nationals of states whose governments had ratified the Conventions. The principle of humanity is of universal application and the suggestion by the US administration that the Geneva Conventions could be described as ‘quaint’† was rejected forcefully by both academic and political opinion. Since the Geneva Conventions and their Protocols the most important developments in this field have been the development of the ad hoc tribunals created by the Security Council, namely the International Criminal Tribunal for the Former Yugoslavia (1993) and the International Criminal Tribunal for Rwanda (1994) intended to try international crimes committed in those two states; and the International Criminal Court, the Statute of which was completed in 1998 and which came into force in 2002. These developments are dealt with in more detail in Chapter 10. Suffice here to state that the United States is not a party to the Statute and has done its best to impede the development of the Court. (This is further discussed in Chapter 11.) Both the Tribunals and the Court are concerned to criminalise conduct which is in breach of humanitarian law.

Quaint – an opinion, belief or way of behaving which is unusual, strange or oldfashioned.

Summary
It is clear that the means of warfare are not unconstrained by law. Rules constraining both conduct and means in armed conflict have developed to the point where they are not only widely ratified but they must also be accepted as customary international law. In spite of US resistance the development of the International Criminal Court reflected the views of most states to the effect that an independent international tribunal may often be the appropriate forum in which to try those charged with international crimes.

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

explainutheubasisuandueffectuofurulesuconstrainingutheusortuofuforceupermissibleu (whenuituisupermissible).

Public international law 9 Use of force in international law

page 153

Sample examination questions
Question 1uuu‘InternationalulawucontaineduinutheuCharteruofutheuUniteduNationsu intendedutouproscribeutheuuseuofuforceuinuinternationalurelations,uhasuprovedu inadequate.uThisuisulessutheufaultuofutheuCharteruthanuituisutheufaultuofupowerfulu memberustatesuandutheirualliesuwhouhaveuignoredutheuCharteruwhenuituwasuthoughtu thatutoudousouwasupoliticallyuexpedient.’u Discuss.u(Youumay,uifuyouuwish,uconfineuyouruanswerutouoneuorumoreuexamplesuofutheu useuofuforce,uarguablyuinucontraventionuofuCharterurequirements.)u Question 2uuuHasutheuapparenturiseuinuinternationaluterrorismuposeduproblemsuforu internationalulawuwithuwhichuituhasubeenuunableutoucope?uHow,uifuatuall,ushouldu internationalulawudevelopuoruchangeuinuorderutourespondusatisfactorilyutoutheu problems?

Advice on answering the questions
Question 1uuuWhat is required here is firstly an explanation of the Charter’s prohibition on the use of force and the exceptions to that prohibition (Article 2(4), Article 51 and Chapter VII). It is necessary to discuss the main reasons for the failure of these provisions to prevent the use of force in international relations. In particular the Cold War, the veto power, and the inability to complete a UN military force should all be discussed. It is also relevant to address one or more selected situations to exemplify your argument. These could be drawn from cases where self-defence has been claimed to justify actions that did not appear to meet the criteria, to cases where it was clearly possible to consult the Security Council before taking action. Concerning Chapter VII, examples of where a potential veto persuaded parties to act without Security Council sanction should be provided and discussed. Both the second invasion of Iraq and the intervention in Kosovo are important. You might then consider whether ‘fault’ is an adequate or accurate attribution to the acts of powerful states and their allies. What alternatives exist if the Security Council is unable to act? A conclusion might consider the limitations of any attempt to constrain states in their pursuit of what they perceive to be their best interests by charter, treaty or convention. This is a crucial recognition that the power of the most powerful can only be limited by consent. Question 2uu This answer might begin by considering whether there has in fact been a real rise in international terrorism (including a discussion of how it might be defined) before going on to consider the implications in either case. In turn this should lead to a consideration of traditional responses to international terrorism in international law. Criminalisation and individual responsibility has been a hallmark of this response, at least where it was possible to detain the perpetrators. It might be argued that the International Criminal Court would and should be the obvious development of this response. Nevertheless it is clear that such a response, though relevant, may not be adequate. Thus it is necessary to consider other responses to international terrorism both before and after the attack on the Twin Towers in 2001. A discussion of the Israeli response to the hijacking of the Air France aircraft taken to Entebbe, Uganda would highlight both the doubtful legality of a forceful reaction as well as its possible legitimacy if the response is necessary and proportionate. It should be observed that there are few states equipped to mount such a response. The US response to the attack on the Twin Towers then requires consideration. This involves a discussion of the limited use of the Security Council, the question of state responsibility and a possible requirement of proportionality. Perhaps by reference to the National Security of the United States of America document the position proclaimed by the US may be critically considered – including its assertion of a right of ‘pre-emptive self-defence’. What will again become clear is that possible responses to acts of international terrorism will depend not only upon international law but upon the military capability of the state subject to such an attack. The significance of this fact for international law needs to be observed.

page 154

University of London External System

Notes

10 Human rights in international law

Contents
Introduction 10 1 10 2 10 3 10 4 10 5 What are human rights? The politics of human rights The International Bill of Human Rights Principal international human rights treaties Regional protection of human rights 156 158 160 165 170 173

page 156

University of London External System

Introduction
There is a popular view that there is a world of difference between theorising about human rights and drafting grand charters, covenants and conventions on the one hand, and actually working to ameliorate the unnecessary suffering of mankind on the other. And it remains true that it is almost impossible to judge the effect (if any) of the work and effort manifested in many human rights documents, particularly those emanating from the United Nations. This fact should alert us to the realisation that the concept of human rights is something more than agreed means by which the quality of life of individuals is to be improved. Underlying the apparently neutral and uncontroversial phrase ‘human rights’ is a foment of philosophical and political ideas and disagreements that makes it remarkable that any consensus has ever been reached. This chapter begins with a discussion of what meaning can be attributed to the phrase ‘human rights’: how they might be defined, by whom and with what significance. This might seem superfluous in a chapter on the international law of human rights, but it is not. As we will see, one of the primary difficulties international law has had in enforcing human rights arises from difficulties in achieving accepted definitions. Having observed these problems we will proceed to consider the politics of human rights. This section ought to suggest that the way in which different states, different governments and different peoples and religions seek to define human rights depends upon their political perspectives. It will be suggested that the end of the Cold War and the proclaimed triumph of liberal capitalism has directly affected perspectives upon human rights. What this has meant, has been much greater emphasis upon so-called civil and political rights, at the expense of economic, social and cultural rights. But of course this distinction itself reflects different political ideologies. Having provided the background to the international law of human rights we will next consider the role of the United Nations in the protection of human rights through the ‘International Bill of Human Rights’, that is, the Universal Declaration of Human Rights (UDHR) and the two covenants of 1966: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR). The UN has also been responsible for promoting a number of other important human rights conventions and these too will be discussed. In turn this gives rise to the question as to why regional regimes of human rights protection should have been necessary to supplement the work of the United Nations. Of course we will conclude that the question of enforcement is central to the law of human rights and this might be more easily achieved on a regional rather than world-wide basis. The chapter will conclude with a discussion of what has been suggested to be a crucial and developing area of human rights concern – that of the form of governance by which a state is ruled. Increasingly the argument has been made that it is only democratic governance that can satisfy human rights demands, and perhaps even that other forms of government should be regarded as of less legitimacy. This is a view that has considerable implications for the law of forceful intervention. Whatever conclusions we reach on the international law of human rights, one thing should be quite clear. The ‘rise and rise of human rights’† is probably the most startling development in international law since the Second World War. In placing the protection of individuals at the heart of international law the old ‘state-centric’ international law has been changed forever. Perhaps the most remarkable effect of this has been on the fundamental concept of sovereignty. In the twenty-first century no state would argue that the question of its treatment of its own nationals is a matter of only domestic concern. And here the role of non-governmental organisations (NGOs) has also been unprecedented.
The title of an excellent book on the subject – Sellars, K. The rise and rise of human rights. (Stroud: Sutton Publishing, 2002) [ISBN 0750927550].

Public international law 10 Human rights in international law

page 157

Learning outcomes
Byutheuenduofuthisuchapteruandutheurelevantureadingsuyouushouldubeuableuto:
uu uu

appreciateutheuphilosophicaluproblemsuinudefininguhumanurightsu appreciateuthatuanuunderstandinguofuwhatuhumanurightsuareuandutheiruorderuofu priorityuisualwaysupoliticalu understandutheumeaninguanduscopeuofutheuprovisionsuofutheuUDHRu recogniseutheusignificanceuandulimitationsuofutheuUDHRu understandutheureasonsuforutheudraftinguofutwo InternationaluCovenantsuonu HumanuRightsu explainutheuenforcementumeasuresuthatueachuCovenantucontains understandutheusignificantuachievementsuofutheuECHRuinutheurealmuofutheu protectionuofuciviluandupoliticalurightsu understandutheunatureuanduscopeuofutheuproblemsufacingutheuECHRuregimeuinutheu twenty-firstucenturyu explainutheuroleuofutheuUNuinustandardusettinguandudraftinguhumanurightsutreatiesu understandutheuneedutouconsultureservationsubeforeucomingutouconclusionsu aboututheuefficacyuofusuchutreaties appreciateutheucontroversialunatureuofutheueffectivenessuofuenforcementu explainutheuroleuofuregionaluregimesuinutheuprotectionuofuhumanurightsu explainutheusignificanceuofutheudifferencesubetweenuinternationaluanduregionalu protectionuofuhumanurightsu compareuanducontrastudifferenturegionalusystemsuforuhumanurightsuprotection explainutheubasisuandueffectuofuauclaimuforutheurightuofudemocraticugovernance.u

uu uu uu

uu uu

uu

uu uu

uu uu uu

uu uu

page 158

University of London External System

10.1 What are human rights?
Essential reading
¢u

Kaczorowska,uChapteru12:u‘Theuinternationaluprotectionuofuhumanurights’,u pp.263–304. Cassese,uChapteru19:u‘Theuprotectionuofuhumanurights’,upp.375–98. Dixon,uChapteru12:u‘Humanurights’,upp.320–37.

¢u ¢u

Practical lawyers might question the need for this section, and the next. Here we are attempting to provide an understanding of the meaning of human rights without which any appraisal of the role and effect of the international law of human rights is impossible. It is of course very difficult to isolate the concept of human rights from international law in general and it will be argued that the two are not really separable. The political and ideological world that dictates international law also defines the reality of human rights. In this section there are two separate but related questions that need to be raised. The first requires us to understand what is meant by ‘human rights’ and the second considers whether they must be seen as time and culture specific, or whether they are, as is generally asserted, universal. The answers to these questions have significant implications. As to the first question, it is immediately clear that the concept of human rights has close links with natural law – the theory that argues that beyond the laws created by people there are natural or divine laws with which created laws must conform. With a divine explanation there can be no rational debate. Religion is about faith and not susceptible to either proof or disproof through reason. The US Declaration of Independence of 1776 stated the natural law assertion in these terms:
We hold these truths to be self-evident: That all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness;…

Such an assertion of divine law is however only possible where the constituency to which it is addressed is less than religiously diverse. Clearly when the UDHR was being drafted not all participants would have accepted such a statement – and certainly not the USSR with its state commitment to atheism. The alternative that was adopted was to make an attempt at a secular assertion of natural rights (arguably something of a paradox), namely with the paragraph:
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world…

There are some problems with such an approach. It is an assertion without evidence and is simply unprovable. On the other hand it may be argued that the authority of the UDHR derives not from the dubious appeal to reason but from the agreement of the international community, notwithstanding the eight abstentions. It is this agreement that replaces the divinity in the document. Additionally there can be no doubt that ‘human rights’ exist as a social fact. By this I mean that although quite how any thing may be proved to be a human right remains unresolved, the reality is that human rights obtain their meaning from the fact that they receive constant recognition in the language and effect of international diplomacy and relations.

Self assessment question
Isutheuconceptuofunaturalulawunecessaryuforuauconceptuofuuniversaluhumanurights? The second difficulty in the concept is related to the first. The UDHR describes itself as universal, yet paradoxically almost everyone would agree that as drafted it is clearly time and place specific. It was a response to a totalitarian and racist Nazi regime, and the desire to prevent a recurrence of such a phenomenon underlay the post-war reaction. Furthermore, although its provisions may seem largely unexceptionable, some, particularly those directed to economic rights, certainly would not find favour with many post-Cold War governments in the West. And as Cassese observes (p.381):

Public international law 10 Human rights in international law
On the whole, the view of human rights expressed in it is Western. More space and importance are allotted to civil and political rights than to economic, social, and cultural rights, and no mention at all is made of the rights of peoples. The position taken with regard to colonised peoples, who had been partially or completely denied their right to freedom, was purely formal. Nor did the Declaration say anything specific about economic inequalities between States (although today many commentators cite with increasing frequency Article 28 whereby ‘Everyone is entitled to an international and social order in which the rights and freedoms set forth in the Declaration can be fully realised’). In addition one could note that the Declaration did not consider the fact that some States, being underdeveloped, faced special problems when trying to guarantee certain basic rights, such as those to work, to education, to suitable housing etc.

page 159

Consequently there has been a continuing debate between so-called ‘cultural relativists’ and ‘universalists’, with the former arguing that the concept of human rights must necessarily differ in different cultures (hence nothing can be written in stone as irrevocably permanent) and the latter that the concept of human rights makes sense only if they are granted to all individuals regardless of culture and because only of their membership of the human race. The former seems reasonable but the latter desirable. My own conclusion (with which you may reasonably disagree) is that this debate is less important than it might seem. It will only seem crucial if one believes that the concept of human rights carries with it some ‘magical’ quality over and beyond existence as social fact. In my view the importance of the concept lies in the weight implied by international acceptance of the appellation, and much of the struggle for human rights is about seeking this acceptance. This seems particularly clear with so-called ‘third generation rights’ (the first generation rights being civil and political rights and the second, economic, social and cultural rights – though this designation itself may be seen as political). Third generation rights are said to include group rights as opposed to individual rights, exemplified by the claimed right to development and the right to self-determination. In my view, whatever the objections to these rights being described as ‘human rights’ (and there are many), once there is overwhelming acceptance by the international community that they are human rights, it makes little sense to oppose the categorisation.† For further argument on this point see Mansell, W. and J. Scott ‘Why bother about a right to development?’ (1994) 21 Journal of Law & Society 171.

Activity 10.1
Whyudousomeupeopleuargueuthatuculturalurelativismuundercutsutheuwholeusubjectuofu humanurightsuanduwhyudouothersuthinkuituinconsequential?u Feedback:useeuenduofuguide.

If you are looking for a label for this perspective it probably comes within ‘constructivism’ – but if you are not, it is unimportant.

Summary
The question of the philosophical meaning of human rights has preoccupied many, while others have attempted to use the term in order to lend weight to demands. Some have argued that ‘human rights’ must be clearly definable and define both the holders of the rights and those having reciprocal duties to provide them. This reasonable but narrow view, much favoured by Western governments and legal philosophers, receives much less approval from developing states, which have used the phrase to emphasise that their economic demands are demands as of right and not requests for charity. The problem of meaning can (at least to some extent) be avoided by accepting ‘human rights’ as social facts existing because of belief, but no less real because of this.

Self-assessment questions
1.u Defineu‘humanurights’.uCompareuanducontrastutheuphilosophyuofuhumanurightsu withutheupoliticsuofuhumanurights. 2.u ShouldutheuUDHRubeuseenuasuaupoliticallyuneutraludocument?uWhatuareutheu implicationsuofuyouruanswer?

page 160

University of London External System

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

appreciateutheuphilosophicaluproblemsuinudefiningu‘humanurights’.

10.2 The politics of human rights
Essential reading
¢u

Dixon,uChapteru12:u‘Humanurights’,upp.320–23.

The protection of human rights is often portrayed as an objectively desirable and politically neutral goal. For many of us this position is unexceptionable and the thought that the protection of human rights is imbued with political premises and ideology seems inherently unreasonable. Yet such is the case. The promotion of human rights is often portrayed (at least in the West) as one of the gifts of democratic states to those less fortunate. As was argued in the last section, the history of human rights is not nearly as extended as it is often suggested. The contemporary emphasis upon human rights scarcely predates the Second World War. It was primarily because of the revulsion and incredulity that a Second World War had come so shortly after the first, that a way of talking about a different world found the language of individual rights useful. The UDHR was very largely the product of the victorious allies, and particularly the work of the USA. But it was not an isolated project. At the end of the War the USA had laid plans for the world it hoped to see. This was one confirming economic liberalism and creating international financial institutions to encourage free trade and a ‘United Nations’ (originally to have been called ‘Associated Powers’) to provide global security and stability. Human rights was but one aspect of this overall plan, even if it did provide ‘the moral foundation’. The preparation of the UDHR was not, even then, an easy matter. There were three obvious problems and many more less obvious ones. The first of the obvious was that the disparity in ideological outlook between the first world and the second (including the so-called socialist states of the USSR) in terms of the centrality of the individual with civil and political rights seemed insuperable. The second was that for states with an Islamic population (in this case, Saudi Arabia) the idea of a right to change religion was unacceptable and indeed the very idea of a Universal Declaration seemed incompatible with the supremacy of the Koran. The third was that for a state such as South Africa, a right of participation in government and free movement of people was unacceptable (let alone the prohibition on discrimination). Nevertheless the Declaration was accepted by the General Assembly in Paris in 1948 by a vote of 48 for, none against and eight abstentions (the Soviet Bloc, Saudi Arabia and South Africa). In retrospect, however, what seems most remarkable in the document was the inclusion of what would come to be known as economic and social rights. Amazingly these provisions received the support of (as Kirsten Sellars puts it) ‘everyone from Soviet Stalinists and Latin American socialists to British Keynesians and American Democrats’ (p.21). These provisions, which will be considered in the next section, would, in the twenty-first century, enjoy very little popular support in the governments of states pursuing a liberal economic agenda. Their very presence had repercussions that were unforeseen. The objectivity of the concept of human rights was almost immediately called into question by the purposes to which human rights discourse was being put. Human rights debate became largely determined by the propaganda advantages that either party to the Cold War could gain from it. The earliest days of the United Nations were clearly dominated by the victorious allies of the Second World War. Their status lent them a moral superiority which they exploited in the organisation. Even then however there were crucial ideological battles between the US and its allies and the Soviet Union and its allies. Probably to the surprise of Western delegates they found it difficult to hold the high ground of protecting civil and political human rights in the face of concerted opposition. Their superiority was attacked both by the ‘second’ socialist world and the ‘third’ (poor)

Public international law 10 Human rights in international law
world, initially from two directions. Colonialism came to be vilified, as the proclaimed right of self-determination gained prominence and dominance. Colonialism also came to be identified with something approaching racism – white colonial masters and nonwhite colonial peoples. In the 1950s and 1960s respect for civil and political rights was tempered by this reality and by the emphasis placed by the so-called socialist states upon economic rights supposedly directed to ensuring the security of individuals in their ability to acquire food and housing. The end of the Cold War and the demise of the USSR together with the end of the process of decolonisation very clearly altered human rights rhetoric in the corridors of power. As free market economics and its accompanying ideology gained ascendancy, so economic rights declined, at least in so far as they were incompatible with the policies sanctioned, blessed and often insisted upon by the international financial institutions. The African Charter on Human and Peoples’ Rights, 1981, with its emphasis upon social duties and peoples’ rights based upon collective community interest, is barely compatible with the new orthodoxy. Thus a first conclusion about the politics of human rights must be that the subjects of popularity are negotiable depending upon competing or dominant ideologies. The popular economic rights represented in a claimed right to a New International Economic Order, or even a human right to development, now seem hopelessly unfashionable. Need has not changed, but the way in which it is talked about certainly has.

page 161

Self-assessment question
What,uifuanything,udouyouuthinkuareutheusignificantudifferencesubetweenuciviluandu politicalurightsuonutheuoneuhand,uandueconomicusocialuanduculturalurightsuonutheu other? Another fact that is inferable from the above is that a state’s rhetoric (the way it talks) about human rights will reflect its own political ideology. This is obvious but important. There is a clear tension between the proclaimed universality of human rights and the particularity with which they are chosen. Liberal democratic states such as the United States and many countries within Western Europe placed emphasis upon the civil and political rights exemplified in the European Convention on Human Rights. The social provisions found within the Universal Declaration were considered inappropriate for comparable protection or even recognition. Such states effectively either ignored collective rights (as in the case of the United States), or to a large extent merely paid them lip service (as is the case of the signatories of the European Social Charter). The view that came implicitly to be promulgated was that civil and political rights were legal and justiciable, while others were at best desirable, and at worst utopian or even counter-productive because of their threat to the perceived productive free market economy. Collectivist states, of course, attempted to counter these views by asserting the importance of distributive justice and the need to ensure the participation of individuals in the collective life of the state. Regrettably, though a level of security was provided for citizens by many states (a fact which has come to be accepted only since the decline in the living standards of the poorest people living in the former USSR), such were the feelings of insecurity of those governments that the governed could not be trusted with the civil and political rights which were portrayed as incompatible with a ‘socialist’ property regime. Meanwhile, with the rise of the so-called Asian Tiger Economies, a third perspective on human rights protection was developed. This suggested that the protection of individual civil liberties might be incompatible with the needs of development. Malaysia in particular took the view that ‘the Asian tradition’ led to positions on human rights which could not be reconciled even with the Universal Declaration. If these arguments seem manifestly specious to the cynical among us, and designed only to justify wilful human rights abuses, this is less important (for a sense of comprehension of the human rights world) than the recognition that these arguments reflect a particular power structure with particular goals. This is a power structure

page 162

University of London External System

dedicated to economic ‘progress’ (that is, increased economic growth) both for its own sake and for the sake of national pride. (It is of course ironic that this latter ambition is itself evidence of continuing feelings of insecurity, if not inferiority.) Whether or not such ‘progress’ is ever adversely affected by protecting such rights as those concerned with freedom of speech or freedom from arbitrary detention remains highly questionable.

Power and law in the UN
Another factor in the politics of human rights has been the distinction in the effectiveness of international institutions between institutions operating under the principle of sovereign equality, and hence one vote per nation (the General Assembly), and institutions where the power of each voting state affects the strength of its vote (the Security Council with its five permanent members, or the International Monetary Fund or the World Bank where votes are weighted in accordance with economic strength). As the numbers in the General Assembly grew, so General Assembly Resolutions became increasingly independent of the wishes of the great powers. Interests diverged with the interests and pre-occupations of the ‘underdeveloped’ newly admitted states being very different to those of the majority of founder members. This in turn affected the status of General Assembly Resolutions. One writer (McWhinney, E. ‘International Law’ in Hawkesworth, M. and M. Kogan (eds) Encyclopaedia of government and politics (London: Routledge, 2002) [ISBN 0415030927]) writing just as the Cold War came to an end, pertinently observed:
The Third World majority in the United Nations, and their supporting jurists, argued that the General Assembly resolutions – adopted, as they invariably were, by overwhelming majorities, with only a few Western states holding out in the form of negative votes or abstention – effectively made new law. UN General Assembly resolutions would qualify, thereby, as new sources of international law, side by side with traditional or classical sources. As an abstract, a priori, legal issue, this debate over the new sources remains unsolved. Western and Soviet jurists have conceded, equally, that resolutions of the General Assembly, if adopted unanimously or at least with substantial intersystemic consensus – Western bloc, Soviet bloc and Third World [written before the demise of the Soviet Union] – may acquire normative legal quality in their own right. This has clearly become the case by now, with most of the General Assembly resolutions on decolonisation, and self-determination of peoples, sovereignty over natural resources, and nuclear and general disarmament, however intransigent the last-ditch resistance of predominantly Western members may have been at the actual time of their adoption.

This statement now needs to be read with discretion. Although partially true, the failure (in effect though not in passage) of both the Resolution concerning the ‘New International Economic Order’ and that agreeing to a ‘human right to development’, each of which received overwhelming assent, suggests the continuing ability of the West generally and the USA in particular to deny the status of law to unwelcome resolutions. It is certain that mere numerical superiority in terms of votes cast has brought little lawmaking power to the majority. Rather, power has moved decisively to the Security Council where democracy takes second place to the acknowledgement of power – or at least power as it was perceived in 1946. The role of the General Assembly remains as defined in the Charter: to make recommendations to its Members or to the Security Council (Article 11(1)). Article 12 provides that while the Security Council is exercising ‘in respect of any dispute or situation the functions assigned to it’ by the Charter, the General Assembly shall not make any recommendations with regard to that dispute or situation unless the Security Council requests it. The power to recommend rather than to decide belongs to the General Assembly. Thus the final ability to define human rights content does not lie with the majority of states.

Public international law 10 Human rights in international law The international financial institutions
But what of the role of the international financial institutions themselves in the politics of human rights? The international financial institutions of the World Bank and the International Monetary Fund, intended to prevent subsequent international economic recession and to promote development, were created in the immediate post-war period outside of the United Nations. If the United Nations was to be the institution promoting friendly relations among nations based upon the principle of sovereign equality, the World Bank and the International Monetary Fund were, even if their aims were no less utopian, founded upon what was seen as hard realism. That they were both to be based in Washington, the seat of US government, was not coincidental. That power within the institutions was not democratically apportioned according to the basis of sovereign equality but according to financial contribution was also crucial. Finally, the intended use of both institutions to counter totalitarian tendencies, particularly on the left, and even more particularly of communism, among states was not accidental. Given these facts, it is obvious that poor states, though they may come to, or have to, depend upon these institutions in fact, have little say in how they are run or on the principles upon which they operate. Equally importantly, because many poor states are governed by a political and wealthy elite, the interests of that state may well coincide with those of the greatest international financial institutions even if they are inimical to the interests of the populace as a whole. Either way the effect upon the politics of human rights is significant. In essence, the objective of the International Monetary Fund (IMF), as formed in 1944 by a treaty entering into force in December 1945, was to avert any new economic recession of the kind which had been so devastating in the 1920s and 30s. To this end, provisions in Article 1 of the IMF’s Articles of Agreement in defining its purposes provided that the Fund’s aims would include the following:
2. To facilitate the expansion and balanced growth of international trade and to contribute thereby to the promotion and maintenance of high levels of employment and real income and to the development of the productive resources of all members as primary objectives of economic policy 3. To promote exchange stability, to maintain orderly exchange agreements among members, and to avoid competitive exchange depreciations… 5. To give confidence to members by making the general resources of the Fund temporarily available to them under adequate safeguards, thus providing them with the opportunity to correct maladjustments in their balance of payments without resorting to measures destructive of national or international prosperity.

page 163

These objectives seem so innocuous and indeed benign, that it is surprising to discover the tragedies that they have led to, if not actually caused. It is from this role of the Fund in correcting maladjustments under adequate safeguards that many of the complaints from the poor states stem. From 1980, these ‘adequate safeguards’ have, until recently, taken the form of ‘structural adjustment lending’, an innocuous phrase which has led to endless controversy and no little misery. There is little consensus on the effectiveness of the prescribed measures. The policies prescribed are imbued with a capitalism which eschews state intervention. Thus many of the past policies which at least appeared to make life possible for the poorest section of the population – such as subsidised food, health care and transport – are anathema to the IMF requirements in granting loans to help indebted countries. Structural adjustment has as its goal just one central objective – the elimination of unsustainable indebtedness. The orthodoxy of the IMF is that this can be achieved only in the recognition of the superiority of the market over central economic planning. Evidence for this is, in the view of most cynics of structural adjustment (myself included), very difficult to discover. The so-called Pacific tigers, which are often held up as evidence, in fact pursued state-led development – at least initially.

page 164

University of London External System

The bottom line, however, is that even had these structural adjustment policies been shown to achieve their limited goal, many might think that the cost of implementation is simply unacceptably high, with the wrong people (the poorest) being effectively called upon to repay loans and deficits which have brought them no benefit whatsoever. Indeed, throughout Latin America and Sub-Saharan Africa and in many states outside those regions, the period of profligate lending for doubtful purposes, benefiting overwhelmingly the political elite, led to crises where the very people who had seen no benefit were called upon to make sacrifices to overcome both debt and deficit. The policies required in structural adjustment were no more and no less than a return to economic liberalism – a policy which had frequently been rejected in order to ensure a level of social cohesion and protection of the poorest. Thus, when the peoples of the poor nations of the world look at the IMF they see an institution whose purpose is to resolve balance of payment difficulties, instead concentrating its attention upon poor states and making demands of them which effectively ensure that they enforce economic policies which, while clearly not in the interests of their own poor, are just as clearly very much in the interests of those with power within the IMF. The forced opening of the economy to private investment, national or international, allows unrestricted flows of capital to or from states as the market and profit require. Whatever one’s views of economic ideology, what is incontrovertible is the destructive effect of such policies upon the obligation to promote economic, social and cultural rights.

Self-assessment question
Whyuareuinternationalufinancialuinstitutionsuofurelevanceutoutheuinternationalu protectionuofuhumanurights? As has been seen yet again in the latest round of World Trade Organization (WTO) talks, international trade policies have traditionally favoured ‘developed’ economies over ‘underdeveloped’ ones. Primary commodity export is much more vulnerable to fluctuating market prices than manufactured or processed exports. Fluctuating, and often declining, prices made the process of economic planning hazardous in the extreme, necessitating subsequent IMF intervention. Trade policies are seldom perceived to affect the protection of human rights. This is regrettable. There is an obvious relationship between trade and income, and the terms of world trade will dictate economic policies and investment decisions. Poor countries have enjoyed little autonomy in determining either. In the words of the back cover of Belinda Coote’s The trade trap: poverty and the global commodity markets (Oxford: Oxfam, 1996) [ISBN 0855981350] we must consider:
...how countries that depend on the export of primary commodities, like coffee or cotton, are caught in a trade trap: the more they produce, the lower the price falls on the international market. If they try to add value to their commodities by processing them, they run into tariff barriers imposed by the rich industrial nations. To make matters worse, they have to compete with subsidised exports dumped on the world market by richsurplus producing countries.

The politics of trade, then, affect the political reality of human rights protection. It may begin to be apparent that the politics of international law and human rights may (and should) be seen as intimately connected with economic and political ideology. This will be considered further later.

Activity 10.2
‘Auconsiderationuofutheupoliticaluaspectsuofuinternationaluhumanurightsuprotectionu suggestsuthatutheuveryuconceptuofuhumanurightsuisupolitical.uTheuimplicationsuofuthisu conclusionuareusubstantial.’u Discuss. Feedback:useeuenduofuguide.

Public international law 10 Human rights in international law

page 165

Summary
This section has challenged the assumption that ‘human rights’ is a politically neutral concept. The argument is that what dictates the terms of the debate about human rights is very often the political interests and ideology of those making or rejecting demands. In addition we see the importance again of the division between civil and political rights on the one hand and economic rights on the other. It is suggested that the West has been much more concerned with the former while often making protection of the latter exceedingly difficult.

Self-assessment questions
1.u Douyouuthinkuthatuhumanurightsushouldubeudividedubetweenuciviluandupoliticalu rightsuonutheuoneuhanduandueconomic,usocialuanduculturalurightsuonutheuother?u Why? 2.u Compareuanducontrastutheuphilosophyuofuhumanurightsuwithutheupoliticsuofu humanurights.

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

appreciateuthatuanuunderstandinguofuwhatuhumanurightsuareuandutheiruorderuofu priorityuisualwaysupolitical.

10.3 The International Bill of Human Rights
Essential reading
¢u ¢u

Dixon,uChapteru12:u‘Humanurights’,upp.325–30. Cassese,uChapteru13:u‘Internationaluwrongfuluactsuandutheulegalureactionuthereto’,u pp.377–89. Kaczorowska,uChapteru12:u‘Theuinternationaluprotectionuofuhumanurights’,u pp.266–73.

¢u

The so-called International Bill of Human Rights came into existence as a result of the wording of the UN Charter. While the references in the Charter to human rights are limited, they are nevertheless significant and provide the basis for what followed. Its preamble reaffirmed the ‘faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women’, while among the purposes and principles of the UN (in Article 1(3)) is the following:
to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.

This in turn is reinforced by Articles 55 and 56, providing in Article 55:
With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a. higher standards of living, full employment, and conditions of economic and social progress and development; b. solutions of international economic, social, health, and related problems; and international cultural and educational co-operation; and c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

page 166
Article 56 states that:

University of London External System

All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.

Article 55 is noteworthy for the way in which it combines the promotion of human rights and fundamental freedoms with economic and social goals. Article 68, within Chapter X of the Charter setting up the Economic and Social Council (ECOSOC), gives that body the task of establishing commissions in economic and social fields and for the promotion of human rights. Initially it was intended that the Bill of Human Rights should consist of three documents – a declaration, a convention and a document concerned with implementation. On 10 December 1948 the General Assembly sitting in Paris adopted the UDHR and also asked the Commission on Human Rights (a body created by ECOSOC in 1946) to prepare drafts of the other two documents. From the outset there was an important question of the relationship between proclaimed civil and political human rights and economic, social and cultural rights. As we saw in the last section, the debate was to a large extent ideological. All agreed that all the rights were interrelated but quite how the relationship was to be incorporated in legal documents was fiercely contested. In the sixth session of the General Assembly (1951/52) it was resolved to request two separate Covenants, one concerning civil and political rights and the other economic, social and cultural rights, but with as much duplication as possible. The Resolution also required an article providing that ‘all peoples shall have the right of self-determination’. It was not until 1966 that the drafting of these covenants was complete, and they entered into force almost 10 years later. As at December 2005, the ICCPR had 154 ratifications and the ICESCR 151. One final general point should be made. While the Charter paved the way for the promotion and protection of human rights, as Kaczorowska points out (p.267) the only human right to explicitly derive directly from the Charter is the right to nondiscrimination in the provision and protection of fundamental rights.

10.3.1 The Universal Declaration of Human Rights
Essential reading
¢u

Kaczorowska,uChapteru12:u‘Theuinternationaluprotectionuofuhumanurights’,u pp.267–69. Cassese,uChapteru19:u‘Theuprotectionuofuhumanurights’,upp.380–82.u

¢u

The UDHR was explicitly not intended to be a legal document. Nevertheless, because of the disparate nature of the members of the initial United Nations (much less so than now but significant even so, with democratic states, communist states, Islamic states and an apartheid state) it was still difficult to find words to which all states could agree. Of course because it was merely a Declaration, legal precision was not required – these were not articles that a court would have to define. Although Cassese suggests that the task involved finding the lowest common denominator of all states (that is, the things to which all could agree), as we have seen the eight abstentions suggest that success was limited. But the UDHR remains a remarkable document and nearly all states would now argue that it is almost entirely consistent with their aims and aspirations. In retrospect what perhaps seems most surprising is not that the ‘communist’ states merely abstained from, rather than voting against, a Declaration that included many civil and political rights that they obviously had no intention of accepting; but rather that the radical economic, social and cultural rights were acceptable to the United States in particular. Such has been the widespread acceptance of the Declaration that many of its provisions are regarded as having the status of customary rules, although this was never the intention. In the Proclamation of the Teheran International Conference on Human Rights of 1968 it was unanimously accepted that ‘the Universal Declaration...states a common understanding of the peoples of the world concerning the inalienable and inviolable rights of all members of the human family and constitutes an obligation for the members of the international community’.

Public international law 10 Human rights in international law
The UN Centre for Human Rights usefully summarises the provisions of the UDHR as follows:
Articleu1 All human beings are born free and equal. Articleu2 Everyone is entitled to the same rights without discrimination of any kind. Articleu3 Everyone has the right to life, liberty, and security. Articleu4 No one shall be held in slavery or servitude. Articleu5 No one shall be subjected to torture or cruel or degrading treatment or punishment. Articleu6 Everyone has the right to be recognized everywhere as a person before the law. Articleu7 Everyone is equal before the law and has the right to equal protection of the law. Articleu8 Everyone has the right to justice. Articleu9 No one shall be arrested, detained, or exiled arbitrarily. Articleu10 Everyone has the right to a fair trial. Articleu11 Everyone has the right to be presumed innocent until proven guilty. Articleu12 Everyone has the right to privacy. Articleu13 Everyone has the right to freedom of movement and to leave and return to one’s country. Articleu14 Everyone has the right to seek asylum from persecution. Articleu15 Everyone has the right to a nationality. Articleu16 All adults have the right to marry and found a family. Women and men have equal rights to marry, within marriage, and at its dissolution. Articleu17 Everyone has the right to own property. Articleu18 Everyone has the right to freedom of thought, conscience and religion. Articleu19 Everyone has the right to freedom of opinion and expression. Articleu20 Everyone has the right to peaceful assembly and association. Articleu21 Everyone has the right to take part in government of one’s country. Articleu22 Everyone has the right to social security and to the realization of the economic, social and cultural rights indispensable for dignity. Articleu23 Everyone has the right to work, to just conditions of work, to protection against unemployment, to equal pay for equal work, to sufficient pay to ensure a dignified existence for one’s self and one’s family, and the right to join a trade union. Articleu24 Everyone has the right to rest and leisure. Articleu25 Everyone has the right to a standard of living adequate for health and wellbeing, including food, clothing, housing, medical care and necessary social services. Articleu26 Everyone has the right to education. Articleu27 Everyone has the right to participate freely in the cultural life of the community. Articleu28 Everyone is entitled to a social and international order in which these rights can be realized fully. Articleu29 Everyone has duties to the community. Articleu30 No person, group or government has the right to destroy any of these rights.

page 167

While I usually think that such summaries are superfluous to this subject guide, here I think it is important in order to appreciate the range of lofty ideals expressed and the limitations upon the protections that have been afforded since 1948. As we have suggested already, the economic, social and cultural rights seem to the governments of many Western states to be entirely anachronistic, while many of the civil and political rights are regularly abused by most states.

page 168

University of London External System

Summary
It is significant that the International Bill of Human Rights is not in the UN Charter. It took 28 years, from 1948 until 1976, before human rights covenants (legal documents) entered into force. The Charter carried a commitment to the promotion and protection of human rights but most of the work was left to the Third Committee of the General Assembly and ECOSOC. The UDHR has received a remarkable level of support but with different states emphasising the centrality of different provisions. The intended convention on enforcement was never drafted and such enforcement provisions as there are, are to be found in the two Covenants.

Self-assessment questions
1.u Whatuisutheuessenceuofutheudistinctionubetweenuciviluandupoliticalurightsuandu economic,usocialuanduculturalurights?u 2.u What,uifuanything,uisutheucurrentulegalustatusuofutheuUDHR? 3.u CriticallyuconsiderutheuprovisionsuofutheuUDHR.uDouyouuconsideruthemumerelyu timeuanduplaceuspecific,uorudoutheyuhaveuauclaimutouuniversalustatus?

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu uu

understandutheumeaninguanduscopeuofutheuprovisionsuofutheuUDHR recogniseutheusignificanceuandulimitationsuofutheuUDHR.uu

10.3.2 The International Covenants on Human Rights
Essential reading
¢u ¢u

Kaczorowska,uChapteru12:u‘Internationaluprotectionuofuhumanurights’,upp.269–73. Cassese,uChapteru19:u‘Theuprotectionuofuhumanurights’,upp.382–83.

The International Covenants were drafted to give legal effect to the principles contained within the UDHR. The changes in the nature of the drafting committee from when the UDHR was formulated is immediately apparent in the choice of the first article common to both Covenants that asserts a legal human right to selfdetermination – a right that does not appear, let alone take pride of place in the UDHR. Its primacy reflects the drafting committee’s determination that decolonisation and anti-racism (Article 2) be at the forefront of any international human rights concern.

The International Covenant on Civil and Political Rights
The ICCPR guarantees, in addition to those above, rights to life, prohibitions on torture (and cruel, inhuman and degrading treatment or punishment) and slavery, rights to liberty and security of the person, the right to freedom of movement, and rights to freedom of thought, conscience and religion. Because it is a legal document it is possible for a state to derogate from some obligations if there is an emergency threatening the life of the nation (Article 4), but not from those regarded as fundamental.† What is of most interest, however, are the means chosen to give legal effect to the provisions. Part IV of the Covenant created the Human Rights Committee consisting of 18 elected independent experts (Article 28). Article 40 gave this Committee the primary task of reviewing state reports (which state parties to the Covenant are obliged to submit every five years) on the ‘measures they have adopted which give effect to the rights’ of the Covenant. This review provides for the public questioning of state representatives on the content of their reports. Fairly clearly such a procedure leaves itself open to abuse, such as where governments conceal the true state of affairs. The Committee has however developed a practice which allows individual members to receive reports from human rights NGOs and to ask questions based upon

The ICCPR is readily available at http://www.ohchr.org/ english/law/ccpr.htm

Public international law 10 Human rights in international law
that information. After questioning the Committee will give concluding observations which may well be critical. Having said that, there is little further ‘enforcement’ and states are expected to listen to criticisms and to correct the situation before the next report in five years time. Under Article 41 there is a further optional process providing that the Committee may receive and consider complaints from one or more state party against another state party alleging that the state complained of is not fulfilling its obligations under the Covenant. Both the alleging party and the alleged violator must have declared acceptance of this optional process. No applications have yet been made. More important is the procedure under the First Optional Protocol, ratified by in excess of 100 states. As we will see, this is a pale imitation of the provisions for individual petition contained within the European Convention on Human Rights. The Optional Protocol allows individual communications with regard to alleged violations of the Covenant to the Committee (where the victim is a national of a state party to the Protocol, has exhausted domestic remedies, is not anonymous and the matter is not currently under another procedure of international investigation or settlement). If the Committee decides that the communication is admissible it requests comments from the state concerned and transmits these to the complainant. On the basis of all the information submitted, the Committee meets in closed session and forwards its opinion to the complainant and the state. Under Article 42 there may be an ad hoc Conciliation Committee with the consent of both parties but this is the end of the process. For the sake of completeness it should be added that there is a Second Optional Protocol providing for the abolition of the death penalty in the territory of ratifying states. Forty-six states have ratified (by 2005).

page 169

The International Covenant on Economic, Social and Cultural Rights
If the enforcement measures available under the ICCPR seem extraordinarily weak, they do however seem powerful in comparison with those available under the ICESCR. This Covenant might seem to confirm that economic, social and cultural rights really are the ‘children of a lesser God’. The premise that underlies the ICESCR is that these rights are not ‘justiciable’ and that the appropriate means for securing them is through encouragement while recognising a state’s economic constraints. The only supervisory machinery provisions provide for a reporting process. Parties ‘shall furnish their reports in stages, in accordance with a programme to be established by the Economic and Social Council within one year of the entry into force of the present Covenant after consultation with the States Parties and the specialized agencies concerned’. Although ECOSOC has the power to transmit these reports to the UN Commission on Human Rights for scrutiny, in order to make general recommendations ‘or as appropriate for information’, and may ‘submit to the General Assembly, from time to time, comments of a general nature’ on state reports, this extraordinarily inconsequential procedure seems scarcely consistent with the real promotion and protection of human rights. Perhaps what is illustrated most clearly is that the range of states within the UN is so broad that, difficult though it was to draft the UNDHR, it is almost impossible to draft sensible, legally binding provisions that are relevant to all member states. It is this reality that has encouraged the development of regional protection mechanisms, to which we turn after a brief consideration of other UN human rights treaties.

Self-assessment questions
1.u Canuyouuconceiveuofuaubetteruwayuofusecuringuinternationaluhumanurightsuthanu throughutheuexistinguCovenants?u 2.u AreuthereusignificantudifferencesubetweenutheuUDHRuandutheuCovenants?uWhatu areutheyuanduhowumayutheyubeuexplained?

page 170

University of London External System

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

understandutheureasonsuforutheudraftinguofutwo InternationaluCovenantsuonu HumanuRightsu explainutheuenforcementumeasuresuthatueachuCovenantucontains.

uu

10.4 Principal international human rights treaties
Essential reading
¢u

Kaczorowska,uChapteru12:u‘Internationaluprotectionuofuhumanurights’,upp.273–78.

In addition to the International Bill of Human Rights there are a number of other international human rights treaties of the United Nations. Once more, while the texts of the treaties are clear, the effectiveness of their provisions is difficult to assess. The usual response to this problem is to take the treaties at face value, to outline their provisions and to avoid a discussion of effect. If an attempt is made at evaluation, this is usually done in terms of the importance of the treaties as ‘standard setting’. In this section we will list the principal treaties and will then look at one in more detail. Beyond the International Bill of Human Rights are (together with their Protocols, if any) the following:
u

Convention for the Prevention and Punishment of Genocide, 1948. Under this treaty genocide constitutes an international crime whether committed in times of war or peace. There is no independent enforcement mechanism Convention for the Suppression of Traffic in Persons and of the Exploitation of the Prostitution of Others, 1950 Convention on the Status of Refugees, 1951 International Convention on the Elimination of All Forms of Racial Discrimination, 1965 International Convention on the Suppression of the Crime of Apartheid, 1973 Convention on the Elimination of All Forms of Discrimination Against Women, 1979 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,1984 Convention on the Rights of the Child, 1989 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990.

u

u u

u u u

u u

We will now look at the Convention on the Elimination of All Forms of Discrimination Against Women. In the words of the UN website http://www.un.org/womenwatch/daw/ cedaw/
The Convention on the Elimination of All Forms of Discrimination Against Women adopted in 1979 by the UN General Assembly, is often described as an international bill of rights for women. Consisting of a preamble and 30 articles, it defines what constitutes discrimination against women and sets up an agenda for national action to end such discrimination. The Convention defines discrimination against women as: ‘...any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.’

Public international law 10 Human rights in international law
By accepting the Convention, States commit themselves to undertake a series of measures to end discrimination against women in all forms, including: i. to incorporate the principle of equality of men and women in their legal system, abolish all discriminatory laws and adopt appropriate ones prohibiting discrimination against women ii. to establish tribunals and other public institutions to ensure the effective protection of women against discrimination iii. to ensure elimination of all acts of discrimination against women by persons, organisations or enterprises. The Convention provides the basis for realising equality between women and men through ensuring women’s equal access to, and equal opportunities in, political and public life – including the right to vote and to stand for election – as well as education, health and employment. States parties agree to take all appropriate measures, including legislation and temporary special measures, so that women can enjoy all their human rights and fundamental freedoms. The Convention is the only human rights treaty which affirms the reproductive rights of women and targets culture and tradition as influential forces shaping gender roles and family relations. It affirms women’s rights to acquire, change or retain their nationality and the nationality of their children. States parties also agree to take appropriate measures against all forms of traffic in women and exploitation of women. Countries that have ratified or acceded to the Convention are legally bound to put its provisions into practice. They are also committed to submit national reports, at least every four years, on measures they have taken to comply with their treaty obligations.

page 171

This Convention has now been ratified by more than 180 nations, which at first sight seems remarkable. It would seem that all of these nations are dedicated to the elimination of discrimination against women. Things are not, however, quite as they seem. Not only is the list of reservations remarkably extensive but many of the reservations seem scarcely compatible with the purposes of the Convention. (See http://www.un.org/womenwatch/daw/cedaw/reservations-country.htm for all reservations and objections to those reservations.) The stated position of the Committee charged with administering the Convention is one of concern:
The Convention permits ratification subject to reservations, provided that the reservations are not incompatible with the object and purpose of the Convention. Some States parties that enter reservations to the Convention do not enter reservations to analogous provisions in other human rights treaties. A number of States enter reservations to particular articles on the ground that national law, tradition, religion or culture are not congruent with Convention principles, and purport to justify the reservation on that basis. Some States enter a reservation to article 2, although their national constitutions or laws prohibit discrimination. There is therefore an inherent conflict between the provisions of the State’s constitution and its reservation to the Convention. Some reservations are drawn so widely that their effect cannot be limited to specific provisions in the Convention. Impermissible reservations Article 28, paragraph 2, of the Convention adopts the impermissibility principle contained in the Vienna Convention on the Law of Treaties. It states that a reservation incompatible with the object and purpose of the present Convention shall not be permitted. Although the Convention does not prohibit the entering of reservations, those which challenge the central principles of the Convention are contrary to the provisions of the Convention and to general international law. As such they may be challenged by other States parties.

page 172

University of London External System
Articles 2 and 16 are considered by the Committee to be core provisions of the Convention. Although some States parties have withdrawn reservations to those articles, the Committee is particularly concerned at the number and extent of reservations entered to those articles. The Committee holds the view that article 2 is central to the objects and purpose of the Convention. States parties which ratify the Convention do so because they agree that discrimination against women in all its forms should be condemned and that the strategies set out in article 2, subparagraphs (a) to (g), should be implemented by States parties to eliminate it.† Neither traditional, religious or cultural practice nor incompatible domestic laws and policies can justify violations of the Convention. The Committee also remains convinced that reservations to article 16, whether lodged for national, traditional, religious or cultural reasons, are incompatible with the Convention and therefore impermissible and should be reviewed and modified or withdrawn.†

Article 2 condemns discrimination against women and contains an agreement to pursue the elimination of it. Article 16 commits parties to taking appropriate steps to eliminate discrimination against women relating to marriage.

This position effectively illustrates both the strengths and weaknesses of such a treaty. The strength is that the Convention is an international statement that clearly accepts a goal and defines discrimination against women as unacceptable and increasingly incompatible with international law – treaty law for those states that are party to the treaty, and customary international law for others. The weakness once more concerns the ‘enforcement’ (state reports every four years reporting progress) and reservations of doubtful compatibility. States with a substantial Muslim population in particular have entered reservations against either or both Article 2 and/or Article 16 to the effect that should there be a conflict, Shariah law must prevail. While this is unsurprising, as the Committee has observed, neither religious nor custom reasons can be allowed to effectively destroy the very purpose of the Convention.

Activity 10.3
‘TheuReservationsuofustatesuwhenuratifyingutheuConventionuonutheuEliminationuofu AlluFormsuofuDiscriminationuAgainstuWomenuillustrateutheusubstantialugapubetweenu approvaluinuprincipleuofuauhumanurightsustatementuandutheuwillingnessutoumakeuitu effective.’u Discuss. Feedback:useeuenduofuguide.

Summary
The UN has been highly successful in drafting, and having accepted, international human rights treaties. Genocide, torture, racism and apartheid are all now clearly proscribed in international law. In other areas, however, it is harder to judge the contribution of human rights treaties to the protection of human rights. While almost all states are prepared to support a document aimed at the elimination of discrimination against women, the true intentions are inferable from the reservations entered.

Self-assessment exercise
Considerutheucontributionu(ifuany)uofutheudecisionutouassertuaurightutoudevelopmentuasu auhumanuright.u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu uu

explainutheuroleuofutheuUNuinustandardusettinguandudraftinguhumanurightsutreatiesu understandutheuneedutouconsultureservationsubeforeucomingutouconclusionsu aboututheuefficacyuofusuchutreaties.u

Public international law 10 Human rights in international law

page 173

10.5 Regional protection of human rights
By now you should appreciate the possibilities and limitations of the international protection of human rights – and indeed the difficulty of making any accurate assessment of the contribution made by conventions or treaties. A cost-benefit analysis would be grippingly interesting but almost impossible to achieve. Henry Ford is supposed to have observed that he knew 90 per cent of his advertising budget was wasted, but the problem was that he was unable to discover which 10 per cent was effective. When it comes to the international protection of human rights the picture is even less clear. It is obvious that at the least there is a standard setting process with some provisions achieving a jus cogens status in international law, but the effect of the standard setting process is unquantifiable. Problems of enforcement at the world level led to attempts to provide regional protection. It was anticipated that a higher degree of homogeneity amongst the participating states would make enforcement less controversial. It was in Europe that the impetus for such regional protection was at its greatest, primarily as a reaction to the war that had had to be fought against fascist totalitarian states. In the words of the most famous historian of the development of post-war human rights, A.W.B. Simpson:
The idea that there was a link between the protection of human rights and the preservation of peace was to become a common feature of post-war thinking…Thus it came about that whereas before the Second World War there was virtually no public interest in the international protection of human rights, except in relation to European minority protection, by 1944, and even earlier, there was a widespread interest in the subject, and a growing belief that the protection of human rights against oppressive governments should be embodied in a new world order which needed to be established to establish not only security through a lasting peace, but also a just world in which governmental misconduct would be brought under the control of the international community…The idea that the war had been about the protection of the rights of individuals, originally little more than a rhetorical adornment, was coming home to roost. [Simpson, A. Human rights and the end of empire. (Oxford: Oxford University Press, 2001) [ISBN 0199267898] pp.219–20.)

As we have seen, progress in the drafting of the International Covenants was not rapid and this also gave impetus to regional provision.

10.5.1 The European Convention on Human Rights
Essential reading
¢u

Kaczorowska,uChapteru12:u‘Theuinternationaluprotectionuofuhumanurights’,uuu pp.289–98. Cassese,uChapteru19:u‘Theuprotectionuofuhumanurights’,upp.389–91. EuropeanuConventionuonuHumanuRights.u

¢u ¢u

The European Convention on Human Rights (ECHR) was drafted by the Council of Europe† and opened for signature in November 1950. It entered into force after 10 ratifications in 1953. There are currently 46 state parties with a combined population in excess of 800 million, each with the right of individual petition. Such an increase has more than been reflected in the number of applications. Whereas the number of cases registered with the Court in Strasbourg in 1981 was 407, by 1997 this had risen to 4,750, and in 2004, 44,100 new cases were lodged. It is said that in 2004 applications were lodged at a rate of 1,000 per month more than the Court could deal with. There were 82,100 cases pending on 1 October 2005, and this was projected to grow to 250,000 by 2010. Such was the backlog that in 2004, some 2,000 applications had been pending for more than five years. (See Woolf et al. Review of the working methods of the European Court of Human Rights (December 2005) at http://www.echr.coe.int/Eng/Press/2005/ Dec/lordwoolfsreviewonworkingmethods2.pdf)

Not to be confused with the European Union – for information about the Council of Europe see http:// www.coe.int/T/e/Com/ about_coe/

page 174

University of London External System

These changes are remarkable and of course many of them have resulted from the influx of new states since the major enlargement of the Council of Europe when countries of the former Soviet Bloc acceded to the Convention. As the Review observes, whereas the Court was originally primarily concerned to fine tune ‘well-established and well-functioning’ democracies, it is now ‘working to consolidate democracy and the rule of law in new and relatively fragile democracies’. In the first nine months of 2005 more than half of pending cases were from just four countries (the Russian Federation, 17 per cent; Turkey, 13 per cent; Romania, 12 per cent; and Poland, 11 per cent). It is therefore crucial to appreciate that the ECHR is currently very different from what it used to be. When it was drafted it was based to a great extent upon the civil and political rights found in the UDHR. Of course because this was a legal document the wording had to be much more careful, and when you read the ECHR you will at once notice that almost every right is immediately heavily qualified and significantly less absolute than in the Declaration.

Self-assessment exercise
Examineuanduexplainutheudifferencesubetweenutheusubstantiveuprovisionsu concerninguciviluandupoliticalurightsuinutheuUDHRuandutheuECHR. The history of the ECHR is well and briefly described on its web site, http://www.echr. coe.int/echr
In addition to laying down a catalogue of civil and political rights and freedoms, the Convention set up a mechanism for the enforcement of the obligations entered into by Contracting States. Three institutions were entrusted with this responsibility: the European Commission of Human Rights (set up in 1954), the European Court of Human Rights (set up in 1959) and the Committee of Ministers of the Council of Europe, the latter organ being composed of the Ministers of Foreign Affairs of the member States or their representatives. Under the Convention in its original version, complaints could be brought against Contracting States either by other Contracting States or by individual applicants (individuals, groups of individuals or non-governmental organisations). Recognition of the right of individual application was, however, optional and it could therefore be exercised only against those States which had accepted it (Protocol No. 11 to the Convention [which came into force in 1998] was subsequently to make its acceptance compulsory). The complaints were first the subject of a preliminary examination by the Commission, which determined their admissibility. Where an application was declared admissible, the Commission placed itself at the parties’ disposal with a view to brokering a friendly settlement. If no settlement was forthcoming, it drew up a report establishing the facts and expressing an opinion on the merits of the case. The report was transmitted to the Committee of Ministers. Where the respondent State had accepted the compulsory jurisdiction of the Court, the Commission and/or any Contracting State concerned had a period of three months following the transmission of the report to the Committee of Ministers within which to bring the case before the Court for a final, binding adjudication. Individuals were not entitled to bring their cases before the Court. If a case was not referred to the Court, the Committee of Ministers decided whether there had been a violation of the Convention and, if appropriate, awarded ‘just satisfaction’ to the victim. The Committee of Ministers also had responsibility for supervising the execution of the Court’s judgments.

Since then there have been significant developments.
Since the Convention’s entry into force thirteen Protocols have been adopted. Protocols Nos. 1, 4, 6, 7, 12 and 13 added further rights and liberties to those guaranteed by the Convention, while Protocol No. 2 conferred on the Court the power to give advisory opinions. Protocol No. 9 enabled individual applicants to bring their cases before the Court subject to ratification by the respondent State and acceptance by a screening panel. Protocol No. 11 restructured the enforcement machinery (see below). The remaining Protocols concerned the organisation of and procedure before the Convention institutions.

Public international law 10 Human rights in international law
From 1980 onwards, the steady growth in the number of cases brought before the Convention institutions made it increasingly difficult to keep the length of proceedings within acceptable limits. The problem was aggravated by the accession of new Contracting States from 1990. The number of applications registered annually with the Commission increased from 404 in 1981 to 4,750 in 1997. By that year, the number of unregistered or provisional files opened each year in the Commission had risen to over 12,000. The Court’s statistics reflected a similar story, with the number of cases referred annually rising from 7 in 1981 to 119 in 1997. The increasing case-load prompted a lengthy debate on the necessity for a reform of the Convention supervisory machinery, resulting in the adoption of Protocol No. 11 to the Convention. The aim was to simplify the structure with a view to shortening the length of proceedings while strengthening the judicial character of the system by making it fully compulsory and abolishing the Committee of Ministers’ adjudicative role. Protocol No. 11, which came into force on 1 November 1998, replaced the existing, parttime Court and Commission by a single, full-time Court. For a transitional period of one year (until 31 October 1999) the Commission continued to deal with the cases which it had previously declared admissible. During the three years which followed the entry into force of Protocol No. 11 the Court’s case-load grew at an unprecedented rate. The number of applications registered rose from 5,979 in 1998 to 13,858 in 2001, an increase of approximately 130%. Concerns about the Court’s capacity to deal with the growing volume of cases led to requests for additional resources and speculation about the need for further reform. A Ministerial Conference on Human Rights, held in Rome on 3 and 4 November 2000 to mark the 50th anniversary of the opening of the Convention for signature, had initiated a process of reflection on reform of the system. In November 2002, as a follow-up to a Ministerial Declaration on ‘the Court of Human Rights for Europe’, the Ministers’ Deputies issued terms of reference to the Steering Committee for Human Rights (CDDH) to draw up a set of concrete and coherent proposals covering measures that could be implemented without delay and possible amendments to the Convention.

page 175

Since then another Protocol (Protocol 14) has been drafted and signed by all members except Bulgaria and the Russian Federation. By July 2005, 13 states had ratified the Protocol, which was considered essential for the survival of the Convention. In essence it provides firstly that a single judge can decide on a case’s admissibility. (There is the same number of judges as states (46).) Until this enters into force, three judges decide. Secondly, it provides that where cases are broadly similar to ones brought previously before the Court, and are essentially due to a member state failing to change their domestic law to correct a failing highlighted by that previous judgment, admissibility can be decided by three judges rather than the seven-judge Chamber. Thirdly, a case may not be admissible if it is considered that the applicant has not suffered ‘significant disadvantage’. However, this is not a ‘hard and fast’ rule. Fourthly, a member state can be brought before the Court by the Committee of Ministers if that state refuses to enforce a judgment against it. Finally, the Committee of Ministers can ask the Court for an ‘interpretation’ of a judgment to help determine the best way for a member state to comply with it. In summary it may be said that the ECHR is undoubtedly the most successful regional system for the protection of human rights yet devised. Until the 1990s it had sat in a role that approached a supreme constitutional court interpreting civil liberties protection. It is now in danger of being paralysed by its own success and even further measures would seem necessary if it is to continue in its present form.

Activity 10.4
‘TheuECHRuisuauvictimuofuitsuownusuccess.uItsuoriginalustrengthucameufromutheurelativeu homogeneityuofutheupoliticaluideologyuofuitsumembers.uThisunoulongeruexistsuandutheu ECHRuisucomingutousufferufromutheusameudefectsuasutheuInternationaluBilluofuHumanu Rights.’uuDiscuss. Feedback:useeuenduofuguide.

page 176

University of London External System

Summary
The ECHR has been a remarkably successful Convention in effectively guaranteeing fundamental civil and political rights. But whereas it proved competent in this, the influx of members with diverse histories and ideological outlooks has led to an unmanageable case load that will necessarily affect the jurisprudence of the Court. The ECHR reflects the European view that civil and political rights are justiciable in a way that economic, social and cultural rights are not.

Self-assessment questions
1.u ExplainuanduconsiderutheuroleuofutheuCommitteeuofuMinistersuinutheuoperationuofu theuECHR.u 2.u UnderutheuECHRuthereuisuprovisionuforuinter-stateupetitionsuconcerninguhumanu rightsuabusesu(Articleu24).uHowusignificantuisuthisuprovision?uShoulduitubeumoreu widelyuused?u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu

understandutheusignificantuachievementsuofutheuECHRuinutheurealmuofutheu protectionuofuciviluandupoliticalurightsu understandutheunatureuanduscopeuofutheuproblemsufacingutheuECHRuregimeuinutheu twenty-firstucentury.u

uu

10.5.2 The inter-American system of human rights protection
Essential reading
¢u ¢u

Kaczorowska,uChapteru12:u‘Internationaluprotectionuofuhumanurights’,upp.283–87.u Cassese,uChapteru19:u‘Theuprotectionuofuhumanurights’,up.391.

The primary aim of this brief appraisal of the inter-American system for the protection of human rights is to enable a comparison with the ECHR. From the readings above you will see that opinions on the inter-American system are polarised. Kaczorowska (with whom I agree) regards it as ‘very disappointing’ (p.287) while Cassese is much more positive. There are two inter-American bodies concerned with the protection and enforcement of human rights: the Inter-American Commission on Human Rights (IACHR) (ironically with its headquarters in Washington, DC) and the Inter-American Court of Human Rights, located in Costa Rica. The most important documents for this system are the Charter of the Organization of American States (OAS) and the Inter-American Convention of Human Rights, 1969. Neither the USA nor Canada is a party to the Convention. The IACHR was created by the OAS in 1959 as an autonomous organ to ensure respect for human rights. As Kaczorowska observes, its first investigation was of Castro’s Cuba and resulted in Cuban expulsion from the OAS, but it made no such ‘progress’ with other member states notwithstanding the appearance of a number of military dictatorships with utterly deplorable human rights records. It was not difficult to see the hand of the US Central Intelligence Agency in the impotence of the IACHR. It imposed no sanctions and could merely make a declaration to the effect that a state was in breach of the (non-binding) American Declaration of the Rights and Duties of Man, 1948. When the Convention was adopted the IACHR continued its role for the OAS but took on new tasks too. The Commission:
a. Receives, analyses and investigates individual petitions which allege human rights violations, pursuant to Articles 44 to 51 of the Convention. b. Observes the general human rights situation in the member States and publishes special reports regarding the situation in a specific State, when it considers it appropriate.

Public international law 10 Human rights in international law
c. Carries out on-site visits to countries to engage in more in-depth analysis of the general situation and/or to investigate a specific situation. These visits usually result in the preparation of a report regarding the human rights situation observed, which is published and sent to the General Assembly. d. Stimulates public consciousness regarding human rights in the Americas. To that end, carries out and publishes studies on specific subjects, such as: measures to be taken to ensure greater independence of the judiciary; the activities of irregular armed groups; the human rights situation of minors and women; and the human rights of indigenous peoples. e. Organises and carries out conferences, seminars and meetings with representatives of Governments, academic institutions, non-governmental groups, etc...in order to disseminate information and to increase knowledge regarding issues relating to the inter-American human rights system. f. Recommends to the member States of the OAS the adoption of measures which would contribute to human rights protection. g. Requests States to adopt specific ‘precautionary measures’ to avoid serious and irreparable harm to human rights in urgent cases. The Commission may also request that the Court order ‘provisional measures’ in urgent cases which involve danger to persons, even where a case has not yet been submitted to the Court. h. Submits cases to the Inter-American Court and appears before the Court in the litigation of cases. i. Requests advisory opinions from the Inter-American Court regarding questions of interpretation of the American Convention.

page 177

The Commission receives individual petitions against member states of the OAS. If the member is not a party to the Convention, the Commission will judge the matter under the Declaration, but of course cannot give a binding decision. If the member is a party to the Convention then, if there is no amicable settlement, the Commission may refer the matter to the Inter-American Court of Human Rights. Individuals do not have a right of access to the Court. Both inter-state and individual cases can be heard by the Court only if contracting states have made a general or specific agreement that this will happen. In the event of an adverse judgment there is no means of enforcement. Thus it may be seen that inter-American regional protection of human rights leaves much to be desired. Indeed, there is no surrender of sovereignty that in any way equates with the European system. It has certainly not developed comparably and although the right of individual petition is important, there does not seem to have been a major change in the quality of human rights protection offered within states as a result of the Declaration or Convention.

Self-assessment questions
1.u CompareuanducontrastutheusubstantiveuprovisionsuofutheuECHRuwithutheuInterAmericanuConventionuonuHumanuRights.u 2.u WhyudouyouuthinkuthatuEuropeuandutheuAmericasudevelopedusuchudifferentu systemsuofuregionaluhumanurightsuprotection?u

Activity 10.5
‘Experienceusuggestsuthatuwhileuregionalusystemsuforutheuprotectionuofuhumanu rightsuareuessential,uituhasutoubeurealiseduthatutheyucanuatubestubeusupplementaryutou domesticustateuprotection.uCurrentuEuropeanuanduAmericanuexperienceuconfirmsu thisuview.’u Discuss.u Feedback:useeuenduofuguide.

page 178

University of London External System

Summary
The inter-American system for the protection of human rights has not been a notable success. It is much less intrusive into national sovereignty than it needs to be in order to be effective. US and Canadian participation has not been substantial. It could be argued that its emphasis has been upon human rights promotion, but the system has lived in remarkable harmony with abusive military dictatorships. In addition, to have singled out Cuba as the only member of the OAS worthy of suspension for its human rights abuses seems perverse in the extreme.

Self-assessment questions
1.u WhyuhaveuCanadauandutheuUSAuelectedutouremainuoutsideutheuInter-Americanu ConventionuonuHumanuRights?u 2.u CompareuanducontrastutheusubstantiveuprovisionsuofutheuECHRuwithutheuInterAmericanuConventionuonuHumanuRights.u 3.u WhyudouyouuthinkuthatuEuropeuandutheuAmericasuhaveudevelopedusuchudifferentu systemsuofuregionaluhumanurightsuprotection?u

Reminder of learning outcomes
Byuthisustageuyouushouldubeuableuto:
uu uu uu

appreciateutheucontroversialunatureuofutheueffectivenessuofuenforcementu explainutheuroleuofuregionaluregimesuinutheuprotectionuofuhumanurightsu explainutheusignificanceuofutheudifferencesubetweenuinternationaluanduregionalu protectionuofuhumanurightsu compareuanducontrastudifferenturegionalusystemsuofuhumanurightsuprotectionu explainutheubasisuandueffectuofuauclaimuforutheurightuofudemocraticugovernance.u

uu uu

Sample examination questions
Question 1uuu‘Theuconceptuofuhumanurightsuprovidedutheufirstumajoruandudecisiveu rejectionuofutheuprinciplesuofustateusovereigntyuderivedufromutheuTreatyuofu Westphalia.’u Explainuandudiscuss. Question 2uuu‘Theuinternationaluprotectionuofuhumanurightsuhasubecomeuaumatteru ofuconcernuthroughoututheuworld.uItuisucuriousuthereforeuthatuthereuisusoulittleu agreementueitheruaboutuwhatutheufundamentalurightsuare,uoruhowutheyuoughtutoubeu guaranteeduanduprotected.’u Discussuwithureferenceutouinternationaludocumentsuintendedutoupromoteuandu protectuhumanurights.u

Public international law 10 Human rights in international law

page 179

Advice on answering the questions
Question 1 The Treaty of Westphalia has come to be accepted as the foundation stone of sovereignty and sovereign equality in international law. In fact it is very doubtful whether this can really be supported, but it has been accepted. The mythology suggests that the import of the treaty was effectively to provide that no state had the right to interfere in the domestic affairs of another. Recognition of a state’s exclusive internal jurisdiction was thought to be necessary for international peace. Obviously the whole idea of the international protection of human rights has to be based upon intervention in the internal affairs of states. Although in the early days of the UN Charter it was argued that there should be no such interference, this argument was roundly defeated by the strength of feeling in favour of human rights protection. But many states have ceded absolute sovereignty unwillingly and some have conceded as little as possible. This is one explanation for the weakness of enforced international human rights and also for the differences among regional human rights protection. At this point it is relevant to consider the attitude of different states to regional protection. The position adopted by the Russian Federation, China and the USA might usefully be compared and contrasted. The International Bill of Human Rights could also be compared and contrasted with regional protection. Question 2uuuThis question requires you to discuss the debate about the meaning of human rights. The debate about civil and political human rights as opposed to economic, social and cultural rights needs to be considered with some thought given to why the former seem (at least in the protection offered) to be superior to the latter. A discussion of the politics of human rights would also be appropriate, tracing the division back to ideology pre-dating the UDHR. The different documents in the International Bill of Human Rights could then be examined, particularly looking at the different ‘enforcement’ mechanisms. This in turn could lead to an examination of some of the principal UN treaties for the protection of human rights. Some discussion of the centrality of the human right to self-determination would also be relevant.

page 180

University of London External System

Notes

11 International law in a unipolar world

Contents
Introduction 11 1 11 2 11 3 11 4 Is international law a source of disappointment? The paradox of sovereign equality The USA and international law The case of Israel and international law 182 183 184 186 192

page 182

University of London External System

Introduction
The purpose of this chapter is to provide something of a critique of international law. What is meant by the word ‘critique’ is that we will attempt to stand back from the method and detail and rules of international law, to be found in this subject guide and particularly in your Kaczorowska textbook, in the hope that we might discover some academic questions about public international law that might reveal possible perspectives on its role which would otherwise remain invisible. To some extent this approach may be unsettling because it does call into question the objectivity of at least parts of this subject guide and the necessary textbooks. It should also be liberating for those of you who have had some feeling of dissatisfaction with a subject guide that has often hinted at the political aspects of international law but has only occasionally explored them. Such feelings are important because they reflect the intellectual challenge of having, on the one hand, to study the rules and methods of international law as objective phenomena and, on the other, to question the neutrality of the results achieved. There are many ‘big questions’ that it is difficult to incorporate into an undergraduate course but without which the subject itself may be misleading.

Learning outcomes
By the end of this chapter and the relevant readings you should be able to:
uu

define the concept of sovereignty in international law and understand why the concept of sovereignty is not fixed in definition appreciate the significance, importance and limitations of the concept of sovereign equality understand that the relationship between law and power does not necessarily coincide in international law as it does in domestic law be aware of the significance of the present ‘unipolar’ state of the contemporary world recognise that some within the United States are willing to argue that international law is in no real sense law and that this has foreign policy implications explain US legitimations of the use of force understand the significance of the ability of Israel to flout international law because of its relationship with the USA appreciate the effect of such protection upon the perception of international law by other states draw some conclusions about the relationship between power, justice and international law formulate a critical position appreciating both the strengths and weaknesses of the contemporary international law regime.

uu

uu

uu

uu

uu uu

uu

uu

uu

Public international law 11 International law in a unipolar world

page 183

11.1 Is international law a source of disappointment?
Some of you are probably disappointed with international law because it seems so malleable, indeterminate and infinitely arguable. Even where the rules do seem clear (as in Chapter 9 when we looked at the rules governing the use of force in international law), and even if they are apparently broken, particularly by a powerful state, not only do retribution and enforcement seem to be beyond the ability and will of the international community, but a legal argument will often be ‘constructed’ in order to avoid a clear legal position. A very good example of this concerns the intervention in Iraq by the US, the UK and their allies in 2003. The response of the British academic international law community was to be found in an unequivocal letter to the British newspaper, The Guardian, on 7 March 2003. The letter was signed by many of the most prominent UK international lawyers not in government service. It stated as follows:
We are teachers of international law. On the basis of the information publicly available, there is no justification under international law for the use of military force against Iraq. The UN charter outlaws the use of force with only two exceptions: individual or collective self-defence in response to an armed attack and action authorised by the Security Council as a collective response to a threat to the peace, breach of the peace or act of aggression. There are currently no grounds for a claim to use such force in self-defence. The doctrine of pre-emptive self-defence against an attack that might arise at some hypothetical future time has no basis in international law. Neither Security Council resolution 1441 nor any prior resolution authorises the proposed use of force in the present circumstances. Before military action can lawfully be undertaken against Iraq, the Security Council must have indicated its clearly expressed assent. It has not yet done so. A vetoed resolution could provide no such assent. The prime minister’s assertion that in certain circumstances a veto becomes ‘unreasonable’ and may be disregarded has no basis in international law. The UK has used its Security Council veto on 32 occasions since 1945. Any attempt to disregard these votes on the ground that they were ‘unreasonable’ would have been deplored as an unacceptable infringement of the UK’s right to exercise a veto under UN charter article 27. A decision to undertake military action in Iraq without proper Security Council authorisation will seriously undermine the international rule of law. Of course, even with that authorisation, serious questions would remain. A lawful war is not necessarily a just, prudent or humanitarian war. The conclusion was thus inevitable. Because Article 2(4) of the United Nations Charter proscribes the use of force except pursuant to Article 51 (allowing self defence), or pursuant to a Security Council Resolution under Chapter VII of the Charter, (the Council having been persuaded of the reality of a ‘threat to the peace, breach of the peace, or act of aggression’ (Article 39)) an invasion of Iraq could not be lawful. QED.†

So strong, clear and seemingly incontrovertible was this position that when the UK government sought to justify intervention, it purported to accept that legal analysis while finding room for manoeuvre within it. Advice accepted by the government argued the legality of the intervention because of non-compliance by Iraq with earlier Chapter VII Resolutions which had authorised the use of force. In the UK the government accepted the need for its actions to be legal, accepted the constraints upon the use of force arising from the UN Charter, and argued within that circumscription. Thus in the UK, the governance by the UN of the use of force was accepted as representing international law, and any illegality was denied. The important point here is that arguments in international law for almost any course of action can be constructed and generally there is no final adjudication as to their legality. It is very rare for a body such as the ICJ to be able to conclude authoritatively on the validity of legal argument. It is of course able to do so when a matter comes before it but it is this which dictates that matters coming before it are few and far between. As a result, states may hold on to tenuous legal argument even when it seems quite unsustainable. (The UK, for instance, refused to allow the legality of its intervention in Kosovo to be tested in the ICJ when the opportunity arose, arguing, remarkably, that the law relating to humanitarian intervention was in a state of development and the ICJ might arrest that development!)

QED – (Latin) Quod erat demonstradum, meaning ‘what was to be demonstrated’. This means that you have proved something that you wanted to prove.

page 184

University of London External System

In response to such criticism of international law, there is the often proffered defence that for every situation in which international law remains arguable there are myriad times when international law either pre-empts disputes or even resolves them, but this is not wholly convincing in the face of the ability of some states to ignore the international community and its rules with almost total impunity. Others of you may well be disappointed with international law because, as was suggested in Chapter 2, it seems to reflect a very European way of seeing the world – and perhaps even a European (Western) way of dominating the world, only now being challenged by a rising China. Certainly many international rules and much international legal methodology were created in a time of Western hegemony and colonialism, and arguably some of the consequences of this remain. Yet others will probably have noticed that public international law seems a very ‘gendered’ way of making sense of world events. At the risk of potentially facile typifications, international law seems to be about creating, structuring and managing competition and competitiveness. The desirability, healthiness and inevitability of competition (or conflict) over co-operation is not only taken for granted but even seems ‘natural’, and the consequent conflicts that arise seem all too often resolved by power, force or the threat of force – all causes and means which some would suggest privilege stereotypically ‘masculine’ modes of ordering over alternatively hierarchically subordinated modes, typically understood as ‘feminine’. Finally you will almost certainly have been preoccupied throughout this course with the relationship between power and law. Underlying the whole of this subject guide has been the paradox of sovereign equality. That concept is at once at the heart of the rule of law way of organising the international community by emphasising the superiority of justice over power, and yet all too often irrelevant in the face of the reality of unequal power. The conclusion drawn from this fact could be interpreted as an attack upon the actions of powerful states and upon the USA in particular. This would be a misinterpretation. While it is not improper to be critical of the policies of any state, the fact of the status of any state is always important. Most states pursue foreign policy that their governments perceive to be in their own interests to the maximum of their ability almost all of the time. How effective they can be depends upon both power and diplomacy. When this is appreciated it becomes clear that the USA is not acting exceptionally in attempting to achieve its foreign policy goals. It is, however, the goals themselves that are politically questionable – though this is generally beyond the range of a course in international law. This chapter therefore considers two problematic areas of dispute that go to the heart of the reality of international law. The first concerns the place of the USA in an international law regime in a ‘unipolar’ world, and the second considers the significance of the demonstrable ability of one client state of the US (Israel) to flout international law at will and without sanction.

11.2 The paradox of sovereign equality
Essential reading
¢u ¢u

Dixon, Chapter 6: ‘Jurisdiction and sovereignty’, pp.144–56. Cassese, Chapter 3: ‘The fundamental principles governing international relationships’, p.48–55. Kaczorowska, Chapter 6: ‘Sovereignty and equality of states’, pp.95–97.

¢u

In Chapter 4 we briefly considered notions of sovereignty and sovereign equality. At various points we have observed how dramatically the Westphalian system (at least the theoretical Westphalian system) has changed with the rise of the United Nations and the centrality of human rights. Even in 1967, however, Oppenheim’s Treatise on International Law (Lauterpacht, H. (ed.) International Law: A Treatise by L. Oppenheim. (London: Longmans, 1967) eighth edition) felt able to define sovereignty as follows (p.286):

Public international law 11 International law in a unipolar world
Sovereignty as supreme authority, which is independent of any other earthly authority, may be said to have different aspects. Inasmuch as it excludes dependence upon any other authority, and in particular from the authority of another State, sovereignty is independence. It is external independence with regard to the liberty of action outside its borders in the intercourse with other States which a State enjoys. It is internal independence with regard to the liberty of action of a State within its borders. As comprising the power of a State to exercise supreme authority over all persons and things within its territory, sovereignty is territorial supremacy (dominium, territorial sovereignty). As comprising the power of a State to exercise supreme authority over its citizens at home and abroad, sovereignty is personal supremacy (imperium, political sovereignty).

page 185

In fairness, the work does go on to recognise limits to external independence arising from treaty obligations, and internal independence through the obligation of a state to respect the fundamental human rights of its own citizens. Nevertheless the emphasis upon liberty of action seems to warrant even more qualification in the twenty-first century, at least as concerns the majority of states. Here it is appropriate to make clear the view that the constraints upon sovereignty will depend not only upon treaty commitments, but upon power. This will be explored below but first it is necessary to discuss sovereign equality briefly. A recent book considering the question of the concept of sovereignty of direct relevance to this paper is Gerry Simpson’s Great powers and outlaw states; unequal sovereigns in the international legal order. (Cambridge: Cambridge University Press, 2004 [ISBN 0521534909]). Critically for our discussion of sovereign equality Simpson takes the view that the concept of sovereign equality has three distinct aspects not all of which lead to assumptions of real equality. The first aspect is ‘formal equality’, defined as no more than ‘equality before the law’ and which ‘extends neither to forms of jurisdictional equality nor to equal capacity to vindicate rights outside the judicial context’ (p.47). I say ‘no more than’, but as has been suggested in Chapter 8 this is a truly crucial feature, necessary for any international rule of law. The second aspect is legislative equality, to be found for instance in the General Assembly of the United Nations with its single vote for each state. In truth, as he recognises, this is one of the few places where legislative equality is accepted and enjoyed. More typically strength and wealth will dictate legislative power, as is all too clear both in the Security Council and in the deliberative bodies of the international financial institutions. Existential equality is the third aspect of sovereign equality. This is really an equal right to existence with the accompanying corollary of the principle of non-intervention (and generally certainly not for purposes of regime change). Simpson shows that traditionally, historically and contemporaneously this has been more problematic than some might wish to believe. The claimed anti-pluralist (that is, universal) virtue of ‘liberal democracies’ (as Fukuyama would argue) he suggests resonates with times of proclaimed ‘Christian’, ‘European’ or ‘civilised’ superiority used as a justification for intervention. Pariah or rogue states have replaced the heathen, the primitive and the uncivilised states which were historically beyond the realm of ‘unintervenability’. The point that is being made here is an important one. Simpson is suggesting that sovereign equality in the existential sense (what Kaczorowska identifies as ‘independence’) has, at least in fact, never achieved the uncontroversial status often claimed for it, for example under the United Nations Charter. Historically the reality is that powerful states have always curbed the freedom of action of lesser states if it was in their interests so to do, and if the constraints were not counter-productive. Both the US hegemony in Central and South America, sometimes formalised under the ‘Munro Doctrine’, and Soviet hegemony in Eastern Europe between 1945 and 1990 are very clear examples. In both cases direct intervention was sometimes resorted to (usually with a highly doubtful claim to legitimacy) and on occasions regimes were changed. Simpson’s argument is that powerful states are now questioning sovereign rights of states without democratic governance, in the same way as in the nineteenth century colonial powers justified colonial acquisitions on the assumption that all ‘civilised’ peoples would approve. We will return to this argument when we consider the socalled ‘emerging right to democratic governance’.

page 186

University of London External System

Activity 11.1
What is sovereign equality? Feedback: see end of guide.

Self-assessment questions
1.u What historical factors meant that sovereignty was never (or almost never) absolute? 2.u Explain the significance of the sovereign equality of states.

Reminder of learning outcomes
By this stage you should be able to:
uu

define the concept of sovereignty in international law and understand why the concept of sovereignty is not fixed in definition appreciate the significance, importance and limitations of the concept of sovereign equality.

uu

11.3 The USA and international law
Having briefly observed the complexity of sovereign equality it is now necessary to consider the role of the United States, currently the world’s only ‘super power’, in the international legal regime. The question to be considered is whether the USA should be considered simply as another ‘sovereign equal’ in international relations and international law, or whether its singular power, both military and economic, necessitates a reconsideration in a ‘unipolar’ world. In many of the earlier chapters we have seen that the US does not always behave as other states tend to. This was most obvious when we examined international law relating to the use of force, where the US made it clear that it was prepared to do what it thought necessary for its own security without feeling any need to seek or enjoy international approval, even if this might be interpreted as flouting international law. There are many other examples of where the US has failed to ratify (or even sign) international treaties that have received widespread support even from its allies, the most recent examples being the treaty creating the International Criminal Court, and the Kyoto Protocol on climate change. A body of opinion has developed in the US (particularly among the so-called neoconservatives) which argues that America’s unique strength and role in international relations must be recognised and that some form of ‘exceptionalism’ (referred to sometimes as ‘exemptionalism’) is not only desirable but inevitable. Those of that opinion could draw upon some international law jurisprudence. In early editions of Oppenheim’s International Law (Longman’s Green and Company, 1912, second edition) the argument had been made that it is of the essence of international law that there is both community of interest and a balance of power without which there can be no international law. This position was adopted by Hans Morganthau, the prominent international relations theorist, in the 1960s. He quoted Oppenheim as stating:
The first and principal moral [in the history of the development of the Law of Nations] is that a Law of Nations can exist only if there be an equilibrium, a balance of power, between the members of the Family of Nations. If the Powers cannot keep one another in check, no rules of law will have any force, since an over-powerful State will naturally try to act according to discretion and disobey the law. As there is not and never can be a central political authority above the Sovereign States that could enforce the rules of the Law of Nations, a balance of power must prevent any member of the Family of Nations from becoming omnipotent.

Given that international law is, as Rosenne puts it, ‘a system of co-ordination, rather than subordination’ it is dependent upon, at the very least, the formal equality of states. If one state is in a position, or believes itself to be in a position, to act unilaterally without fear of the consequences, the force of law might seem to have disappeared. The United States, neo-conservatives and others have argued, is now in

Public international law 11 International law in a unipolar world
this position. Indeed as early as 1992 in a document entitled Defence planning guidance draft† (drafted under the supervision of Paul Wolfowitz and subsequently revised by now Vice President Dick Cheney) the idea was introduced that the USA was now uniquely strong enough to be able to contemplate with equanimity unilateral military action, the pre-emptive use of force and ‘the maintenance of a US nuclear arsenal strong enough to deter the development of nuclear programmes elsewhere’. As has been pointed out, what that document did not do was to explain how such policies might be reconcilable with the many international agreements and obligations the US had voluntarily undertaken since the Second World War. With the Project for the New American Century’s letter to then President Clinton in 1997 arguing for unilateral action to overthrow Saddam Hussein’s regime in Iraq regardless of a lack of unanimity among the Veto powers in the Security Council, and signed by many who had played a part in the administration of Ronald Reagan and/ or the first Bush administration including Elliot Abrams, John Bolton, Robert Kagan, Richard Perle, Donald Rumsfeld and Paul Wolfowitz, the Defence planning guidance draft came into its own after the terrorist attacks on the USA on 11 September 2001. In The national security strategy of the United States, published under the seal of the President in September 2002, it was asserted that the United States now claimed the right of pre-emptive action, leaving the limitations on the international use of force in the UN Charter in utter disarray. And while claiming this right it was asserted that the ‘United States will use this moment of opportunity to extend the benefits of freedom across the globe. We will actively work to bring the hope of democracy, development, free markets, and free trade to every corner of the world.’

page 187

For a summary of this document see http:// www.pbs.org/wgbh/pages/ frontline/shows/iraq/etc/wolf. html

11.3.1 American exceptionalism
Writing in 2003, Harold Hongju Koh, Dean and Professor of International Law at Yale University, sought to analyse the content and significance of American exceptionalism.† Before considering the relevance of this analysis some preliminary comments are called for. The concept of exceptionalism seems to have two broad meanings. The first, which relates to Oppenheim’s proposition that any system of international law requires an equilibrium between states, seems to assert that such is the power of the United States that as a matter of fact the US cannot be a party to international law because any consequent restraints are simply unreal and would have to depend for their effectiveness upon voluntary, but disadvantageous compliance. But within this proposition are two possible conclusions. If the US is above and beyond international law, where does this leave lesser states? Either the entire system falls and international law, failing to constrain the mightiest, similarly fails to constrain any state with the power to reject constraints in any particular case with impunity; or international law retains its distinctive character for all states but the United States. The first interpretation really is the ‘nuclear’ interpretation. Every principle of international law would lose its legal character and fall back into the principles of international relations. The second suggests that lesser states continue to be bound by pacta sunt servanda and only the US has impunity and immunity. Both cases have significant implications for the United States itself. In the first case the gain for the US, while obvious, also carries major dangers and difficulties. In moving from the international rule of law to power relationships unmediated by law, it may be expected that if the US is to persuade other states to do its bidding, force – and the threat of force – will become a much more prominent part of US foreign policy – in itself an option with significant cost. In the second scenario where only the US is outside of the international law regime, the perils are hardly fewer. The hypocrisy of the greatest power exempting itself from the rules of international law while requiring the compliance of other states is also a dangerous position. It may be possible, at a cost, to police such a system if the US really believed it to be in its interests to do so. But when second order states seek to follow the principle espoused by the US, then, for all its power, the position of the US could not regularly prevail.

‘On American exceptionalism’ (2003) 55 Stanford Law Review 1479.

page 188

University of London External System

The second and more limited meaning concerning exceptionalism suggests that because of its power (and perhaps other reasons such as the US Constitution and its federal structure) the United States either must necessarily be, or should be, in a position to accept the rules of international law with a discretion not appropriate to other states. Two examples are pertinent. The US might argue that notwithstanding the number of states that have already signed and ratified the treaty creating the International Criminal Court, with its overtones of the acceptance of universal jurisdiction, its own exceptional international responsibilities and powers, together with its confidence in its own special needs and abilities mean that it must claim exemption for itself alone. This in no sense condones war crimes or crimes against humanity. It simply asserts that for the US, this is more appropriately dealt with in its own domestic jurisdiction. Even with the Kyoto Protocol on Climate Change the argument might be that, given the explicit intention of the Defence Strategy to remain the supreme power, it is inappropriate for the US to risk any lessening of its industrial power, regardless of environmental cost. Of course both these examples have many arguments in favour of compliance and many of the problems of hypocrisy remain, but some argument is perhaps maintainable. Koh, in his analysis, distinguishes four manifestations of American exceptionalism which range from the least problematic to that deserving of the most opprobrium. Koh seems to assume that exceptionalism is much more limited in its effect than I have suggested. For Koh the two most difficult facets of exceptionalism concern firstly what Louis Henkin named ‘America’s Flying Buttress mentality’.† By this Henkin meant that the US often identified with the values expressed in international human rights documents, and indeed, often in fact complied with their requirements, yet was unwilling to subject itself to the critical examination processes provided in such Conventions. The effect was external support (like a flying buttress) but not the internal support of a pillar. In other words the US was willing to comply (and in fact did) but would not want to recognise any external authority as having the power to examine and judge its conduct. One sees a parallel in the US decision to intervene in Afghanistan post 9/11 without the authority of a Security Council Resolution, notwithstanding the fact that it would almost certainly have been forthcoming. The US does not want to look beyond its borders for the authority for domestic or foreign policy choices. Koh’s view is that the result of this is that the US often receives unnecessary condemnation, and sometimes pariah status for appearing to align itself with other states not ratifying, or not complying with, conventions – states with appalling human rights records. The real problem of exceptionalism, however, according to Koh, arises when the US uses its power to promote a double standard by which it is proposed that ‘a different rule should apply to itself than applies to the rest of the world’.
Recent well-known examples include such diverse issues as the International Criminal Court, the Kyoto Protocol on Climate Change, executing juvenile offenders or persons with mental disabilities, declining to implement orders of the International Court of Justice, with regard to the death penalty, or claiming a Second Amendment exclusion from a proposed global ban on the illicit transfer of small arms and light weapons. In the post 9/11 environment, further examples have proliferated: America’s attitudes toward the global justice system, holding Taliban detainees on Guantanamo without Geneva Convention hearings, and asserting a right to use force in pre-emptive self-defence… [p.1486]

A flying buttress was an external arched support for a large medieval building, such as a cathedral. It became necessary where the internal architecture was not robust enough to support the building.

Perhaps the first two examples – the ICC and the Kyoto Protocol – should be distinguished from the rest because in those cases the US did not (publicly) accept the usefulness of either for the world as a whole or for the United States. But for the rest the problem is not only the appearance of hypocrisy but the reality. For the US to ignore ICJ decisions (the only nation to have done so) and to assert that it may continue to act in a way that is contrary to internationally accepted standards because of its constitutional validation leaves similar arguments open to every pariah state in the world. While the US response is that these other states do not have similar democratic validation, this has no necessary truth.

Public international law 11 International law in a unipolar world

page 189

11.3.2 The United States, radical exceptionalism and international law
Within current US legal thinking there are even some who are prepared to argue that in fact international law is not really law at all. This is hardly a new perspective. Indeed in 1889 under the heading ‘International Law’ the Encyclopaedia Britannica’s entry read:
International Law is the name now generally given to the rules of conduct accepted as binding [between themselves] by the nations – or at all events the civilised nations – of the world. International law as a whole is capable of being very differently interpreted according to the point of view from which it is regarded, and its rules vary infinitely in point of certainty and acceptance. According to the ideas of the leading school of jurists it is an impropriety to speak of these rules as being laws; they are merely moral principles, – positive, it is true, in the sense that they are recognised in fact, but destitute of the sanctioning force which is the distinguishing quality of law. [Vol XIII, p.190]

One influential holder of these views is John Bolton, US Ambassador to the United Nations at the time of writing. But whereas the 1889 author had the grace to add that the problem with that proposition is that it may ‘unduly depreciate the actual force and effect of the system as a whole’, John Bolton would accept no such qualification. For him the legal positivism of the Austinian kind (understanding law to be defined as commands from a sovereign backed by the threat or use of coercion, sanctions or force) is an obvious truth with significant implications for international ‘law’ and its influence on US policies generally and on the attitudes of the US administration to human rights in particular. Bolton’s attack on international law is comprehensive. It is an attack on treaty law and customary international law, along with the other usually claimed sources of international law as found in Article 38 of the Statute of the International Court of Justice of 1945. As you will by now be aware, almost all international lawyers and all state governments are in agreement that at the heart of international law is the crucial principle of pacta sunt servanda. Acceptance of this principle is one immediate means of distinguishing international law from international relations. It is because it is a legal principle that it is generally accepted uncritically. This, however, does not mean that a state will invariably comply with the principle, just as in domestic jurisdiction not all will obey all laws. But two obvious points need to be made. The fact of occasional non-compliance in the domestic realm does not negate the law. The same is true internationally. Secondly, internationally even if there is no direct sanction, the act of breaking treaty obligations will rarely be cost free, though it may be nothing more than a level of opprobrium from other states, or a hesitancy upon their part to enter into future international legal relations. Universally accepted though this is, Bolton disputes it. When Bolton claimed in 1997 that regardless of the UN Charter, the US was not bound to pay its dues the response from Robert F. Turner of the University of Virginia Law School was as follows:
How do we know that international treaty commitments are legally binding? Because every single one of the 185 [now more] states that are members of the United Nations, and every one of the few states that are not, acknowledge that fact. Article 26 of the Vienna Convention on the Law of Treaties recognises the fundamental and historic principle of pacta sunt servanda: ‘Every treaty in force is binding upon the parties to it and must be performed by them in good faith’. To be sure, like some of our own citizens, members of the international community of states do on occasions violate their legal obligations. But when they do, they never assert that treaty commitments are merely non-binding ‘political’ undertakings. Stalin, Hitler, Kim Il Sung, Gadhafi and Saddam Hussein all either denied the allegations against them, pretended that their acts of flagrant international aggression were really in ‘self-defence’ to a prior attack by their victims, or proffered some other legal basis for their conduct. Not one of them asserted that treaties ‘were not binding’, because they realised that no country would accept such a patently spurious assertion – it simply would not pass the straight-face test. [Quoted in Murphy, J. The United States and the rule of law in international affairs. (Cambridge: Cambridge University Press, 2004) [ISBN 0521529689] p.11.]

page 190

University of London External System

Why then does Bolton want to argue that treaties are not legally binding upon the USA and what are the implications? There are two aspects to his arguments here. The first is concerned with the status of treaties in the international world, and the second with the status of treaties within the domestic jurisdiction of the US. Internationally it is the lack of sanction which persuades Bolton that the obligation to comply can only be moral or political (neither to be underestimated but, he says, not to be confused with the legal). If one accepts his premise that it is only the threat or use of sanctions which makes an obligation legal then his argument is irrefutable. Few would accept the premise. Legality is not in essence necessarily linked with sanction or punishment. Rather most lawyers would accept that the legal quality arises from the universal acceptance of the legal aspect. This is not as circular as it sounds. It is because of the acceptance of the legal quality of pacta sunt servanda that overwhelmingly most states, almost all of the time, accept their treaty obligations automatically, and only very rarely subject them to unilateral reconsideration. Bolton attempts to avoid this argument by emphasising that his position does not mean that the US should not ordinarily comply with its treaty obligations, only that it need not do so. With this position the debate might seem to be purely semantic, arising from his understanding of the term ‘legal’. It is more than that simply because by avoiding using the term ‘legal’ Bolton hopes both to elevate the US right to ignore treaties, and to downgrade the need for compliance. Bolton effectively admits this intention when, having observed that ‘In the rest of the world, international law and its “binding” obligations are taken for granted’, he goes on to observe of US citizens, ‘When somebody says “That’s the law”, our inclination is to abide by that law. Thus if “international law” is justifiably deemed “law”, Americans will act accordingly.’ (Bolton, J. ‘Should we take global governance seriously?’ (2000) 1 Chicago Journal of International Law 205).
On the other hand, if it is not law, it is important to understand that our flexibility and our policy options are not as limited as some would have us believe. It follows inexorably, therefore, that the rhetorical persuasiveness of the word ‘law’ is critically important.

It is manifest, then, and admitted that the argument he makes is driven by the end he wishes to achieve – the return of international law to the political world. If his arguments about the international obligations arising from treaties are specious, what of customary international law? For Bolton ‘customary international law’ deserves, at the least, inverted commas expressing incredulity. Of course debates over customary international law are familiar and continuing and there are problems in defining when customary international law comes into existence, there are difficulties in proving opinio juris, there are problems with the position of ‘the persistent objector’, and there are problems with flexibility and malleability. Such nice jurisprudential questions have no place in Bolton’s mind. He denies the very existence of customary law. For him ‘Practice is practice, and custom is custom; neither one is law’. Again this extraordinarily extreme position is driven by the conclusion which Bolton seeks, namely the view that the US is not, and should not be, constrained in its policy decisions or conduct by any customary international law whether in its international relations or domestically. Internationally, Bolton’s view is that the US must pursue its own path. If this path should coincide with what other states regard as customary international law, that is well and good, but it is coincidence, not compliance. As with treaty law, any recognition of customary international law has both international and domestic significance and implications. This is particularly true in the area of human rights. Bolton’s fear is that through means other than internal democratic approval, changes in standards created by ‘the international community’ might affect the US. Thus internally he fears, for instance, that US courts could (though he approves the fact that they have generally not) look to developing international customary law in determining whether the US death penalty might constitute cruel or unusual punishment. Internationally the effect might be to incur international legal condemnation for acts seen by the US administration as necessary for its own security or interests.

Public international law 11 International law in a unipolar world
It might be thought that these views are so extreme that they tell us little about the USA in a ‘unipolar’ world. In fact they are effectively proffered as a justification enabling the US to choose to remain outside of the international legal regime. And not only is John Bolton the holder of an important US post constantly concerned with international law but his position probably represents that of the majority of the Bush administration. Furthermore he is not without friends in the academic community. Let us take but one of many possible examples, Professor Michael Glennon of the Fletcher School of Diplomacy. His concern with the state of international law predates the events of September 2001, and he would regard these events as simply reinforcing his earlier arguments. In a book published in 2001 he had directed his attention to the intervention in Kosovo in particular and the question of the use of force in general. The title of the book, Limits of law, prerogatives of power, with the sub-title Interventionism after Kosovo (New York: Palgrave, 2001) [ISBN 0312239017] summarises its content remarkably accurately. Glennon’s argument is that it is no longer proper, sensible or accurate to speak of the Charter of the United Nations as bringing legal control over the use of force in international relations. His conclusion begins thus:
With the close of the twentieth century, the most ambitious of international experiments, the effort to subordinate the use of force to the rule of law, almost came to an end – the victim of a breakdown in the consensus among member states concerning the most basic of issues: the scope of state sovereignty. Never a true legalist order, the use-of-force regime of the UN Charter finally succumbed to massive global disagreement pitting North against South and East against West over when armed intervention in states’ internal affairs was permissible. [p.207]

page 191

He went on to conclude that such had been the extent of the violation of Charter rules that it made little sense to speak any more of a legal regime.

Activity 11.2
How might it be possible to refute the arguments of those who argue for American exceptionalism? Feedback: see end of guide.

Summary
Arguments are sometimes made that the entire international law regime is called into question by the fact of a ‘unipolar’ world with but one super power. This is partly because no other state or states have the power to constrain the US, and partly because international law can only move away from the criterion of power by consent. If the US elects to ignore international law it sometimes seems able to reformulate the rules in a way that reflects its own interests. Nevertheless it can be argued that, able though it may be to ignore international law, for the US to do so risks destroying the whole regime to the detriment of all.

Self-assessment questions
1.u Provide examples of where the USA seems to be consciously and wilfully breaking or ignoring international law. Are they significant and if so, how and why? 2.u Does the US have any interest in maintaining an international legal regime?

Reminder of learning outcomes
By this stage you should be able to:
uu

understand that the relationship between law and power does not necessarily coincide in international law as it does in domestic law be aware of the significance of the present ‘unipolar’ state of the contemporary world recognise that some within the United States are willing to argue that international law is in no real sense law and that this has foreign policy implications explain US legitimations of the use of force.

uu

uu

uu

page 192

University of London External System

Recommended additional reading
uu

Ignatieff, M. (ed.) American exceptionalism and human rights. (Princeton, NJ: Princeton University Press, 2005) [ISBN 0691116482]. Murphy, J. The United States and the rule of law in international affairs. (Cambridge: Cambridge University Press, 2004) [ISBN 0521529689]. Mansell, W. ‘Goodbye to all that? The rule of law, international law, the United States, and the use of force’ (2004) 31 Journal of Law and Society 433. Mansell, W. and E. Haslam ‘John Bolton and the United States’ retreat from international law’ (2005) 14 Social & Legal Studies 461. Glennon, M. ‘The UN Security Council in a unipolar world’ (2003) 44 Virginia Journal of International Law 91.

uu

uu

uu

uu

Read these pages if and when you have time and interest.

11.4 The case of Israel and international law
Essential reading
¢u

Cassese, Chapter 4: ‘States as the primary subjects of international law’, pp.71–72; Chapter 7: ‘Other international legal subjects’, pp.124–50. Dixon, Chapter 5: ‘Personality, statehood and recognition’, pp.103–17.

¢u

One other aspect of US policy that has arguably constantly undermined the international legal regime has been its almost unconditional support for Israel, notwithstanding the fact that Israel has consistently flouted international law at least since 1967. It is of course possible to make political arguments in support of Israeli action over the years, but its violations of international law are incontrovertible. Whether we consider the obligations in international law of belligerent occupiers or the restrictions on reprisals and pre-emptive strikes in the UN Charter, infractions are explicit and usually unashamed. US support may be seen as an extension of ‘exceptionalism’ but it has the unfortunate feature of manifesting double standards beyond its own borders and creating international cynicism about international law in general that is surely unfortunate. In this section I want to look briefly at only two examples of the privileged position Israel has enjoyed because of US support. I have chosen them for their topicality, at least at the time of writing. The first concerns Israel’s nuclear weapons and the second Israel’s attempts to acquire territory in the face of international law.

11.4.1 Israel’s nuclear policy
In a time of unprecedented proliferation of things nuclear (including nuclear weapons) and now a response which is forceful if belated, as we see in the cases of North Korea and Iran, the position of Israel is remarkable. India and Pakistan have recently acquired nuclear weapons, North Korea may be on the brink of doing so, and Iran is suspected by the United States (and Israel) of being in the development phase. The position of India and Pakistan now seems to be regarded by the international community as a fait accompli and attempts to sanction them for their nuclear weapon development have effectively been abandoned. North Korea and Iran have been informed, implicitly and explicitly, that the acquisition of nuclear weapons is unacceptable and will lead to action to prevent or destroy. Throughout all of this, however, Israel has possessed nuclear weapons and the means for their deployment with very little disapprobation expressed by her powerful friends. An overwhelming number of states of the world are party to the Nuclear NonProliferation Treaty of 1968 (NPT). In 2004, 188 states were party to the treaty which entered into force in March 1970. The NPT acknowledged the reality that by 1 January 1967, five states (the current veto powers of the Security Council) had conducted nuclear weapons tests and they were defined as ‘existing nuclear weapons states’. Article 1 of the NPT provided these five states with particular obligations not to transfer

Public international law 11 International law in a unipolar world
these weapons or to assist in their acquisition by other states. They were also obliged to pursue nuclear disarmament (Article 6). Other states were able to join or accede to the NPT and their obligations were to not receive or seek to acquire nuclear weapons and to accept safeguards (verification of non-acquisition and/or development) from the International Atomic Energy Agency (IAEA). The reward for such states was access to nuclear energy technology for ‘peaceful’ purposes. Neither Pakistan nor India is a party to the treaty while North Korea, which was a party, declared its withdrawal in 1993 and 1994 from the IAEA (but whether it did so within the terms of the treaty is questionable). Iran has been a party since 1970. Both North Korea and Iran have incurred the wrath of the USA for what it regards as breaches of treaty obligations and both the USA and Israel have stated that force may be necessary to prevent Iran from completing the development of nuclear weapons. In an interview in January 2005 the Israeli defence minister, Shaul Mofaz, who in the past had stated that Israel had operational plans in place for a (pre-emptive) strike against Iranian nuclear facilities, argued that the US should take such steps. Seymour Hersh, an American investigative journalist, had already reported that the US already had special forces in Iran scouting out its nuclear facilities. How different is the case of Israel. By the time of the NPT, to which Israel is not a party, there is strong evidence that it already had, or was on the point of developing, a small number of nuclear weapons. Production was located at Israel’s nuclear facility in Dimona, in the Negev Desert south of Jerusalem. Hersh argues convincingly that Israel’s nuclear developments were made with major co-operation and collaboration with France, beginning even before the Suez war of 1956. It is clear that in the earliest days of the state of Israel a number of significant Israelis were convinced that nuclear weapons would be crucial in providing a guarantee in a hostile world. The Chairman of the Israel Atomic Energy Commission (Ernst David Bergmann), which was formed in 1952, had long advocated an Israeli nuclear bomb as being crucial in ensuring ‘that we shall never again be led as lambs to the slaughter’. Ben Gurion, the most powerful Israeli at that time similarly laid emphasis upon the security ‘the bomb’ would bring. The role of the USA in the Israeli development of nuclear weapons is neither clear nor consistent. Certainly all the initial development was with France, and Israel was at pains to hide its plans and actions from the US. When the US became suspicious of the activities of Dimona, Israel carefully misled any who asked questions, and even went to the lengths of substantial subterfuge when Dimona was visited. On occasions even the President of the USA was simply lied to, as when Shimon Peres told John F. Kennedy in April 1963 in answer to a direct question: ‘I can tell you forthrightly that we will not introduce atomic weapons into the region. We certainly won’t be the first to do so. We have no interest in that. On the contrary, our interest is in de-escalating the armament tension, even in total disarmament.’ Kennedy did his best to ensure that that was the case, but his efforts were ineffectual. Finally, when in 1963 it became clear that both France and Israel were in at least the preliminary stages of bomb manufacture the US seems to have been persuaded to take what was seen as a ‘pragmatic’ approach. This primarily meant not seeking explicit answers to explicit questions. While subsequent US presidents differed in the detail of what they did, none was prepared to publicly state what increasingly became public knowledge. Indeed when Israel co-operated with apartheid South Africa to test a nuclear device in the Indian Ocean, the Carter administration (probably the presidency most concerned to encourage non-proliferation) took steps to ensure that the event received minimal publicity. Even when the Israeli nuclear technician, Mordechai Vanunu, provided the British Sunday Times with descriptions and photographs of Israeli nuclear warheads – information which suggested to informed observers that Israel was in possession of between 100 and 200 nuclear devices – disinterested publication, particularly in the United States, was limited. Israel has never been placed under pressure to accede to the NPT by the US or its allies, nor yet to agree to inspections from the IAEA. Furthermore, ‘for many years [the US] Congress has made it clear to the Nuclear Regulatory Commission and other responsible parties that they did not want to have anything revealed in an open hearing related to Israel’s nuclear capability’.

page 193

page 194

University of London External System

In brief, then, Israel’s position with regard to nuclear weapons is unique. It has been determined both to possess a large arsenal of nuclear weapons and to refuse either to admit to their existence or to tolerate inspection. Yet ironically it is this position which arguably has persuaded such states as Iraq and Iran of the need for reciprocity. There is evidence too that Israel has in the past even contemplated the use of nuclear devices, in 1973. While not everyone would share Israel Shahak’s thesis that the possession of nuclear weapons is intended to make Israel not merely defensively secure, but also secure as the regional power in the Middle East, it is clear that such ‘defensive’ ability has implications beyond defence. It is scarcely surprising, then, that the IAEA Director-General, Mohamed El Baradei, observed when addressing a meeting in Israel in 2004 that he was ‘constantly questioned about Israel’s refusal to sign the Non-Proliferation Treaty that would put its nuclear facilities under IAEA supervision’. He said, ‘this perceived double standard is leading to an erosion of the legitimacy of the NPT in the Arab world’. Two final points arising from Israel’s nuclear policies need to be mentioned for their international law implications. Israel’s insistence that it should remain the only state in the region with nuclear capability led of course to one manifestation of its policy of pre-emptive use of force. Saddam Hussein’s Iraqi government had, with French help and French design, built a light water nuclear materials testing reactor known as Osirak (or to the Iraqis as Tammuz 1). The Israelis doubted Iraqi claims that the reactor was for peaceful purposes, although it was under IAEA supervision and had been regularly inspected. It was destroyed by an Israeli air strike in June 1981. Secondly of course, the kidnapping, drugging and returning to Israel of the informant Mordechai Vanunu was hardly consistent with Italian sovereignty (Vanunu was seized in Rome).

11.4.2 Israeli land acquisition, occupation and annexation
This section is concerned only with territory which was brought under Israeli control after the 1967 war. This is not because there is no controversy over territory not allocated to an Israeli state by UN Resolution but acquired in the 1948 war but rather because the prospect of any Palestinian state recovering any land beyond the pre-1967 borders seems remote and probably unrealistic. It should, however, be mentioned that Israel is the only state in the world not to have a defined and bounded territory, which does lead to continuing debate even within Israel. Thus the territory which falls for consideration is East Jerusalem, the Golan Heights, the West Bank and (until recently) Gaza. At first sight, international law concerning the acquisition of territory seems deceptively clear and straightforward. The UN Charter provides:
All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

In turn this proscription of the use of force has been inferred to have the effect that where use of force does occur, contrary to Article 2(4), any consequent territorial gain would be unlawful and, while it might amount to an occupation, could not lead to a transfer of sovereignty. Furthermore, although Article 51 does allow self-defence this is for the limited purpose of repelling aggression. Arguably, then, when a state acting in self-defence occupies territory, it cannot then acquire sovereignty over that territory. And Security Council Resolution 242, passed in the aftermath of the 1967 war, stressed the inadmissibility of the acquisition of territory by war. In addition the 1970 Declaration of Principles of International Law, annexed to UN General Assembly Resolution 2625, provides that:
The territory of a state shall not be the object of acquisition by another state resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognised as legal.

Public international law 11 International law in a unipolar world
The immediate inference might therefore be that Israel could never acquire territory permanently that it had conquered in 1967. This position is certainly held by governments of the overwhelming majority of states in the UN. But it is not, as we shall see, one which goes unchallenged either explicitly (as in the case of Israel) or implicitly (as in the case of the US). Of the now three territories which remain occupied since 1967, two East Jerusalem and the Golan Heights, are distinct in the claims Israel has made over them. Although East Jerusalem had been an integral part of the East Bank within Jordan, conquest steps were quickly taken by the Israelis with a view to ensuring that it became effectively not merely occupied territory but Israeli territory. On the very day of the conquest the then Defence Minister, Moshe Dayan, visited the Jerusalem Western Wall, proclaimed that Jerusalem had been ‘liberated’ and stated, ‘We have united Jerusalem, the divided capital of Israel. We have returned to the holiest of our Holy Places, never to part from it again’. West Jerusalem had been declared by the Israeli Knesset to be Israel’s capital city in 1950, while in the same year Jordan had formally incorporated the West Bank (including East Jerusalem) into Jordan. Jordan’s assertion of sovereignty however was qualified by the parliament, stating that it acted ‘without prejudicing the final settlement of Palestine’s just case within the sphere of national aspirations, inter-Arab co-operation and international justice’. In 1967 the 1950 declaration of the status of West Jerusalem as Israel’s capital was effectively amended to extend Israel’s jurisdiction over East Jerusalem, not as an area of occupation but as an integral part of Israeli Jerusalem. Very quickly some 6,000 Palestinians were evicted from the Old City in order to create an open space before the Western Wall. When the UN General Assembly called upon Israel to ‘rescind all measures taken [and] to desist forthwith from taking any action which would alter the status of Jerusalem’, Israel responded by confiscating significant quantities of Palestinian land in East Jerusalem (some 450 acres in the first three years of occupation). Worse still for the Palestinians, whereas the municipal boundaries of East Jerusalem as administered before 1967 included 6.5 square kilometres, Israel added an additional 70 square kilometres to the land it purported effectively to annexe. The annexation was made formal by the Israeli government on 30 July 1980 in a declaration that Jerusalem was the ‘eternal undivided capital’ of Israel. Condemnation of the declaration came quickly from the UN Security Council. Within a month a Resolution was passed declaring that ‘all legislative and administrative measures and actions taken by Israel, the occupying power, which have altered or purport to alter the character and status of the Holy City of Jerusalem…are null and void and must be rescinded forthwith’. Remarkably the Resolution was passed by 14 votes to zero with the United States abstaining. Nevertheless the assertion of annexation was never withdrawn and from 1967 Israel has determinedly promoted the policy of settling Jewish people within its defined Jerusalem municipal borders. Much land owned by Palestinians has been confiscated and expropriated and, perhaps most significantly of all, Israel has always refused to allow the sovereignty of its defined Jerusalem to be a part of any peace negotiations. The other territory occupied after the 1967 war which Israel has purported to annexe is the Golan Heights captured from Syria. The purported annexation took place in the Israeli Knesset in December 1981. The motives for this action were twofold. The first was that the area ‘annexed’ had important security and strategic significance and between 1948 and 1967 had been used as a base from which to shell Israel. This was contrary to the Israel-Syria Armistice Agreement made after the 1948 conflict but the Commission which oversaw the implementation of the Agreement reported many violations by each side. Indeed Moshe Dayan himself once observed that the shelling was most often a response to Israeli provocations in the demilitarised zone. The second impetus towards annexation concerned the water resources of the region. In an area of some 1,860 square kilometres the Golan contains some 80 springs, the head waters of the Jordan River together with tributaries and the Masada Lake. The annexation was rationalised partly in defence terms and partly (by Menachim Begin) by suggesting that the original drawers of boundaries were arbitrary in their defined borders and this should be seen as a rectification.

page 195

page 196

University of London External System

Here again the response of the United Nations and the international community was immediate and ineffective. Security Council Resolution 497 made all the appropriate noises. It reaffirmed the inadmissibility of the acquisition of territory by force, it stated that Israel’s attempt to incorporate the Syrian Golan Heights was null and void and without international legal effect, it confirmed the continuing relevance of the Geneva Convention and resolved, in the event of non-compliance, to meet again to consider taking appropriate measures. The non-compliance led to a further meeting of the Security Council and the consideration of a draft resolution calling upon all states to take steps to ensure compliance with Resolution 497. Significantly but not unexpectedly the proposed resolution was vetoed by the US. In the period of occupation since 1967 the Golan Heights have also been the object of Israeli settlement and by 2004 there were 34 settlements with more than 18,000 settlers claiming a reconnection to a Jewish legacy in the region. At the time of the 1967 war, many of the Syrian inhabitants fled and have not been permitted to return. Building work is continuing and there seems to be no immediate prospect of compliance with clear international law. Israel’s actions as exemplified above are explicitly contrary to international law. The result has been that the many states that support Palestinian rights of selfdetermination are less persuaded of the neutrality of international law than would be the case if there were real (if formal) sovereign equality. The future of international law as a legal system rather than as an aspect of international relations depends upon its acceptance as a system in which the rule of law operates.

Activity 11.3
What are the implications for international law of unconditional US support for Israeli settlements, nuclear policy and occupation? Feedback: see end of guide.

Summary
The lack of Security Council condemnation of Israeli actions that are clearly contrary to international law has diminished the positive role for peace and security which that body might play. Although Israel’s nuclear policy has never been declared unlawful, this in itself might encourage those who feel threatened by it to take steps to counter it. Policies of territorial acquisition and annexation, while not accepted by the international community have avoided Security Council condemnation only through the use of the US veto.

Recommended additional reading
uu

Quigley, J. The case for Palestine: an international law perspective. (Durham, NC: Duke University Press, 2005) [ISBN 0822335395]. Zunes, S. Tinderbox: US Middle East policy and the roots of terrorism. (London: Zed Books, 2003) [ISBN 1842772597]. Hersh, S. The Samson Option: Israel, America and the bomb. (London: Faber, 1991) [ISBN 0679743316]. Shahak, I. Open secrets: Israeli nuclear and foreign policies. (London: Pluto Press, 1997) [ISBN 0745311512].

uu

uu

uu

Read these pages if and when you have time and interest.

Self-assessment question
Do you think that Iran’s efforts to obtain nuclear power (and possibly arms) are contrary to its obligations under the Non-Proliferation Treaty?

Public international law 11 International law in a unipolar world

page 197

Reminder of learning outcomes
By this stage you should be able to:
uu

understand the significance of the ability of Israel to flout international law because of its relationship with the USA appreciate the effect of such protection upon the perception of international law by other states draw some conclusions about the relationship between power, justice and international law formulate a critical position appreciating both the strengths and weaknesses of the contemporary international law regime.

uu

uu

uu

Sample examination questions
Question 1 What case may be made for American exceptionalism? Can it be refuted? Question 2 Consider the significance of the inability of the Security Council to ever condemn Israeli actions even when clearly contrary to international law.

Advice on answering the questions
Question 1 This question is best approached by recognising that there are two separate cases to be made. The first is based upon the factual reality. In fact the US has sufficient power for there to be clear limitations upon the amount of coercion towards compliance with international law by the international community. Nevertheless it must be recognised that this will not be true for all situations at all times. Strength of opinion, particularly from the allies of the US, does affect US policy both directly and indirectly (through influence on public opinion). The present debate concerning torture and ‘extraordinary rendition’ is of relevance. In the alternative a case can be made that theoretically because the US is the only superpower there is none of the balance in international relations upon which international law depends. Michael Glennon’s work reflects this point of view. This theory would probably suggest that at least at the moment it is only the US that is entitled to a one vote veto in the Security Council. Finally it would be appropriate to consider the wider implications (not least for the US) of exceptionalism. Refutation could come by showing that in spite of its power there have been many situations in which the US has relied heavily upon international law when its power proved irrelevant. The Teheran Hostages Case would be one example. Question 2 This question requires an outline of Israel’s many infractions of international law and their seriousness. It requires some familiarity with the law relating to territorial acquisition, occupation obligations under Geneva IV, international humanitarian law and the law of self-defence. The ICJ’s decision concerning the ‘security fence’ is relevant, as are the dissents from majority positions. At this point it is appropriate to consider the disillusionment with the Security Council of those who have attempted to promote the cause of Palestinian self-determination. Comparisons between the votes in the General Assembly and the votes in the Security Council would be helpful.

page 198

University of London External System

Notes

Feedback to activities

Contents
Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11 201 202 203 204 205 207 209 210 212 214

page 200

University of London External System

Public international law Feedback to activities

page 201

Chapter 2
Activity 2.1
This requires a consideration and synthesising of the readings. International law is first and foremost the means by which the relations between nations are regulated. But because international law usually depends upon the consent of those it governs, international law is not identical to domestic law. Rather international law is said to be a horizontally organised system rather than a system where the rules come down from legislatures. Although states are the main subjects of international law this does not preclude other bodies, or even individuals, from being subjects for some purposes.

Activity 2.2
Describing the differences is straightforward. To account for them is less easy. The differences derive from the fact that the international system does not mirror the organisation of a state. Because the relationship of the subjects of international law is usually one of formal sovereign equality, a majority has no power to promulgate rules for the minority. In addition, there is no equivalent of a domestic constitution and hence no division of powers.

Activity 2.3
The short answer is that there has never been the international will between states to create or accept a supra-national authority. World governance would be a move away from the current distribution of power and so would be resisted by the powerful states. It would also be impossible to encompass the world’s cultural diversity. Although it can be argued that international law is universally applicable, this does not mean that it is universally enforceable, or even – sometimes – appropriate.

Activity 2.4
It is perhaps ironic that such consequences as there are, are difficult to understand for those imbued with Western law. But the consequences are firstly a suspicion of international law on the part of some non-Western nations and their people. After all, it is international law that upholds the legal obligations of the poorest nations to repay international debt. A further consequence has been a move towards co-operation not framed in legal terms.

Activity 2.5
International law is a different way of understanding issues that arise in international relations. It has been described as a distinctive ‘mode of discourse’ by which is meant that it functions by selecting facts which allow a ‘judicialisation’ of issues. The art of international law lies in selecting legally relevant facts, which often will not be those of most relevance in the eyes of the parties. International law can be seen as one of the tools of international relations.

page 202

University of London External System

Chapter 3
Activity 3.1
Article 38 of the Statute of the International Court of Justice is apparently restricted in its application, being directed only to that court. However (possibly because there is no other authoritative statement) Article 38 is generally accepted as a starting point in the definition of sources. Because of a lack of agreement it is difficult to clarify the sources of international law. In addition, of course, there is no body with the power to lay down such a definition.

Activity 3.2
This would seem to be a statement that is largely but not entirely true. Unanimity or something approaching it in a General Assembly Resolution might have the same effect. It can also be argued that most treaties, rather than creating law, create obligations which the law will enforce.

Activity 3.3
Peremptory norms have developed as a response to views that some international conduct should simply be outlawed and no exceptions should be contemplated. This might have developed in part as a reaction to apartheid and in part as a reaction to the Holocaust. It might also be argued that less powerful states have an interest in reasserting the strength of sovereignty to prevent intervention by the powerful.

Activity 3.4
Complications that arise, although significant, are manageable. They arise from the fact that if many parties have different reservations, each party is likely to have different obligations to those parties with a different reservation. This arises from the fact that each reservation has a reciprocal effect upon obligation. The registering of treaties and reservations makes this transparent however.

Activity 3.5
In brief, the problems arise from the method of creation (not very clear), the method of identification and the method of application. Some use of ICJ decisions will suggest that the decision as to whether or not customary law is in existence may be a political rather than legal one. It is also difficult to isolate opinio juris.

Activity 3.6
The international law regime is not a complete one. Treaty and custom alone cannot answer all the questions that arise in unique cases. Therefore it is essential to have some rules that allow the application of widely accepted general law and even equity. The debate, however, over the identification of law from other sources has meant that they are used more rarely than might be expected.

Activity 3.7
The development of the category of ‘soft’ law almost certainly arose because parties to agreements did not wish to create legal relations but did wish to give undertakings of good faith – although these were to be unenforceable. Often agreements are to ‘promote’ or ‘work to achieve’ particular goals. Such agreements also avoid leaving arbitration or supervision to bodies beyond the parties themselves.

Public international law Feedback to activities

page 203

Chapter 4
Activity 4.1
The readings should have provided the answer here. Sovereignty is concerned with statehood, of which it is a central attribute. In essence it is the power each state possesses as a state. Primarily this includes the power to govern all those within the state’s borders. It used to be theorised that sovereignty brought absolute power to a state regime over its inhabitants, but this was never entirely true because of interstate relations. Since the creation of the United Nations, at least theoretically every state is constrained by fundamental norms of human rights and by the international agreements to which it is a party. Sovereign equality is a central proposition in international law but it is of limited significance – primarily before judicial bodies.

Activity 4.2
When in the nineteenth century states were the only subjects of international law, the entire concept of international law was significantly different from the situation today. In particular (as observed in Chapter 2) international law tended to be descriptive of how nations conducted their international relations. The normative element of how nations ought to conduct themselves was much less obvious than it is now. The tradition of the primacy of states is maintained in the ICJ where only states have standing unless an advisory opinion is being sought. Only states could and can enter into treaties subject to the Vienna Convention on Treaties. Finally, if states were to be the only international law subjects, individuals could not be held responsible under international law for international crimes.

Activity 4.3
Legal personality in international law may be defined as that status which provides standing or identity allowing an individual or body to be a subject, at least for some purposes, of international law. Only states are said to have full standing, intergovernmental bodies rather less because they have no standing before the ICJ, and individuals even less because their personality provides status only in human rights matters.

Activity 4.4
The development of the status of the individual in international law came about due to a number of factors. Firstly domestic law had proved inadequate to deal with those who committed what were accepted as international crimes. Following the atrocities committed by the Axis powers in the Second World War, the victorious Allies (led in this by Stalin and initially opposed by Churchill) formed the International Military Tribunal which asserted a right to try individuals charged with international crimes. Secondly, this was a time when the concept of individual human rights became prominent. If these were to be protected on an individual basis, individuals necessarily had to have some status in international law. It should be added that this emphasis upon the rights of the individual was not treated with universal approval and the socalled communist states in particular regarded the protection of individual rights as incompatible with the rights of the people as a whole, and with the rights of the state.

Activity 4.5
Sovereignty and personality are interrelated in that both are dynamic concepts, changing in a way made necessary because of political and social change. In particular the right theoretically inherent in sovereignty – that of absolute control of a state’s territory – came to be constrained by international law which made the protection of individual human rights a superior principle to sovereignty. In turn this protection of human rights altered the status of individuals in international law and redefined legal personality. Similarly, as state sovereignty is constrained by treaties into which a state has voluntarily entered, so too have intergovernmental bodies created by such treaties come to have personality for many international law purposes.

page 204

University of London External System

Chapter 5
Activity 5.1
This distinction reflects the difference between the theoretical absolute power of a state within its borders, and the reality of the confines of power. The absolute power (of course in fact greatly constrained by political and even treaty realities) allows the sovereign legislature to pass any enactment it wishes over any matter wherever. There is no power to strike down such a duly passed law (subject only to the internal constitutional rules). On the other hand, problems of enforcing such an expression of absolute power may well be insuperable. And international law has developed rules relating to the exercise of jurisdiction which limits what can lawfully be done. It is necessary to observe that the more powerful a state, the more it will be able to assert extra-territorial jurisdiction. Activityu5.2uThe concept of jurisdiction is intimately related to the concept of the power of a state. It has power (jurisdiction) over its territory, and power over its nationals, although it may only be able to exercise the latter if the national is within the territory. Such jurisdiction is uncontroversial, as is what is known as the protective principle. This allows the claim of jurisdiction relating to acts committed outside the territory of the state but intended to harm the interests of the state. There is international acceptance that jurisdiction may be claimed in these circumstances. Beyond these categories there are other occasions when jurisdiction is claimed but the acceptance of these is not universal. In other claims of jurisdiction the strength and success of the claim will often depend upon the power of the state making the claim.

Activity 5.3
What distinguishes the non-controversial bases for jurisdiction from the controversial seems to relate to the closeness of the relationship between the act done and the state claiming jurisdiction. Thus with jurisdictional claims resting upon territory, nationality or under the protective principle where the act beyond the borders is harmful to the state asserting jurisdiction, there is little dispute. On the other hand, where the state asserting jurisdiction has little or no direct connection with the act, the claim is more tenuous. Although it might be thought that universal jurisdiction would be an exception to this principle, as it is concerned with the enemies of all, most states have not asserted universal jurisdiction and neither have their courts. With regard to the ‘effects’ doctrine and passive personality jurisdiction it seems that only states of significant power will be inclined to assert such jurisdiction, in the expectation that their power will prevent extensive or effective criticism.

Activity 5.4
Immunity from jurisdiction has its roots in the very foundations of international relations. International comity dictated that reciprocal benefits and privileges be granted to ensure the avoidance of conflict. State immunity recognised that equals could neither command nor adjudicate upon each other, except with consent. Nevertheless such broad immunity became problematic as states became more and more involved with commerce. For a significant period of history even these activities carried immunity but this both disappointed those against whom states claimed immunity, and probably dissuaded contractual relations with states unless some redress in the event of breach was provided. A consideration of Trendtex is relevant to show how the English court managed to follow a Privy Council decision, inconsistent with prevailing House of Lords doctrine. Finally the State Immunity Act, 1978 brought the law of the UK into line with prevailing European opinion and defined and restricted the immunity. The primary effect was to make clear that activities which were primarily commercial in nature would no longer attract immunity.

Public international law Feedback to activities

page 205

Chapter 6
Activity 6.1
This activity is aimed at testing your familiarity with the Vienna Convention. It is reasonable to note at the outset that the exact status of particular articles of the Convention – that is whether they simply codify existing customary international law, or whether they go further but have been accepted as now stating the customary law that has developed, or whether they are innovative and so binding only on parties to the Convention, remains contentious. It is however clear in the case of most important provisions. Thus Articles 60, 61 and 62 have been accepted as codification. Articles relating to reservations are not pure codification as there were matters of contention in customary international law which the Treaty aims to clarify. Those relating to coercion are probably not simply codification although customary international law had been developing towards this position. Under Article 53 a treaty is void if it conflicts with an existing rule of jus cogens and Article 64 provides that a Treaty becomes void if it conflicts with an emerging rule of jus cogens. These provisions are the matter of disagreement between states as to their status.

Activity 6.2
At first sight the concept of treaty reservations seems incompatible with the agreement necessary for a treaty. Parties not wholly in agreement are able to have treaty relations. This has largely been a pragmatic solution to a practical problem allowing reservations to enable a number of states to be voluntarily bound by at least some of the central provisions of the treaty if such reservations are compatible with the treaty’s object. It is always possible to draft a treaty not permitting reservations if this is thought to be necessary. A reservation never enables one party to be bound to any other except reciprocally.

Activity 6.3
Peremptory norms have developed as a response to views that some international conduct should simply be outlawed and no exceptions should be contemplated and no derogation possible. Nevertheless, while the proscription of slavery or apartheid or genocide are clearly peremptory norms, some other rules receive less agreement and there is often disagreement among developed and less-developed states as to which norms should be given that status. Of particular concern to some states (especially the USA) is the acceptance by the ICJ that the prohibition on the threat or use of force has achieved this status. Self-determination and the sovereign equality of states are also controversial peremptory norms.

Activity 6.4
No feedback provided.

Activity 6.5
As interpreted by both the ICJ and most international lawyers, the basic legal principle of pacta sunt servanda must be maintained even if this leads to manifest hardship. Parties to treaties have time for reflection and negotiation, while coercion will invalidate a treaty. Thus it seems right that willing parties to treaties should be able to rely on performance. Furthermore it is because of the binding nature of treaties that international law has such power as it does. Nevertheless the position is not quite as clear as this would indicate. If applied strictly it will mean that new democratic regimes will be bound by the treaties entered into by their undemocratic predecessors. The rule also suggests that it is inappropriate for what turn out to be hard bargains to be escaped from. Although this is common sense, in international law it is perhaps less obvious than it might seem.

page 206

University of London External System

Activity 6.6
Here you need to understand why Hungary felt aggrieved by the decision. (So too did Slovakia but that is not relevant here.) In particular Hungary might argue that what had fundamentally changed was not the facts, but knowledge of the facts, and that this effectively meant that the treaty obligations became impossible to perform. This was because with new environmental knowledge it became clear that environmental protection as envisaged in the Treaty simply could not be complied with. Additionally the state that had entered into the agreement had a non-democratic government and it does not seem appropriate to regard this fact as irrelevant. Might it not be better if states entering into agreements with non-democratic states were forced to take the chance of invalidity of treaty in the event of the coming to power of a democratic government – at least unless it could be shown that the treaty was arguably in the interest of the people of the newly democratic state? Is there not room for a wider interpretation of Articles 60, 61 and 62 than is provided for by the ICJ?

Public international law Feedback to activities

page 207

Chapter 7
Activity 7.1
It is difficult to imagine that those who devised the mandate system that was directed towards self-government (even if in the unforeseeable future) foresaw that decolonisation would be an inevitable result. Indeed the colonies of the victorious allies of the First World War were explicitly excluded at this time from international concern. Nevertheless once the principle of progress towards self-government was accepted for some states it was difficult to argue that it should not apply to all. Perhaps the attempts of European colonial powers to exclude their colonies from UN scrutiny suggested how coercive this argument had become. It should not be forgotten, however, that most of the impetus for independence came from the colonies themselves and not simply in UN discussion. Regardless of whether it was accepted that decolonisation was a right, many colonies would have achieved independence by force.

Activity 7.2
While general answers can be given, it should be added that each act of decolonisation and self-determination was unique with different histories and relationships with the colonial power. The self-determination and independence of Asian colonies was also significantly different from that of African colonies. Similarly the difference in the consequences of self-determination and independence for each new state was marked. Nevertheless, at least for African states it is possible to say that they often came to independence within colonial boundaries which were inappropriate for settled statehood. It can also be asserted that often the colonial powers had done less than they might to educate the indigenous population for self-government. In addition, very often colonial investments continued to pay dividends to the colonial shareholders and the right of economic self-determination was difficult to achieve. A further general problem lay in the world trading regime, which tended to operate against the interests of producers of primary resources. Lastly, less help was provided to counter the under-development that arose from colonisation than could have been expected, in spite of the efforts made through international law.

Activity 7.3
There were always problems associated with declaring the right to self-determination a human right. It was difficult to know who the holders of the right were and it was hard to define who was obliged to grant the right. What could not be doubted was the purpose of including the right in the Covenants. This was to stress the centrality of the cause of decolonisation to the majority of UN members. With the completion of the process of decolonisation, however, and with general acceptance that secession was unrelated to a right to self-determination, the proclaimed human right seems to be redundant. The exception to this assertion, however, is probably to be found in the unfulfilled claim to economic selfdetermination. Attempts continue to be made to assert this and related claims (particularly the right to development) as human rights, no doubt for reasons of rhetoric.

page 208

University of London External System

Activity 7.4
The significance of recognition is that it is an indication of the recognising state’s willingness to treat the recognised state as a state. The academic question is whether without such recognition a state may be said to exist notwithstanding. The answer is probably a qualified ‘Yes’. It is not uncommon for states to be recognised by only a limited number of states. Taiwan, for instance, is recognised by only 23 generally very small states and does not exist as an independent state in the eyes of most states or in the view of the United Nations. The correct position is probably that unrecognised entities do not exist as states for those who withhold recognition, but do for those who do. Reference should also be made to the distinction between recognition de facto, and recognition de jure.

Activity 7.5
This requires consideration of the changes to the law of the sea since the Second World War. It seems to be demonstrably true whether one thinks of the territorial sea, the continental shelf, the EEZ or even the deep sea bed. Those states with coastlines have been legitimated in their acquisition of new property rights. Attempts to distribute such property rights more equitably have largely been defeated. It is important to be able to explain the essence of the new regime and to show how little it has in common with the concept of ‘the common heritage of mankind’. Altruism in the division of the spoils is conspicuous only by its absence.

Public international law Feedback to activities

page 209

Chapter 8
Activity 8.1
This required a description and consideration of the form and structure of the ICJ. It is open to criticism because its history suggests that it is a male dominated institution in which the judges are selected in a way which predisposes a particular legal ideology. In spite of the emphasis upon internationalism it can be argued that the Court remains imbued with European legal thinking (though not everyone would see this as a defect). The geographical distribution of judges is also questionable, especially the factual reservation of places for each permanent member of the Security Council. The exodus from the Court of two members whose minority views disagreed significantly with the majority in the Threat or Use of Nuclear Weapons Case is also important. Finally, because of the opacity of the process by which judges are actually chosen it is difficult to feel confident in the process.

Activity 8.2
Nicaragua v USA highlights and exemplifies several features of international judicial adjudication. It is important for its discussion of reciprocity in the terms in which the ICJ’s compulsory jurisdiction is accepted. It is important in its discussion of the relationship between customary international law and treaty law. Most importantly it considers the meaning of the prohibition on the threat or use of force in international law, the inherent right of self-defence and the principle of non-intervention. Unfortunately, just as importantly it demonstrates the limitations of judicial power in the face of an intransigent and powerful state. This in turn emphasises the need for state consent if judgments are to be effective.

Activity 8.3
No doubt when the Charter and the Statute of the International Court were drafted it was envisaged that it would be important, particularly for the institutions of the United Nations, to be able to obtain legal opinions that would clarify legal questions that might arise as to the scope of their duties and obligations. This was also true with regard to the scope of the rights, duties and obligations of states given to them in the Charter. Such a narrow interpretation of legal questions that might arise did not survive for long. It became clear that such purely legal questions, as for instance were addressed in the Certain Expenses Case, were much less common than legal questions with obvious political overtones and implications. But the Court has held that the mere fact that there are political aspects to the question asked does not mean that it should not be answered. Even if the effects of such judgments are less than the Court might hope, it has to be remembered that advisory opinions are not binding but do carry considerable influence. It may be argued that even if this is the extent of the effect of a decision, it is of relevance to the body requesting the opinion. Even in the Palestinian Wall Case the effect has been that no-one seriously argues that Israel’s wall building is anything other than illegal. In the longer term this may prove to be important.

page 210

University of London External System

Chapter 9
Activity 9.1
The Hague Peace Conferences have remained of significance after more than one hundred years. The Conventions that were produced at the Conferences moved towards defining the rules that belligerents must follow in the course of hostilities. They were also concerned with the pacific settlement of international disputes and with limiting the acceptable methods of warfare. Thus, for instance, they prohibit the use of projectiles that disperse asphyxiating gas, and bullets that expand or flatten easily. In addition the Conferences formulated the so-called Martens clause, which is also to be found in a slightly different form in the Geneva Conventions. This provision lays down the principle that in cases not covered specifically by the Conventions there is nevertheless an underlying principle of international law to the effect that during and after hostilities actions will only be lawful if they are in accord with the principles of humanity and ‘the dictates of public conscience’. The Hague Conventions either initially reflected, or have since come to be a part of, customary international law.

Activity 9.2
The Charter of the United Nations is arguably both a logical development of international law concerning the use of force and also a dramatic change and development. Its proscription of force in international relations follows upon the League of Nations’ emphasis upon pacific settlement and more directly still from the Kellogg-Briand Pact of 1928 which had renounced war as an instrument of foreign policy. Nevertheless in proscribing reprisals, for instance, and in limiting even the right of self-defence to what is necessary until the Security Council may be briefed, the Charter is a radical departure from earlier law.

Activity 9.3
This activity is intended to let you think critically about the so-called inherent right of self-defence in international law. Article 51 of the Charter seems eminently reasonable – obviously states that are the subject of an armed attack should have the right to retaliate in self-defence. Obvious though it seems, however, there are real problems. In the 1930s Czechoslovakia, Poland, Belgium and France all had an undoubted right of self-defence against German aggression. The right was of little use in the face of superior military strength and/or organisation. Thus to have the right of self-defence is not the same as having the ability to respond to or defend against an armed attack. The first conclusion, then, is that for the right to be meaningful the attacked state must either have strength, or strong friends. Iraq was powerless to respond to the US-led invasion. The other facet of this is that just as the ability to defend is limited to states with sufficient strength, so too if a state is in this position it will often claim a right of selfdefence in the most doubtful circumstances. It is particularly difficult to find authority in the Charter for such acts of self-defence as the UK’s response to Argentina’s invasion of the Falkland Islands/Malvinas where the significant delay should, under the Charter provisions, have enabled reference to the Security Council. The same point may be made about other actions by both the US and Israel.

Public international law Feedback to activities

page 211

Activity 9.4
A first point to be made here is that when Article 51 was drafted it did not contemplate the rise in acts of international terror that might seem to demand a military rather than police response. Consequently to be appropriate it requires a generous interpretation. This it received when the Security Council reacted to the terrorist attack upon the US World Trade Center in 2001. The Resolution passed the following day (Resolution 1368) explicitly observed the ‘inherent right of individual or collective self-defence in accordance with the Charter’, thus arguably implicitly accepting that the right extended to such acts. The US did not in fact claim a right of self-defence when planning its attack upon the Taliban regime in Afghanistan, until the Taliban had effectively refused to co-operate in the bringing to justice of the perpetrators, organisers and sponsors of the attack. Although there seems little doubt that the US would respond in the future to any terrorist attack where any government is believed to have been complicit, arguably such a response in terms of self-defence will be limited to situations where state responsibility may reasonably be attributed. One further problem arises. The US in particular (but also Israel) has made it clear that it interprets Article 51 as justifying pre-emptive strikes against those who are believed to be in the process of organising, planning or preparing such attacks. It is doubtful that many such situations would or could amount to an ‘armed attack’ within the meaning of Article 51. Few states would accept this interpretation.

Activity 9.5
The conclusion that you reach in answer to this question is less important than the reasoning that leads to it. It requires a consideration of why the world has been so slow to identify any right of humanitarian intervention. This stems from cynicism about the motives for intervention, apprehension of unintended consequences, and fear of casualties. Furthermore situations of egregious breaches of human rights obligations where the Security Council cannot be persuaded to act will usually be rare unless the interests of one permanent member are threatened (as was the case in Kosovo). In such circumstances, if the General Assembly is of the view that action is necessary and there is a majority of both permanent and other Security Council members favouring action it might be regarded as illegal but moral. The Kosovan intervention was not by a single state but by NATO. Nevertheless those who opposed the intervention in the absence of a Security Council Resolution took the view that it threatened sovereignty, aggravated existing tensions and necessitated long term involvement. Although attempts to condemn the intervention were unsuccessful, this cannot be said to have legitimated the action retrospectively.

page 212

University of London External System

Chapter 10
Activity 10.1
Human rights are said to derive their authenticity from the fact that they are universal and belong to every individual simply from the fact of his or her ‘humanity’. This can be seen as related to ideas of natural law but expressed in secular terms. Philosophically there are problems with this idea and many argue that the very idea of human rights itself is a concept that has arisen in a particular time and in a particular place. The questionable nature of universality can be demonstrated by the reaction of different states to different provisions in the UDHR, and particularly to those concerned with economic rights. On the other hand, some have argued that such arguments are unnecessary, and that the authority of the concept derives from the agreement of so many states at various post-UN times that human rights are universal and indivisible. Thus they may be both universal (by agreement) and yet relative in that they are not ‘natural’.

Activity 10.2
Although one can make an argument for the universality of human rights it is difficult to overlook the fact that different states and at different times have supported different human rights. This is most clearly demonstrated by the distinction between civil and political rights and economic, social and cultural rights. While they receive equal prominence in the UDHR they receive very different protection in the International Covenants. It is probably correct to state that the economic, social and cultural rights in the UDHR are no longer accepted as ‘rights’ by many states in the world. Additionally the emphasis placed upon the different claimed rights has varied as the rhetorical power of the associated arguments has waxed and waned.

Activity 10.3
As it says, CEDAW is committed to combating discrimination against women. The crucial provisions to this end are firstly Article 2 with its general commitment to this aim, and Article 16, which is directly aimed at eliminating discrimination with regard to marriage. Amazingly more than 180 states have ratified, but many of those who have done so have felt unable to support Article 2 and/or Article 16 wholeheartedly. This is hardly surprising but it is disappointing. The fact is that many states have marriage customs that consistently reinforce ideas of women’s inferiority, particularly in marriage and in the family. Often these views will be grounded in religious belief. Many states seem to have ratified the Convention with motives other than the elimination of discrimination against women.

Activity 10.4
This statement is probably unfortunately true. Nevertheless the homogeneity of the original states ratifying the ECHR should not be over-emphasised. Probably what most of them did share however was a functioning domestic court system that enjoyed a fair measure of support from citizens. This cannot be said of many of the new entrants into the Council of Europe. Instead, so diverse are the ethnic, language and ideological heritages that it is immensely difficult for any international court to be both empathetic to difference but consistent in human rights rulings. It may be that in due course the 46 nations will have to form regional alliances with human rights courts answerable to Strasbourg.

Public international law Feedback to activities

page 213

Activity 10.5
It is becoming increasingly clear that the European Court of Human Rights will not be able to cope with the level of communications it faces at present. Historically the number of petitions was restricted in that not every state granted the right of individual petition and also the Court had made it clear that it would not generally review the decision of a domestic court where that court had sought in good faith to apply the provisions of the Convention. Such an attitude to domestic courts is no longer reasonable given the very poor records of some states newly accepted as members of the Council of Europe. It is probable that one reason for the much more restricted role of the Inter-American Court is that many domestic courts in Central and South America have no consistent record of defending civil liberties and the rule of law.

page 214

University of London External System

Chapter 11
Activity 11.1
Sovereign equality may have a number of different meanings, some more significant than others. The first point is the formal equality that reflects that of individuals in domestic legal systems under the rule of law. It is seen most clearly in legal disputes and particularly those that come before the ICJ. The second relates to the principle in the UN Charter by which each state enjoys equal voting strength in the General Assembly (and in other international organisations with the same provision). The third, which is more contentious, relates to the status of an independent state entitled to rely upon non-interference in its domestic jurisdiction.

Activity 11.2
See suggestions for approaching Sample Examination Question 1.

Activity 11.3
uThe problem faced by the US in these situations is firstly the charge of hypocrisy with the US proclaiming rights of democracy and freedom and even an emerging right to democratic governance but not extending these rights to the Palestinian people. Secondly it may be argued that in supporting policies that are clearly contrary to international law, the entire international legal regime is threatened because it is seen to be so ineffectual. Allowing a client state to flout international law without sanction disables those who might wish to criticise Russian actions in Chechnya, or the actions of other states against their own minorities. Furthermore, arguably, by adopting some of Israel’s unlawful tactics, such as targeted assassinations outside of national territory, reprisals and even torture, fundamental principles of international humanitarian law are put at risk.

Public international law

page 215

Notes

page 216

University of London External System

Notes

Sign up to vote on this title
UsefulNot useful