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International law I.

2017 December-January

I. The nature of international law

Definitional issues  subjects of international law  sources of international law
 the nature of international law  the role of international law  trends in the
development of international law
 Public international law is that system of law which is primarily concerned with
the relations between States,
 Definition of international law: A body of law composed of…
o Rules which States feel themselves bound to observe and do commonly
observe in their relations with each other
o Rules relating to the functioning of international institutions or
organisations, their relations with each other, and their relations with States
and individuals
o Certain rules relating to individuals and non-State actors as far as their
rights or duties are the concern of the international community

International law Domestic law

Decentralized Centralized
Based on consent, flexibility and reciprocity Imposed
International executive? Legislative? Separation of powers
ICJ: acceptance of its judiciary is based on
consent, not mandatory

 The status of international law as “law”

o The status of international law as “law” has been challenged at both the
theoretical and at the practical level
o Not “law”: PIL does not have any legislature, judiciary or executive within the
ordinary understanding of these terms, responsible for creation, interpretation
and enforcement of that law
o “Law”: States recognize and observe international law
 Is international law really law?
o Arguments against:
 Rules are not respected
 Problems with enforcement
 No separation of powers
o Arguments in favour:
 Generally, rules are respected and obligations are complied with
 Difficulties in relation to enforcement and sanction in international as
well as domestic law
 Outright denial of international law is rare
 Private international law/conflict of laws/choice of laws  Public international law

II. Subjects of international law

o Only some of the various actors on the international scene are subjects of
international law and thus possess international legal personality
o Subjects of international law: entities which are capable of possessing
international rights and duties
o During a long period international legal personality was limited to subjects
exercising territorial jurisdiction
o Subject of IL:
 States
 Original and possessing the totality of rights and duties
recognized by international law
 Non-recognition may influence rights and obligations
 Objective legal personality
 Special situation: non-recognized states
 International organisations
 Legal personality in the framework of domestic legal orders
o Capacity to conclude contracts
o Capacity to acquire and dispose of movable and
immovable property
o Capacity to institute legal proceedings, etc.
 Legal personality in the framework of international law
o Its legal personality derives from the will of States
explicitly attributed to it in a constitutive treaty
o Advisory Opinion of the ICJ: Reparation case
(Reparation for Injuries Suffered in the Service of the
United Nations, 1949)
 Peoples
 Self-determination of peoples
 Individuals
 Protection of human rights
 International criminal law
 Companies
 Reparation case
o Does the UN have the capacity to bring an international claim?
 Whether the UN has an international personality
 Not settled by the actual terms of the Charter
 Implied powers
o Can the UN bring such a claim against a State which is not a UN member?
 Objective international personality of the UN
o “Fifty states, representing the vast majority of the members of the international
community, had the power, in conformity with international law, to bring into
being an entity possessing objective international personality, and not merely
personality recognised by them alone, together with capacity to bring
international claims. (Para. 185)”
 Distinctions:
o Full and partial legal personality
o Original and derived personality
o Objective and relative legal personality
III. The international community
 International society or international community?
o Society:
 Emphasizes factual interconnections and interrelations
o Community:
 Values, beliefs, and subjective feelings. A community adds normative
elements, a minimum of subjective cohesion to the social bond between
its member
 Characteristics of international community
o Single international community
o Members: relatively low in number
o Heterogenous
o No power in its own
o Decentralized
o Absence of a single overarching authority
IV. The material scope and functions of international law
 The material scope of int. law:
o Scope of int. law: expanding
o Codification of int. law
o Increase in the quantity of int. norms
o General prohibition of aggression  development of int. humanitarian law
o Scope of state sovereignty diminishing
o The relation of int. and municipal law
 The functions of int. law:
o Permanent Court of Int. Justice, Lotus case (1927)
o “Int. law governs relations between independent States. The rules of law
binding upon States therefore emanate (ered) from their own free will as
expressed in conventions or by usage generally accepted as expressing
principles of law and established in order to regulate the relations between
these co-existing independent communities or with a view to the achievement
of common aims. Restrictions upon the independence of States cannot
therefore be presumed (sejt).”
o The function of int. law
 Coexistence of states/coordinating the activities of states
 E.g. the prohibition of the use of force, non-intervention,
sovereign equality of states
 Achievement of common aims (Cooperation)
 Positive obligations
 “…under int. law everything which is not prohibited is permitted. In
other words, … under int. law, every door is open unless it is closed by
treaty or by established Custom.’ Lotus case
 Legality of the Threat or Use of Nuclear Weapons (Advisory
opinion of the ICJ, 1996):
 “It follows from the above-mentioned requirements that the
threat or use of nuclear weapons would generally be contrary to
the rules of int. law applicable in armed conflict, and in
particular the principles and rules of humanitarian law.
However, in view of the current state of int. law, and of the
elements of fact at its disposal, the Court cannot conclude
definitively whether the threat or use of nuclear weapons would
be lawful or unlawful in an extreme circumstance of self-
defence, in which the very survival of a State would be at
V. Sources of international law
 National laws:
o The sources of law are usually specified in a norm superior to laws and
regulations, usually a constitution
 International laws:
o No such superior norm exists
 Article 38 of the Statute of the International Court of Justice
o 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
 (c) the general principles of law recognised by civilised nations
 (d) subject to the provisions of art. 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law
o 2. This provision shall not prejudice the power of the Court to decide a case of
ex aequo et bono , if the parties agree thereto.
 Article 59 of the Statute of the International Court of Justice
o The decision of the Court has no binding force except between the parties and
in respect of that particular case.
 General international law
o Customs
o General principles
o Ius cogens
VI. Peremptory (végérvényes) norms of international law (ius cogens)
 Background: many legal systems make the distinction, well-known in Roman law,
between ius strictum and ius dispositivum
o Ius strictum: Legal acts must comply with the ius strictum, otherwise they are
void or at least not completely valid
o ius dispositivum: parties may disregard of such rules in their contractual
o “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention,
a peremptory norm of general international law is a norm accepted and
recognized by the international community of States as a whole as a norm from
which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character.
Article 53 VCLT 1969
 Specific characteristics
o International public
o International ”constitution”
o Fundamental values / interests of the international community
 Examples (rules having the character of ius cogens)
o Prohibition of the use of force
o Self-determination
o Prohibition of genocide, racial discrimination, and apartheid
o Prohibition of torture
o The prohibition of slavery and slave trade
o Basic rules of international humanitarian law
 The most frequently cited candidates for the status of jus cogens include:
o the prohibitions of aggressive use of force
o the right to self-defence
o the prohibition of genocide
o the prohibition of torture
o crimes against humanity
o the prohibition of slavery and slave trade
o the prohibition of piracy
o the prohibition of racial discrimination and apartheid
o the prohibition of hostilities directed at civilian population (“basic rules of
international humanitarian law”
VII. Custom
 Definition:
o A practice followed by these concerned because they feel legally obliged to
behave in such a way
o Must be distinguished from mere usage (e.g. acts done out of courtesy,
friendship, or convenience)
o “…evidence of a general practice accepted as law”
 Elements: Practice + Opinio iuris (‘accepted as law’)  CUSTOM

 Opinio iuris (accepted as a law): Sense of legal obligation  Motives of courtesy
(udvariasság), fairness and morality
o problem: burden of proof
 more lenient approach: assumption of the existence of an opinion iuris
on the basis of evidence of a general practice
 more rigorous approach: more positive evidence of the existence of an
opinion iuris is required
 Persistent objector: the issue
o The objection of a single State should not be allowed to prevent the creation of
a rule that is accepted by other States, as that would make it almost impossible
to create new rules 
o  If a state could be bound by a rule of customary international law against its
manifest objection, a system of majority rule would in effect have been
introduced into customary law
o Generality of the practice:
 not all states participate in the formation of the practice
 absence of protest – acceptance by all states is not required
o Exception to the rule of general application
 a state may contract out (not take part in it anymore) of a custom in the
process of formation
 consistent and unequivocal refusal to accept the rule

customary law: szokásjog

VIII. General principles

 “The general principles of law recognised by civilised nations.”
o An original provision of the Statute of the Permanent Court of International
o Introduced to meet the problem of ‘non liquet’ (a situation in which neither
treaty rules nor customary law would provide an answer)
 Which principles?
o Established legal doctrines drawn from municipal law (e.g. the principle of
res iudicata, procedural justice and evidence, estoppel, the nature of corporate
o Principles drawn from international law (the independence of states,
o In some situations, it is difficult to determine whether the principle is drawn
from municipal or international law (e.g. pacta sunt servanda, the principle of
acting in good faith)
IX. Unilateral (egyoldalú) acts of states
 Definition:
o A unilateral act of State may be defined as an expression of will emanating
from one State or States which produces legal effects in conformity with
international law.
o “Declarations publicly made and manifesting the will to be bound may have
the effect of creating legal obligations. When the conditions for this are met,
the bindig character of such declarations is based on good faith, States
concerned may then take them into consideration and rely on them, such States
are entitled to require that such obligations be respected.”
o It does not preclude (megakadályoz) that other subjects of international law,
such as international organizations, could give rise to unilateral acts.
 Types:
o Commitments
 Nuclear Tests case
 Declaration made by Egypt on the Suez Canal
o Waiver of claims
 Eastern Greenland case
o Assertion of rights (claims)
 Truman proclamation
 Case concerning Fishering Jurisdiction (Spain v. Canada) [Greenland
 Falkland Islands

 Guidelines
o The binding character of unilateral declarations is based on good faith
o States
o Made by representatives of States in international relations
 By virtue of their functions:
 Heads of State
 Heads of Government
 Ministers for foreign affairs
o The form of unilateral acts
 May be formulated orally or in writing
o Adressees (címzett)
 One State
 Several States
 International community as a whole
o Unilateral acts and third States/entities
 A State can only impose obligations on other States to which it has
addressed a unilateral declaration if the other States unequivocally
accept these obligations
o Capable of creating legal effect
 Clear and specific terms
 Restrictive interpretation
o Invalidity of a unilateral act which is contrary to ius cogens
o Cannot be revoked (visszavon) arbitrarily (önkényesen, tetszőlegesen)
X. Judicial decisions and the teachings of publicists – Subsidiary (másodlagos,
kisegítő) means

Stare decisis: The policy of courts to abide by (megmarad) or adhere to principles established
by decisions in earlier cases.

Sunsantive law: anyagi/dologi jog

XI. System of law

 Hierarchy in international law
o Horizontal basis
 The relation between treaties
 Treaties – customary law
o Development after 1945
 UN Charter of 1945
 Peremptory norms of international law (ius cogens)
 Hierarchy: the UN Charter
o Primary of UN Charter
 In the event of a conflict between the obligations of the Members of the
United Nations under the present Charter and their obligations under
any other international agreement, their obligations under the present
Charter shall prevail (érvényesül). (Art. 103)
o Priority of the resolutions of the UN Security Council
 Lockerbie case
 UN Charter  the 1971 Montreal Convention
 Montreal Convention for the Suppression of Unlawful Acts against the Safety of Civil
Aviation of 1971
o Jurisdiction (Art. 5)
 State on which territory the offence was committed
 State where the aircraft was registered
 State where the aircraft lands
o State where the alleged offender is present
 Extradition OR
 Jurisdiction over the offence
XII. Statehood
 Distinctions in matters of territorial sovereignty
o Territory subject to the sovereignty of a single state (see, however, the
condominium where two or more states agree to exercise sovereignty jointly
over a territory
o Res communis omnium usus: not capable of being placed under the
sovereignty of any single state (e.g. the high seas and the outer space)
o Terra nullius: the land capable of being acquired by a state but not as yet
subject to territorial sovereignty)
o Territory under international administration
 Territory under international administration
o Governmental functions in a specific territory are exercised not by the
territorial State, but by an entity mandated to do so under international law, i.e.
an international organisation, a single State, or a group of States under an
international mandate
o The territorial sovereignty of the territorial State is limited in favour of another
State, a group of States or an international organisation
 Criteria of statehood
o The state as a person of international law should possess the following
 a permanent population
 a defined territory
 control by government
 capacity to enter into relations with the other States
o Whether a state exists for the purpose of int. law is partly a question of law and
partly a question of fact
o Recognition is not a condition for statehood in int. law
o (1.) Territory
 Landmass, internal waters, territorial sea, airspace above the land
(upper limit?), registered aircrafts and ships
 Agreed borders are not a precondition for statehood
 A territory suitable for human existence
 Geographical contiguity (összefüggés) is not a precondition (but small
size and fragmentation make independence difficult to achieve and
o (2.) Population
 Citizens, foreigners and stateless persons
 There is no requirement as to a minimum number (e.g. Nauru), nor to a
maximum number (e.g. China)
 The composition of the population (colour, creed, culture, language,
religion, ethnic origin)
 Self-determination of peoples
 Protection of human rights
o (3.) Government
 The form of government is irrelevant
 The government should itself be sovereign (cd. puppet states)
 There must be a degree of effective control over the territory in
question (the government possesses effective internal control)
 Divided states (politically motivated): Germany, Vietnam, Korea, China
 Divided states (ethnically motivated):
o Cyprus with respect to Turkish Republic of Northern Cyprus
o Moldova with respect to Transdnistria
o Georgia with respect to Abkhazia and South Ossetia
o Israel with respect to Palestine
o Somalia with respect to Somaliland
o Serbia with respect to Kosovo
 Unitary states and composite entities
o Unitary states: One single power. The central government possesses the
ultimate sovereignty and any administrative divisions (subnational units)
exercise only powers that their central government delegates
o Composite entities: Historic examples, contemporary forms (federation,
 Federations and confederations
o International legal personality
o The constituent document (constitution or treaty)
o International responsibility (attribution=tulajdonság)
XIII. Sovereignty
 Internal sovereignty
o Supreme power or authority. States are ultimate authorities on the inside
 External sovereignty
o The relation of independence of sovereign States outside their national
boundaries and their equal rights in mutual relations
 International law has gradually applied to areas that previously belonged to the
domestic sphere
o International economic law
o International human rights law
o International migration law
o International environmental law
 International law limits States’ sovereignty without their consent
o States cannot derogate from imperative norms even if they want to (ius cogens)
 Internationalization of sovereignty (2 key developments)
o Internationalization of popular sovereignty
 Democratization of States and the correlative development of human
rights protection within States
 Sovereigns behind int. law are peoples within States, and no longer
States only
o Development of sovereignty beyond the State
 The delegation of sovereign competences to IOs

plenary=teljes; presumption=feltételezés; contentious=vitatott; secession=kiválás;

XIV. Formation of states
 Acquisition of sovereignty
o Original:
 Terra nullius (currently there is no terra nullius!)
o Derivative:
 Separation / Secession (kiválás)
 Dissolution
 Dismemberment
 Unification / Merger

XV. Recognition of States

 Most important rules
o Legal sources
o Definition
 Recognition is a statement by one international legal person
acknowledging the existence of another entity as a legal subject
 Discretionary (tetszés szerinti) act
 Is there a duty of recognition?
 Recognition inter se
o Creation of a state ≠ recognition of a state
 although recognition is subject to legal criteria BUT
 it is influenced by political considerations (e.g. approval or disapproval
of the regime in question)
 Doctrines of non-recognition
o there is no legal duty to recognise 
o duty of non-recognition
 unlawful use of force (puppet states)
 breach of the right to self-determination of peoples
 The legal consequences of recognition / Doctrines of recognition
o Constitutive theory
 It is the act of recognition that has the effect of creating the new State
o Declaratory or evidentiary theory
 Statehood exists prior to the act of recognition if the criteria of
statehood are satisfied
 The act of recognition is simply a formal acknowledgement of existing
 Recognized and non-recognized states
o Capacity to conclude international treaties
o Capacity to establish diplomatic relations
o An unrecognized government cannot sue in the courts of a state refusing to
grant its recognition (extraterritorial application of rules, immunity, locus
standi=the right or capacity to bring an action or to appear in a court)
de iure=jogilag; de facto=gyakorlatilag;

XVI. Recognition of government

 Change of government:
o Changes in office (whether the procedure is in line with the constitutional rules
applicable in the country or not)  not an issue for int. law
o The question of recognition arises  uncertainty as to the effectiveness of the
government after a period of revolutionary change, or the existence of two
competing governments
 Approaches:
o Objective: whether certain objective criteria have been established (e.g.
effective control over a territory)
o Subjective: whether the regime is politically compatible
 Requirements:
o Effectiveness
o Acquiescence (hozzájárulás) by the people
o Willingness to comply with int. law
 Effectivity and political considerations: Doctrines
o Tobar Doctrine (democratic legitimacy, 1907)
 Recognition will be denied to a government taking power by
revolutionary action unless it thereafter seeks constitutional legitimacy
o Johnson Doctrine (1965)
 The US will not permit the establishment of another communist
government in the Western hemisphere
o Estrada Doctrine (1930)
 Emphasis is placed on the maintenance of diplomatic relations
 The question: whether the new administration has effective control over

XVII. State succession

 Definition of succession of states:
o “The replacement of one state by another in the responsibility for the
international relations of territory.” (Vienna Conventions of 1978 and 1983)
o Identity and continuity of States


 Dichotomy (a partition of a whole in two parts)
o Principle of universal succession
 It favours the interests of third States in the upholding of treaty
o Tabula rasa approach
 A rather strict understanding of sovereignty
 Rules relating to the succession of States
o Territorial integrity
 Respect for territorial boundaries
 Boundary regimes
 Other territorial regimes
o State succession in respect of human rights treaties
o Political treaties
multilateral=többoldalú; liability=felelősség

XVIII. Arctic and Antarctic

 Differences  Similarities
 Sea / Continents  Scientific importance
 Physical geography  Strategic importance
 Suitability for human life  Environmental protection
 Living resources 

 The Arctic (North Pole)

o No comprehensive treaty regime
o Territorial claims: the sector principle
 Arctic Ocean coastal states:
 Russia, USA (Alaska), Canada, Norway, Denmark (Greenland)

o Exploitation of natural resources: Russia claims underwater features is
extention of its territory, Convention says countries can claim rights up to 370
km from edge of its continental shelf, Russian claim disputed by other
o Navigation (e.g. Northwest passage)
o Climate change: reduction of sea ice
 Declaration of Rovaniemi (1991)
 Ottawa Declaration (1996)  Arctic Council:
 Arctic States
 Organizations representing Arctic indigenous peoples
o Military significance
 Antarctica
o Territorial claims: Argentina, Australia, Chile, France, New Zealand, Norway,
 other countries participating as members of the Antarctic Treaty have a
territorial interest, but the provisions (rendelkezés) of the treaty do not
allow them to make their claims while it is in force: Brazil, Peru,
Russia, South Africa, United States
o Legal arguments:
 Occupation
 Contiguity (szomszédosság)
 Sector principle
 Continuity
 Discovery and exploration
 Historic rights

XIX. Air law

 The law in respect of airspace
o Freedom of the air, or subject to state sovereignty?
 Full freedom of the air theory  The principle of complete and exclusive
sovereignty of States in the space above their territories
o The principle of sovereignty of States over the airspace: Chicago Convention:
“The contracting States recognize that every State has complete and exclusive
sovereignty over the airspace above its territory.”

 Paris Convention for the Regulation of Aerial Navigation (1919)

 Warsaw Convention for the Unification of Certain Rules relating to International
Carriage by Air (1929)
 Codified international air law
o Public air law – The Chicago System (civil aviation=civil repülés)
 The Chicago Convention created a global framework for safety and
operational regulation of aircraft
 The Convention establishes rules of airspace, aircraft registration and
safety, and details the rights of the signatories in relation to air travel.
The Convention also exempts air fuels in transit from (double) taxation.
o Private air law – The Warsaw system (liability of air carriers)
 Convention for the Unification of Certain Rules for International
Carriage by Air (Warsaw Convention) of 1929, subsequently amended,
and now largely replaced by The Convention for the Unification of
Certain Rules for International Carriage by Air (Montreal Convention)
of 1999
 international convention which regulates liability for international
carriage of persons, luggage, or goods performed by aircraft for
o Regulation at national level
 Air transport is also highly regulated at a national level, dealing with
both safety and economic issues
 Significant liberalization in several jurisdictions (most notably within
and between the European Union and the United States)
 International Civil Aviation Conference (Chicago) of 1944
o Laying the foundation of the modern law of civil aviation
o Several conventions
o The establishment of the ICAO
o Montreal protocol: protection of ozone layer

 The second freedom allows technical stops without the embarking (beszállás) or
disembarking of passengers or cargo. It is the right to stop in one country solely for
refueling or other maintenance on the way to another country. Because of longer range
of modern airliners, second freedom rights are comparatively rarely exercised by
passenger carriers today, but they are widely used by air cargo carriers, and are more or
less universal between countries.
 The fifth freedom allows an airline to carry revenue traffic between foreign countries
as a part of services connecting the airline's own country. It is the right to carry
passengers from one's own country to a second country, and from that country to a third
country (and so on).

 it amended important provisions of the Warsaw Convention's regime concerning

compensation for the victims of air disasters
 Under the Montreal Convention, air carriers are strictly liable for proven damages up to
100,000 special drawing rights (SDR), a mix of currency values established by the
International Monetary Fund (IMF). Where damages of more than 113,100 SDR are
sought, the airline may avoid liability by proving that the accident which caused the
injury or death was not due to their negligence or was attributable to the negligence of
a third party.
o Ha a halált vagy a sérülést okozó baleset a légi jármű fedélzetén vagy valamely
beszállási vagy kiszállási művelet közben történt, utasonként 100 000 SDR-t meg
nem haladó károk esetében a cég nem zárhatja ki vagy nem korlátozhatja a
o A céget azonban nem terheli felelősség a kárértéknek utasonként 100 000 SDR
értékhatárt meghaladó részéért, ha a cég bizonyítani tudja, hogy:
 a) az ilyen kár (100 000 SDR feletti rész) nem a cég vagy az alkalmazottai
vagy a megbízottai hanyagságának vagy egyéb jogtalan cselekményének
vagy mulasztásának következménye; vagy
 b) az ilyen kár (100 000 SDR feletti rész) kizárólag egy harmadik fél
hanyagságának vagy egyéb jogtalan cselekményének vagy mulasztásának a

 Unlawful acts directed against aircraft

 International Aviation Organizations

o International Civil Aviation Organization (ICAO)
 established in 1947, headquartered in Montreal, Canada
 sets the standards for the safety, regularity, and efficiency of int. civil
 has become a specialized agency of the UN
o International Air Transport Association (IATA)
 Originally founded in 1919 as the International Air Traffic Association;
formed by airlines in 1945
 It has 280 airline members, constituting approximately 95% of the
world’s passenger traffic
 Task: to set fares (viteldíj) and rates (tarifa) subject to final government
approval through a system of conferences
XX. Outer space
 Basic differences between the Legal Regimes Governing Air Space and Outer Space
o Air space above a State’s land area and territorial waters
 Subject to ‘the complete and exclusive sovereignty’ of the respective
o Outer space
 ‘outer space is not subject to rational appropriation by claim of
sovereignty, by means of use or occupation, or by any other means’
 The legal nature of outer space is often characterized as res extra
commerium, res communis omnium or res communis humanitatis
 The law relating to space law

 Multilateral treaties
o The Outer space treaty 1967
 on principles governing activities of states in the exploration and use of
outer space including the Moon and other Celestial Bodies
o The Rescue Agreement 1968
 on the Rescue of Astronauts, the Return of Astronauts and the Return of
Objects Launched into outer space
o The liability convention 1972
 convention on liability for damage caused by objects launched into outer
o Registration Convention 1975
 on registration of objects launched into outer space
o The Moon treaty 1979
 Agreement governing the Activities of States on the Moon and other
Celestial Bodies
o Limited test ban traty (LTBT 1963)
 The treaty banning nuclear weapons tests in the atmosphere, in outer
space and under water


 Resolutions of the UN General Assembly

o Principles relating to remote (távoli) sensing of the Earth from Space (1986)
 The principle of freedom of exploration and use of outer space 
respect for the principle of full and permanent sovereignty of all States
over their own wealth and natural resources
o Principles Relevant to the Use of Nuclear Power Sources in Outer Space (1992)
 Advantage of the particular properties of nuclear power sources 
Reducing the risk of accidental exposure of the public to harmful
radiation or radioactive material
 Contemporary problems
o Delimitation (körülhatárol) of outer space
o Geostationary orbit (állandó keringés)
 main uses:
 communication
 meteorology
 space exploration
o Protection of outer space environment
XXI. Law of the sea

 The law relating to the sea

o UNCLOS I. (United Nations Conference on the Law of the Sea)
 1956-1958, Geneva
 1958, four Geneva Conventions
 1960, Geneva
 Unsuccessful
 1974-1982, resulting in the adoption in Montego Bay (Jamaica) of the
Law of the Sea Convention
 Agreement relating to the Implementation of Part XI of the Convention

Zonal approach ‘Transversal Activities and Problems

 Maritime zones  Activities or problems that can
o The water column and the arise in all maritime zones, e.g.:
seabed o Development and transfer
o Only the water column of marine technology
o Only the seabed o Protection and preservation
 The UNCLOS determines for of the marine environment
each zone: o Marine scientific research
o Its spatial (térbeli) limits
o The regime applicable (the
rights and obligations of
different categories of
Maritime zones requiring and not requiring express proclamation (kinyilvánítás)
Zones not requiring express proclamation Zones requiring express proclamation
(but not occupation)
 Express provision (rendelkezés)  Contiguous zone
in UNCLOS: right of the  Archipelagic waters
continental shelf “do not depend  Exclusive economic zone
on occupation, effective or
notional, or on any express
 In practice: the sovereignty of the
coastal State on its territorial sea
is the automatic consequence
UNCLOS (1982)

Internal waters: spatial limits

 Definition: Waters on the landward side of the baseline of the territorial sea part of the
internal waters of the State

Internal waters: examples

 ports, bays (öböl) (historic bay, historic bay claims), mouths of rivers
indentation: bemetszés, bevágás

 historic bay: Hudson Bay

 multinational bay: Gulf of Fonseca
Internal waters: archipelagic waters

 Spatial limits
o So-called straight archipelagic baselines’, joining the outermost points of the
archipelago (Fiji, Indonesia, Papua New Guinea, the Bahamas, the Philippines)
o Two objective, numerical criteria
 The water to land ratio inside such baselines is between 1 to 1 and 9 to 1
 The length of such baselines may not exceed 100 nautical miles
o Archipelagic baselines: must not depart ‘to any appreciable extent from the
general configuration of the archipelago’
 Legal regime: archipelagic waters
o The area enclosed by the archipelagic baselines does not become internal waters,
but instead becomes archipelagic waters that are subject to a special regime
o Contains elements of several other regimes (territorial sea, EEZ, continental
o Right of passage for foreign ships but confined to a special sea lanes system
 Territorial sea
o Spatial limits/Breadth (szélesség)
 Every state has the right to establish the breadth of its territorial sea up
to a limit not exceeding twelve nautical miles
 Delimitation (elhatárolás): where the coasts of two States are opposite or
adjacent to each other, neither of the two States is entitled, failing
agreement between them to the contrary, to extend its territorial sea
bexong the median line every point of which is equidistant from the
nearest points on the baselines
 By agreement: States are free in choosing wither the equidistance
principle or another method
 In the case of unilateral delimitation by one coastal State (if
agreement cannot be reached), the ‘median line’ (coasts facing
each other) or ‘equidistant line’ (adjacent coastes)
o Legal regime
 The coastal State exercises sovereignty extending to the air space over
the territorial sea as well as to its bed and subsoil. Complete legislative
and enforcement jurisdiction
Exclusive economic zone (EEZ)

 Definition: A maritime zone beyond and adjacent to the territorial sea extending up to
200 nautical miles from the baseline of a costal State …
o … where the coastal State has sovereign rights over the living and non-living
resources of the superjacent waters and its seabed and subsoil (rights of an
essentially economic nature) whereas in that zone other States enjoy the
freedoms of navigation and overflight
o Neither territorial sea nor high seas but partakes of the characteristics of both
o The legal concept of the EEZ parallels that of the continental shelf in attributing
certain limited rights to coastal States beyond the reach of the territorial sea
 Specific declaration
o The rights of the coastal State over the superjacent waters of its EEZ are not
inherent but will have to be declared

Exclusive economic zone (EEZ): Regime

 Rights of the coastal State

o Sedentary species do not form part of the natural resources of the EEZ
o Sovereign rights (NOT sovereignty!!!!) for the purpose of exploring and
exploiting, conserving and managing the natural resources, whether living or
non-living, of the waters superjacent to the seabed and of the seabed and its
subsoil, and with regard to other activities for the economic exploitation and
exploration of the zone, such as the production of energy from the water,
currents and winds.
 Establishment and use of artificial islands, installations and structures
 Marine scientific research
 Protection and preservation of the marine environment
Continental shelf: delimitation

 Outer limits
o Different concepts: Contiguity or distance?
 Contiguity: geological criterion: natural prolongation of the coastal
State’s land territory to the outer end of the continental margin (based on
territorial sovereignty)
 Distance: a concept to parallel that of the EEZ
o UNCLOS combines the two approaches
 The idea of contiguity [‘the natural prolongation’], but alternatively,
UNCLOS attributes the submarine areas up to a distance of 200 nm to
the coastal State, where the outer edge of the continental margin does not
extend up to that distance
 In practice: more than 30% of the total seabed areas of the world have
been attributed to coastal States, including considerable parts of the sea
floor situated beyond the continental margins
o Commission on the Limits of the Continental Shelf
 The delimitation (elhatárolás) regarding neighbouring and adjacent coasts
o by agreement
o if necessary using the dispute settlement procedures envisaged by UNCLOS
o the ICJ and arbitral tribunals (döntő bíróság) (decisions developing criteria and
sedentary = nem mozgó (korall)
High seas: Origins

 Various ideas:
o The century-old controversy between the ideas of mare clausum (Selden) and
mare liberium (Grotius), as well as the clash between the interests of the States
reached its conclusion during the 18th century with the triumph of the Grotian
idea of the freedom of the seas beyond territorial waters
 Absence of the territorial sovereignty on the high seas
 Sources
o 1958 Geneva Convention on the High Seas
o Customary international law
 Developments since 1958
o The spatial dimension of the high seas has shrunk (összezsugorodott) because
of the extension of State sovereignty
o Technological advances: new activities at sea distinct from navigation and

High seas: status and regime

 Freedoms of the high seas (non-exhaustive list)

o freedom of navigation
o overflight
o laying submarine cables and pipelines
o constructing artificial islands, installations, and structures
o fishing
o scientific research
 Ships
o States have the right to claim non-interference with their ships by other States
on the high seas so that the flag State, in principle, has the monopoly of the
exercise of sovereign power on its ships
o Monopoly of the flag State as regards enforcement activities on the high seas
 No State may subject any part of the high seas to its sovereignty
 No distinction between coastal and land-locked States
International Seabed Area

 Definition:
o Deep seabed: the legal status of the deep seabed shifted from a res nullius to a
res cummunis concept
o The seabed and ocean floor and subsoil thereof beyond the limits of national
o UNCLOS declares the area a common heritage of mankind
 Main aspects
o exploration and exploitation of the deep seabed resources
 the area is put under the supervision and control of the International
Seabed Authority, that acts on behalf of ‘mankind as a whole’ in which
all rights over the area are vested (felruház)
 its resources constituting the common heritage of mankind
o demilitarization
 various treaties forbid States place on the seabed or ocean floor or in the
subsoil thereof, beyond a 12-mile territorial sea, any nuclear weapons or
any other types of weapons of mass destruction
o underwater cultural heritage
 2001 UNESCO Convention on the Protection of the Underwater Cultural
 Geographical scope
o the outer limit of the continental shelf constitutes the decisive criterion with
regard to the extension of the area
 Regime
o Common heritage of mankind
 Primarily aims at achieving material equality between developed and
developing States
 Res nullius communis usus, i.e. a space open to common utilization
which does not belong to any State or group of States in terms of
territorial sovereignty
o Meaning of the concept
 The non-appropriation of the deep seabed beyond the areas of national
 The common management of the mineral resources of the deep seabed
 A system of benefit sharing in respect of deep seabed mineral resources
to be established by the ISA
o All activities in the Area are controlled by and organized through the
International Seabed Authority
Transversal activities

 The rules relating to land-locked States

 Protection and preservation of the marine environment
 Marine scientific research
 Institutions; settlement of disputes

Doubly landlocked States: Requiring the crossing of at least two national borders to reach a
coastline (Liechtenstein, Uzbekistan)
Settlement of disputes

Fora Choice of procedure

 International Court of Justice  Declaration of the States Parties
 International Tribunal for the Law of o Acceptance the same
the Sea procedure for the settlement
 Arbitral tribunal  that procedure
 Special arbitral tribunal o Different procedure for the
settlement  arbitral tribunal
o Absence of declaration 
arbitral tribunal

Policing of the high seas against internationally prohibited activities

 fundamental rule of the freedom of the high seas UNCLOS prohibits interference with
ships flying a foreign flag unless otherwise provided by applicable rules of
international law
o right of visit with respect to ships engaged in piracy
o right of visit with respect to ships engaged in the slave trade
o right of visit with respect to ships engaged in unauthorized broadcasts
o right of intervention in case of pollution incidents
o smuggling of drugs
o smuggling of migrants