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Sources of Public International Law

The term “sources of Public International Law” is used to mean two things: first, the actual materials determining the
rules applicable to a given international situation (the material sources), and second, the legal methods creating rules of
general application (the formal sources).[1] However, because it is difficult to maintain this distinction, the two
meanings are used interchangeably.

Article 38 of the Statute of the International Court of Justice (ICJ) states the following:

1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it,
shall apply:

 international conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;
 international custom, as evidence of a general practice accepted as law;
 the general principles of law recognized by civilized nations;
 subject to the provisions of Article 59, judicial decisions and teaching 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.

This Article lists the traditional sources of Public International Law, the actual legal materials that the ICJ has to apply
to international disputes. According to this Article, these sources are of two types: the primary sources that are
represented by the international conventions, international custom and general principles of law; and the subsidiary
sources that are represented by the decisions of courts and the opinions of legal scholars. Moreover, this Article lists
“ex aequo et bono” (equity) as an alternative source of Public International Law applied by the Court if the parties agree
thereto. However, in addition to these traditional sources, there are contemporary sources, such as the acts of the
international organizations.

Thus, the sources of the contemporary Public International Law can be classified into seven:

 International customs;
 Treaties;
 General principles of law;
 Judicial decisions;
 Opinions of legal scholars;
 Ex aequo et bono (Equity);
 Acts of international organizations.

In the following sections, these sources are discussed.

1. International Customs
Article 38 of the Statute of the ICJ refers to an international custom as evidence of a general practice accepted as
law. This definition comprises of two elements: a general practice and its acceptance as law.[2] These two elements are
necessary for the formation of customary international law. The first element, the behavioral or objective element,
requires a recurring consistent action or lack of action by States, which is indicated by such activities as official
statements or conducts, legislative or administrative action, court decisions and diplomatic behaviors or
correspondence. The second element (the psychological or subjective element) entails the conviction that in similar
case such a practice is required or permitted by international law. In this sense, international customs may be defined
as practices or usages which have been observed by a large number of States over a lengthy period of time and
considered by them to be legally obligatory, i.e., being a law.[3]

Notably, the terms “custom” and “usage” are often used interchangeably. Strictly speaking, there is a clear technical
distinction between the two. Usage is an international habit of action that has not received full attestation and does not
reflect a legal obligation; an example of a usage is the salute at sea. Usages may be conflicting; custom must be unified
and consistent. A usage to become a customary rule of law, it must fulfill two conditions: acceptance or recognition by a
large number of States and repetition over a lengthy period of time. A custom has a definite obligation attached to
it. Failure to follow custom results in State responsibility, and consequently entails the possibility of punishment
(sanction) or of retaliation against that State.

International custom, as Article 38 indicates, is one of the primary sources of International Law which the ICJ shall
apply. In fact, international customs constituted the bulk of the rules of International Law. Historically, custom had
played a great role in the formation of the rules of International Law. However, since the beginning of the Twentieth
Century, this role has been decreased in favor of the law-making treaties.

2. Treaties

The term “treaty” is used as a generic term embracing all kinds of international agreements which are known by a
variety of different names such as, conventions, pacts, general acts, charters, statutes, declarations, covenants, protocol,
as well as, the name agreements itself. A treaty may be defined as an international agreement concluded between
States in written form and governed by International Law.[4]

Article 38 of the Statute of ICJ indicates that international conventions (treaties), whether general or particular,
establishing rules expressly recognized by the contesting states should be applied by the Court to the disputes submitted
to it. Although this Article divided treaties into two kinds, general treaties and particular treaties; it is only the first kind,
the general treaties or the so called the law-making treaties, which intended to have a universal and general application,
constitute a primary source of International Law.

The particular treaties or the so called treaty-contracts are not directly a source of International Law since their
application is limited only to the contracting parties which are two or small number of States, and they deal with limited
affairs . This kind of treaties does not create new rules of Public International Law, but at best, only new rules of
particular or regional application. However, as a substantial number of States accept and recognize such new rules
formulated in this kind of treaties as obligatory, these rules will become part of the Public International Law. Examples
of such treaties are bilateral treaties on commercial, and friendship relations.

The law-making treaties constitute a primary source of International Law. Since the middle of the Nineteenth
Century, there has been an astonishing development of law-making treaties. The rapid expansion of this kind of treaties
has been due to the inadequacy of customs in meeting the urgent demands arose from the changes which have been
transforming the whole structure of international life. Law-making treaties have been concluded to regulate almost
every aspect concerning the international community. Examples of important treaties are: the Charter of the United
Nations, the four Geneva Conventions of 1949, the Vienna Convention on Diplomatic Relations of 1961, the
International Covenant on Civil and Political Rights of 1966 and the Convention on the Law of the Sea of 1982.

In contrast with the process of creating law through custom, treaties are a more modern, more deliberate and speedy
method. They are of growing importance in International Law. Their role in the formation of new rules of International
Law increases day after day. Today, the law-making treaties are considered the most important primary source of
Public International Law.

3. General Principles of Law

Article 38 of the Statute of the ICJ refers to “the general principles of law recognized by civilized nations” (all nations
are now considered as civilized) as a primary source of International Law. This source is listed the third after
international conventions and international customs. The Court shall apply the general principles of law in cases where
treaties and customs provide no rules to be applied.

Notably, there is no agreement on what the term “general principles of law” means. Some say it means general
principles of international law; others say it means general principles of national law. Actually, there is no reason why it
should not mean both; the greater expansion in the meaning of this term, the greater chance of finding rules to fill the
gaps in treaty law and customary law. Indeed, international tribunals had applied general principles of law in both
senses for many years before the Permanent Court of International Justice was established in 1920.[5]

Nevertheless, there are various opinions as to the origin of the general principles of law. Some regard them as being
originated from the Natural Law which underlies the system of International Law and constitutes the criteria for testing
the validity of the positive rules. Others regard them as stemmed from the national legal systems (Positive Law) and
have been transplanted to the international level by recognition.[6]

Whatever the meaning of the term “general principles of law” and the origin of these principles, these principles are
considered to be at the foundation of any legal system, including International Law. Actually, there is an agreement
that the general principles of law do constitute a separate source of International Law. Examples of general principles of
law are the principles of consent, equality, administration of justice, good faith, reciprocity, forbidding abuse of right
and res judicata.

4. Judicial Decisions

Article 38 of the Statute of the ICJ directs the Court to apply judicial decisions as subsidiary means for the
determination of rules of law. This direction is made subject to the provisions of Article 59, which states that “the
decision of the Court has no binding force except between the parties and in respect of that particular case.” The
provision of Article 59 of the Statute of the ICJ is understood to mean that the Court is not obliged to follow previous
decisions. So while, as Article 59 ascertained, the doctrine of precedent as it is known in the Common Law, whereby the
decisions of certain courts must be followed by other courts, does not exist in International Law, it is still that the
decisions of the international courts (PCIJ and ICJ) are quoted as authoritative decisions, and international courts have
always strived to follow their previous decisions to insert certainty and uniformity within their judicial process, or at
least, they have had to take previous decisions into account.[7]
The judge of the ICJ sometimes does a little more than merely determine a law; he may establish a law.[8] This has
occurred in many instances: the Anglo-Norwegian Fisheries case of 1951, which stated the criteria for the recognition of
baseline from which to measure the territorial sea;[9] and the Reparations case of 1949, which established the legal
personality of international organizations.[10]

The PCIJ, during its existence, gave a large number of decisions and advisory opinions on matters of international
concern, thereby developing International Law. The ICJ, the successor of the PCIJ, has been doing the same.

As the term “judicial decisions” referred to by Article 38 also encompasses decisions (awards) of international arbitral
courts (tribunals) and the decisions of national courts, these decisions have been playing a role in the development of
International Law.[11]

There have been many international arbitral tribunals, such as the Permanent Court of Arbitration and the various
mixed-claimed tribunals, including the British-American Mixed Claims Tribunal and the Iran-US claims
Tribunal. Although these tribunals differ from the international courts in some ways, many of their decisions have been
extremely significant in the development of International Law.[12]

The decisions of national courts of various nations have played a role the development of International Law,
particularly the international customary law. These Decisions help to form international customs. They show what the
national courts have accepted as international law and how the International Law, in the given case, is understood in
that country. Examples of such rules of law developed by, or derived from the uniform decisions of national courts are
certain rules of extradition law, the rules related to State recognition, and the rules of diplomatic immunity.

One may finally say that judicial decisions, whether international or national, have played an important part in the
development of International Law. The international customary law has largely developed from case to case, and a large
number of cases have been submitted to international as well as national courts of various nations.[13]

5. Writings of legal scholars

Article 38 of the Statute of the ICJ includes as a subsidiary means for the determination of rules of law, “the teachings
of the most qualified publicists of the various nations”. The term “teachings of publicists” means “writings”, “opinions”
or “works” of legal scholars, jurists or writers.

This Article emphasizes the evidentiary value of writings of the legal scholars. The primary function of these writings
is to provide reliable evidence of the law. Writers on International Law cannot make the law; their works are to
elucidate and ascertain the principles and rules of International Law. To be binding, the rules and principles must have
received the consent, whether express or implied of States, who are to be bound by it.

Historically, the writers on International Law such as Gentili, Grotius, Pufendorf and Vattel were a primary factor in
the evolution of the modern International Law; they were the supreme legal authorities of the Sixteenth to Eighteenth
Centuries. They determined the scope, form and content of International Law.[14] However, the importance of legal
writings began to decline as a result of the emphasis on the state sovereignty; treaties and customs assumed the
dominant position in the exposition and development of International Law.[15]

Nevertheless, like judicial decisions, the opinions of legal scholars can provide evidence of the existence of customary
law and can help in developing new rules of law.
The opinions of legal scholars are used widely. Arbitral tribunals and national courts make extensive use of the
writings of jurists. However, the International Court of Justice makes little use of jurisprudence, and judgments contain
few references; this is, primarily, because of the willingness of the Court to avoid a somewhat undesirable selection of
citations. However, many references to writers are found in the pleadings before the Court.

6. Ex aequo et bono (Equity)

Article 38 of the Statute of the ICJ lists ex aequo et bono as an alternative basis for a decision by the Court in place of
the normally employed legal rules. The Court can decide a case submitted to it ex aequo et bono (in justice and
fairness) only if the parties agree thereto. Ex aequo et bono is somewhat analogous to but not exactly the same as the
Common Law concept of equity. It is broader than equity and gives the Court greater power than the latter. It allows
the Court to decide a case on considerations other than legal rules, or even in contrary to these rules, if it sensed that
justice can be served thereby.[16] Thus the term “ex aequo et bono” means “justice and fairness” or “equity”.

Neither the International Court of Justice nor its predecessor, the Permanent Court of International Justice, has been
called upon to decide a case ex aequo et bono, although principles of equity have been applied by these courts in some
cases.[17] The ICJ in the North Sea Continental cases (1969) directed the delimination between the parties (West
Germany, Holland and Denmark) “in accordance with equitable principles”.[18] The PCIJ in the Diversion of Water from
the Meuse River case (1937) applied principles of equity after considering them as part of the International Law which it
should apply.[19] Moreover, international arbitral tribunals have resorted to the principles of equity in several cases.

Despite the application of the principle of equity by international courts, the existence of “equity” as a separate and
distinct source of law is highly controversial. Some regard equity as a source of International Law, and apply it as
distinguished from law; however, they often appeal to natural law in order to strengthen their arguments.[20] Thus to
them the three terms “equity”, “justice” and “natural law” tend to merge into one another. During the Sixteenth and
Seventeenth Centuries natural law was a major source of International Law. In the Nineteenth and Twentieth Centuries
arbitrators have often been authorized to apply justice and equity as well as International Law; such authorization were
more common before 1920 than they are today.

Other scholars do not recognize equity as a separate and distinct source of law; they regard the principles of equity as
part of the general principles of law that are common to all national legal systems.[21]

Whatever the position may be, it is doubtful whether equity form a source of international law. It cannot be assumed
that a judge uses equity as a source of law every time he describes a rule as equitable or just. Strictly, “equity” cannot
be a source of law; yet it may play an important role in supplementing the law or may appear as a part of judicial
reasoning.[22] A judge or arbitrator can always use equity to interpret or fill gaps in the law, even when he has not been
expressly authorized to do so. But he may not give a decision ex aequo et bono unless he has been expressly authorized
to do so.[23]

7. Acts of International Organizations


The growth of international organizations since the First World War has been accompanied by suggestions that the
acts of these organizations should be recognized as a source of International Law.[24] The question involved hereto is
whether the decisions of the organs of these organizations can be regarded as a separate source of International Law.

Decisions of the organs of international organizations may be binding or non-binding. An organ may be authorized to
take decisions which are binding on member states; only these binding decisions are regarded as a source of the
International Law. The only clear example of binding decisions is the resolutions which the Security Council of the
United Nations are authorized to take under Chapter Seven (VII) of the Charter of the United Nations dealing with
actions related to threats to the peace, breaches of the peace, and acts of aggression.[25]

However, there is a controversy concerns the non-binding decisions of the organs of the international organizations.
Since almost all the organs of the international organizations are composed of representatives of member states and
their acts are merely the acts of the states represented in these organs, they would probably constitute an evidence of
customary law because they reflect the views of the state voting for them.[26] The obvious examples of such type of
acts are the resolutions and declarations of the General Assembly of the United Nations. When the vast majority of
States, in the General Assembly, consistently vote for resolutions and declarations on a certain topic, a State practice will
be established and a binding rule of customary International Law will emerge.[27] Thus, these resolutions and
declarations will constitute an evidence of the existence of customary International Law. Examples of such resolutions
and declarations regarded as examples of State Practice which have led to binding rules of customary International Law
are: “the Resolution on Prohibition of the Use of Nuclear Weapons for War Purposes”, “the Declaration on Granting of
Independence to Colonial Countries and Peoples”, “the Declaration on Permanent Sovereignty over Natural Resources”
and “the Declaration of Legal Principles Governing Activities of States in the Exploration and Use of Outer
Space”.[28]

Resolutions and declarations of the General Assembly may also provide a basis for the progressive development of
the International Law and the speedy adaptation of customary law to the conditions of modern life.[29] Moreover, in
some instances, a resolution or declaration may have direct legal effects as an authoritative interpretation and
application of the principles stated in the Charter of the United Nations.[30]

What is the incorporation theory of international law? Do we follow this theory in the Philippines? Explain your
answer.

The incorporation of international law is the process by which international agreements become part of the municipal
law of a sovereign state. A country incorporates a treaty by passing domestic legislation that gives effect to the treaty in
the national legal system.

The courts have applied the rules of international law in a number of cases even if such rules had not previously been
subject of statutory enactments, because these generally accepted principles of international law are automatically part
of our own laws.( Sec. 2 Article II of the Constitution)

It means that the rules of International law form part of the law of the land and no legislative action is required to make
them applicable in a country. By this doctrine, the Philippines is bound by generally accepted principles of international
law, which are considered to be automatically part of our own laws. (Tañada v. Angara, G.R. No. 118295, May 2, 1997)
The doctrine of incorporation is applied whenever municipal tribunals (or local courts) are confronted with situations in
which there appears to be a conflict between a rule of international law and the provisions of the Constitution or statute
of the local state. Efforts should first be exerted to harmonize them, so as to give effect to both since it is to be
presumed that municipal law was enacted with proper regard for the generally accepted principles of international law
in observance of the Incorporation Clause in Section 2, Article II of the Constitution. In a situation however, where the
conflict is irreconcilable and a choice has to be made between a rule of international law and municipal law,
jurisprudence dictates that municipal law should be upheld by the municipal courts for the reason that such courts are
organs of municipal law and are accordingly bound by it in all circumstances. The fact that international law has been
made part of the law of the land does not pertain to or imply the primacy of international law over national or municipal
law in the municipal sphere. The doctrine of incorporation, as applied in most countries, decrees that rules of
international law are given equal standing with, but are not superior to, national legislative enactments. Accordingly,
the principle of lex posterior derogat priori takes effect – a treaty may repeal a statute and a statute may repeal a treaty.
In states where the Constitution is the highest law of the land, such as the Republic of the Philippines, both statutes and
treaties may be invalidated if they are in conflict with the Constitution. (Secretary of Justice v. Lantion, G.R. No. 139465,
January 18, 2000)

BAR QUESTION (2000)

The Philippines has become a member of the World Trade Organization (WTO) and resultantly agreed that it "shall
ensure the conformity of its laws, regulations and administrative procedures with its obligations as provided in the
annexed Agreements." This is assailed as unconstitutional because this undertaking unduly limits, restricts and impairs
Philippine sovereignty and means among others that Congress could not pass legislation that will be good for our
national interest and general welfare if such legislation will not conform with the WTO Agreements. Refute this
argument. (5%)

ANSWER: According to Tanada v. Angara, 272 SCRA 18 (1997), the sovereignty of the Philippines is subject to restriction
by its membership in the family of nations and the limitations imposed of treaty limitations. Section 2. Article II of the
Constitution adopts the generally accepted principles of international law as part of the law of the land. One of such
principles is pacta sunt servanda. The Constitution did not envision a hermit-like isolation of the country from the rest of
the world.

What are the concepts of opinion juris and “persistent objector” in relation to international customary law? Give
examples.

What is opinio juris?

1. Article 38 (1) (b) of the Statute of the International Court of Justice explains customary international law as comprising
of “(1) a general practice (2) accepted as law”. The general practice or state practice was discussed in an earlier post.
The ICJ, in its jurisprudence, has relied on, and interpreted, Article 38 (1) (b) to include two elements that assist the
Court to determines the existence of an alleged customary international law – state practice and opinio juris (also known
as opinio juris sive necessitates). The ICJ explained opinio juris, in the Nicaragua case, as follows:

“[…] for a new customary rule to be formed, not only must the acts concerned ‘amount to a settled practice’, but they
must be accompanied by opinio juris sive neccessitatis. Either the States taking such action or other States in a position
to react to it, must have behaved so that their conduct is evidence of a belief that the practice is rendered obligatory by
the existence of a rule of law requiring it. The need for such belief..the subjective element, is implicit in the very notion
of opinio juris sive neccessitatis. ”
2. In the North Sea Continental Shelf Cases, the Court examined 15 cases where States had delimited their boundaries
using the equidistance method, after the Convention came into force. The court concluded, even if there were some
State practice in favour of the equidistance principle the court could not deduct the necessary opinio juris. The North
Sea Continental Shelf Cases confirmed that both State practice (the objective element) and opinio juris (the subjective
element) are essential pre-requisites for the formation of a customary law rule.

3. State practice is often seen as a reflection of opinio juris. In the Asylum case, the court held that the relevant practice
must be consistent and uniform to show an expression of a right belonging to one state and a duty incumbent on
another. The court held that Columbia did not prove the existence of a regional custom because it failed to prove
consistent and uniform usage of the alleged custom by relevant States. The fluctuations and contradictions in State
practice did not allow for the uniform usage ( see also Nicaragua case, p. 98). The court held in the Asylum case:

“The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it has
become binding on the other Party… (that) it is in accordance with a (1) constant and uniform usage (2) practiced by the
States in question, and that this usage is (3) the expression of a right appertaining to the State granting asylum
(Columbia) and (4) a duty incumbent on the territorial State (in this case, Peru). This follows from Article 38 of the
Statute of the Court, which refers to international custom “as evidence of a general practice accepted as law(text in
brackets added).”

4. The fact that a state undertakes a particular because of political expediency and not because of a belief that the said
practice is binding on the State by way of a legal obligation (opinio juris) is detrimental to the formation of a customary
law. In the Asylum case the Court said: “considerations of convenience or political expediency seemed to have
prompted the territorial State to recognise asylum without such a decision being dictated by any feeling of legal
obligation”.(see also North Sea Continental Shelf Cases and Lotus Case).

5. Opinio juris is reflected in acts of states (Nicaragua Case) or in omissions (Lotus case) in so far as those acts or
omissions are done following a belief that the said State is obligated by law to act or refrain from acting in a particular
way. In the Lotus case, France alleged that jurisdictional questions on collision cases are rarely heard in criminal cases
because States tend to prosecute only before the flag State. France argued that this absence of prosecutions points to a
positive rule in customary law on collisions. The Court held that this,

“…would merely show that States had often, in practice, abstained from instituting criminal proceedings, and not that
they recognized themselves as being obliged to do so; for only if such abstention were based on their being conscious of
having a duty to abstain would it be possible to speak of an international custom. The alleged fact does not allow one to
infer that States have been conscious of having such a duty; on the other hand, as will presently be seen, there are other
circumstances calculated to show that the contrary is true.”

6.In the North Sea Continental Shelf Cases, the ICJ explained the difference between customs (i.e. habits) and customary
law:

“Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a
way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it.
The need for such a belief, i.e, the existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are conforming to what amounts to a legal
obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international
acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only
by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.”
7. If a state acts in a particular way using its discretion, then, too, the relevant opinio juris is lacking. In the Rights of
Passage case, the ICJ held:

“It would thus appear that, during the British and post-British periods, Portuguese armed forces and armed police did
not pass between Daman and the enclaves as of right and that, after 1878, such passage could only take place with
previous authorization by the British and later by India, accorded either under a reciprocal arrangement already agreed
to, or in individual cases. Having regard to the special circumstances of the case, this necessity for authorization before
passage could take place constitutes, in the view of the Court, a negation of passage as of right. The practice predicates
that the territorial sovereign had the discretionary power to withdraw or to refuse permission. It is argued that
permission was always granted, but this does not, in the opinion of the Court, affect the legal position. There is nothing
in the record to show that grant of permission was incumbent on the British or on India as an obligation.”

Who is a persistent Objector?

States become parties to a treaty through consent. That is to say, States agree to be bound by treaty provisions when
they ratify these treaties. States, sometimes, enter into reservations on certain provisions of the treaty with the result
that they are no longer bound by those provisions or are bound to the extent accepted by the reservation.

The question whether customary international law binds states through consent is subject to academic debate. We
know that the basic rule of general customary international law (as opposed to a local custom) is that it binds all States.
New states are bound by old customary law, in spite of the fact that they did not consent to the custom at the time of its
formation or there after. States that are silent during the formation of customary law are bound by their silence – we
call this tacit acceptance or acquiescence.

States can express its intention to be bound by customary law through public declarations, much like the signature
appended to treaties. They can also oppose, in a public manner, acts of another state that is contrary to an established
or establishing customary law – this opposition would give justifiable reasons for other states to assume that the first
state opposes the breach because it recognizes the customary law nature of the rule. Thereby, consenting to the
application of the customary rule to itself.

If we work on the premise that states can consent to be bound by customary law, either in expressed or tacit manner,
then we should also discuss the possibility of a state withholding consent. This is quite normal in treaty relations – a
state that does not wish to be bound by the treaty (1) may refuse to ratify or accept the treaty; or (2) in the event that it
is already a treaty party, it may withdraw from the treaty following the procedures established by the treaty or in
international law.

In customary international law, we call a state attempts to undertake (1) above – i.e. refuse to be bound by the
customary international law at its inception – a persistent objector and (2) above – i.e. refuse to be bound by customary
international law after it comes into force – a subsequent objector. The difference between treaty and customary
international law in this respect is that in case of (1) theoretically at least both states are said to be exempt from their
respective treaty and customary international law obligations and in case** of (2) for the treaty ceased to have an effect
on the party that withdraws (with the exception of continuing obligations), but, subsequent objector remains bound by
the customary law principle that it seeks to reject. (**there are some doubts as to the theoretical assumption presented
in point (1) as will be seen below). We will first discuss legal issues surrounding the persistent objector and then the
subsequent objector.

Persistent objector
The court in the Anglo Norwegian Fisheries case held that even if a customary law rule existed (on a ten-mile rule
relating to straight base-lines),

“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any
attempt to apply it to the Norwegian coast.”

On the other hand, in the Asylum case the court found that a state is not bound by a customary law rule when the state
refrained from becoming a party to a convention that was the first to introduce the rule that had crystallized into
custom.

“But even if it could be supposed that such a custom existed between certain Latin-American States only, it could not be
invoked against Peru which, far from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining
from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the
qualification of the offence in matters of diplomatic asylum.”

NB: It is arguable whether this can apply as a general rule because there are many reasons that a state may refuse to
sign a convention – for example, political, moral or economic reasons. We also know that the state has the option to
enter into a treaty and reserve out of the objectionable treaty provision. One cannot always assume, unless the state
has expressed itself on the matter, that a state refuses to sign a particular treaty because it refutes the legality of a
particular provision within the treaty.

In both these cases, the court did not set out the criteria to determine if a state is a persistent objector. It did, however,
allude to certain criteria in the Anglo-Norwegian fisheries case jurisprudence. The jurisprudence of the case appears to
support the idea that an existing customary law rule would not apply to a state if

(1) it objected to any outside attempts to apply the rule to itself – (a) at the initial stages and (b) in a consistent manner,
and

(2) if other states did not object to her resistance (read more in the case summary available here).

Commentators have stated, on the other hand, that for a state to become a persistent objector, the state must

(1) object to the practice at the initial stages of the formation of customary law and continue to object in a sustained
manner; or

(2) adopt a contrary practice at the initial stages of the formation of customary law and continue to do so a sustained
manner.

The objection must be expressed – either verbally or as contrary practice. There is no rule that States have to take
physical action to preserve their rights (see the commentary (15) to the ILA customary law study).

Some argue that the notion of a persistent objector is a figment of the imagination of international
lawyers. Curtis quotes Stein in stating that the latter’s research “failed to turn up any case where an author provided
even one instance of a state claiming or granting an exemption from a rule on the basis of the persistent objector
principle – excepting of course the Asylum and Fisheries cases themselves.”

The basis of a persistent objector, in academic literature, appears to be that the objecting state claims an exemption
from a potential and actual rule. In the Fisheries case Norway did not claim such an exemption. Norway was clear that it
was not claiming an exception to the rule (i.e. that its practice was not contrary to international law) but rather it
claimed that its practice was in conformity with international law (see page 21).
“… “The Norwegian Government does not rely upon history to justify exceptional rights, to claim areas of sea which the
general law would deny; it invokes history, together with other factors, to justify the way in which it applies the general
law.” …In its (Norway’s) view, these rules of international law take into account the diversity of facts and, therefore,
concede that the drawing of baselines must be adapted to the special conditions obtaining in different regions. In its
view, the system of delimitation applied in 1935, a system characterized by the use of straight lines, does not therefore
infringe the general law; it is an adaptation rendered necessary by local conditions. ”

In other words, Norway did not plead an exemption to the general rule and the court’s finding to support this position. It
is possible that Norway did not plead this exemption because it did not believe the rule to exist. For example, the
Norwegian Minister of Foreign Affairs, in 1870, stated that,

“in spite of the adoption in some treaties of the quite arbitrary distance of 10 sea miles, this distance would not appear
to me to have acquired the force of international law. Still less would it appear to have any foundation in reality…”

A state cannot plead for an exemption of a rule that it does not recognize to exist. Therefore, as Norway did, it would
instead plead that its action is in conformity with international law.

But what if the rule had crystallized into a general customary international law rule? In this case, irrespective of the
recognition of an individual state the rule would exist and the state wishing to benefit, as a persistent objector, would
undoubtedly claim an exemption to the rule. In reality, there have not been cases before the international court of
justice of this nature where a state claims that it is exempted from customary international law after the rule had
formed.

Is it then possible to argue that the court envisaged a so-called persistent objector rule is possible only at the time of the
formation of customary international law? As Charney points out, in both the Asylum and Fisheries cases, the court was
dealing with a customary law whose existence was uncertain. In other words, the rule was at its initial stages where it
could have or could not have evolved into a customary law.

“In fact, the two international court of justice cases which appear to support the persistent objector rule both arose in
circumstances where the new rule itself was in substantial doubt. Thus, it was significantly easier for the objector to
maintain its status. No case is cited for a circumstance in which the objector effectively maintained its status after the
rule became well accepted in international law. In fact, it is unlikely that such a status can be maintained in light of the
realities of the international legal system. This is certainly the plight that befell the US, The UK and Japan in the law of
the sea. Their objections to expanded coastal state jurisdiction were ultimately to no avail, and they have been forced to
accede to 12-mile territorial seas and the 200-mile exclusive economic zone.”

The absurdity of a persistent objector continuing to benefit from its objector status is demonstrated in the following
examples:

(1) Consider also this possibility. A customary law rule is formed with regard to the 12-mile territorial limit within which
the state’s citizens have the exclusive right to engage in fishing. If country B considers themselves as persistent objectors
to this rule then it is not bound by this rule. Country B’s citizens, then in pursuance of the non-binding nature of the
customary law rule on its country, ventures into country C’s territorial waters to fish. Country C can arrest these
fishermen and prosecute them in accordance with its domestic laws. Country B does not have an actionable cause
before an international court because country C’s action was to enforce a customary law right.

(2) The other argument is that persistent objection cannot affect or look to absolve the state’s obligations of jus cogens
norms. For example, a state cannot said to have a right or escape from the prohibition of torture simply because it had
been a persistent objector. This would be consistent with the position in treaty law – states cannot make treaties or
treaty reservations that conflict with jus cogens norms.

But what about other fundamental norms that fall short of the jus cogens status – consider for example human rights
obligations that do not form jus cogens norms. For example, in the hypothetical scenario that a state objected initially
and persistently to the freedom of expression or religion, would the state, then, be excused if it violated people’s rights
to freedom and religion? Or would we say that these people did not have the rights because the state chose the path of
a persistent objector?

(3) What if the rule that the persistent objector objected to was an obligation? Assume for example, the hunting of a
certain endangered animal is prohibited under treaty and customary law. Assume that state B had consistently objected
to this prohibition and continues to hunt that animal even after the prohibition becomes a customary law right. Does
this mean that state B is now absolved from the prohibition and can continue to hunt regardless of the customary law
ban?

In view of the above, it maybe more prudent and practical to argue that a state can only be a persistent objector – and
have the benefits of being a persistent objector – at the time of the formation of the customary law. This is also
consistent with the fact that existing customary law binds new states and that they cannot withdraw from customary
law after they attain statehood. The two decisions of the International Court of Justice support this view (see Charney’s
views on how a persistent objector can use its status to influence the development of the law).

It goes without saying that if a number of states affected by a particular custom objects to the newly emerging
customary rule this would prevent its formation or assist in the formation of a different customary law rule. The ILA
customary law study states:

“As a matter of policy, the persistent objector rule could be regarded as a useful compromise. It respects States’
sovereignty and protects them from having new law imposed on them against their will by a majority; but at the same
time, if the support for the new rule is sufficiently widespread, the convoy of the law’s progressive development can
move forward without having to wait for the slowest vessel.”

Subsequent objector

Suffice to say, the consequences of a subsequent objector – one who objects after the formation of the customary law
rule – is clear. The state that objects continues to be bound by the customary law. If it acts in contrary to the law, it
violates the law. The state can be held responsible for the violation under international law.

If a number of states agree to the deviation then these states could create another customary law rule, either as a local
custom or, if a sufficient number of affected states participate, a general custom.

For a subsequent objector to develop a new customary law rule an existing norm must be broken. A state wishing to
change customary law must either (1) violate the law and hope other states would acquiesce to it (and if, and until such
time the state would be in breach of a customary international law); or (2) without violating the existing law the state
must (a) get a sufficient number of states to accept that a new customary law had developed before choosing to adopt
its state practice accordingly or (2) use the existing framework and creative interpretations to bring the violation within
the existing law. In time, this creative interpretation would allow for the formation of new law or it would be rejected by
states preventing such formation. In this manner, at least, as Rasheed argues, the state would not have to repudiate the
customary law before adopting a contrary practice.
Who are the subjects of international law? In relation to this, describe the doctrine of sovereign immunity under
international law.

 States and non-State actors like individuals, international organizations, multinational companies and
international non-government organizations are regulated by, or subjected to, international law. They are called
subjects of international law. These subjects have international legal personality. In other words, they have
certain rights and duties under international law and they can exercise these rights and duties. ✐ Do all subjects
of international law have the same rights and duties? Give some examples of the rights and duties possessed by
States, individuals and international organizations.

WHO IS A SUBJECT OF INTERNATIONAL LAW?

 A subject of international is (1) an individual, body or entity; (2) recognized or accepted; (3) as being capable of
possessing and exercising; (4) rights and duties; (5) under international law. (Dixon)

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

HOW DO WE DETERMINE IF AN ENTITY IS A SUBJECT OF INTERNATIONAL LAW?


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

 Legal personality also includes the capacity to enforce one’s own rights and to compel other subjects to perform
their duties under international law. For example, this means that a subject of international law should be able
to:

(1) bring claims before international and national courts and tribunals to enforce their rights, for example, the
International Court of Justice.

(2) have the ability or power to come into agreements that are binding under international law, for example, treaties:

(3) enjoy immunity from the jurisdiction of foreign courts; for example, immunity for acts of State.

(4) be subject to obligations under international law (Dixon).

 Remember that all subjects of international law do not have the same rights, duties and capacities. For an
example, a diplomat has immunity before foreign courts because he is an agent of the sending State. ✐ See blog
posts and media articles on the US- India diplomatic/ consular incident involving Devyani
Khobragade here, here and here. One State can bring a claim against another State before the International
Court of Justice to enforce its rights. An individual on his own can’t bring a claim against a State before the ICJ.
States have all the capacities mentioned above and individuals have only a few. ✐ Of the four examples that we
discussed, which ones are applicable to individuals?

What is the concept of sovereign immunity in international law?

There are two conflicting concepts of sovereign immunity, according to the Supreme Court: (a) Classical or absolute
theory — a sovereign cannot, without its consent, be made a respondent in the courts of another sovereign; and (b)
Restrictive theory — the immunity of the sovereign is recognized only with regard to public acts or acts jure imperii of a
state, but not with regard to private acts or acts jure gestionis.

What is the Constitutional basis for the grant of immunity to foreign governments/embassies, the United Nations
(UN) and other international organizations in the Philippines?

The Constitution provides (Art. II, Sec. 2) that the Philippines adopts the generally accepted principles of international
law. Rules of international law form part of Philippine law under the doctrine of incorporation. Also, among the oldest
and most fundamental maxims of international law is pacta sunt servanda, which requires the parties to a treaty to keep
their agreement therein in good faith.

What is the treaty that governs the sovereign immunity of diplomats and other state agents?
The Vienna Convention on Diplomatic Relations, which was ratified on 18 April 1961, is a codification of centuries-old
customary law affording protection to foreign diplomats. The Convention lists the classes of heads of diplomatic
missions to include (a) ambassadors or nuncios accredited to the heads of state, (b) envoys, ministers or internuncios
accredited to the heads of states; and (c) charges d’ affairs accredited to the ministers of foreign affairs. Comprising the
“staff of the (diplomatic) mission” are the diplomatic staff, the administrative staff and the technical and service staff.

Does the immunity apply even if a person is not the head of the diplomatic mission or part of the staff?

Immunity can still attach under the generally-accepted principle in international law that a State cannot be sued in the
courts of a foreign state. The immunity attaches not just to the head of state, or his representative, but also distinctly to
the state itself in its sovereign capacity. If the acts giving rise to a suit are those of a foreign government done by its
foreign agent, although not necessarily a diplomatic personage, but acting in his official capacity, the complaint could be
barred by the immunity of the foreign sovereign from suit without its consent.

How does the Philippine government treat the Holy See or Vatican?

The Philippines has accorded the Holy See the status of a foreign sovereign. The Holy See, through its Ambassador, the
Papal Nuncio, has had diplomatic representations with the Philippine government since 1957. This appears to be the
universal practice in international relations.

What is the applicable treaty for immunities to the United Nations (UN) and its agencies?

The Philippines is a member of the UN and a party to the Convention on the Privileges and Immunities of the Specialized
Agencies of the United Nations. It adheres to the doctrine of immunity granted to the UN and its specialized agencies.
These treaties have the force and effect of law here in the Philippines.

What are examples of “specialized agencies” of the UN?

Among the UN specialized agencies, the immunity of which were upheld by the Philippine Supreme Court: World Health
Organization (WHO) and the United Nations Revolving Fund for Natural Resources Exploration (UNRFNRE).

What are examples of international organizations, other than the UN, that have been accorded immunity in the
Philippines?

1. Southeast Asian Fisheries Development Center (SEAFDEC), which was established by Burma, Cambodia, Indonesia,
Japan, Laos, Malaysia, Philippines, Singapore, Thailand and Vietnam, for the purpose of contributing to the promotion of
the fisheries development in Southeast Asia.

2. International Rice Research Institute (IRRI), which enjoys immunities accorded to international organizations.
Presidential Decree No. 1620 provides:

Art. 3. Immunity from Legal Process. The Institute shall enjoy immunity from any penal, civil and administrative
proceedings, except insofar as that immunity has been expressly waived by the Director-General of the Institute or his
authorized representatives.

3. International Catholic Migration Commission (ICMC), which was accredited by the Philippine Government to operate
the refugee processing center in Morong, Bataan. It’s a non-profit agency involved in international humanitarian and
voluntary work.

4. Asian Development Bank (ADB). Being an international organization that has been extended diplomatic status, the
ADB is independent of the municipal law. The Supreme Court, while cognizant of this immunity, also found that the
immunity applies only to acts performed in an official capacity. Section 45 (a) of the Agreement Between the Asian
Development Bank and the Government of the Republic of the Philippines Regarding the Headquarters of the Asian
Development Bank provides:

Officers and staff of the Bank, including for the purpose of this Article experts and consultants performing missions for
the Bank, shall enjoy the following privileges and immunities:

(a) Immunity from legal process with respect to acts performed by them in their official capacity except when the Bank
waives the immunity.

The imputation of theft is ultra vires and cannot be part of official functions. It cannot possibly be covered by the
immunity agreement because our laws do not allow the commission of a crime, such as defamation, in the name of
official duty.

What is the rationale for the grant of immunity to international organizations?

The objective for the grant of immunity from local jurisdiction is to avoid the danger of partiality and interference by the
host country in the internal workings of these international organizations or agencies. It is intended to shield the
organization from political pressure or control by the host country to the prejudice of member States of the
organization, and to ensure the unhampered performance of their functions.

What is the remedy of a Filipino citizen in cases where an act is covered by the doctrine of sovereign or diplomatic
immunity?

The remedy is for an aggrieved person to ask the Philippine government to espouse his cause through diplomatic
channels

When is military force justified under the United Nations Charter? Describe the grounds and the procedure provided
by the Charter for military intervention to be justified.

One of the primary goals of the UN, according to Article 1(1) of the UN Charter, is to maintain international peace and
security. In order to achieve this aim, Article 2(4) contains a prohibition on the use of force. A system of collective
sanctions against any offending State that resorts to the use of force protects this prohibition. These sanctions are found
in Articles 39-51 of the UN Charter.

PROVISIONS RELATING TO THE USE OF FORCE: THE PROHIBITION AND THE EXCEPTIONS

Article 1(1) of the UN Charter says that one of the purposes of the Charter is to:

To maintain international peace and security, and to that end: to take effective collective measures for the prevention
and removal of (1) threats to the peace, and for the (2) suppression of acts of aggression or (3) other breaches of the
peace, and to bring about by peaceful means… adjustment or settlement of international disputes or situations which
might lead to a breach of the peace

In order to maintain international peace and security and to prevent future wars:

(1) Article 2(3) places an obligation on member States to settle their disputes peacefully.

All Members shall settle their international disputes by peaceful means in such a manner that international peace and
security, and justice, are not endangered.

(2) Article 2(4) prohibits member States from using force in their international relations.
All Members shall refrain in their international relations from the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United
Nations.

 In Nicaragua v USA, ICJ held that the prohibition on the use of force is covered by treaty law (that is the
UN Charter), by customary international law and the prohibition was a Jus Cogens norm.

 In the 1970 Declaration on Principles of International Law concerning Friendly Relations there is: (1) a
general prohibition on the threat or use of force, (2) duty to refrain from “organizing, instigating,
assisting or participating in acts of civil strife or terrorist acts in another State or acquiescing in organized
activities within its territory” when these acts involve the threat or use of force against another State. ✐
What are the other provisions in the 1970 Declaration that (1) prohibit States from using force? (2)
prohibit States from assisting others to use force against another State? (3) defines what is “use of
force”? (4) prohibits interference in the domestic affairs of another State?

(3) The prohibition is safeguarded by a system of collective sanctions against any offending State that uses force. This is
found in Articles 39-51 of the UN Charter.

3.1. Articles 39, 40 and 41 operate to offer sanctions against a member State that has threaten or used force in a way
that it amounts to a threat to or breach of peace or an act of aggression. Article 39 says:

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of
aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and
42, to maintain or restore international peace and security.

Article 41 allows the Security Council to impose sanctions (trade and economic sanctions, arms embargoes):

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

3.2. Article 42 gives the Security Council the power to authorize the use necessary force to maintain international peace
and security. Because the Security Council does not have a military force of its own, the Security Council authorizes
member States to use force.

The Security Council] may take such action by air, sea, or land forces as may be necessary to maintain or restore
international peace and security.

3.3. Article 51 provides for a member State to use force in self defense when there is an armed attack against that State

Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed
attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to
maintain international peace and security…

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

FIRST EXCEPTION TO THE PROHIBITION ON THE USE OF FORCE: SECURITY COUNCIL AUTHORIZATION TO USE FORCE.

Article 24 of the Charter says the primary responsibility of maintaining international peace and security is with the
Security Council. The Security Council can take measures that are binding on member States. Article 25 says:

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance
with the present Charter.

The General Assembly (GA) cannot take measures that are binding on States. GA cannot make recommendations on a
dispute or situation when the Security Council is discussing it (Article 12 of the Charter). Article 10 says:

The General Assembly may discuss any questions or any matters within the scope of the present Charter or relating to
the powers and functions of any organs provided for in the present Charter, and, except as provided in Article 12, may
make recommendations to the Members of the United Nations or to the Security Council or to both on any such
questions or matters.

In the Palestinian Wall Case, the ICJ held that the Security Council’s authority to maintain international peace and
security was ‘primary’ but not ‘exclusive’ See A. 11 and 14 of the Charter. The GA, under the Uniting for Peace
Resolution, can discuss and make recommendations on matters even when the Security Council is discussing them.
Under this Resolution, the GA (1) referred the Palestinian Wall Case to the ICJ for an Advisory Opinion and (2) sent a
Peacekeeping force to Egypt after the Suez canal crisis in 1956 (even though the SC was simultaniously discussing these
matters). Procedure followed by the UN Security Council in authorising the Use of Force
Procedure to be followed at the SC when a State has used force against another State

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

SECOND EXCEPTION TO THE PROHIBITION ON THE USE OF FORCE: RIGHT OF SELF DEFENCE

Right of self defence (SD) can be both individual self defence (victim State against the aggressor State)
and collective (victim State + friendly States against the aggressor State). The right to self defence is found in treaty law
(UN charter) and in CIL. Self defence that takes place without SC authorization is a type of unilateral use of force (we
learnt that this would be called collective use of force, if SC authorizes the use of force, ).

Article 51 provides for a member State to use force in self defense when there is an armed attack against that State:

Nothing in the present Charter shall impair the inherent right of individual or collectiveself-defence if an armed
attack occurs against a Member of the United Nations, until the Security Council (SC) has taken measures necessary to
maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall
be immediately reported to the SC…

What is an armed attack and who can carry out an armed attack?

In Nicaragua case ICJ says an armed attack is: (1) action by regular State armed forces across an international border; (2)
armed groups, irregular forces and mercenaries when (a) they are “sent by or on behalf of a State” to carry out an
armed attack against another State and (b) the attack is of such gravity so that it amounts to an armed attack if it was
conducted by regular armed forces of a State (The Court referred to Article 3(g) of the GA Resolution on the Definition of
Aggression and said this reflected CIL). Note that State “B” does not have a right of SD against State “A”: even if rebels
carried out an armed attack against State “B”; unless, these rebels was sent by or on behalf of another State (State “A”).

✐ Read paras 193-5 of the Nicaragua Case; paras 131-135 and 146 and 147 of the DRC Case; para 139 of the Palestinian
Wall Case Advisory Opinion.

What is not an armed attack according to the ICJ in the Nicaragua case?

1. If State “A” supplies of weapons and logistical to a rebel group, which the rebel groups use to attack State “B” –
can the supply of weapons and logistical support be considered as an armed attack by State “A” against the
State “B”? In Nicaragua Case the court said NO. The Court said this may amount to a threat or use of force or
intervention in the affairs of another State but it was not an armed attack. This means that State B does not
have the right of SD against State “A” under Article 51 of the Charter because an armed attack has not
occurred. ✐ Do you agree? Read Judge Jenning’s dissenting opinion in Nicaragua Case. Does this reading into an
armed attack mean that if State “A” illegally uses force against State “B” (remember that use of force is both
direct and indirect and can include the supply of weapons to rebels) and as a result State “A” violates Article
2(4); Article 51 does not give State “B” a right to use force in SD and that State “A” can violate Article 2(4) with
impunity? The Court said that instead of relying on SD State B can take “proportional countermeasures” against
State A in such a situation. ✐ What proportional countermeasures can State B take? Do you think this is
enough?
2. Mere frontier incidents are not “armed attacks” if the necessary “scale and effects” are not there.

When can a State use force in SD according to Article 51?

 An armed attack has to have occurred against a member State (read the section before on armed attack and the
situation in which a State can use SD). (See the section below on the possibility to use SD even if an armed attack
has not occurred or where it has occurred against a national of a State. )

 SD is only available against the aggressor State (the one who carried out or on whose behalf an armed attack
was carried out) by the victim State (subject of the attack). ✐ Read para 139 of the Palestinian Wall Case
Advisory Opinion. Do you agree?

 The only way a third State will have a right of SD against the aggressor State is if the victim State asks for the
help of the third State (we call this collective self defense). ✐ Read the facts of the Nicaragua case.

 Any use of force in SD must be necessary and proportionate to the armed attack. ✐ Read para.176 of the
Nicaragua Case and paras 41-48 of the Legality of the Threat or Use of Nuclear Weapons Advisory Opinion of the
ICJ (1996).

 As we discussed a State that uses force in SD must immediately inform the SC (Democratic Republic of the Congo
v. Uganda, para. 145) and this State can use force only until the SC steps in.

What we discussed so far is the treaty or UN Charter right to SD. In addition to the treaty right of SD, some argue that
there is also a CIL right to SD. They argue that the Charter never intended to restrict the CIL right of SD (which is more
wider than the right under A. 51) and that the reference to the “inherent right” of SD in Article 51 brings in the CIL right
of SD into Article 51. ✐ Read the other arguments put forward by Dixon, p. 297 (5th Ed.).

What is the UN Security Council? What are its powers

The UN Security Council (the Council) was established in 1946 under the UN Charter and is responsible for the
maintenance of international peace and security. It is one of six principal organs of the UN and is generally viewed as the
apex of the UN system (although its powers and functions are separate to the UN Secretary-General).

The Council’s powers include the establishment of peacekeeping and special political missions, authorisation of military
enforcement action, the imposition of international sanctions on member states, and the ability to refer matters to the
International Criminal Court (ICC). It is the only body in the UN system that can make decisions that are legally binding
on all members.

The Council also has an important role in the governance of the UN system. It has responsibility for approving the
admission of new member states to the UN, the appointment of the UN Secretary-General and senior UN officials, and is
jointly responsible with the UN General Assembly for the election of judges to the International Court of Justice.

Functions

The Security Council has unique responsibility and decision making powers and has a range of tools at its disposal.

When faced with a potential conflict, the first response of the Council is to recommend to the parties that they reach
agreement through peaceful means. The Council may appoint, or ask the UN Secretary General to appoint, special
representatives to assist and guide efforts towards conflict resolution.
In cases where conflict is occurring, the Council may issue ceasefire directives, send in UN peacekeeping forces or use
enforcement actions, such as sanctions.

With or without agreement of national governments, the Council can take steps to protect civilians caught in the
conflict, for example by allowing access across national borders for humanitarian organisations. The Council can direct
Government’s to limit stockpiling of certain weapons or disarm, for example by nuclear non-proliferation and
destruction of chemical weapons.

The Council’s day-to-day functions include the review of UN peacekeeping operations, consultations on specific country
situations and monitoring the implementation of UN sanctions regimes through the work of its sanctions committees.

Membership

The Council is made up of 15 Member States. There are five permanent Members (the P5) - the United Kingdom, China,
France, Russia, and the United States - and 10 non-permanent Members (the E10) elected by the UN General Assembly
to serve for two-year terms.

Elections of non-permanent Members are staggered, with five elected each year. A retiring Member is not eligible for
immediate re-election. In 1963, the UN General Assembly decided the geographic distribution of the 10 non-permanent
Members would consist of three from the African group, two from the Asian group, two from the Latin American and
Caribbean group, two from the Western European and Others group and one from the Eastern European group.
Australia is a member of the Western European and Others group.

Decision-making

The Council is the only UN body that allows use of the veto. The veto is exercised when a country votes against a draft
decision and so prevents its adoption. It can only be used by the five permanent Members.

Article 27 of the UN Charter distinguishes between procedural and non-procedural (substantive) matters in Council
decision-making.

For decisions on procedural matters, such as working practices or organisation of the agenda, at least nine Members
must vote in favour of the decision for it to pass.

For decisions on substantiative matters, such as establishing a peacekeeping force or sanctions regime, the decision
again needs at least nine Members to vote in favour. But those countries voting in favour must include all the
permanent members - “including the concurring votes of the permanent members”.

A resolution will also to fail if seven Members vote against the resolution or abstain from voting.

Powers

Under the United Nations Charter, the functions and powers of the Security Council are:

 to maintain international peace and security in accordance with the principles and purposes of the United
Nations;

 to investigate any dispute or situation which might lead to international friction;

 to recommend methods of adjusting such disputes or the terms of settlement;

 to formulate plans for the establishment of a system to regulate armaments;


 to determine the existence of a threat to the peace or act of aggression and to recommend what action should
be taken;

 to call on Members to apply economic sanctions and other measures not involving the use of force to prevent or
stop aggression;

 to take military action against an aggressor;

 to recommend the admission of new Members;

 to exercise the trusteeship functions of the United Nations in "strategic areas";

 to recommend to the General Assembly the appointment of the Secretary-General and, together with the
Assembly, to elect the Judges of the International Court of Justice.

UN Charter

CHAPTER V: THE SECURITY COUNCIL

COMPOSITION

Article 23

1. The Security Council shall consist of fifteen Members of the United Nations. The Republic of China, France, the
Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, and the United
States of America shall be permanent members of the Security Council. The General Assembly shall elect ten
other Members of the United Nations to be non-permanent members of the Security Council, due regard being
specially paid, in the first instance to the contribution of Members of the United Nations to the maintenance of
international peace and security and to the other purposes of the Organization, and also to equitable
geographical distribution.

2. The non-permanent members of the Security Council shall be elected for a term of two years. In the first
election of the non-permanent members after the increase of the membership of the Security Council from
eleven to fifteen, two of the four additional members shall be chosen for a term of one year. A retiring member
shall not be eligible for immediate re-election.

3. Each member of the Security Council shall have one representative.

FUNCTIONS and POWERS

Article 24

1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security
Council primary responsibility for the maintenance of international peace and security, and agree that in
carrying out its duties under this responsibility the Security Council acts on their behalf.

2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the
United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid
down in Chapters VI, VII, VIII, and XII.
3. The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its
consideration.

Article 25

The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance
with the present Charter.

Article 26

In order to promote the establishment and maintenance of international peace and security with the least diversion for
armaments of the world's human and economic resources, the Security Council shall be responsible for formulating,
with the assistance of the Military Staff Committee referred to in Article 47, plans to be submitted to the Members of
the United Nations for the establishment of a system for the regulation of armaments.

VOTING

Article 27

1. Each member of the Security Council shall have one vote.

2. Decisions of the Security Council on procedural matters shall be made by an affirmative vote of nine members.

3. Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members
including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and
under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.

PROCEDURE

Article 28

1. The Security Council shall be so organized as to be able to function continuously. Each member of the Security
Council shall for this purpose be represented at all times at the seat of the Organization.

2. The Security Council shall hold periodic meetings at which each of its members may, if it so desires, be
represented by a member of the government or by some other specially designated representative.

3. The Security Council may hold meetings at such places other than the seat of the Organization as in its judgment
will best facilitate its work.

Article 29

The Security Council may establish such subsidiary organs as it deems necessary for the performance of its functions.

Article 30

The Security Council shall adopt its own rules of procedure, including the method of selecting its President.

Article 31
Any Member of the United Nations which is not a member of the Security Council may participate, without vote, in the
discussion of any question brought before the Security Council whenever the latter considers that the interests of that
Member are specially affected.

Article 32

Any Member of the United Nations which is not a member of the Security Council or any state which is not a Member of
the United Nations, if it is a party to a dispute under consideration by the Security Council, shall be invited to participate,
without vote, in the discussion relating to the dispute. The Security Council shall lay down such conditions as it deems
just for the participation of a state which is not a Member of the United Nations.

Under the United Nations Convention on the Law of the Sea (UNCLOS), what are the concepts of innocent passage
and archipelagic waters? How are they related? Is the latter consistent with our understanding of the archipelagic
doctrine enshrined in the 1987 Philippine Constitution?

Archipelagic waters are the waters inside and around an archipelago. Article 46 of The United Nations Convention on the
Law of the Sea of 1982 (UNCLOS 1982) treats “archipelago” as a group of islands, including parts of islands,
interconnecting waters and other natural features which are so closely interrelated that such islands, waters and other
natural features form an intrinsic geographical, economic and political entity, or which historically have been regarded
as such. It has to be noted here that archipelagic waters which are waters within the archipelagic baselines are not
internal waters. The legal concept of archipelagic waters is without prejudice for the right of the state to draw lines for
the delimitation of internal waters in accordance with Articles 9, 10, and 11[1] for the mouths of rivers, bays, and ports.
Such lines of delimitation are known as closing lines rather than baselines as in the territorial sea concept,[2] as they
serve only as the boundary for waters completely outside the jurisdiction of the Convention (internal waters) and do
not act as the starting point for establishing zones. There is no right of innocent passage in internal waters enclosed by
closing lines, even if they were not considered internal waters previously, a further contrast to the territorial sea
concept.[3] If we refer to those articles, we can see that there are two kinds of baselines within the Archipelagic State.
The first one is the baseline which is usually used in bays, mouths of rivers, and ports, that makes the waters inside that
baseline recognized as internal waters where no rights of innocent passage allowed. The second one is the Archipelagic
Baseline, which has been described in the previous section. The waters inside this baseline are recognized as
Archipelagic Waters where there are some rights given to international community.

The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic baselines drawn in
accordance with article 47, described as archipelagic waters, regardless of their depth or distance from the coast.[4] And
this sovereignty extends to the air space over the archipelagic waters, as well as to their bed and subsoil, and the
resources contained therein.[5] From these two paragraphs above, we can see that an archipelagic State has sovereignty
over its archipelagic waters, moreover it also extends to the air space over the archipelagic waters, as well as to their
bed and subsoil, and the resources contained therein. However, this sovereignty is subject a number of rights enjoyed by
third states.

Those rights are specifically explained on the UNCLOS 1982 in Article 51, Article 52, and Article 53. Paragraph 1 Article 51
indicated that an archipelagic State shall respect existing agreements with other States. This provision was presumably
inserted to avoid any possible conflict between an archipelagic State’s rights under UNCLOS 1982 and its obligations
under prior agreements, and is an exception to the general provision under article 311 dealing with the relationship of
the Convention and prior treaties.[6] Moreover, this paragraph also stated that archipelagic state shall recognize
traditional fishing rights and other legitimate activities of the immediately adjacent neighboring States in certain areas
falling within archipelagic waters. In paragraph 2, Article 51 then gives explanations about existing submarine cable. If
we read that article, we can see that Archipelagic States are to respect existing submarine cables laid by other States
and passing through their waters without making a landfall. And the archipelagic stare are to permit the maintenance
and replacement of such cables upon receiving due notice of their location and the intention to repair or replace them.
Then, an archipelagic state may not forcibly revoked foreign country’s submarine cables if there is no agreement from
that country who laid the cables. The foreign states do not have any rights to plant any new submarine cables after a
country has declared itself to be an archipelagic state. Foreign states have rights only with regard to existing cables. In
part IV of UNCLOS 1982, we can only see the regulations about the submarine cable. There are no provisions that
regulate pipelines along the archipelagic waters. Because of that, there is a possibility that an archipelagic state can
require pipelines removal to a state that is also a party to UNCLOS 1982. However, if the State owning the pipelines is a
non UNCLOS 1982 party, the relationship between the archipelagic state and the State owning the pipelines will be
governed by the customary international law or by agreements that concluded between countries. For example,
Indonesia and Malaysia signed an agreement in 1982. This agreement has provisions guaranteeing navigation and over
flight between East and West Malaysia, deals with cables linking East and West Malaysia and passing through Indonesian
waters, and permits Malaysian fisherman to fish by traditional methods in part of Indonesia’s archipelagic waters east of
the Anambas Islands, an area where Malaysian fishermen have fished for decades. After that, this agreement also
permits Malaysia to lay new cables and pipelines through Indonesian waters provided that this does not interfere with
the exploitation of sea-bed mineral resources by Indonesia within its territorial sea and archipelagic waters, and requires
Indonesia to protect existing cables and pipelines.[7]

Article 52 and 53 of UNCLOS 1982 then regulating matters concerning navigational rights that given to foreign
countries by the archipelagic states. These navigational regimes were a debate issue in the production of the Law of the
Sea Convention. The debate was specifically discuss about the will of archipelagic states that wanted to be recognized as
complete and encompassing nations, coastal states that wanted to increase the limit of their territorial seas, and
maritime countries were determined to retain their vital commercial and strategic access to sea lanes through these
coastal states. But finally, the debate resulted in provisions about right of innocent passage and archipelagic sea lanes
passage that stated in Article 52 and 53 UNCLOS.

Article 19 paragraph 1 of UNCLOS 1982 decribed that passage is innocent so long as it is not prejudicial to the
peace, good order or security of the coastal State.[8] This innocent passage according to UNCLOS 1982 applies only to
the territorial seas of the state. According to article 52 paragraph 1 UNCLOS 1982, the ships of all States enjoy in
archipelagic waters the same right of innocent passage as they enjoy in the territorial sea. And in addition, in article 52
paragraph 2 it is stated that this right may only be suspended temporarily and in specified areas, for security reasons,
after due notice has been given. Based on Article 53 of UNCLOS, archipelagic sea lane passage means the exercise of the
rights of navigation and over flight in normal mode solely for the purpose of continuous, expeditious and unobstructed
transit between one part of the high seas or an exclusive economic zone and another part of the high seas or an
exclusive economic zone.[9] This right could be exercised in two instances, first, in all normal passage routes used for
international navigation or over flight through or over archipelagic waters and its adjacent territorial sea; second, in sea
lanes or air routes which the concerned archipelagic state has specifically designated.[10]

This particular regime of archipelagic sea lanes passage guarantees that ships and aircrafts of other States have
the right to pass through and over archipelagic waters on designated sea lanes and air routes.[11] It is very different
with what we understand about the right of innocent passage. The following instances constitute distinctions between
two principles of innocent passage and archipelagic sea lane passage with regard to passage through archipelagic
waters:[12]

1. The right of innocent passage requires that submarines and other under water vehicles should navigate on the
surface, showing their flags; whereas in archipelagic sea lane passage, underwater vehicle is allowed to navigate under
normal mode which is possible that it pass underwater;
2. There is no right of over flight in areas where innocent passage is allowed while in archipelagic sea lane, over
flight is permitted;

3. The right of innocent passage could be suspended in certain cases like when there is military exercise or the State
has to deal with local crises but archipelagic sea lane passage cannot be suspended, it may only be substituted;

4. With regard to warships, there are no precise rules under international law that would require countries to give
prior notice on innocent passage of warships; other countries necessitate prior notice while some do not require but in
archipelagic sea lane passage, prior notification on the passage of warship through it is explicitly not required;

5. The provisions on archipelagic sea lane do not include the possibility of cooperation between the archipelagic State
and user States in terms of establishment of safety rules on navigation and the prevention and control of pollution from
ship through archipelagic sea lane are not covered by this concept.

We can see from what has been mentioned above, that regulations about archipelagic sea lanes passage is not as strict
as the regulations about the right of innocent passage. Beside the differences between the archipelagic sea lanes
passage and innocent passage, there are similar characteristics between archipelagic sea lanes passage and transit
passage through and over straits used for international navigation. Article 54 of UNCLOS specifically states that
provisions on transit passage in article 39, 40, 42, and 44, shall be appliedmutatis mutandis to the regime of archipelagic
sea lane passage. Emphasis should be made on the following similarities:[13]

1. The rights of transit passage and archipelagic sea lane passage include overflight for aircraft as well as navigation
for ships;

2. Ships exercising right of transit or archipelagic sea lane passage may use their normal mode of transit, hence,
surface warship may pass through sea lane in a manner necessary for their security to include formation steaming and
recovery of aircraft;

3. Both rights may never be suspended for reason of national security, even temporarily.

The foregoing circumstances do not apply to right of innocent passage. On the other hand, these rights differ from one
another under the following aspects:[14]

1. Transit passage signifies exercise of freedom, while archipelagic sea lanes passage is the exercise of the rights of
navigation or overflight;

2. As a matter of general right, ships and aircrafts enjoy right of transit passage through straits. On the other hand,
they enjoy a general right of sea lanes passage if the archipelagic state designates; otherwise this right “may” be
exercised through the routes used for international navigation;

3. Unlike in the case of transit passage, both sea lanes and air routes must be established on axis lines within
archipelagic waters

4. All normal passage routes used for international navigation should be included in designating archipelagic sea
lanes and air routes, whereas; it is not a requirement in transit passage;

5. The right of overflight under archipelagic sea lanes passage is restricted to air routes above sea lanes, unlike in the
freedom of overflight within transit passage regime. This means that overflight should be made strictly above the
designated sea lanes or routes normally used for international navigation, in the absence of designated sea lanes.
Basically, archipelagic sea lanes cater to the needs of user states so they could have uninterrupted navigation through
archipelagic waters. They facilitate the unobstructed passage of military vessels and aircrafts over the waters of the
archipelagic state. [15]In order to protect its maritime security in relation to the establishment of archipelagic sea lane
passage, the archipelagic state may, under Article 42 UNCLOS, adopt laws and regulations relating to sea lane passage in
respect of safety of navigation, prevention and control of pollution, prevention of fishing and the loading and unloading
of any commodity, currency or person or sanitary laws or regulation.[16]While it is true that designating archipelagic sea
lane passage is the ultimate responsibility of archipelagic States to the international community, it shall also be
considered that maintaining territorial integrity is paramount to other obligations. There are certain important interests
which the archipelagic state cannot give up, for instance its maritime security, to satisfy concerns of the user states.
Hence, designation of archipelagic sea lanes shall be viewed as the greatest contribution of archipelagic states to the
international community, particularly to major maritime powers because their right to navigation through archipelagic
waters is being upheld and guaranteed.[17]

Indonesia, as one of the biggest archipelagic States that exist in this world, without any doubt already has the
archipelagic sea lanes passage that has been published by the IMO. This archipelagic sea lanes passage was accepted by
the IMO in the 1998. The accepted proposal of Indonesia consists of the following three north-south routes of
archipelagic sea lanes passage:[18]

· ASL I: Sunda Strait – Karimata Strait – Natura Sea – South China Sea

· ASL II: Lombok Strait – Makasar Strait – Sulawesi Sea

· ASL III A: Sawu Sea – Ombai Strait – Banda Sea (West part of Burn Islands) – Seram Sea (Eastern part of Mongole
Island) – Maluku Sea - Pacific Ocean

· ASL III B: Timor Sea – Leti Strait – Banda Sea (West part of Burn Islands) – Seram Sea (Eastern part of Mongole
Island) – Maluku Sea - Pacific Ocean

· ASLIII C: Arafura Sea – Banda Sea (West part of Burn Islands) – Seram Sea (Eastern part of Mongole Island) –
Maluku Sea - Pacific Ocean

ASL I facilitates navigation from the Indian Ocean, through Sunda Strait while ASL II, the central route, facilitates
navigation from Indian Ocean through Lombok Strait and Makassar Strait and to Sulawesi Sea and Pacific Ocean and
Philippine waters and lastly ASL III, which is in the southern part with three branches, facilitates the navigation from
Timor Sea and Arafura Sea to the Pacific Ocean through Sawu Sea, Banda Sea, Seram Sea and Molucca Sea. [19]All these
routes were indicated in the map submitted to the IMO. It may be noted that the designation did not include east-west
route although the user states insist on this issue.

This IMO resolution was implemented by Indonesia through Indonesian Government Decree No. 37/2002 dated 28 June
2002 and referred to as Alur Laut Kepulauan Indonesia (ALKI). With this sea lanes passage, Indonesia hold the title to be
the very first archipelagic State to designate archipelagic sea lanes passage.

Magalona vs Ermita

Significantly, the right of innocent passage is a customary international law,43 thus automatically incorporated in the
corpus of Philippine law.44 No modern State can validly invoke its sovereignty to absolutely forbid innocent passage that
is exercised in accordance with customary international law without risking retaliatory measures from the international
community.
The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea
lanes passage45 does not place them in lesser footing vis--vis continental coastal States which are subject, in their
territorial sea, to the right of innocent passage and the right of transit passage through international straits. The
imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic States,
in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or distance from
the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of
archipelagic States archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment
of their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime zones, placing the
waters between islands separated by more than 24 nautical miles beyond the States territorial sovereignty, subjecting
these waters to the rights of other States under UNCLOS III.47

As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally converts
internal waters into archipelagic waters, hence subjecting these waters to the right of innocent and sea lanes passage
under UNCLOS III, including overflight. Petitioners extrapolate that these passage rights indubitably expose Philippine
internal waters to nuclear and maritime pollution hazards, in violation of the Constitution

The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting
the territorial sea or archipelagic waters to necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation, consistent with the international law principle of freedom of navigation. Thus,
domestically, the political branches of the Philippine government, in the competent discharge of their constitutional
powers, may pass legislation designating routes within the archipelagic waters to regulate innocent and sea lanes
passage.40Indeed, bills drawing nautical highways for sea lanes passage are now pending in Congress.41

In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant innocent
passage rights over the territorial sea or archipelagic waters, subject to the treatys limitations and conditions for their
exercise.42 Significantly, the right of innocent passage is a customary international law,43 thus automatically incorporated
in the corpus of Philippine law.44No modern State can validly invoke its sovereignty to absolutely forbid innocent
passage that is exercised in accordance with customary international law without risking retaliatory measures from the
international community.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea
lanes passage45 does not place them in lesser footing vis--vis continental coastal States which are subject, in their
territorial sea, to the right of innocent passage and the right of transit passage through international straits. The
imposition of these passage rights through archipelagic waters under UNCLOS III was a concession by archipelagic States,
in exchange for their right to claim all the waters landward of their baselines, regardless of their depth or distance from
the coast, as archipelagic waters subject to their territorial sovereignty. More importantly, the recognition of
archipelagic States archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment
of their islands as separate islands under UNCLOS III.46 Separate islands generate their own maritime zones, placing the
waters between islands separated by more than 24 nautical miles beyond the States territorial sovereignty, subjecting
these waters to the rights of other States under UNCLOS III.47
Describe the International Seabed Authority established by UNCLOS – its functions, character, and composition.

Part IX Sec 4 UN Charter

SECTION 4. THE AUTHORITY

SUBSECTION A. GENERAL PROVISIONS

Article156

Establishment of the Authority

1. There is hereby established the International Seabed Authority, which shall function in accordance with this Part.

2. All States Parties are ipso facto members of the Authority.

3. Observers at the Third United Nations Conference on the Law of the Sea who have signed the Final Act and who are
not referred to in article 305, paragraph 1(c), (d), (e) or (f), shall have the right to participate in the Authority as
observers, in accordance with its rules, regulations and procedures.

4. The seat of the Authority shall be in Jamaica.

5. The Authority may establish such regional centres or offices as it deems necessary for the exercise of its functions.

Article157

Nature and fundamental principles of the Authority

1. The Authority is the organization through which States Parties shall, in accordance with this Part, organize and control
activities in the Area, particularly with a view to administering the resources of the Area.

2. The powers and functions of the Authority shall be those expressly conferred upon it by this Convention. The
Authority shall have such incidental powers, consistent with this Convention, as are implicit in and necessary for the
exercise of those powers and functions with respect to activities in the Area.

3. The Authority is based on the principle of the sovereign equality of all its members.

4. All members of the Authority shall fulfil in good faith the obligations assumed by them in accordance with this Part in
order to ensure to all of them the rights and benefits resulting from membership.

Article158

Organs of the Authority

1. There are hereby established, as the principal organs of the Authority, an Assembly, a Council and a Secretariat.

2. There is hereby established the Enterprise, the organ through which the Authority shall carry out the functions
referred to in article 170, paragraph 1.
3. Such subsidiary organs as may be found necessary may be established in accordance with this Part.

4. Each principal organ of the Authority and the Enterprise shall be responsible for exercising those powers and
functions which are conferred upon it. In exercising such powers and functions each organ shall avoid taking any action
which may derogate from or impede the exercise of specific powers and functions conferred upon another organ.

SUBSECTION B. THE ASSEMBLY

Article159

Composition, procedure and voting

1. The Assembly shall consist of all the members of the Authority. Each member shall have one representative in the
Assembly, who may be accompanied by alternates and advisers.

2. The Assembly shall meet in regular annual sessions and in such special sessions as may be decided by the Assembly, or
convened by the Secretary-General at the request of the Council or of a majority of the members of the Authority.

3. Sessions shall take place at the seat of the Authority unless otherwise decided by the Assembly.

4. The Assembly shall adopt its rules of procedure. At the beginning of each regular session, it shall elect its President
and such other officers as may be required. They shall hold office until a new President and other officers are elected at
the next regular session.

5. A majority of the members of the Assembly shall constitute a quorum.

6. Each member of the Assembly shall have one vote.

7. Decisions on questions of procedure, including decisions to convene special sessions of the Assembly, shall be taken
by a majority of the members present and voting.

8. Decisions on questions of substance shall be taken by a two-thirds majority of the members present and voting,
provided that such majority includes a majority of the members participating in the session. When the issue arises as to
whether a question is one of substance or not, that question shall be treated as one of substance unless otherwise
decided by the Assembly by the majority required for decisions on questions of substance.

9. When a question of substance comes up for voting for the first time, the President may, and shall, if requested by at
least one fifth of the members of the Assembly, defer the issue of taking a vote on that question for a period not
exceeding five calendar days. This rule may be applied only once to any question, and shall not be applied so as to defer
the question beyond the end of the session.

10. Upon a written request addressed to the President and sponsored by at least one fourth of the members of the
Authority for an advisory opinion on the conformity with this Convention of a proposal before the Assembly on any
matter, the Assembly shall request the Seabed Disputes Chamber of the International Tribunal for the Law of the Sea to
give an advisory opinion thereon and shall defer voting on that proposal pending receipt of the advisory opinion by the
Chamber. If the advisory opinion is not received before the final week of the session in which it is requested, the
Assembly shall decide when it will meet to vote upon the deferred proposal.
Article160

Powers and functions

1. The Assembly, as the sole organ of the Authority consisting of all the members, shall be considered the supreme
organ of the Authority to which the other principal organs shall be accountable as specifically provided for in this
Convention. The Assembly shall have the power to establish general policies in conformity with the relevant provisions
of this Convention on any question or matter within the competence of the Authority.

2. In addition, the powers and functions of the Assembly shall be:

(a) to elect the members of the Council in accordance with article 161;

(b) to elect the Secretary-General from among the candidates proposed by the Council;

(c) to elect, upon the recommendation of the Council, the members of the Governing Board of the Enterprise and the
Director-General of the Enterprise;

(d) to establish such subsidiary organs as it finds necessary for the exercise of its functions in accordance with this Part.
In the composition of these subsidiary organs due account shall be taken of the principle of equitable geographical
distribution and of special interests and the need for members qualified and competent in the relevant technical
questions dealt with by such organs;

(e) to assess the contributions of members to the administrative budget of the Authority in accordance with an agreed
scale of assessment based upon the scale used for the regular budget of the United Nations until the Authority shall
have sufficient income from other sources to meet its administrative expenses;

(f) (i) to consider and approve, upon the recommendation of the Council, the rules, regulations and procedures on the
equitable sharing of financial and other economic benefits derived from activities in the Area and the payments and
contributions made pursuant to article 82, taking into particular consideration the interests and needs of developing
States and peoples who have not attained full independence or other self-governing status. If the Assembly does not
approve the recommendations of the Council, the Assembly shall return them to the Council for reconsideration in the
light of the views expressed by the Assembly;

(ii) to consider and approve the rules, regulations and procedures of the Authority, and any amendments thereto,
provisionally adopted by the Council pursuant to article 162, paragraph 2 (o)(ii). These rules, regulations and procedures
shall relate to prospecting, exploration and exploitation in the Area, the financial management and internal
administration of the Authority, and, upon the recommendation of the Governing Board of the Enterprise, to the
transfer of funds from the Enterprise to the Authority;

(g) to decide upon the equitable sharing of financial and other economic benefits derived from activities in the Area,
consistent with this Convention and the rules, regulations and procedures of the Authority;

(h) to consider and approve the proposed annual budget of the Authority submitted by the Council;

(i) to examine periodic reports from the Council and from the Enterprise and special reports requested from the Council
or any other organ of the Authority;

(j) to initiate studies and make recommendations for the purpose of promoting international cooperation concerning
activities in the Area and encouraging the progressive development of international law relating thereto and its
codification;
(k) to consider problems of a general nature in connection with activities in the Area arising in particular for developing
States, as well as those problems for States in connection with activities in the Area that are due to their geographical
location, particularly for land-locked and geographically disadvantaged States;

(l) to establish, upon the recommendation of the Council, on the basis of advice from the Economic Planning
Commission, a system of compensation or other measures of economic adjustment assistance as provided in article 151,
paragraph 10;

(m) to suspend the exercise of rights and privileges of membership pursuant to article 185;

(n) to discuss any question or matter within the competence of the Authority and to decide as to which organ of the
Authority shall deal with any such question or matter not specifically entrusted to a particular organ, consistent with the
distribution of powers and functions among the organs of the Authority.

SUBSECTION C. THE COUNCIL

Article161

Composition, procedure and voting

1. The Council shall consist of 36 members of the Authority elected by the Assembly in the following order:

(a) four members from among those States Parties which, during the last five years for which statistics are available,
have either consumed more than 2 per cent of total world consumption or have had net imports of more than 2 per cent
of total world imports of the commodities produced from the categories of minerals to be derived from the Area, and in
any case one State from the Eastern European (Socialist) region, as well as the largest consumer;

(b) four members from among the eight States Parties which have the largest investments in preparation for and in the
conduct of activities in the Area, either directly or through their nationals, including at least one State from the Eastern
European (Socialist) region;

(c) four members from among States Parties which on the basis of production in areas under their jurisdiction are major
net exporters of the categories of minerals to be derived from the Area, including at least two developing States whose
exports of such minerals have a substantial bearing upon their economies;

(d) six members from among developing States Parties, representing special interests. The special interests to be
represented shall include those of States with large populations, States which are land-locked or geographically
disadvantaged, States which are major importers of the categories of minerals to be derived from the Area, States which
are potential producers of such minerals, and least developed States;

(e) eighteen members elected according to the principle of ensuring an equitable geographical distribution of seats in
the Council as a whole, provided that each geographical region shall have at least one member elected under this
subparagraph. For this purpose, the geographical regions shall be Africa, Asia, Eastern European (Socialist), Latin
America and Western European and Others.

2. In electing the members of the Council in accordance with paragraph 1, the Assembly shall ensure that:

(a) land-locked and geographically disadvantaged States are represented to a degree which is reasonably proportionate
to their representation in the Assembly;
(b) coastal States, especially developing States, which do not qualify under paragraph 1(a), (b), (c) or (d) are represented
to a degree which is reasonably proportionate to their representation in the Assembly;

(c) each group of States Parties to be represented on the Council is represented by those members, if any, which are
nominated by that group.

3. Elections shall take place at regular sessions of the Assembly. Each member of the Council shall be elected for four
years. At the first election, however, the term of one half of the members of each group referred to in paragraph l shall
be two years.

4. Members of the Council shall be eligible for re-election, but due regard should be paid to the desirability of rotation of
membership.

5. The Council shall function at the seat of the Authority, and shall meet as often as the business of the Authority may
require, but not less than three times a year.

6. A majority of the members of the Council shall constitute a quorum.

7. Each member of the Council shall have one vote.

8. (a) Decisions on questions of procedure shall be taken by a majority of the members present and voting.

(b) Decisions on questions of substance arising under the following provisions shall be taken by a two-thirds majority of
the members present and voting, provided that such majority includes a majority of the members of the Council:
article 162, paragraph 2, subparagraphs (f); (g); (h); (i); (n); (p); (v); article 191.

(c) Decisions on questions of substance arising under the following provisions shall be taken by a three-fourths majority
of the members present and voting, provided that such majority includes a majority of the members of the Council:
article 162, paragraph 1; article 162, paragraph 2, subparagraphs (a); (b); (c); (d); (e); (l); (q); (r); (s); (t); (u) in cases of
non-compliance by a contractor or a sponsor; (w) provided that orders issued thereunder may be binding for not more
than 30 days unless confirmed by a decision taken in accordance with subparagraph (d); article 162, paragraph 2,
subparagraphs (x); (y); (z); article 163, paragraph 2; article 174, paragraph 3; Annex IV, article 11.

(d) Decisions on questions of substance arising under the following provisions shall be taken by consensus: article 162,
paragraph 2(m) and (o); adoption of amendments to Part XI.

(e) For the purposes of subparagraphs (d), (f) and (g), "consensus" means the absence of any formal objection. Within
14 days of the submission of a proposal to the Council, the President of the Council shall determine whether there
would be a formal objection to the adoption of the proposal. If the President determines that there would be such an
objection, the President shall establish and convene, within three days following such determination, a conciliation
committee consisting of not more than nine members of the Council, with the President as chairman, for the purpose of
reconciling the differences and producing a proposal which can be adopted by consensus. The committee shall work
expeditiously and report to the Council within 14 days following its establishment. If the committee is unable to
recommend a proposal which can be adopted by consensus, it shall set out in its report the grounds on which the
proposal is being opposed.

(f) Decisions on questions not listed above which the Council is authorized to take by the rules, regulations and
procedures of the Authority or otherwise shall be taken pursuant to the subparagraphs of this paragraph specified in the
rules, regulations and procedures or, if not specified therein, then pursuant to the subparagraph determined by the
Council if possible in advance, by consensus.
(g) When the issue arises as to whether a question is within subparagraph (a), (b), (c) or (d), the question shall be treated
as being within the subparagraph requiring the higher or highest majority or consensus as the case may be, unless
otherwise decided by the Council by the said majority or by consensus.

9. The Council shall establish a procedure whereby a member of the Authority not represented on the Council may send
a representative to attend a meeting of the Council when a request is made by such member, or a matter particularly
affecting it is under consideration. Such a representative shall be entitled to participate in the deliberations but not to
vote.

Article162

Powers and functions

1. The Council is the executive organ of the Authority. The Council shall have the power to establish, in conformity with
this Convention and the general policies established by the Assembly, the specific policies to be pursued by the
Authority on any question or matter within the competence of the Authority.

2. In addition, the Council shall:

(a) supervise and coordinate the implementation of the provisions of this Part on all questions and matters within the
competence of the Authority and invite the attention of the Assembly to cases of non-compliance;

(b) propose to the Assembly a list of candidates for the election of the Secretary-General;

(c) recommend to the Assembly candidates for the election of the members of the Governing Board of the Enterprise
and the Director-General of the Enterprise;

(d) establish, as appropriate, and with due regard to economy and efficiency, such subsidiary organs as it finds necessary
for the exercise of its functions in accordance with this Part. In the composition of subsidiary organs, emphasis shall be
placed on the need for members qualified and competent in relevant technical matters dealt with by those organs
provided that due account shall be taken of the principle of equitable geographical distribution and of special interests;

(e) adopt its rules of procedure including the method of selecting its president;

(f) enter into agreements with the United Nations or other international organizations on behalf of the Authority and
within its competence, subject to approval by the Assembly;

(g) consider the reports of the Enterprise and transmit them to the Assembly with its recommendations;

(h) present to the Assembly annual reports and such special reports as the Assembly may request;

(i) issue directives to the Enterprise in accordance with article 170;

(j) approve plans of work in accordance with Annex III, article 6. The Council shall act upon each plan of work within
60 days of its submission by the Legal and Technical Commission at a session of the Council in accordance with the
following procedures:

(i) if the Commission recommends the approval of a plan of work, it shall be deemed to have been approved by the
Council if no member of the Council submits in writing to the President within 14 days a specific objection alleging non-
compliance with the requirements of Annex III, article 6. If there is an objection, the conciliation procedure set forth in
article 161, paragraph 8(e), shall apply. If, at the end of the conciliation procedure, the objection is still maintained, the
plan of work shall be deemed to have been approved by the Council unless the Council disapproves it by consensus
among its members excluding any State or States making the application or sponsoring the applicant;

(ii) if the Commission recommends the disapproval of a plan of work or does not make a recommendation, the Council
may approve the plan of work by a three-fourths majority of the members present and voting, provided that such
majority includes a majority of the members participating in the session;

(k) approve plans of work submitted by the Enterprise in accordance with Annex IV, article 12, applying, mutatis
mutandis, the procedures set forth in subparagraph (j);

(l) exercise control over activities in the Area in accordance with article 153, paragraph 4, and the rules, regulations and
procedures of the Authority;

(m) take, upon the recommendation of the Economic Planning Commission, necessary and appropriate measures in
accordance with article 150, subparagraph (h), to provide protection from the adverse economic effects specified
therein;

(n) make recommendations to the Assembly, on the basis of advice from the Economic Planning Commission, for a
system of compensation or other measures of economic adjustment assistance as provided in article 151, paragraph 10;

(o) (i) recommend to the Assembly rules, regulations and procedures on the equitable sharing of financial and other
economic benefits derived from activities in the Area and the payments and contributions made pursuant to article 82,
taking into particular consideration the interests and needs of the developing States and peoples who have not attained
full independence or other self-governing status;

(ii) adopt and apply provisionally, pending approval by the Assembly, the rules, regulations and procedures of the
Authority, and any amendments thereto, taking into account the recommendations of the Legal and Technical
Commission or other subordinate organ concerned. These rules, regulations and procedures shall relate to prospecting,
exploration and exploitation in the Area and the financial management and internal administration of the Authority.
Priority shall be given to the adoption of rules, regulations and procedures for the exploration for and exploitation of
polymetallic nodules. Rules, regulations and procedures for the exploration for and exploitation of any resource other
than polymetallic nodules shall be adopted within three years from the date of a request to the Authority by any of its
members to adopt such rules, regulations and procedures in respect of such resource. All rules, regulations and
procedures shall remain in effect on a provisional basis until approved by the Assembly or until amended by the Council
in the light of any views expressed by the Assembly;

(p) review the collection of all payments to be made by or to the Authority in connection with operations pursuant to
this Part;

(q) make the selection from among applicants for production authorizations pursuant to Annex III, article 7, where such
selection is required by that provision;

(r) submit the proposed annual budget of the Authority to the Assembly for its approval;

(s) make recommendations to the Assembly concerning policies on any question or matter within the competence of the
Authority;

(t) make recommendations to the Assembly concerning suspension of the exercise of the rights and privileges of
membership pursuant to article 185;
(u) institute proceedings on behalf of the Authority before the Seabed Disputes Chamber in cases of non-compliance;

(v) notify the Assembly upon a decision by the Seabed Disputes Chamber in proceedings instituted under
subparagraph (u), and make any recommendations which it may find appropriate with respect to measures to be taken;

(w) issue emergency orders, which may include orders for the suspension or adjustment of operations, to prevent
serious harm to the marine environment arising out of activities in the Area;

(x) disapprove areas for exploitation by contractors or the Enterprise in cases where substantial evidence indicates the
risk of serious harm to the marine environment;

(y) establish a subsidiary organ for the elaboration of draft financial rules, regulations and procedures relating to:

(i) financial management in accordance with articles 171 to 175; and

(ii) financial arrangements in accordance with Annex III, article 13 and article 17, paragraph 1(c);

(z) establish appropriate mechanisms for directing and supervising a staff of inspectors who shall inspect activities in the
Area to determine whether this Part, the rules, regulations and procedures of the Authority, and the terms and
conditions of any contract with the Authority are being complied with.

Article163

Organs of the Council

1. There are hereby established the following organs of the Council:

(a) an Economic Planning Commission;

(b) a Legal and Technical Commission.

2. Each Commission shall be composed of 15 members, elected by the Council from among the candidates nominated by
the States Parties. However, if necessary, the Council may decide to increase the size of either Commission having due
regard to economy and efficiency.

3. Members of a Commission shall have appropriate qualifications in the area of competence of that Commission. States
Parties shall nominate candidates of the highest standards of competence and integrity with qualifications in relevant
fields so as to ensure the effective exercise of the functions of the Commissions.

4. In the election of members of the Commissions, due account shall be taken of the need for equitable geographical
distribution and the representation of special interests.

5. No State Party may nominate more than one candidate for the same Commission. No person shall be elected to serve
on more than one Commission.

6. Members of the Commissions shall hold office for a term of five years. They shall be eligible for re-election for a
further term.

7. In the event of the death, incapacity or resignation of a member of a Commission prior to the expiration of the term
of office, the Council shall elect for the remainder of the term, a member from the same geographical region or area of
interest.
8. Members of Commissions shall have no financial interest in any activity relating to exploration and exploitation in the
Area. Subject to their responsibilities to the Commissions upon which they serve, they shall not disclose, even after the
termination of their functions, any industrial secret, proprietary data which are transferred to the Authority in
accordance with Annex III, article l4, or any other confidential information coming to their knowledge by reason of their
duties for the Authority.

9. Each Commission shall exercise its functions in accordance with such guidelines and directives as the Council may
adopt.

10. Each Commission shall formulate and submit to the Council for approval such rules and regulations as may be
necessary for the efficient conduct of the Commission's functions.

11. The decision-making procedures of the Commissions shall be established by the rules, regulations and procedures of
the Authority. Recommendations to the Council shall, where necessary, be accompanied by a summary on the
divergencies of opinion in the Commission.

12. Each Commission shall normally function at the seat of the Authority and shall meet as often as is required for the
efficient exercise of its functions.

13. In the exercise of its functions, each Commission may, where appropriate, consult another commission, any
competent organ of the United Nations or of its specialized agencies or any international organizations with competence
in the subject-matter of such consultation.

Article164

The Economic Planning Commission

1. Members of the Economic Planning Commission shall have appropriate qualifications such as those relevant to
mining, management of mineral resource activities, international trade or international economics. The Council shall
endeavour to ensure that the membership of the Commission reflects all appropriate qualifications. The Commission
shall include at least two members from developing States whose exports of the categories of minerals to be derived
from the Area have a substantial bearing upon their economies.

2. The Commission shall:

(a) propose, upon the request of the Council, measures to implement decisions relating to activities in the Area taken in
accordance with this Convention;

(b) review the trends of and the factors affecting supply, demand and prices of minerals which may be derived from the
Area, bearing in mind the interests of both importing and exporting countries, and in particular of the developing States
among them;

(c) examine any situation likely to lead to the adverse effects referred to in article 150, subparagraph (h), brought to its
attention by the State Party or States Parties concerned, and make appropriate recommendations to the Council;

(d) propose to the Council for submission to the Assembly, as provided in article 151, paragraph 10, a system of
compensation or other measures of economic adjustment assistance for developing States which suffer adverse effects
caused by activities in the Area. The Commission shall make the recommendations to the Council that are necessary for
the application of the system or other measures adopted by the Assembly in specific cases.
Article165

The Legal and Technical Commission

1. Members of the Legal and Technical Commission shall have appropriate qualifications such as those relevant to
exploration for and exploitation and processing of mineral resources, oceanology, protection of the marine
environment, or economic or legal matters relating to ocean mining and related fields of expertise. The Council shall
endeavour to ensure that the membership of the Commission reflects all appropriate qualifications.

2. The Commission shall:

(a) make recommendations with regard to the exercise of the Authority's functions upon the request of the Council;

(b) review formal written plans of work for activities in the Area in accordance with article 153, paragraph 3, and submit
appropriate recommendations to the Council. The Commission shall base its recommendations solely on the grounds
stated in Annex III and shall report fully thereon to the Council;

(c) supervise, upon the request of the Council, activities in the Area, where appropriate, in consultation and
collaboration with any entity carrying out such activities or State or States concerned and report to the Council;

(d) prepare assessments of the environmental implications of activities in the Area;

(e) make recommendations to the Council on the protection of the marine environment, taking into account the views
of recognized experts in that field;

(f) formulate and submit to the Council the rules, regulations and procedures referred to in article 162, paragraph 2(o),
taking into account all relevant factors including assessments of the environmental implications of activities in the Area;

(g) keep such rules, regulations and procedures under review and recommend to the Council from time to time such
amendments thereto as it may deem necessary or desirable;

(h) make recommendations to the Council regarding the establishment of a monitoring programme to observe,
measure, evaluate and analyse, by recognized scientific methods, on a regular basis, the risks or effects of pollution of
the marine environment resulting from activities in the Area, ensure that existing regulations are adequate and are
complied with and coordinate the implementation of the monitoring programme approved by the Council;

(i) recommend to the Council that proceedings be instituted on behalf of the Authority before the Seabed Disputes
Chamber, in accordance with this Part and the relevant Annexes taking into account particularly article 187;

(j) make recommendations to the Council with respect to measures to be taken, upon a decision by the Seabed Disputes
Chamber in proceedings instituted in accordance with subparagraph (i);

(k) make recommendations to the Council to issue emergency orders, which may include orders for the suspension or
adjustment of operations, to prevent serious harm to the marine environment arising out of activities in the Area. Such
recommendations shall be taken up by the Council on a priority basis;

(l) make recommendations to the Council to disapprove areas for exploitation by contractors or the Enterprise in cases
where substantial evidence indicates the risk of serious harm to the marine environment;
(m) make recommendations to the Council regarding the direction and supervision of a staff of inspectors who shall
inspect activities in the Area to determine whether the provisions of this Part, the rules, regulations and procedures of
the Authority, and the terms and conditions of any contract with the Authority are being complied with;

(n) calculate the production ceiling and issue production authorizations on behalf of the Authority pursuant to
article 151, paragraphs 2 to 7, following any necessary selection among applicants for production authorizations by the
Council in accordance with Annex III, article 7.

3. The members of the Commission shall, upon request by any State Party or other party concerned, be accompanied by
a representative of such State or other party concerned when carrying out their function of supervision and inspection.

SUBSECTION D. THE SECRETARIAT

Article166

The Secretariat

1. The Secretariat of the Authority shall comprise a Secretary-General and such staff as the Authority may require.

2. The Secretary-General shall be elected for four years by the Assembly from among the candidates proposed by the
Council and may be re-elected.

3. The Secretary-General shall be the chief administrative officer of the Authority, and shall act in that capacity in all
meetings of the Assembly, of the Council and of any subsidiary organ, and shall perform such other administrative
functions as are entrusted to the Secretary-General by these organs.

4. The Secretary-General shall make an annual report to the Assembly on the work of the Authority.

Article167

The staff of the Authority

1. The staff of the Authority shall consist of such qualified scientific and technical and other personnel as may be
required to fulfil the administrative functions of the Authority.

2. The paramount consideration in the recruitment and employment of the staff and in the determination of their
conditions of service shall be the necessity of securing the highest standards of efficiency, competence and integrity.
Subject to this consideration, due regard shall be paid to the importance of recruiting the staff on as wide a geographical
basis as possible.

3. The staff shall be appointed by the Secretary-General. The terms and conditions on which they shall be appointed,
remunerated and dismissed shall be in accordance with the rules, regulations and procedures of the Authority.

Article168

International character of the Secretariat


1. In the performance of their duties the Secretary-General and the staff shall not seek or receive instructions from any
government or from any other source external to the Authority. They shall refrain from any action which might reflect
on their position as international officials responsible only to the Authority. Each State Party undertakes to respect the
exclusively international character of the responsibilities of the Secretary-General and the staff and not to seek to
influence them in the discharge of their responsibilities. Any violation of responsibilities by a staff member shall be
submitted to the appropriate administrative tribunal as provided in the rules, regulations and procedures of the
Authority.

2. The Secretary-General and the staff shall have no financial interest in any activity relating to exploration and
exploitation in the Area. Subject to their responsibilities to the Authority, they shall not disclose, even after the
termination of their functions, any industrial secret, proprietary data which are transferred to the Authority in
accordance with Annex III, article 14, or any other confidential information coming to their knowledge by reason of their
employment with the Authority.

3. Violations of the obligations of a staff member of the Authority set forth in paragraph 2 shall, on the request of a State
Party affected by such violation, or a natural or juridical person, sponsored by a State Party as provided in article 153,
paragraph 2(b), and affected by such violation, be submitted by the Authority against the staff member concerned to a
tribunal designated by the rules, regulations and procedures of the Authority. The Party affected shall have the right to
take part in the proceedings. If the tribunal so recommends, the Secretary-General shall dismiss the staff member
concerned.

4. The rules, regulations and procedures of the Authority shall contain such provisions as are necessary to implement
this article.

Article169

Consultation and cooperation with international

and non-governmental organizations

1. The Secretary-General shall, on matters within the competence of the Authority, make suitable arrangements, with
the approval of the Council, for consultation and cooperation with international and non-governmental organizations
recognized by the Economic and Social Council of the United Nations.

2. Any organization with which the Secretary-General has entered into an arrangement under paragraph 1 may
designate representatives to attend meetings of the organs of the Authority as observers in accordance with the rules of
procedure of these organs. Procedures shall be established for obtaining the views of such organizations in appropriate
cases.

3. The Secretary-General may distribute to States Parties written reports submitted by the non-governmental
organizations referred to in paragraph l on subjects in which they have special competence and which are related to the
work of the Authority.

SUBSECTION E. THE ENTERPRISE

Article170
The Enterprise

1. The Enterprise shall be the organ of the Authority which shall carry out activities in the Area directly, pursuant to
article 153, paragraph 2(a), as well as the transporting, processing and marketing of minerals recovered from the Area.

2. The Enterprise shall, within the framework of the international legal personality of the Authority, have such legal
capacity as is provided for in the Statute set forth in Annex IV. The Enterprise shall act in accordance with this
Convention and the rules, regulations and procedures of the Authority, as well as the general policies established by the
Assembly, and shall be subject to the directives and control of the Council.

3. The Enterprise shall have its principal place of business at the seat of the Authority.

4. The Enterprise shall, in accordance with article 173, paragraph 2, and Annex IV, article 11, be provided with such
funds as it may require to carry out its functions, and shall receive technology as provided in article 144 and other
relevant provisions of this Convention.

SUBSECTION F. FINANCIAL ARRANGEMENTS OF THE AUTHORITY

Article171

Funds of the Authority

The funds of the Authority shall include:

(a) assessed contributions made by members of the Authority in accordance with article 160, paragraph 2(e);

(b) funds received by the Authority pursuant to Annex III, article 13, in connection with activities in the Area;

(c) funds transferred from the Enterprise in accordance with Annex IV, article 10;

(d) funds borrowed pursuant to article 174;

(e) voluntary contributions made by members or other entities; and

(f) payments to a compensation fund, in accordance with article 151, paragraph 10, whose sources are to be
recommended by the Economic Planning Commission.

Article172

Annual budget of the Authority

The Secretary-General shall draft the proposed annual budget of the Authority and submit it to the Council. The Council
shall consider the proposed annual budget and submit it to the Assembly, together with any recommendations thereon.
The Assembly shall consider and approve the proposed annual budget in accordance with article 160, paragraph 2(h).

Article173

Expenses of the Authority


1. The contributions referred to in article 171, subparagraph (a), shall be paid into a special account to meet the
administrative expenses of the Authority until the Authority has sufficient funds from other sources to meet those
expenses.

2. The administrative expenses of the Authority shall be a first call upon the funds of the Authority. Except for the
assessed contributions referred to in article 171, subparagraph (a), the funds which remain after payment of
administrative expenses may, inter alia:

(a) be shared in accordance with article 140 and article 160, paragraph 2(g);

(b) be used to provide the Enterprise with funds in accordance with article 170, paragraph 4;

(c) be used to compensate developing States in accordance with article 151, paragraph 10, and article 160,
paragraph 2(l).

Article174

Borrowing power of the Authority

1. The Authority shall have the power to borrow funds.

2. The Assembly shall prescribe the limits on the borrowing power of the Authority in the financial regulations adopted
pursuant to article 160, paragraph 2(f).

3. The Council shall exercise the borrowing power of the Authority.

4. States Parties shall not be liable for the debts of the Authority.

Article175

Annual audit

The records, books and accounts of the Authority, including its annual financial statements, shall be audited annually by
an independent auditor appointed by the Assembly.

SUBSECTION G. LEGAL STATUS, PRIVILEGES AND IMMUNITIES

Article176

Legal status

The Authority shall have international legal personality and such legal capacity as may be necessary for the exercise of
its functions and the fulfilment of its purposes.

Article177
Privileges and immunities

To enable the Authority to exercise its functions, it shall enjoy in the territory of each State Party the privileges and
immunities set forth in this subsection. The privileges and immunities relating to the Enterprise shall be those set forth
in Annex IV, article 13.

Article178

Immunity from legal process

The Authority, its property and assets, shall enjoy immunity from legal process except to the extent that the Authority
expressly waives this immunity in a particular case.

Article179

Immunity from search and any form of seizure

The property and assets of the Authority, wherever located and by whomsoever held, shall be immune from search,
requisition, confiscation, expropriation or any other form of seizure by executive or legislative action.

Article180

Exemption from restrictions, regulations, controls and moratoria

The property and assets of the Authority shall be exempt from restrictions, regulations, controls and moratoria of any
nature.

Article181

Archives and official communications of the Authority

1. The archives of the Authority, wherever located, shall be inviolable.

2. Proprietary data, industrial secrets or similar information and personnel records shall not be placed in archives which
are open to public inspection.

3. With regard to its official communications, the Authority shall be accorded by each State Party treatment no less
favourable than that accorded by that State to other international organizations.

Article182

Privileges and immunities of certain persons connected with the Authority


Representatives of States Parties attending meetings of the Assembly, the Council or organs of the Assembly or the
Council, and the Secretary-General and staff of the Authority, shall enjoy in the territory of each State Party:

(a) immunity from legal process with respect to acts performed by them in the exercise of their functions, except to the
extent that the State which they represent or the Authority, as appropriate, expressly waives this immunity in a
particular case;

(b) if they are not nationals of that State Party, the same exemptions from immigration restrictions, alien registration
requirements and national service obligations, the same facilities as regards exchange restrictions and the same
treatment in respect of travelling facilities as are accorded by that State to the representatives, officials and employees
of comparable rank of other States Parties.

Article183

Exemption from taxes and customs duties

1. Within the scope of its official activities, the Authority, its assets and property, its income, and its operations and
transactions, authorized by this Convention, shall be exempt from all direct taxation and goods imported or exported for
its official use shall be exempt from all customs duties. The Authority shall not claim exemption from taxes which are no
more than charges for services rendered.

2. When purchases of goods or services of substantial value necessary for the official activities of the Authority are made
by or on behalf of the Authority, and when the price of such goods or services includes taxes or duties, appropriate
measures shall, to the extent practicable, be taken by States Parties to grant exemption from such taxes or duties or
provide for their reimbursement. Goods imported or purchased under an exemption provided for in this article shall not
be sold or otherwise disposed of in the territory of the State Party which granted the exemption, except under
conditions agreed with that State Party.

3. No tax shall be levied by States Parties on or in respect of salaries and emoluments paid or any other form of payment
made by the Authority to the Secretary-General and staff of the Authority, as well as experts performing missions for the
Authority, who are not their nationals.

SUBSECTION H. SUSPENSION OF THE EXERCISE OF RIGHTS

AND PRIVILEGES OF MEMBERS

Article184

Suspension of the exercise of voting rights

A State Party which is in arrears in the payment of its financial contributions to the Authority shall have no vote if the
amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The
Assembly may, nevertheless, permit such a member to vote if it is satisfied that the failure to pay is due to conditions
beyond the control of the member.

Article185
Suspension of exercise of rights and privileges of membership

1. A State Party which has grossly and persistently violated the provisions of this Part may be suspended from the
exercise of the rights and privileges of membership by the Assembly upon the recommendation of the Council.

2. No action may be taken under paragraph 1 until the Seabed Disputes Chamber has found that a State Party has
grossly and persistently violated the provisions of this Part.

SEE PDF

Summarize the arbitral decision on the South China dispute between the Philippines and China.

SEE PDF

Distinguish the concepts of internal waters, territorial sea, exclusive economic zone, continental shelf, and high seas
from each other.

STRAIGHT LINE BASELINE METHOD.

To determine the extent of archipelagic waters, the archipelagic state shall draw straight baselines connecting the
outermost points of the outermost islands and drying reefs, provided that ratio of the area of the water to the area of
the land, including atolls, is between 1:1 and 9:1. The length of such baselines shall not exceed 100 nautical miles,
except that up to 3% of the total number of baseline enclosing any archipelago may exceed that length up to a
maximum of 125 miles. The baselines drawn should not depart, to any appreciable extent, from the general
configuration of the archipelago. All the waters within the baselines shall then be considers as internal waters. The
breadth of the 12 mile territorial sea, the contiguous zone, the exclusive economic zone and the continental shelf shall
then be measured from the archipelagic baselines

Internal waters - the waters around, between and connecting the islands of the archipelago, regardless of their
breadth and dimensions.

Territorial sea - belt of the sea located between the coast and internal waters of the coastal state on the one hand, and
the high seas on the other, extending up to 12 nautical miles from the low water mark

Contiguous zone - Extends up to 12 nautical miles from the territorial sea. Although not part of the territory, the coastal
State may exercise jurisdiction to prevent infringement of customs, fiscal, immigration or sanitary laws.

Exclusive economic zone - Body of water extending up to 200 nautical miles, within which the state may exercise
sovereign rights to explore, exploit, conserve and manage the natural resources.

Continental shelf – the seabed and subsoil of the submarine areas extending beyond the Philippine territorial sea.

High seas – res communes; not territory of any particular State. They are beyond the jurisdiction and sovereign rights of
the State

Describe diplomatic immunity – the rights of diplomats, who can invoke it, its consequences - and why it must always
be respected.

There are actually two international conventions—the Vienna Convention on Diplomatic Relations (1961) and the
Vienna Convention on Consular Relations (1963)—and a third set of immunities involved. The first convention governs
the status of diplomats (ambassadors, envoys, ministers, diplomatic secretaries and attachés), while the second covers
consular officers (consuls general, consuls, vice consuls and consular agents).

And there are two types of immunities involved: absolute or complete immunity (a diplomat is immune from all legal
proceedings in his or her country of assignment) and limited immunity (a person is immune only with respect to those
actions performed in connection with his or her consular—read: official—duties). To simplify, if one lends money to a
diplomat and the latter refuses to pay, the lender cannot sue the diplomat in a local court. (The lender can bring action
in the diplomat’s home country.) By way of contrast, a consular officer under the same circumstances can be sued in a
local court because contracting the loan is not part of his or her official duties.

There is a third set of immunities which was linked to the current dispute in Tarra Quismundo’s article, “When does
diplomatic immunity end?” (News, 10/23/15). The article discussed a case involving an Asian Development Bank (ADB)
economist. The immunity in this instance is not covered by the two Vienna conventions cited earlier in this article.
Rather, the immunity in the ADB case is governed by a specific “headquarters agreement” between the Philippines and
the ADB.

One must note that the immunities and privileges of all personnel working in UN agencies and UN-affiliated
organizations are governed by the so-called “headquarters agreements” between the host government and the UN
agency. Thus, as an example, the United Nations Organization (New York, United States), United Nations Education,
Scientific, and Cultural Organization (Paris, France), World Trade Organization (Geneva, Switzerland ), UN Economic and
Social Commission for Asia and the Pacific (Bangkok, Thailand ) etc., just like the ADB, all have headquarters agreements
with the host countries. The immunities and privileges of the staff of the UN bodies cited are defined in these
agreements, not in the Vienna conventions.

One can state as a general rule, that only the highest-ranking officials of each international organization are conferred
absolute immunity in these agreements. The lower-ranking personnel of these organizations are conferred only limited
immunity—that is, if the dispute arose “in the performance of their official duties.” These international agencies are
huge bureaucracies, hence complete immunity to all their personnel is out of the question.

The ADB case cited by Quismundo involves an “economist.” He is way down in the ADB organization and must have
enjoyed only limited immunity, hence the Supreme Court decision. The Erick Shcks case is governed by the Vienna
Convention on Diplomatic Relations. Shcks was accredited as a diplomat to the Philippines by Panama.

Liang vs People

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It is a recognized principle of international law and under our system of separation of powers that diplomatic immunity
is essentially a political question and courts should refuse to look beyond a determination by the executive branch of the
government, and where the plea of diplomatic immunity is recognized and affirmed by the executive branch of the
government as in the case at bar, it is then the duty of the courts to accept the claim of immunity upon appropriate
suggestion by the principal law officer of the government, the Solicitor General in this case, or other officer acting under
his direction. Hence, in adherence to the settled principle that courts may not so exercise their jurisdiction by seizure
and detention of property, as to embarrass the executive arm of the government in conducting foreign relations, it is
accepted doctrine that in such cases the judicial department of the government follows the action of the political branch
and will not embarrass the latter by assuming an antagonistic jurisdiction.

What is the International Court of Justice? When does it take jurisdiction of a case?

The International Court of Justice (ICJ) is the principal judicial organ of the United Nations (UN). It was established in
June 1945 by the Charter of the United Nations and began work in April 1946.

The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United
Nations, it is the only one not located in New York (United States of America).

The Court’s role is to settle, in accordance with international law, legal disputes submitted to it by States and to give
advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies.

The Court is composed of 15 judges, who are elected for terms of office of nine years by the United Nations General
Assembly and the Security Council. It is assisted by a Registry, its administrative organ. Its official languages are English
and French.

Jurisdiction

The International Court of Justice acts as a world court. The Court has a dual jurisdiction : it decides, in accordance with
international law, disputes of a legal nature that are submitted to it by States (jurisdiction in contentious cases); and it
gives advisory opinions on legal questions at the request of the organs of the United Nations or specialized agencies
authorized to make such a request (advisory jurisdiction).

Types of Jurisdiction

The International Court of Justice possesses two types of jurisdiction:

(i) Contentious jurisdiction

Contentious jurisdiction involves States that submit the dispute by consent to the Court for a binding decision.

(ii) Advisory jurisdiction

Advisory jurisdiction, on the other hand, concerns questions referred to the Court by the General Assembly, the Security
Council or other organs and specialized agencies of the United Nations. Those questions can only refer to legal questions
arising within the scope of their activities. Advisory opinions given by the International Court of Justice are not binding4

See PDF for procedure

What is the International Criminal Court? Describe its jurisdiction, mandate, and powers? Can President Duterte be
charged in the ICC?

See PDF

Summarize the various United Nations human rights declarations, treaties and agreements that together might be
called an International Bill of Rights.

See PDF

Treaties that formed International Bill of Rights:

1. International Covenant on Civil and Political Rights


2. International Covenant on Economic, Social and Cultural Rights
3. Convention on the Elimination of All Forms of Discrimination against Women (International Bill of rights for women)
4. International Convention on the Elimination of All Forms of Racial Discrimination
5. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
6. Convention on the Rights of the Child
7. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
8. International Convention for the Protection of All Persons from Enforced Disappearance
9. Convention on the Rights of Persons with Disabilities

What are the Nuremberg Principles?

The Nuremberg Principles were a set of guidelines for determining what constitutes a war crime. The document was
created by necessity during the Nuremberg Trials of Nazi party members following World War II. Under UN General
Assembly Resolution 177 (II), paragraph (a), the International Law Commission was directed to “formulate the principles
of international law recognized in the Charter of the Nuremberg Tribunal.” The formulation by the Commission was set
forth in the Report of the International Law Commission to the General Assembly covering its second session, 5 June to
29 July 1950, and published in the Yearbook of the International Law Commission, 1950, Vol. II, pp. 374-378

Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the
Tribunal
Principle I

Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to
punishment.

Principle II

The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does
not relieve the person who committed the act from responsibility under international law.

Principle III

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State
or responsible Government official does not relieve him from responsibility under international law.

Principle IV

The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from

responsibility under international law, provided a moral choice was in fact possible to him.

Principle V

Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Principle VI

The crimes hereinafter set out are punishable as crimes under international law:

(a) Crimes against peace:

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of

international treaties, agreements or assurances;

(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts

mentioned under (i).

(b) War crimes:

Violations of the laws or customs of war which include, but are not limited to, murder, illtreatment or
deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or
illtreatment of prisoners of war, of 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:

Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or
persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in
execution of or in connection with any crime against peace or any war crime.

Principle VII
Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle
VI is a crime under international law

What is the role of Special Rapporteurs and Independent Experts in the implementation of human rights norms?

The Commission on Human Rights has established certain mechanisms to address thematic and country-specific human
rights issues. One of these special procedures is the appointment of special rapporteurs or independent experts, whose
mandate is to “examine, monitor, advise, and publicly report on human rights situations”, either in specific countries or
on thematic issues related to human rights violations worldwide. Special rapporteurs and independent experts, who
possess particular expertise in human rights, receive information about human rights violations, conduct country visits
on the invitation of states to investigate human rights conditions, and prepare reports to document and monitor the
status of human rights. As special rapporteurs and independent experts do not represent a particular state, they are an
independent impartial voice within the UN system to identify and publicize human rights violations.

In relation to economic, social and cultural rights, there are the following mandated special rapporteurs and
independent experts

 Special Rapporteur on the right to food


 Special Rapporteur on the right to education
 Independent expert on the effects of economic reform policies and foreign debt on the full enjoyment of human
rights, particularly economic, social and cultural rights
 Independent Expert on extreme poverty
 Special Rapporteur on the human rights of migrants
 Special Rapporteur on the situation of human rights and fundamental freedoms of indigenous peoples
 Special Rapporteur on adequate housing
 Special Rapporteur on the right to health
 Special Rapporteur on adverse effects of the illicit movement and dumping of toxic and dangerous products and
wastes on the enjoyment of human rights

Special Rapporteurs often conduct fact-finding missions to countries to investigate allegations of human rights
violations. They can only visit countries that have agreed to invite them.

Aside from fact-finding missions, Rapporteurs regularly assess and verify complaints from alleged victims of human
rights violations. Once a complaint is verified as legitimate, an urgent letter or appeal is sent to the government that has
allegedly committed the violation. If no complaint has been made, Rapporteurs may intervene on behalf of individuals
and groups of people of their own accord.

Thematic Special Rapporteurs are typically appointed to serve for three years, after which their mandate can be
extended for another three years. Country Special Rapporteurs are appointed to serve for one year, and their term is
renewed every year.
THE HUMAN RIGHTS COUNCIL’S SPECIAL PROCEDURES
The United Nations (UN) Human Rights Council serves several functions, one of which is to promote and monitor human
rights worldwide through the establishment of special procedures. Special procedures are individual independent
human rights experts, or groups of such experts, who report and advise on human rights issues. They are called by many
names, including Special Rapporteurs, Special Representatives, Working Groups, and Independent Experts.
Special procedures have either thematic or country-specific mandates. As of June 2015, the Human Rights Council
oversees 41 thematic mandates and 14 country-specific mandates. The combined work of the special rapporteurs is
broad enough to encompass civil, political, economic, social, and cultural rights.
Special procedures mandate holders serve in their personal capacities, meaning they are not UN staff, are not paid a
salary for their work, and do not represent their countries of citizenship. Each mandate holder may serve for a maximum
of six years. This independent status is intended to allow these experts to carry out their functions with impartiality.
In fulfilling their responsibilities, mandate holders enjoy the support of the Office of the High Commissioner for Human
Rights (OHCHR) and, in the case of mandate holders in academia, may also benefit from institutional support from their
universities.
The Human Rights Council assumed oversight of the special procedures created by its predecessor, the UN Commission
on Human Rights, upon its establishment in 2006. The Human Rights Council has since created or extended the
mandates of many country-specific and thematic special procedures.
Principal Functions
As described in greater detail at the links below, each special procedure’s responsibilities are defined in the Human
Rights Council resolution(s) that create or extend its mandate. Generally, in the process of carrying out their mandates,
special procedures may:
 undertake in-person country visits to assess human rights violations,
 communicate directly with States on alleged human rights violation by sending urgent appeals or letters of
allegation,
 make recommendations to States for preventing, ending, or remedying violations,
 convene expert consultations,
 conduct thematic studies,
 raise awareness of human rights issues,
 provide advice for adherence to human rights standards,
 receive information from individuals and civil society,
 engage in advocacy, and
 contribute to the overall development of human rights standards.
After the special procedures mandates holders assess a specific human rights situation, they may report their findings or
thematic studies to the Human Rights Council or the UN General Assembly and release public statements to the media.
As of July 2014, 165 States have been visited by at least one special procedure mandate holder, while 28 States have
never been visited. Over 100 countries have extended standing invitations to all thematic special procedures.
Annual Reports
Special procedures mandate holders report to the Human Rights Council annually. Most special procedures
also report to the UN General Assembly. The Human Rights Council reviews country-specific mandates annually and
thematic mandates every three years.
Nomination & Appointment
Appointment of special procedures mandate holders takes place before the Human Rights Council. Human Rights
Council Resolution 5/1 details the criteria for their selection and appointment. General eligibility criteria include the
nominee’s expertise, experience in the field of the mandate, independence, impartiality, personal integrity, and
objectivity. Specific criteria necessary to ensure all mandate holders are “highly qualified individuals” include the
nominee’s established competence, relevant expertise, and professional experience in the field of human rights. The
Human Rights Council also considers gender balance, geographic representation, and representation of different legal
systems when appointing mandate holders. Conflicts of interest, such as holding a position in government, will disqualify
an individual from consideration.
The OHCHR maintains a public list of eligible candidates for the position of special procedures mandate holder.
Governments, regional groups operating within the UN human rights system, international organizations or their offices,
such as the OHCHR, nongovernmental organizations, other human rights bodies, and individuals may nominate
candidates to be special procedures mandate holders. Resolution 16/21 adds national human rights institutions that
comply with the Paris Principles to the list of entities able to nominate candidates.
Next, the Human Rights Council appoints a Consultative Group to review all applications and propose a list of candidates
to the President of the Council. In doing so, the Consultative Group takes into account the views of stakeholders,
including the current or outgoing mandate holder, in deciding the particular requirements for each mandate.
Following the Consultative Group’s recommendations, the President of the Council appoints an appropriate candidate
for each vacant mandate, with approval by the Council’s Member States.
Additional Information
Click on the links below to learn about each special procedure. For additional general information, visit the
OHCHR’s website, which features the activities of the special procedures, a directory of mandate holders, a list of
countries that have received and are scheduled to receive visits from special procedures mandate holders,
and instructions for submitting information to mandate holders. Also see Fact Sheet No. 27 for a list of answers to
frequently asked questions about UN special procedures.

THEMATIC SPECIAL PROCEDURES

The following 41 Thematic Special Procedures have been established:

Working Groups

 Working Group on people of African descent


 Working Group on arbitrary detention
 Working Group on enforced or involuntary disappearances
 Working Group on the use of mercenaries as a means of impeding the exercise of the right of peoples to self-
determination
 Working Group on the issue of human rights and transnational corporations and other business enterprises
 Working Group on the issue of discrimination against women in law and in practice

Independent Experts

 Independent Expert on the enjoyment of human rights of persons with albinism


 Independent expert on the promotion of a democratic and equitable international order
 Independent Expert on the effects of foreign debt and other related international financial obligations of
States on the full enjoyment of human rights, particularly economic, social and cultural rights
 Independent Expert on human rights and international solidarity
 Independent Expert on the enjoyment of all human rights by older persons

Special Rapporteurs

 Special Rapporteur on adequate housing as a component of the right to an adequate standard of living, and on
the right to non-discrimination in this context
 Special Rapporteur on the sale of children, child prostitution and child pornography
 Special Rapporteur in the field of cultural rights
 Special Rapporteur on the rights of persons with disabilities
 Special Rapporteur on the right to education
 Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy
and sustainable environment
 Special Rapporteur on extrajudicial, summary or arbitrary executions
 Special Rapporteur on extreme poverty and human rights
 Special Rapporteur on the right to food
 Special Rapporteur on the rights to freedom of peaceful assembly and of association
 Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression
 Special Rapporteur on freedom of religion or belief
 Special Rapporteur on the implications for human rights of the environmentally sound management and
disposal of hazardous substances and wastes
 Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and
mental health
 Special Rapporteur on the situation of human rights defenders
 Special Rapporteur on the independence of judges and lawyers
 Special Rapporteur on the rights of indigenous peoples
 Special Rapporteur on the human rights of internally displaced persons
 Special Rapporteur on the human rights of migrants
 Special Rapporteur on minority issues
 Special Rapporteur on the right to privacy
 Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance
 Special Rapporteur on contemporary forms of slavery, including its causes and its consequences
 Special Rapporteur on the promotion and protection of human rights while countering terrorism
 Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
 Special Rapporteur on trafficking in persons, especially women and children
 Special Rapporteur on the promotion of truth, justice, reparation & guarantees of non-recurrence
 Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights
 Special Rapporteur on violence against women, its causes and consequences
 Special Rapporteur on the human right to safe drinking water and sanitation

COUNTRY-SPECIFIC SPECIAL PROCEDURES

Learn more about the country-focused special procedures, listed below, on the Country-Specific Special
Procedures page. Clicking on the links below will lead to the OHCHR page for each special procedure. The following 14
country-specific special procedures have been established:

Independent Experts

 Independent Expert on the situation of human rights in Central African Republic


 Independent Expert on the situation of human rights in Côte d’Ivoire
 Independent Expert on the situation of human rights in Haiti
 Independent Expert on the situation of human rights in Mali
 Independent Expert on the situation of human rights in Somalia
 Independent Expert on the situation of human rights in the Sudan

Special Rapporteurs

 Special Rapporteur on the situation of human rights in Belarus


 Special Rapporteur on the situation of human rights in Cambodia
 Special Rapporteur on the situation of human rights in Eritrea
 Special Rapporteur on the situation of human rights in the Democratic People’s Republic of Korea
 Special Rapporteur on the situation of human rights in the Islamic Republic of Iran
 Special Rapporteur on the situation of human rights in Myanmar
 Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967
 Special Rapporteur on the situation of human rights in the Syrian Arab Republic
What is the international law on the death penalty? Will the Philippines violate international law if it reimposes the
death penalty?

Two international experts on law and the death penalty on Thursday warned the Philippines that reimposing capital
punishment would violate the country's international treaty obligations and might result in the country being an
international pariah.

Prof. Baron Marc Bossuyt, president emeritus of the Constitutional Court of Belgium and a member of the United
Nations Committee on the Elimination of Racial Discrimination, and Prof. Konstantine Vardzelashvili, vice president of
the Constitutional Court of Georgia, reminded the Philippines that it is a signatory to the second optional protocol to the
International Covenant on Civil and Political Rights that abolishes the death penalty.

The said protocol does not contain any provision that allows a signatory to withdraw from it.

"Not only you may not reintroduce the death penalty when you are party to the second optional protocol but you
cannot withdraw from that second optional protocol," said Bossuyt, former UN special rapporteur during the drafting of
the second optional protocol.

"That's also a rule of international law, that you can only denounce a treaty or withdraw from a treaty when the treaty
contains provisions on withdrawal and denouncement. And that is one of those rather rare text that does not have such
a clause," he added.

The bill reimposing the death penalty is a priority legislation of the Duterte administration. If the bill is enacted into law,
Bossuyt warned that the Philippines might lose its standing in the international community.

"It would definitely impair the credibility of the Philippines as a law abiding state and as a state that respects its
international obligation. Why should a country conclude a treaty with a country we know that does not respect its treaty
obligation?" Bossuyt said.

Bossuyt warned the Philippines might suffer the fate of Chile during the term of Gen. Augusto Pinochet when it lost the
support of many countries because of its human rights violations.

"You will definitely lose friends. The Philippines has friends and I think you need friends in the world. And one of the
reasons why the Philippines has friends was because it has a better human rights standard than many other countries in
the region. You will lose that advantage," Bossuyt said.

There are currently 84 countries that are party to the second optional protocol.

If ever the Philippines reimposes the death penalty, it will be the first signatory to backtrack. "And it's not something you
should be proud of," Bossuyt said.

Legislators who favor the reimposition of the death penalty argue that the Philippine Constitution allows it, provided
there are compelling reasons.

To convince more legislators to support the bill, the leadership of the House of Representatives has softened its stand on
the mandatory imposition of the death penalty on heinous crimes and made it optional.

But Bossuyt maintained that "as long as the death penalty is an option, it's a violation of the international obligations of
the Philippines."

Bossuyt said the only way to keep the country's international treaty obligations without violating our Constitution is to
not impose the death penalty.
"The Constitution does not make capital punishment mandatory. There's no obligation to have capital punishment. So
the only way to respect as well your international law obligations as your constitutional rules is not having the death
penalty," he stresses.

Prof. Vardzelashvili also argues that there is no evidence to show that death penalty is effective to prevent a crime.

In fact, he says there is always the danger that an innocent person will be executed.

"Every system, even the perfect judicial system, is not guaranteed from making mistakes. The mistakes happen
everywhere, especially in the systems that are prone to corruption or where there are no guarantees of a fair trial,"
Vardzelashvili said.

"In any state where the judiciary is not functioning as well as we want it to function, the risk of a mistake increases
significantly. So we will end up with effects where innocent people will be prosecuted and convicted to death and then
executed. And that is irreversible," he added.

Vardzelashvili said social and rehabilitation policies should be implemented instead of bringing back the death penalty.

Plenary debates on the death penalty bill are ongoing at the House of Representatives. Congressmen are expected to
vote on the measure on March 8. — MDM, GMA News

- See more at: http://www.gmanetwork.com/news/story/599848/news/nation/reviving-death-penalty-violates-treaty-


obligations-int-l-experts#sthash.ZnyRYfPh.dpuf

Death penalty not allowed by Second optional protocol of ICCPR (SEE PDF)

What is the international law on the rights of refugees?

States have been granting protection to individuals and groups fleeing persecution for centuries; however, the modern
refugee regime is largely the product of the second half of the twentieth century. Like international human rights law,
modern refugee law has its origins in the aftermath of World War II as well as the refugee crises of the interwar years
that preceded it. Article 14(1) of the Universal Declaration of Human Rights (UDHR), which was adopted in 1948,
guarantees the right to seek and enjoy asylum in other countries. Subsequent regional human rights instruments have
elaborated on this right, guaranteeing the “right to seek and be granted asylum in a foreign territory, in accordance with
the legislation of the state and international conventions.” American Convention on Human Rights, art. 22(7); African
[Banjul] Charter on Human and Peoples’ Rights, art. 12(3).
The controlling international convention on refugee law is the 1951 Convention relating to the Status of Refugees (1951
Convention) and its 1967 Optional Protocol relating to the Status of Refugees (1967 Optional Protocol). The 1951
Convention establishes the definition of a refugee as well as the principle of non-refoulement and the rights afforded to
those granted refugee status. Although the 1951 Convention definition remains the dominant definition, regional
human rights treaties have since modified the definition of a refugee in response to displacement crises not covered by
the 1951 Convention.

The 1951 Convention does not define how States parties are to determine whether an individual meets the definition of
a refugee. Instead, the establishment of asylum proceedings and refugee status determinations are left to each State
party to develop. This has resulted in disparities among different States as governments craft asylum laws based on their
different resources, national security concerns, and histories with forced migration movements. Despite differences at
the national and regional levels, the overarching goal of the modern refugee regime is to provide protection to
individuals forced to flee their homes because their countries are unwilling or unable to protect them.

Legal Protections

International and regional instruments relating to refugees include:


 1951 Convention relating to the Status of Refugees
 1967 Optional Protocol relating to the Status of Refugees
 Universal Declaration of Human Rights (art. 14)
 American Declaration on the Rights and Duties of Man (art. 27)
 American Convention on Human Rights (art. 22)
 Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America,
Mexico and Panama (Cartagena Declaration)
 African [Banjul] Charter on Human and Peoples’ Rights (art. 12)
 OAU Convention Governing the Specific Aspects of the Refugee Problem in Africa
 Arab Charter on Human Rights (art. 28)
 Cairo Declaration on Human Rights in Islam (art. 12)
 European Convention on Human Rights (arts. 2, 3, and 5)
 Council Regulation EC No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining
the Member State responsible for examining an asylum application lodged in one of the Member States by a third
country national
 Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third
country nationals or stateless persons as refugees or as persons who otherwise need international protection and
the content of the protection granted
 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (art. 3)
 African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa
 Convention on the Rights of the Child (art. 22)
Who Is a Refugee?
Article 1(A)(2) of the 1951 Convention defines a refugee as an individual who is outside his or her country of nationality
or habitual residence who is unable or unwilling to return due to a well-founded fear of persecution based on his or
her race, religion, nationality, political opinion, or membership in a particular social group. Applying this definition,
internally displaced persons (IDPs) – including individuals fleeing natural disasters and generalized violence, stateless
individuals not outside their country of habitual residence or not facing persecution, and individuals who have crossed
an international border fleeing generalized violence are not considered refugees under either the 1951 Convention or
the 1967 Optional Protocol.
Countries in the Americas and Africa experiencing large-scale displacement as the result of armed conflicts found that
the 1951 Convention definition did not go far enough in addressing the protection needs of their populations.
Consequently, both Article 3 of the Cartagena Declaration and Article 1(2) of the 1969 OAU Convention extend refugee
status to an individual who “owing to external aggression, occupation, foreign domination or events seriously disturbing
public order in either part or the whole of his country of origin or nationality, is compelled to leave his place of habitual
residence in order to seek refuge in another place outside his country of origin or nationality.” OAU Convention
Governing the Specific Aspects of the Refugee Problem in Africa, art. 1(2); accord Cartagena Declaration on Refugees,
Colloquium on the International Protection of Refugees in Central America, Mexico & Panama, art. 3. The African Union
is unique in having a convention that specifically addresses the protection needs of IDPs. African Union Convention for
the Protection and Assistance of Internally Displaced Persons in Africa. Finally, the United Nations High Commissioner
for Refugees (UNHCR) provides protection to IDPs and stateless individuals in addition to 1951 Convention refugees.
Exceptions: Exclusion and Cessation Clauses
The 1951 Convention places a number of restrictions on eligibility for refugee status. Article 1(D) excludes individuals
who, at the time of the 1951 Convention, were already receiving protection or assistance from another UN organ or
agency. Article 1(D) largely applied to Koreans receiving aid from the United Nations Korean Reconstruction Agency
(UNKRA) and Palestinians receiving aid from the United Nations Relief and Works Agency for Palestine Refugees in the
Near East (UNRWA) and continues to apply to the latter. UNHCR, Handbook on Procedures for Determining Refugee
Status under the 1951 Convention & the 1967 Protocol relating to the Status of Refugees, para. 142. Although
Palestinians living in areas where UNRWA operates are eligible for refugee status under the 1951
Convention. Id. at para. 143.

Additionally, Article 1(F) excludes individuals:

with respect to whom there are serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international
instruments drawn up to make provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as
a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.

Individuals who voluntarily avail themselves of the protection of their country of nationality or habitual residence or
individuals who have received protection in a third country are also not considered refugees. See 1951 Convention
relating to the Status of Refugees, art. 1(C).
What Rights Do Refugees Have?

Refugee law and international human rights law are closely intertwined; refugees are fleeing governments that are
either unable or unwilling to protect their basic human rights. Additionally, in cases where the fear of persecution or
threat to life or safety arises in the context of an armed conflict, refugee law also intersects with international
humanitarian law.

NON-REFOULEMENT
The basic principle of refugee law, non-refoulement refers to the obligation of States not to refoule, or return, a refugee
to “the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.” 1951 Convention relating to the Status of Refugees, art.
33(1). Non-refoulement is universally acknowledged as a human right. It is expressly stated in human rights treaties such
as Article 3 of the Convention against Torture and Article 22(8) of the American Convention on Human Rights.
Additionally, both regional and domestic courts have interpreted the rights to life and freedom from torture to include a
prohibition against refoulement. See R (on the application of) ABC (a minor) (Afghanistan) v. Sec’y of State for the Home
Dep’t [2011] EWHC 2937 (Admin.) (U.K.); ECtHR, Case of M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011,
Judgment of 21 January 2011. The principle of non-refoulement prohibits not only the removal of individuals but also
the mass expulsion of refugees. See, e.g., African [Banjul] Charter on Human and Peoples’ Rights, art. 12(5).

There are two important restrictions to this principle. Persons who otherwise qualify as refugees may not claim
protection under this principle where there are “reasonable grounds” for regarding the refugee as a danger to the
national security of the host country or where the refugee, having been convicted of a particularly serious crime,
constitutes a danger to the host community. 1951 Convention, art. 33(2).

FREEDOM OF MOVEMENT
At the regional level, the rights to seek asylum and freedom of movement can be found within the text of the same
article. See African [Banjul] Charter on Human and Peoples’ Rights, art. 12(1) and (3); American Convention on Human
Rights, art. 22. The rights are closely related, since the inability to return to one’s country is the basis of an asylum claim
while the ability to leave one’s country is a prerequisite for claiming refugee status under the 1951 Convention.
Freedom of movement, however, is also a key right for refugees within their host country. See, e.g., International
Covenant on Civil and Political Rights, art. 12. Article 26 of the 1951 Convention provides that States shall afford
refugees the right to choose their place of residence within the territory and to move freely within the State.
Meanwhile, Article 28 obliges States parties to issue refugees travel documents permitting them to travel outside the
State “unless compelling reasons of national security or public order otherwise require.”
Freedom of movement is an especially important issue with regard to protracted refugee situations in countries with
limited national resources and/or limited legal frameworks for protecting refugees who nonetheless host large refugee
populations. In such countries, refugee warehousing – in which refugees are confined to refugee camps, thereby
restricting their access to employment and education – is commonly practiced. U.S. Comm. for Refugees &
Immigrants, World Refugee Survey 2009 (2009). Countries such as Kenya and Ethiopia specify in their national laws that
the movement of refugees throughout the country may be restricted and that refugees may be limited to living in
designated areas, namely refugee camps. National Refugee Proclamation, No. 409/2004, art. 21(2) (Eth.); Refugees Act
(2014) Cap. 173 § 12(3) (Kenya).
RIGHT TO LIBERTY AND SECURITY OF THE PERSON
The right to liberty and security of the person is important in the context of how asylum seekers are treated within the
intended country of refuge. The national laws of several countries provide for the detention of asylum seekers at one
point or another during the adjudication of their claims. See, e.g., 8 CFR § 235.3(c) (U.S.); Refugees Act (2014) Cap. 173 §
12(3) (Kenya).
The detention of asylum seekers is a contentious issue because of the conditions found in the detention facilities of
several countries. This is particularly an issue in Greece, a country overwhelmed by the number of asylum seekers it
receives, many of whom use Greece as a port of entry as they try to access other European countries. In order to clarify
which State has responsibility for a particular asylum applicant, the Council of Europe issued Council Regulation EC No.
343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible
for examining an asylum application lodged in one of the Member States by a third country national (commonly known
as the Dublin Regulation).
Under the Dublin Regulation, the State through which the third country national first entered Europe is generally
considered the State responsible for adjudicating that national’s asylum claim. See Dublin Regulation, art. 10(1). As a
result, many of these asylum seekers are returned to Greece to have their claims adjudicated. Human rights
organizations including Amnesty International have reported on unsanitary and over-crowded conditions in Greek
detention centers. Amnesty International, Annual Report 2012 (2012), 157. Additionally, asylum seekers have claimed
that they did not have access to a UNHCR representative or information about how to apply for asylum while in
detention. Id. The European Court of Human Rights (ECtHR) has held in a number of cases that the conditions in the
Greek detention centers violate individuals’ rights to humane treatment and dignity under the European Convention on
Human Rights. See, e.g., ECtHR, M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011, Judgment of 21 January
2011.
RIGHT TO FAMILY LIFE
The family is seen as the “natural and fundamental group unit of society and is entitled to protection by society and the
State.” See, e.g., International Covenant on Civil and Political Rights, art. 23(1). In respect of this right, a number of
countries provide for the granting of derivative status to dependent relatives. Thus, where an individual is granted
asylum, his or her dependent relatives will also receive protection through him or her. See 8 U.S.C. § 1158(b)(3)(A)
(U.S.); Immigration Rules, 2012, S.I. 2012/11, art. 339Q(iii) (U.K.); National Refugee Proclamation, No. 409/2004, art. 12
(Eth.); Refugees Act (2014) Cap. 173 § 15 (Kenya). However, should that individual’s refugee status be terminated, the
status of dependent relatives will also be terminated. National Refugee Proclamation, No. 409/2004, art. 6(1)
(Eth.); Refugees Act (2014) Cap. 173 § 20(1) (Kenya). Consequently, these domestic laws do not preclude dependent
relatives from making their own asylum claims. National Refugee Proclamation, No. 409/2004, art. 12(5) (Eth.); Refugees
Act (2014) Cap. 173 § 15(4) (Kenya).

The definition of a dependent relative, however, varies by the cultural notions of family prevalent in the State party. In
the U.K., dependents are defined as the “spouse, civil partner, unmarried or same-sex partner, or minor child
accompanying [the applicant]” while in Kenya, dependent relatives include the brother or sister of an applicant under
the age of eighteen, “or any dependent grandparent, parent, grandchild or ward living in the same household as the
refugee.” Immigration Rules, 2012, S.I. 2012/11, art. 349 (U.K.); Refugees Act (2014) Cap. 173 § 2 (Kenya).

OTHER RIGHTS

The 1951 Convention also protects other rights of refugees, such as the rights to education, access to justice,
employment, and other fundamental freedoms and privileges similarly enshrined in international and regional human
rights treaties. In their enjoyment of some rights, such as access to the courts, refugees are to be afforded the same
treatment as nationals while with others, such as wage-earning employment and property rights, refugees are to be
afforded the same treatment as foreign nationals. 1951 Convention, art. 16 (refugees are to be granted equal access to
the courts), art. 17 (refugees are to be afforded the same access to wage-earning employment as foreign nationals), art.
13 (refugees are to be afforded the same rights to moveable and immoveable property as foreign nationals).
Despite these rights being protected in the 1951 Convention and under human rights treaties, refugees in various
countries do not enjoy full or equal legal protection of fundamental privileges. Ethiopia, for example, made reservations
to Article 22 (public education) and Article 17 (wage-earning employment), treating these articles as recommendations
rather than obligations. U.S. Comm. for Refugees & Immigrants, World Refugee Survey 2009: Ethiopia (2009). Although
not a party to the 1951 Convention, Lebanon is host to a large population of refugees, predominately Palestinians.
Restrictive labor and property laws in Lebanon prevent Palestinians from practicing professions requiring syndicate
membership, such as law, medicine, and engineering, and from registering property. Human Rights Watch, World Report
2014: Lebanon (2014).
ENFORCEMENT: CLAIMING ASYLUM
NB: The countries profiled here were chosen because they have historically received a large number of asylum
applications and/or played host to large refugee populations.

The adjudication of asylum claims is reserved to individual States. Although some States, namely those that comprise
the Council of Europe, have made an effort to adopt a uniform asylum system, international and regional bodies lack the
jurisdiction to adjudicate individual asylum claims. See Dublin Regulation; Council Directive 2004/83/EC of 29 April 2004
on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as
persons who otherwise need international protection and the content of the protection granted (commonly known as
the Qualification Directive). International and regional bodies do, however, adjudicate claims asserting violations of the
human rights of refugees and asylum seekers.

Despite differences across, and sometimes within, States, there are a number of commonalities between the asylum
procedures of States who have national frameworks for granting refugee status. The following is a general and simplified
explanation of these procedures.

Interpretation of Key Terms

In order to understand how these procedures operate it is necessary to first identify how certain key terms in the 1951
Convention are defined within the domestic legal systems of particular States.

 Refugee – States parties to the 1951 Convention and/or the 1967 Optional Protocol have incorporated the
Convention’s definition of a refugee into their domestic law. See, 8 U.S.C. § 1101(a)(42) (U.S.); Immigration Rules,
2012, S.I. 2012/11, art. 334 (U.K.); CESDA L711-1 (Fr.) (French); The Immigration and Refugee Protection Act, S.C.
2001, ch. 27, art. 96 (Can.). States that are also party to the Cartagena Declaration or the 1969 OAU Convention
have also incorporated those instruments’ broader definition of a refugee, recognizing individuals fleeing
generalized violence and other breakdowns of public order. See, e.g., Decree No. 3301, May 6, 1992
(Ecuador) (Spanish); Refugees Act (2014) Cap. 173 § 3 (Kenya).
 Asylum seeker – person within a State party who has applied for recognition as a refugee. If the asylum seeker is
determined to meet the definition of a refugee they are granted asylum.
 Well-founded fear – individual States have interpreted the 1951 Convention’s requirement of a well-founded fear
of persecution to require asylum seekers to show that there is a reasonable possibility that they will suffer
persecution if returned to their country of nationality or habitual residence. See, e.g., Matter of Mogharrabi, 19
I&N Dec. 439 (BIA 1987). This is considered to be both an objective and subjective standard. Although well-founded
fear refers to a future threat of persecution, individuals who have faced persecution in the past are presumed to
have a well-founded fear. See, e.g., Immigration Rules, 2012, S.I. 2012/11, art. 339K (U.K.).
 Persecution – persecution is not defined in the 1951 Convention or the 1967 Optional Protocol. In an attempt to
provide guidance on what constitutes persecution, the Council of Europe included a non-exhaustive list in the
Qualification Directive of acts that could be considered persecution such as:
acts of physical or mental violence, including acts of sexual violence; legal, administrative, police, and/or judicial
measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or
punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or
discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where
performing military service would include crimes or acts falling under the exclusion clauses as set out in Article 12(2);
acts of a gender-specific or child-specific nature.
Qualification Directive, art. 9(2). The persecution at issue also does not need to have been committed by a State actor;
persecutory acts committed by non-state actors may qualify under the 1951 Convention where the State is unwilling or
unable to protect the individual claiming refugee status. See, e.g., id. at art. 6.
 On account of – there must be a causal nexus between one of the five grounds and the persecutory act. In
practice, this means that applicants must show that one of the protected grounds was or will be at least one
central reason for the persecution. See, e.g., 8 U.S.C. § 1158(b)(1)(B)(i) (U.S.).
 Race, religion, nationality – the asylum applicant need not actually possess the racial, religious, or national
characteristic in question provided that characteristic was attributed to the asylum seeker by the persecutor and is
the reason for the persecution See, e.g., Qualification Directive, art. 10(2).
 Political opinion – like the above three grounds, political opinion may be imputed to the asylum seeker. There is
some debate within the U.S. as to whether neutrality may qualify as a political opinion for the purposes of
obtaining asylum. Compare Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) (no persecution based on political
opinion where refusal to join work stoppage resulted in threats and violence from militants because refusal was
motivated by desire to earn wages) with Bolanos-Hernandez v. I.N.S., 767 F.2d 1277, 1284-5 (9th Cir. 1985)
(persecution based on political opinion where former military member refused to join guerrillas because he wished
to remain neutral).
 Membership in a particular social group – there is still a lack of consensus as to what constitutes a particular social
group and whether classes of persons not included in the 1951 Convention who nonetheless face persecution, such
as women and homosexuals, fall within this category. (See Selected Case Law, below) The Council of Europe has
stated that persons may be considered to constitute a particular social group when they share a common
immutable characteristic, that is, something innate to their being or so fundamental to their being that they cannot
be expected to change it, and have a distinct identity within their country of nationality or habitual residence
because they are perceived as being different by that society. Qualification Directive, art. 10(1)(d) (applying
standard articulated in Matter of Acosta, 19 I&N Dec. 211 (BIA 1985) (U.S.)).
 Particularly serious crime – the definition of a particularly serious crime varies by country. The UNHCR considers a
particularly serious crime to be a capital crime or a very grave punishable act. The UNHCR recommends balancing
the severity of the crime against the severity of the persecution feared but this balancing test has not been widely
adopted. See Ali v. Achim, 468 F.3d 462 (7th Cir. 2006) (rejecting UNHCR balancing test). In the U.S., 8 U.S.C. §
1158(b)(2)(B)(i), provides that an aggravated felony shall constitute a particularly serious crime. Under the statute,
aggravated felonies may include felonies for which the potential sentence is imprisonment for one year or more.
(For withholding of removal, the potential sentence must be for at least five years.)
 War crimes, Crimes against Humanity – States apply the definition provided in international humanitarian law, as
articulated in Articles 7 and 8 of the Rome Statute of the International Criminal Court. See A.B. v. Refugee Appeals
Tribunal and Minister for Justice, Equality and Law Reform [2011] IEHC 198 (H. Ct.) (Ir.).
National Procedures for Claiming Asylum

Typically, refugee status determinations or asylum adjudications are conducted by an official from a designated
government department or agency. These officials should have a solid knowledge of refugee law. In most cases, the
official will interview the asylum seeker to evaluate his or her evidence and credibility. The burden is on the asylum
seeker to prove that he or she meets the definition of a refugee and asylum seekers are encouraged to supply as much
supporting evidence as possible. Supporting evidence may take the form of country reports, NGO reports, news articles,
affidavits, or the in-person testimony of witnesses.

In accordance with Article 31 of the 1951 Convention, States parties provide in their domestic law that an applicant’s
irregular entry (i.e., without an entry visa or other documentation) will not have a negative effect on the asylum seeker’s
application. See, e.g., Refugees Act (2014) Cap. 173 § 11(3) (Kenya). Some States, however, do place time restraints on
how many days after entry into their country an asylum seeker may make an application. Compare 8 U.S.C. §
1158(a)(2)(B) (U.S.) (imposing a one-year filing deadline on asylum applications, although there are some limited
exceptions for extraordinary or changed circumstances) with National Refugee Proclamation, No. 409/2004, art. 13
(Eth.) (stating that asylum applicants shall apply within fifteen days of entry into Ethiopia). In addition to making a claim
at the border, individuals in deportation proceedings may also raise an asylum claim, provided their claim is timely.
If the official finds that the asylum seeker has a well-founded fear of persecution based on one of the five grounds, he or
she can grant the applicant asylum. Individuals granted asylum receive a residence permit for themselves as well as one
for any dependent relatives. See, e.g., The Immigration and Refugee Protection Act, S.C. 2001, ch. 27, art. 95(1)(a) (Can.);
8 U.S.C. § 1158(b)(3)(A) (U.S.). States provide that where the Government denies an asylum application, the asylum
seeker is to receive an explanation of the reasons for the denial. See, e.g., Refugees Act (2014) Cap. 173 § 11(6)
(Kenya). Asylum seekers have a right to appeal their negative decision. Generally, an applicant may not be removed
unless they have exhausted all of their available remedies. See CESEDA, L731-3 (Fr.); but see, Human Rights
Watch, France: Amend Immigration Bill to Protect Asylum Seekers (noting that under French law appeal does not
suspend expulsion for those placed in the fast-track procedure).
Individuals who are ineligible for asylum may nonetheless be eligible for more limited forms of protection. These include
protection under Article 3 of the Convention against Torture, which forbids States parties from extraditing or returning
an individual to a country where they risk being tortured or subjected to cruel, inhuman, or degrading treatment or
punishment. States also grant complementary forms of protection, such as withholding of removal, subsidiary
protection, and Temporary Protected Status to individuals who do not meet the definition of a refugee but whose life or
freedom would be in danger if returned to their country of nationality or country of habitual residence. 8 U.S.C. §
1254, 1231(b)(3) (U.S.); C.E.S.D.A. L712-1 (Fr.).
Refugee Status Determinations by the UNHCR
There are a number of States who host large refugee populations but who are either not a party to the 1951 Convention
and 1967 Optional Protocol or who do not have laws or policies in place to address asylum claims. These States include a
large number of countries in the Middle East and Asia with significant refugee populations, including Egypt, Jordan,
India, Malaysia, Lebanon, and Pakistan. See UNHCR, States Parties to the 1951 Convention Relating to the Status of
Refugees and the 1967 Protocol. In such cases, refugee status determinations are carried out by field offices of the
United Nations High Commissioner for Refugees (UNHCR).
The refugee status determination (RSD) conducted by the UNHCR is similar to asylum adjudications conducted by States.
After registering with the local UNHCR office, asylum seekers meet with an Eligibility Officer who examines their
application and supporting documentation. All asylum seekers have the right to an individual in-person interview and
may be accompanied by a legal representative. UNHCR, Procedural Standards for Refugee Status Determination under
UNHCR’s Mandate 4.3.1-3 (2003). Asylum seekers are permitted to bring witnesses, but UNHCR policy is that the
testimony of witnesses should not be given in the presence of the applicant and should never be given in the presence
of other witnesses or third parties. Id. at 4.3.9. All applicants are informed in writing of the Eligibility Officer’s
decision. Id. at 6.1. Where the eligibility officer has decided not to award refugee status, the applicant is entitled to an
explanation of the negative determination. Id. Applicants who have not been granted refugee status are entitled to an
appeal. Id. at 7.1.1.
All individuals granted refugee status as well as derivative relatives are issued a UNHCR Refugee Certificate which
stipulates that the holder is a refugee and is therefore entitled to protection, including protection from
refoulement. Id. at 8.1. Unfortunately, in practice, issuance of a Refugee Certificate does not always guarantee an
individual’s ability to work or protect them from being detained in their host country. See UNHCR, Global Focus:
Malaysia 2016 Operational Context.
UNHCR normally determines refugee status on an individual basis; however, the agency will afford prima facie refugee
status to groups in cases where a large group of individuals has been displaced and the need for protection is especially
urgent. UNHCR, Resettlement Handbook, ch. 3, at 77 (2011). A recent example of this was the UNHCR’s 2007 decision to
give prima facie refugee status to asylum seekers from southern and central Iraq. Id.

In addition to conducting RSDs and providing assistance to refugees and other persons of concern, UNHCR facilitates
resettlement to third countries where voluntary repatriation or local integration is not feasible.

SELECTED CASE LAW

The following cases concern some of the most contentious issues in refugee law today.

Membership in a Particular Social Group


 In Matter of Kasinga, 21 I&N 357 (BIA 1996), the U.S. Board of Immigration Appeals (BIA) held that young women
who were members of the Tchamba-Kunsuntu Tribe of northern Togo who had not been subjected to female
genital mutilation, as practiced by that tribe, and who opposed the practice constituted a particular social group.
 The criteria for identifying a particular social group in the U.S., however, are not clear. In Matter of Acosta, 19 I&N
Dec. 211 (BIA 1985), the BIA held that members of a taxi-driver cooperative in El Salvador did not constitute a
social group because their membership was not immutable. Meanwhile in Matter of C-A-, 23 I&N 951 (BIA 2006)
the BIA held that non-criminal, uncompensated informants in Colombia did not constitute a social group because
they did not share a common, immutable characteristic and because they were not a visible group, as the very
nature of their work required them to work in secret. In Benitez Ramos v. Holder, 589 F.3d 426 (7th Cir. 2009), a
case concerning a withholding of removal claim filed by an El Salvadoran national, the U.S. Court of Appeals for the
Seventh Circuit not only rejected the social visibility requirement formulated by the BIA, it also criticized the BIA for
inconsistently applying its own criteria, pointing to the fact that the BIA itself did not always require social visibility
when evaluating whether individuals could be said to be members of a particular social group. Particular social
group has been defined since as “a group of persons all of whom share a common, immutable
characteristic.” See Cordoba v. Holder, 726 F.3d 1106, 1114 (9th Cir. 2013) (quoting Matter of Acosta, 19 I&N 211,
233 (BIA 1985)).
 In the joined cases, Islam (A.P.) v. Secretary of State for the Home Department; Regina v. Immigration Appeal
Tribunal and Another Ex Parte Shah (A.P.), [1999] (H.L.) (appeal taken from England) (U.K.), the U.K. House of Lords
held that women in Pakistan constituted a social group, granting asylum to two women from Pakistan who had fled
domestic violence. Cf., Matter of R-A-, 22 I&N 906 (BIA 1999) (denying asylum to woman claiming membership in
social group identified as “Guatemalan women who have been intimately involved with Guatemalan male
companions, who believe women are to live under male domination”). According to the House of Lords, whether
such a broad definition of a social group qualifies under the Convention will depend on evidence of how that group
is treated in the country of nationality or habitual residence at issue. Id. (citing In Re G.J. [1998] INLR 387 (New
Zealand Refugee Status Appeals Authority), a New Zealand decision granting asylum on the basis of membership in
a particular social group to a homosexual from Iran.)
 In A and Another v. Minister for Immigration & Ethnic Affairs (1997) 142 ALR 331 (Austl.), the High Court of
Australia rejected the asylum claim of Chinese nationals who claimed to have a well-founded fear of persecution
because they sought to have a second child despite China’s one-child only policy. The asylum applicants claimed
fear of being subjected to forced sterilization and argued they were members of a particular social group that
consisted of “those who having only one child do not accept the limitations placed on them or who are coerced or
forced into being sterilized.” The Court rejected this formulation as too circular because it was not independent of
the persecution feared. By contrast, the U.S. Congress has recognized forced sterilization as a per se ground of
persecution in its legislation. See 8 U.S.C. § 1101(a)(42).
Non-refoulement and Countries of Transit
 In Sale v. Haitian Ctr. Council, Inc., 509 U.S. 155 (1993),the U.S. Supreme Court held that the U.S. was not in
violation of its non-refoulement obligation when it returned Haitians interdicted on the high seas because the
Haitians were not within U.S. territory and therefore the non-refoulement obligation did not apply. The Inter-
American Commission on Human Rights (IACHR) rejected this reasoning in IACHR, Report No. 51/96, Case 10.675,
Haitian Centre for Human Rights (United States), 13 March 1997. The IACHR held that the U.S. had violated the
petitioners’ right to seek asylum as well as their right to life, liberty, and security of the person when it summarily
returned interdicted Haitians – many of whom were subsequently arrested by Haitian authorities – without
providing them with a meaningful opportunity to have their claims adjudicated. The IACHR also held that the U.S.
had violated their right to freedom from discrimination, noting that a much more favorable policy was applied to
Cubans and Nicaraguans.
 In Abdi and Another v. Minister of Home Affairs (734/10) [2011] ZASCA 2 (15 February 2011) (S. Afr.), the South
African court rejected the Government’s arguments that two Somali nationals – one an asylum seeker and the
other a recognized refugee – being held in the Inadmissibility Facility detention center at the airport while awaiting
transfer to Kenya were outside the scope of South African law. The Court held that it was immaterial that the two
had left South Africa for Namibia prior to their detention and, as illegal entrants, were subject to a Namibian
deportation order.
 In ECtHR, Case of M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011, Judgment of 21 January 2011, the
ECtHR held that the Belgian government had violated an asylum seeker from Afghanistan’s rights under Article 3 of
the European Convention on Human Rights by returning him to Greece, the country he had initially transited
through, to adjudicate his asylum claim because it was common knowledge that the Greek government lacked
adequate asylum procedures, thus, placing the applicant at risk of being returned to Afghanistan where his life or
freedom would be in danger.
 In M70/2011 and M106/2011 v. Minister for Immigration and Citizenship & Anor, [2011] HCA 32 (Austl.) the
Australian High Court held that the Minister’s declaration under § 198A of Australia’s Migration Act that asylum
seekers who arrived on the excised territory of Christmas Island could be sent to Malaysia where their asylum
claims would be considered was not valid because he had failed to adequately consider the factors set forth in §
198A(i)-(iv), namely that Malaysia was not a party to the Convention, had no domestic law recognizing the status of
refugees, and that the Arrangement between Australia and Malaysia – in which Malaysia would recognize refugees
and adjudicate claims in accordance with international standards – was not legally binding.
 In ACommHPR, Institute for Human Rights and Development in Africa (on behalf of Sierra Leonean refugees in
Guinea) v. Guinea, Communication No. 249/02, 36th Ordinary Session, December 2004, the African Commission on
Human and Peoples’ Rights (ACHPR) found that a proclamation by then-President Lasana Conté made over national
radio stating that Sierra Leonean refugees should be arrested, searched and confined to refugee camps resulted in
widespread violence and discrimination against Sierra Leonean refugees to such a serious degree that many were
effectively forced to repatriate to Sierra Leone despite the ongoing civil war. The ACHPR held that the treatment of
Sierra Leonean refugees violated the principle of non-refoulement and the Sierra Leoneans’ right to freedom from
mass expulsion. See also ACommHPR, Organisation mondiale contre la torture, Association Internationale des
jurists démocrates, Commission internationale des jurists, Union interafricaine des droits de l’Homme v. Rwanda,
Communications No. 27/89-46/90-46/91-99/93, 20th Ordinary Session, October 1996 (expulsion of Burundi
refugees living in Rwanda without opportunity to contest their removal violated their rights under the African
Charter); but see ACommHPR, Curtis Francis Doebbler v. Sudan, Communication No. 235/00, 46th Ordinary Session,
November 2009 (no violation where Sudan announced, in coordination with UNHCR, cessation of Ethiopian
refugee status following the end of the Mengistu regime and where there were procedures in place for Ethiopians
who still had a well-founded fear of persecution to have their claims heard.)
Exclusion Clauses
TERRORISM
 In Matter of S-K-, 23 I&N 936 (BIA 2006), the U.S. Board of Immigration Appeals (BIA) held that a Burmese national
who had provided approximately 700 dollars to the Chin National Front, which was at the time considered a Tier III
terrorist organization under U.S. law, was inadmissible on the grounds that she had provided material support to a
terrorist organization. It was irrelevant that the U.S. Government supported the National Democratic League, an
ally of the Chin National Front, and that the Chin National Front fought against the Burmese Government, to which
the U.S. was opposed. In the wake of controversy following the broad application of the material support bar to
refugees and asylum seekers, the U.S. Government has subsequently applied a discretionary waiver to several
organizations, including the Chin National Front, permitting refugees who had supported these organizations to
enter the U.S. as resettled refugees or claim asylum.
WAR CRIMES AND CRIMES AGAINST HUMANITY
 Negusie v. Holder, 555 U.S. 511 (2009): The U.S. Supreme Court remanded to the BIA to determine whether the
Refugee Act, which incorporated the 1967 Optional Protocol’s exclusion of individuals who had committed war
crimes and crimes against humanity from refugee status, included an exception for persecutory acts committed
under duress. The Court held that the BIA, in denying Negusie, an Eritrean national’s asylum application, had erred
in relying on Fedorenko v. United States, 449 U.S. 490 (1981), to find there was no duress exception
because Fedorenko concerned a claim arising out of the Displaced Person’s Act and not the 1980 Refugee Act.
 A.B. v. Refugee Appeals Tribunal and Minister for Justice, Equality and Law Reform, [2011] IEHC 198 [2008] 667 Ir.
Jur. Rep. (5th May, 2011) (H.Ct.) (Ir.): Irish High Court granted leave to apply for judicial review where Refugees
Appeals Tribunal had failed to conduct an adequate assessment of whether a former Taliban commander had
personally participated in war crimes and crimes against humanity. The Court adopted the standard articulated
in Joined Cases C-57/09 and C-101/09 Bundesrepublik Deutschland v. B und D [2010] ECR I-000, whereby there is a
permissive presumption that any person who occupied a high position within a terrorist organization participated
in the activities articulated in Article 1F of the 1951 Convention but authorities must nonetheless conduct an
assessment to determine the role the individual personally played in carrying out such acts.
PARTICULARLY SERIOUS CRIME
 Matter of Carballe, 19 I&N 357 (BIA 1986): BIA held that aliens who had been convicted of a particularly serious
crime within the U.S. were presumptively dangerous to the community, denying withholding of removal to a Cuban
national. See also, Ali v. Achim, 468 F.3d 462 (7th Cir. 2006) (affirming BIA’s holding that the Attorney General may
consider other crimes not listed in the INA to constitute a particularly serious crime for preclusion from
withholding of removal, rejecting contrary opinion of UNHCR guidelines, denying withholding of removal to a
Somali national.)
 Conseil d’etat [CE] [Council of State] April 7, 2010, Rec. Lebon 2010, IX-X, 319840 (Fr.): Council of State granted
asylum to Iraqi national who had participated in an honor killing while still a minor holding that the Commission
des Recours des Réfugiés should have considered whether family pressure lowered his free will and whether his
young age may have made him especially vulnerable to such pressure. (Decision is only available in French but an
English summary can be found here.)
 R (on the application of) ABC (a minor) (Afghanistan) v. Sec’y of State for the Home Dep’t [2011] EWHC 2937
(Admin.) (U.K.): In determining whether there is material before the Home Secretary that justifies a serious belief
that the individual who claims protection has committed a serious crime, the Home Secretary is required to look at
all the circumstances of the case including: the law of England and the law of the country where the crime is said to
have occurred, the individual factual matrix of the alleged crime including any potential defenses, the age and
circumstances of the applicant, and the likely punishment if found guilty. To be considered a serious crime, there
must be a high degree of culpability on the part of the alleged offender. Here, the Home Secretary erred in finding
there were serious grounds for believing the applicant had committed a particularly serious crime when she had
found that the applicant, a minor from Afghanistan, had likely committed the alleged crime unintentionally and
failed to consider his age and circumstances.

What are the core principles of international humanitarian law?

Basic principles of IHL

Rules of international humanitarian law (IHL) attempt in broad terms to regulate conflict in order to minimise human
suffering. IHL reflects this constant balance between the military necessity arising in a state of war and the needs for
humanitarian protection.

Overview

International Humanitarian Law is founded upon the following principles:

 distinction between civilians and combatants


 prohibition of attacks against those hors de combat
 prohibition on the infliction of unnecessary suffering
 principle of proportionality
 notion of necessity
 principle of humanity

Each basic principle should be found within the specific rules and norms of IHL itself, but the principles may also help
interpretation of the law when the legal issues are unclear or controversial. Depending on the issue, the balance
between the principles and interest shifts. For example, during hostilities, military necessity may limit the notion of
humanity by allowing for destruction, but in other situations such as the protection of the wounded and sick, the
principle of humanity is at the heart of the legal rules.

The principle of distinction between civilians and combatants

The principle of distinction underpinning many rules of IHL is that only fighters may be directly targeted. This is a
necessary compromise that IHL provides for in order to protect civilians in armed conflict. Without the principle of
distinction, they would be no limitation on the methods of warfare.

The specific rules where the principle of distinction is set out concerns Article 48 and 52 of Additional Protocal 1 to the
Geneva Conventions. This defines who is a combatant and a military object that can be lawfully attacked. Any direct
attack against a civilian or civilian object is not only a violation of IHL but also a grave breach. Direct attacks against
civilians and/or civilians objects are categorised as war crimes. Additionally, any weapon which is incapable of
distinguishing between civilians/civilian objects and fighters/military objects is also prohibited under IHL. The principle is
also a rule of customary international law, binding on all states.

The prohibition of attacks against those hors de combat

The prohibition to attack any person hors de combat (those who are sick and wounded, prisoners of war) is a
fundamental rule under IHL. For example, while a solider could be targeted lawfully under normal circumstances, if that
soldiers surrenders or is wounded and no longer poses a threat, then it is prohibited to attack that person. Additionally,
they may be entitled to extensive protections if they meet the criteria of being a Prisoner of War.

The prohibition on the infliction of unnecessary suffering

While IHL does permit violence, it prohibits the infliction of unnecessary suffering and superfluous injury. While the
meaning of such terms is unclear and the protection may as such be limited, even fighters who may be lawfully attacked,
are provided protection by this prohibition. One rule that has been established based on this principle is the prohibition
on the use of blinding laser weapons.

The principle of proportionality

The principle of proportionality limits and protects potential harm to civilians by demanding that the least amount of
harm is caused to civilians, and when harm to civilians must occur it needs be proportional to the military advantage.
The article where proportionality is most prevalent is in Article 51(5) (b) of API concerning the conduct of hostilities
which prohibits attacks when the civilian harm would be excessive in relation to the military advantage sought. This is an
area of hostilities where we often hear the term ‘collateral damage’.

The principle cannot be applied to override specific protections, or create exceptions to rules where the text itself does
not provide for one. As with the principle of necessity, the principle of proportionality itself is to be found within the
rules of IHL themselves. For example, direct attacks against civilians are prohibited and hence a proportionality
assessment is not a relevant legal assessment as any direct attack against even a single civilian who is not taking part in
hostilities is a clear violation of IHL. Proportionality is only applied when a strike is made against a lawful military target.

Click here to read more about the basic principles of the conduct of hostilities.

The notion of necessity

A dominant notion within the framework of IHL is military necessity, often the principle which clashes most with
humanitarian protection. Military necessity permits armed forces to engage in conduct that will result in destruction and
harm being inflicted. The concept of military necessity acknowledges that under the laws of war, winning the war or
battle is a legitimate consideration.

However the concept of military necessity does not give the armed forces the freedom to ignore humanitarian
considerations altogether and do what they want. It must be interpreted in the context of specific prohibitions and in
accordance with the other principles of IHL.

It is important to note that the notion itself is to be found within the rules of IHL. For example, Article 52 of Addition
Protocol I lists those objects that can be subject to lawful attacks. The notion cannot be applied to override specific
protections, or create exceptions to rules where the text itself does not provide for one.

Click here to read more about ‘military necessity’.

The principle of humanity


The principle of humanity, and its absence during the battle of Solferino of 1859, was the central notion that inspired the
founder of the International Committee of the Red Cross (ICRC), Henry Dunant. The principle stipulates that all humans
have the capacity and ability to show respect and care for all, even their sworn enemies. The notion of humanity is
central to the human condition and separates humans from animals.

IHL, the principles of which can be found in all major religions and cultures, set out only basic protections, but ones
which look to demonstrate that even during armed conflict there is some common sense of and respect for
humanity. Modern IHL is not naive and accepts that harm, destruction and death can be lawful during armed conflict.
IHL simply looks to limit the harm, and the principle of humanity is very much at the heart of this ambition. Many rules
of IHL are inspired by this notion, specifically those setting out protections for the wounded and sick.

International humanitarian law (IHL) applies only to situations of armed conflict. Legally there are two types of armed
conflict: international armed conflicts; and non-international armed conflicts.

Summarize the international law on the environment, including on sustainable development.

See PDF

Describe the international law on climate change, from the UNFCCC to the Paris Agreement?

The Paris Agreement (French: Accord de Paris) is an agreement within the United Nations Framework Convention on
Climate Change (UNFCCC) dealing with greenhouse gases emissions mitigation, adaptation and finance starting in the
year 2020. The language of the agreement was negotiated by representatives of 195 countries at the 21st Conference of
the Parties of the UNFCCC in Paris and adopted by consensus on 12 December 2015.[3][4] It was opened for signature
on 22 April 2016 (Earth Day) at a ceremony in New York.[5] As of December 2016, 194 UNFCCC members have signed
the treaty, 137 of which have ratified it. After several European Union states ratified the agreement in October 2016,
there were enough countries that had ratified the agreement that produce enough of the world's greenhouse gases for
the agreement to enter into force.[6] The agreement went into effect on 4 November 2016.[2]

The head of the Paris Conference, France's foreign minister Laurent Fabius, said this "ambitious and balanced" plan is a
"historic turning point" in the goal of reducing global warming.[7]

One year on, the ratification of the Paris Agreement was celebrated by the Mayor of Paris Anne Hidalgo by illuminating
the Eiffel Tower and the Arc de Triomphe, Paris' most iconic monuments, in green.[8]

- Wikipedia

Paris Climate Deal:

The UN climate talks in Paris have ended with an agreement between 195 countries to tackle global warming. The
climate deal is at once both historic, important – and inadequate. From whether it is enough to avoid dangerous climate
change to unexpected wins for vulnerable nations, here are five things to help understand what was just agreed at
COP21.

1. This Is A Momentous, World-Changing Event

The most striking thing about the agreement is that there is one. For all countries, from superpowers to wealthy city-
states, fossil fuel-dependent kingdoms to vulnerable low-lying island nations, to all agree to globally coordinate action
on climate change is astonishing.
And it is not just warm words. Any robust agreement has to have four elements. First, it needs a common goal, which
has now been defined. The agreement states that the parties will hold temperatures to “well below 2°C above pre-
industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels”.

Second, it requires matching scientifically credible reductions in carbon dioxide and other greenhouse gas emissions.
The agreement is woollier here, but it does state that emissions should peak “as soon as possible” and then be rapidly
reduced. The next step is to:

Achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the
second half of this century, on the basis of equity …

Third, as current pledges to reduce emissions imply a warming of nearly 3°C above pre-industrial levels, there needs to
be a mechanism to move from where countries are today, to zero emissions. There are five-year reviews, and “the
efforts of all parties will represent a progression over time”, which means at each step countries should increase their
levels of emission cuts from today’s agreements.

Finally, this all means developed countries need to rapidly move from fossil fuel energy to renewable sources. But the
challenge is larger for the developing world: these countries must leapfrog the fossil fuel age. They need funds to do so
and a key part of the agreement provides US$100 billion per year to 2020, and more than that after 2020.

There is a lot to like about this agreement: it gives a common goal to avoid the worst impacts of climate change, the
overall emissions cuts stated are reasonably credible, there is a mechanism to increase national emissions cuts over time
towards “net zero”, and there is funding secured to help poorer countries harness the power of the sun, wind and waves
instead of coal, oil and gas. It provides a roadmap to get the world off its dangerous addiction to fossil fuel energy.

2. It’s Not Enough To Avoid Dangerous Climate Change

What constitutes dangerous climate change is different for different people. For some poor people climate change is
already beyond dangerous, it’s deadly. The threats escalate as the cumulative emissions of carbon dioxide in the
atmosphere increase. Because this deal has been so long in arriving, the window of opportunity to limit temperature
rises at 1.5°C is closing fast; this spells trouble for many low-lying areas. Even the most ambitious pathways to zero
emissions in the coming decades for a carbon budget associated with a reasonable (66%) chance of keeping 2°C above
pre-industrial levels are extremely challenging. Countries have a long way to go to get to these levels of reductions.

Importantly, there are no penalties, except public shaming, for countries that do not meet their commitments to reduce
emissions. To implement this deal the public, civil society organisations, opposition parties in politics and businesses will
need to keep government policies in check. Essentially, it is the will of the people, most governments and enlightened
businesses, pitted against the deep pockets of the fossil fuel industry.

One future fear is that when the “global stocktake” happens in 2023, some countries may see that others aren’t doing
their bit, and may themselves then stop reducing emissions and the agreement will fall apart.

3. We’ll Have To Remove Carbon Dioxide From The Atmosphere

The warming we see from greenhouse gas emissions is dominated by the cumulative emissions of carbon dioxide. Given
the emissions so far, limiting warming to “well below” 2°C, and anywhere near 1.5°C means reducing CO2 emissions to
near zero extremely quickly.

Then society will need to continue further, to negative emissions. That is, removing carbon dioxide from the atmosphere
and storing it somewhere else. There are various options here, from planting trees and keeping restored forest in
perpetuity, enhancing uptake in soils, or using biomass energy in power plants then storing the carbon dioxide
underground (so-called Bio-Energy with Carbon Capture and Storage). Expect to hear a lot more about this.
4. Expect Across-The-board Policy Changes

To get to zero emissions this century requires many policy changes. Fossil fuel companies must have their subsidies
stripped. Investments in high-carbon emitting infrastructure must end, particularly World Bank loans and other regional
multilateral bank support for countries. Zero emissions buildings will become the norm. Tropical forests will have to be
protected to reduce and then eliminate deforestation.

Expect a greater push on the technological limitations on renewable energy, with big new investments, mostly
improving how to store power, for when the wind is not blowing and the sun is not shining. Expect the cost of
renewables to sink much further as these technologies are scaled up and implemented worldwide. Expect significant
areas of the world to be given over to wind turbines and solar farms.

5. The World’s Most Vulnerable Countries Got Their Issue Centre Stage

Paris was a high-stakes game of geopolitical poker. Surprisingly, those countries with the poorest hand came out better
than expected. The climate talks were subject to a series of shifting alliances going beyond the usual income-rich
northern countries and income-poor global south countries. Central to this has been US-Chinese diplomacy, both
agreeing to limit emissions, and more recently the new Climate Vulnerable Forum grouping of countries. From nowhere,
the forum has forced keeping global temperatures to 1.5°C high on the political agenda.

We haven’t heard the last of this level of ambition – one of the decisions in the Paris agreement is to invite the
Intergovernmental Panel on Climate Change to produce a special report on the impacts at 1.5°C, and emissions
pathways consistent with this level of warming.

These countries didn’t get everything they wanted – the US would not accept liability in financial terms for states that
may lose their territory to rising sea levels in the future. But they played their hand extremely smartly.

Simon Lewis, Reader in Global Change Science at University of Leeds and, UCL

This article was originally published on The Conversation. Read the original article.

See PDF Paris Agreement

Why are only Parties to the UNFCCC able to join the Paris Agreement?

The Paris Agreement is considered to be “under” the UNFCCC. The UNFCCC is a framework convention, which is
relatively common in international environmental law. Framework conventions set out the broad parameters of a
regime, including the objectives, core principles, broad commitments from its parties and a general system of
governance, and leave the detailed rules and processes of meeting the objectives to subsequent agreements.

This is why only Parties to the UNFCCC can become Parties to the Paris Agreement. A country such as Taiwan that is not
a Party to the UNFCCC cannot join the Paris Agreement without joining the UNFCCC first. This ensures that all Parties to
the Paris Agreement are also operating within the parameters set by the UNFCCC.

The Kyoto Protocol, the international agreement that preceded the Paris Agreement, was also “under” the UNFCCC,
though its provisions differed considerably from those in the Paris Agreement.

Where do the emissions data come from?

For the purposes of determining entry into force, Article 21 of the Paris Agreement provides that the UNFCCC
Secretariat will publish a list of the most up-to-date emissions data communicated by Parties. For many Parties, the
percentage of emissions contained in this table does not reflect their current emissions. This is because developing
countries have only recently been required to report their national emissions on a regular basis. This will change under
the Paris Agreement, with all countries being required to regularly provide a national inventory report of emissions.

The complete table of this emissions data is available here. For more recent emissions date, see WRI’s CAIT Climate Data
Explorer.

What if a Party doesn’t join the Paris Agreement, can they still participate in the UNFCCC?

Yes. Whether or not a Party also joins the Paris Agreement does not affect its rights and obligations under the UNFCCC.
Meetings of the COP to the UNFCCC will still continue every year in conjunction with meetings of the COP to the Paris
Agreement

UNFCC (See PDF)

What is the Vienna Convention on the law of treaties? What are the doctrines of pacta suntservanda, jus cogens,
clausula rebus sic stantibus, and erga omnes? How are they related to each other?

The Vienna Convention on the Law of Treaties (VCLT) is a treaty concerning the international law on treaties between
states. It was adopted on 22 May 1969[3] and opened for signature on 23 May 1969.[1] The Convention entered into
force on 27 January 1980.[1] The VCLT has been ratified by 114 states as of April 2014.[2] Some countries that have not
ratified the Convention, such as the United States,[4] recognize parts of it as a restatement of customary law and
binding upon them as such.

The Convention codifies several bedrocks of contemporary international law. It defines a treaty as "an international
agreement concluded between states in written form and governed by international law," as well as affirming that
"every state possesses the capacity to conclude treaties." The most important point in the Convention is that Article 1
restricts the application of the Convention to written treaties between States, excluding treaties concluded between the
states and international organizations or international organizations themselves.

The Convention has been referred to as the "treaty on treaties";[6] it is widely recognized as the authoritative guide
regarding the formation and effects of treaties. Even those countries who have not ratified it recognize its significance.
For example, the United States recognizes that parts of the Convention constitute customary law binding on all
nations.[4] In India, the Supreme court has also recognised the customary status of the convention

Wikipedia Definition

Pacta Sunt Servanda

The principle of pacta sunt servanda, which means that contracts and clauses are laws with binding force between
parties, requires that every contracting party must keep his promise and fulfill his obligation in good faith.

Jus Cogens

(from Latin: compelling law; English: peremptory norm) refers to certain fundamental, overriding principles of
international law, from which no derogation is ever permitted.

Clausula rebus sic stantibus

In public international law, clausula rebus sic stantibus (Latin for "things thus standing") is the legal doctrine allowing for
treaties to become inapplicable because of a fundamental change of circumstances. It is essentially an "escape clause"
that makes an exception to the general rule of pacta sunt servanda (promises must be kept).
Because the doctrine poses a risk to the security of treaties as its scope is relatively unconfined, it requires strict
regulations as to the conditions in which it may be invoked.

The doctrine is part of customary international law, but is also provided for in the 1969 Vienna Convention on the
Law of Treaties under Article 62 (Fundamental Change of Circumstance), although the doctrine is never mentioned
by name. Article 62 provides the only two justifications of the invocation of rebus sic stantibus: first, that the
circumstances existing at the time of the conclusion of the treaty were indeed objectively essential to the
obligations of treaty (sub-paragraph A) and the instance wherein the change of circumstances has had a radical
effect on the obligations of the treaty (sub-paragraph B).

If the parties to a treaty had contemplated for the occurrence of the changed circumstance the doctrine does not
apply and the provision remains in effect. Clausula rebus sic stantibus only relates to changed circumstances that
were never contemplated by the parties. This principle is clarified in the Fisheries Jurisdiction Case (United Kingdom
v. Iceland, 1973).

Although it is clear that a fundamental change of circumstances might justify terminating or modifying a treaty,
unilateral denunciation of a treaty is prohibited; a party does not have the right to denounce a treaty unilaterally.

Erga Omnes

is a Latin phrase which means "towards all" or "towards everyone". In legal terminology, erga omnes rights or
obligations are owed toward all. For instance a property right is an erga omnes entitlement, and therefore
enforceable against anybody infringing that right.

What are the doctrines established in the following cases:

Trail Smelter Case SEE PDF

Corfu Channel SEE PDF

Brief Fact Summary. The fact that the Albanian (P) authorities did not make the presence of mines in its waters was
the basis of the United Kingdom (D) claim against them.

Synopsis of Rule of Law. International obligations in peace time are created through elementary consideration.

Facts. The explosion of mines in the Albanian (P) waters resulted in the death of a British naval personnel. It was on
this basis that the United Kingdom (D) claimed that Albania (P) was internationally responsible for damages.

Issue. Are international obligations in time of peace created through elementary consideration?

Held. Yes. International obligations in peace time are created through elementary consideration. Every state has an
obligation not to knowingly allow its territory to be used for acts contrary to the rights of other states.
Discussion. In this case, the Court found that the Hague Convention of 1907 could not be applied but the
Convention was applicable only in time of war. It was on the basis of the principle of freedom of maritime
communication that this case was decided.

Colombia vs Peru
Overview:
Columbia granted asylum to a Peruvian, accused of taking part in a military rebellion in Peru. Was Columbia entitled
to make a unilateral and definitive qualification of the offence (as a political offence) in a manner binding on Peru
and was Peru was under a legal obligation to provide safe passage for the Peruvian to leave Peru?

Facts of the Case:


Peru issued an arrest warrant against Victor Raul Haya de la Torre “in respect of the crime of military rebellion”
which took place on October 3, 1949, in Peru. 3 months after the rebellion, Torre fled to the Colombian Embassy in
Lima, Peru. The Colombian Ambassador confirmed that Torre was granted diplomatic asylum in accordance with
Article 2(2) of the Havana Convention on Asylum of 1928 and requested safe passage for Torre to leave Peru.
Subsequently, the Ambassador also stated Colombia had qualified Torre as a political refugee in accordance with
Article 2 Montevideo Convention on Political Asylum of 1933 (note the term refugee is not the same as the Refugee
Convention of 1951). Peru refused to accept the unilateral qualification and refused to grant safe passage.

Questions before the Court:


(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of
asylum under treaty law and international law?
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?
(3) Did Colombia violate Article 1 and 2 (2) of the Convention on Asylum of 1928 (hereinafter called the Havana
Convention) when it granted asylum and is the continued maintenance of asylum a violation of the treaty?

The Court’s Decision:

Relevant Findings of the Court:


(1) Is Colombia competent, as the country that grants asylum, to unilaterally qualify the offence for the purpose of
asylum under treaty law and international law?
1. The court stated that in the normal course of granting diplomatic asylum a diplomatic representative has the
competence to make a provisional qualification of the offence (for example, as a political offence) and the territorial
State has the right to give consent to this qualification. In the Torre’s case, Colombia has asserted, as the State
granting asylum, that it is competent to qualify the nature of the offence in a unilateral and definitive manner that is
binding on Peru. The court had to decide if such a decision was binding on Peru either because of treaty law (in
particular the Havana Convention of 1928 and the Montevideo Convention of 1933), other principles of international
law or by way of regional or local custom.
2. The court held that there was no expressed or implied right of unilateral and definitive qualification of the State
that grants asylum under the Havana Convention or relevant principles of international law (p. 12, 13). The
Montevideo Convention of 1933, which accepts the right of unilateral qualification, and on which Colombia relied to
justify its unilateral qualification, was not ratified by Peru. The Convention, per say, was not binding on Peru and
considering the low numbers of ratifications the provisions of the latter Convention cannot be said to reflect
customary international law (p. 15).
3. Colombia also argued that regional or local customs support the qualification. The court held that the burden of
proof on the existence of an alleged customary law rests with the party making the allegation:
“The Party which relies on a custom of this kind must prove that this custom is established in such a manner that it
has become binding on the other Party… (that) it is in accordance with a (1) constant and uniform usage (2) practiced
by the States in question, and that this usage is (3) the expression of a right appertaining to the State granting
asylum (Columbia) and (4) a duty incumbent on the territorial State (in this case, Peru). This follows from Article 38 of
the Statute of the Court, which refers to international custom “as evidence of a general practice accepted as law(text
in brackets added).”
4. The court held that Columbia did not establish the existence of a regional custom because it failed to prove
consistent and uniform usage of the alleged custom by relevant States. The fluctuations and contradictions in State
practice did not allow for the uniform usage (see also Mendelson, 1948 and see also Nicaragua case, p. 98, the legal
impact of fluctuations of State practice). The court also reiterated that the fact that a particular State practice was
followed because of political expediency and not because of a belief that the said practice is binding on the State by
way of a legal obligation (opinio juris) is detrimental to the formation of a customary law (see North Sea Continental
Shelf Cases and Lotus Case for more on opinio juris):
“[T]he Colombian Government has referred to a large number of particular cases in which diplomatic asylum was in
fact granted and respected. But it has not shown that the alleged rule of unilateral and definitive qualification was
invoked or … that it was, apart from conventional stipulations, exercised by the States granting asylum as a right
appertaining to them and respected by the territorial States as a duty incumbent on them and not merely for reasons
of political expediency. The facts brought to the knowledge of the Court disclose so much uncertainty and
contradiction, so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official views
expressed on various occasions, there has been so much inconsistency in the rapid succession of conventions on
asylum, ratified by some States and rejected by others, and the practice has been so much influenced by
considerations of political expediency in the various cases, that it is not possible to discern in all this any constant and
uniform usage, mutually accepted as law, with regard to the alleged rule of unilateral and definitive qualification of
the offence.”
5. The court held that even if Colombia could prove that such a regional custom existed, it would not be binding on
Peru, because Peru “far from having by its attitude adhered to it, has, on the contrary, repudiated it by refraining
from ratifying the Montevideo Conventions of 1933 and 1939, which were the first to include a rule concerning the
qualification of the offence [as “political” in nature] in matters of diplomatic asylum.” (See in this regard, the lesson
on persistent objectors. Similarly in the North Sea Continental Shelf Cases the court held ‘in any event the . . . rule
would appear to be inapplicable as against Norway in as much as she had always opposed any attempt to apply it to
the Norwegian coast’.)
6. The court concluded that Columbia, as the State granting asylum, is not competent to qualify the offence by a
unilateral and definitive decision, binding on Peru.
(2) In this specific case, was Peru, as the territorial State, bound to give a guarantee of safe passage?
7. The court held that there was no legal obligation on Peru to grant safe passage either because of the Havana
Convention or customary law. In the case of the Havana Convention, a plain reading of Article 2 results in an
obligation on the territorial state (Peru) to grant safe passage only after it requests the asylum granting State
(Columbia) to send the person granted asylum outside its national territory (Peru). In this case the Peruvian
government had not asked that Torre leave Peru. On the contrary, it contested the legality of asylum granted to him
and refused to grant safe conduct.
8. The court looked at the possibility of a customary law emerging from State practice where diplomatic agents have
requested and been granted safe passage for asylum seekers, before the territorial State could request for his
departure. Once more, the court held that these practices were a result of a need for expediency and other practice
considerations over an existence of a belief that the act amounts to a legal obligation (see paragraph 4 above).
“There exists undoubtedly a practice whereby the diplomatic representative who grants asylum immediately requests
a safe conduct without awaiting a request from the territorial state for the departure of the refugee…but this
practice does not and cannot mean that the State, to whom such a request for safe-conduct has been addressed, is
legally bound to accede to it.”
(3) Did Colombia violate Article 1 and 2 (2) of the Havana Convention when it granted asylum and is the continued
maintenance of asylum a violation of the treaty?
9. Article 1 of the Havana Convention states that “It is not permissible for States to grant asylum… to persons
accused or condemned for common crimes… (such persons) shall be surrendered upon request of the local
government.”
10. In other words, the person-seeking asylum must not be accused of a common crime (for example, murder would
constitute a common crime, while a political offence would not).The accusations that are relevant are those made
before the granting of asylum. Torre’s accusation related to a military rebellion, which the court concluded was not
a common crime and as such the granting of asylum complied with Article 1 of the Convention.
11. Article 2 (2) of the Havana Convention states that “Asylum granted to political offenders in legations, warships,
military camps or military aircraft, shall be respected to the extent in which allowed, as a right or through
humanitarian toleration, by the usages, the conventions or the laws of the country in which granted and in
accordance with the following provisions: First: Asylum may not be granted except in urgent cases and for the
period of time strictly indispensable for the person who has sought asylum to ensure in some other way his safety.”
12. An essential pre-requisite for the granting of asylum is the urgency or, in other words, the presence of “an
imminent or persistence of a danger for the person of the refugee”. The court held that the facts of the case,
including the 3 months that passed between the rebellion and the time when asylum was sought, did not establish
the urgency criteria in this case (pp. 20 -23). The court held:
“In principle, it is inconceivable that the Havana Convention could have intended the term “urgent cases” to include
the danger of regular prosecution to which the citizens of any country lay themselves open by attacking the
institutions of that country… In principle, asylum cannot be opposed to the operation of justice.”
13. In other words, Torre was accused of a crime but he could not be tried in a court because Colombia granted him
asylum. The court held that “protection from the operation of regular legal proceedings” was not justified under
diplomatic asylum.
14. The court held:
“In the case of diplomatic asylum the refugee is within the territory of the State. A decision to grant diplomatic
asylum involves a derogation from the sovereignty of that State. It withdraws the offender from the jurisdiction of
the territorial State and constitutes an intervention in matters which are exclusively within the competence of that
State. Such a derogation from territorial sovereignty cannot be recognised unless its legal basis is established in each
particular case.”
15. As a result, exceptions to this rule are strictly regulated under international law.
An exception to this rule (asylum should not be granted to those facing regular prosecutions) can occur only if, in the
guise of justice, arbitrary action is substituted for the rule of law. Such would be the case if the administration of
justice were corrupted by measures clearly prompted by political aims. Asylum protects the political offender against
any measures of a manifestly extra-legal character which a Government might take or attempt to take against its
political opponents… On the other hand, the safety which arises out of asylum cannot be construed as a protection
against the regular application of the laws and against the jurisdiction of legally constituted tribunals. Protection
thus understood would authorize the diplomatic agent to obstruct the application of the laws of the country whereas
it is his duty to respect them… Such a conception, moreover, would come into conflict with one of the most firmly
established traditions of Latin-America, namely, non-intervention [for example, by Colombia into the internal affairs
of another State like Peru]….
16. Asylum may be granted on “humanitarian grounds to protect political prisoners against the violent and
disorderly action of irresponsible sections of the population.” (for example during a mob attack where the territorial
State is unable to protect the offender). Torre was not in such a situation at the time when he sought refuge in the
Colombian Embassy at Lima.
17. The court concluded that the grant of asylum and reasons for its prolongation were not in conformity with
Article 2(2) of the Havana Convention (p. 25).
“The grant of asylum is not an instantaneous act which terminates with the admission, at a given moment of a
refugee to an embassy or a legation. Any grant of asylum results in, and in consequence, logically implies, a state of
protection, the asylum is granted as long as the continued presence of the refugee in the embassy prolongs this
protection.”
NB: The court also discussed the difference between extradition and granting of asylum – you can read more on this
in pp. 12 – 13 of the judgment. The discussions on the admissibility of the counter claim of Peru are set out in pp. 18
– 19.

- https://ruwanthikagunaratne.wordpress.com/2014/03/02/asylum-case-summary/

Barcelona Traction, Light, and Power Company, Ltd (1961) – SEE PDF

West Germany vs. Denmark, on North Sea continental shelf (1969)


Name of the Case: The North Sea Continental Shelf Cases (Germany/Denmark; Germany/Netherlands); Year of
Decision: 1969; and Court: ICJ.

NB: This post discussed only aspects of the case related to treaty or customary international law.

Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual requirement for forming
customary international law – State practice (objective element) and opinio juris (subjective element). It elaborated
the criteria necessary to establish State practice – widespread and representative participation. The case highlighted
that the State practice of importance were of those States whose interests were affected by the custom. It also
identified the fact that uniform and consistent practice was necessary to show opinio juris – a belief that the
practice amounts to a legal obligation. The North Sea Continental Self Cases also dispelled the myth that duration of
the practice (i.e. the number of years) was an essential factor in forming customary international law.

The case involved the delimitation of the continental shelf areas in the North Sea between Germany and Denmark
and Germany and Netherlands beyond the partial boundaries previously agreed upon by these States. The parties
requested the ICJ to decide the principles and rules of international law that are applicable to the above
delimitation. The parties disagreed on the applicable principles or rules of delimitation – Netherlands and Denmark
relied on the principle of equidistance (the method of determining the boundaries in such a way that every point in
the boundary is equidistant from the nearest points of the baselines from which the breath of the territorial sea of
each State is measured). Germany sought to get a decision in favour of the notion that the delimitation of the
relevant continental shelf is governed by the principle that each coastal state is entitled to a just and equitable share
(hereinafter called just and equitable principle/method). Contrary to Denmark and Netherlands, Germany argued
that the principle of equidistance was neither a mandatory rule in delimitation of the continental shelf nor a rule of
customary international law that was not binding on Germany. The court was not asked to delimit – the parties
agreed to delimit the continental shelf as between their countries, by agreement, after the determination of the ICJ
on the applicable principles.

Facts of the Case:


Netherlands and Denmark had drawn partial boundary lines based on the equidistance principle (A-B and C-D). An
agreement on further prolongation of the boundary proved difficult because Denmark and Netherlands wished this
prolongation to take place based on the equidistance principle (B-E and D-E) where as Germany was of the view
that, together, these two boundaries would produce an inequitable result for her. Germany stated that due to its
concave coastline, such a line would result in her loosing out on her share of the continental shelf based on
proportionality to the length of its North Sea coastline. The Court had to decide the principles and rules of
international law applicable to this delimitation. In doing so, the court had to decide if the principles espoused by
the parties were binding on the parties either through treaty law or customary international law.

Questions before the Court (as relevant to this post):

Is Germany under a legal obligation to accept the equidistance-special circumstances principle, contained in Article 6
of the Geneva Convention, either as a customary international law rule or on the basis of the Geneva Convention?

The Court’s Decision:

The use of the equidistance method had not crystallised into customary law and was is not obligatory for the
delimitation of the areas in the North Sea related to the present proceedings.

Relevant Findings of the Court:

Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6, binding on Germany?

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

“…(1) by conduct, by public statements and proclamations, and in other ways, the Republic has unilaterally assumed
the obligations of the Convention; or has manifested its acceptance of the conventional regime; or has recognized it
as being generally applicable to the delimitation of continental shelf areas…

(2) the Federal Republic had held itself out as so assuming, accepting or recognizing, in such a manner as to cause
other States, and in particular Denmark and the Netherlands, to rely on the attitude thus taken up” (the latter is
called the principle of estoppel).

2. The Court rejected the first argument. It stated that only a ‘very definite very consistent course of conduct on the
part of a State’ would allow the court to presume that a State had somehow become bound by a treaty (by a means
other than in a formal manner: i.e. ratification) when the State was ‘at all times fully able and entitled to…’ accept
the treaty commitments in a formal manner. The Court held that Germany had not unilaterally assumed obligations
under the Convention. The court also took notice of the fact that even if Germany ratified the treaty, she had the
option of entering into a reservation on Article 6 following which that particular article would no longer be
applicable to Germany (i.e. even if one were to assume that Germany had intended to become a party to the
Convention, it does not presuppose that it would have also undertaken those obligations contained in Article 6).

3. NB: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in 1980, discusses more
fully the obligations of third States to treaties. It clearly stipulates that an obligation arises for a third State from a
provision of a treaty only if (1) the parties to the treaty intend the provision to create this obligation for the third
States; and (2) the third State expressly accepts that obligation in writing (A. 35 of the VCLT). The VCLT was not in
force when the ICJ deliberated on this case. However, as seen above, the ICJ’s position was consistent the VCLT.
(See the relevant provisions of the Vienna Convention on the Law of Treaties).

4. The court held that the existence of a situation of estoppel would have allowed Article 6 to become binding on
Germany – but held that Germany’s action did not support an argument for estoppel. The court also held that the
mere fact that Germany may not have specifically objected to the equidistance principle as contained in Article 6 is
not sufficient to state that the principle is now binding upon it.

5. In conclusion, the court held that Germany had not acted in any way to incur obligations contained in Article 6 of
the Geneva Convention. The equidistance – special circumstances rule was not binding on Germany by way of
treaty.

Nature of the customary international law obligation: Is Germany bound by the provisions of Article 6 of the Geneva
Convention by way of customary international law?

6. Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of general international law on
the subject of continental shelf delimitation’ and existed independently of the Convention. Therefore, they argued,
Germany is bound by it by way of customary international law.

7. To decide if the equidistance principle bound Germany by way of customary international law, the court
examined (1) the status of the principle contained in Article 6 as it stood when the Convention was being drawn up
(2) and after the latter came into force.

What was the customary law status of Article 6 at the time of drafting the Convention?

8. The court held the principle of equidistance, as contained in Article 6, did not form a part of existing or emerging
customary international law at the time of drafting the Convention. The Court supported this finding based on (1)
the hesitation expressed by the drafters of the Convention – International Law Commission – on the inclusion of
Article 6 (para. 62) and (2) the fact reservations to Article 6 was permissible under the Convention (Article 12). The
court held:

… Article 6 is one of those in respect of which, under the reservations article of the Convention (Article 12)
reservations may be made by any State on signing, ratifying or acceding for, speaking generally, it is a characteristic
of purely conventional rules and obligations that, in regard to them, some faculty of making unilateral reservations
may, within certain limits, be admitted; whereas this cannot be so in the case of general or customary law rules and
obligations which, by their very nature, must have equal force for all members of the international community, and
cannot therefore be the subject of any right of unilateral exclusion exercisable at will by any one of them in its own
favor…. The normal inference would therefore be that any articles that do not figure among those excluded from the
faculty of reservation under Article 12, were not regarded as declaratory of previously existing or emergent rules of
law (see para 65 for a counter argument and the court’s careful differentiation)…”

Did the provisions in Article 6 on the equidistance principle attain the customary law status after the Convention
came into force?

9. The court then examined whether the rule contained in Article 6 had become customary international law after
the Convention entered into force – either due the convention itself (i.e., if enough States had ratified the
Convention in a manner to fulfil the criteria specified below), or because of subsequent State practice (i.e. even if
adequate number of States had not ratified the Convention one could find sufficient State practice to meet the
criteria below). The court held that Article 6 of the Convention had not attained a customary law status (compare
the 1958 Geneva Convention with the four Geneva Conventions on 1949 in the field of international humanitarian
law in terms of its authority as a pronouncement of customary international law).

10. For a customary rule to emerge the court held that it needed: (1) very widespread and representative
participation in the convention, including States whose interests were specially affected (i.e. generality); and (2)
virtually uniform practice (i.e. consistent and uniform usage) undertaken in a manner that demonstrates (3) a
general recognition of the rule of law or legal obligation (i.e. opinio juries). In the North Sea Continental Shelf cases
the court held that the passage of a considerable period of time was unnecessary (i.e. duration) for the formation of
a customary law.

Widespread and representative participation

11. The court held that the first criteria was not met. The number of ratifications and accessions to the convention
(39 States) were not adequately representative (including of coastal States – i.e. those States whose rights are
affected) or widespread.

Duration

12. The court held that duration taken for the customary law rule to emerge is not as important as widespread and
representative participation, uniform usage and the existence of an opinio juris.

“Although the passage of only a short period of time (in this case, 3 – 5 years) is not necessarily, or of itself, a bar to
the formation of a new rule of customary international law on the basis of what was originally a purely conventional
rule, an indispensable requirement would be that within the period in question, short though it might be, State
practice, including that of States whose interests are specially affected, should have been both extensive and
virtually uniform in the sense of the provision invoked and should moreover have occurred in such a way as to show
a general recognition that a rule of law or legal obligation is involved (text in brackets added).”

Opinio juris

13. Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case) in so far as those acts or
omissions are done following a belief that the said State is obligated by law to act or refrain from acting in a
particular way. (For more on opinio juris click here).
14. The Court examined 15 cases where States had delimited their boundaries using the equidistance method, after
the Convention came into force (paras. 75 -77). The court concluded, even if there were some State practice in
favour of the equidistance principle the court could not deduct the necessary opinio juris from this State practice.
The North Sea Continental Shelf Cases confirmed that both State practice (the objective element) and opinio juris
(the subjective element) are essential pre-requisites for the formation of a customary law rule. This is consistent
with Article 38 (1) (b) of the Statute of the ICJ. The following explains the concept of opinio juris and the difference
between customs (i.e. habits) and customary law:

Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such
a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law
requiring it. The need for such a belief, i.e, the existence of a subjective element, is implicit in the very notion of the
opinio juris sive necessitatis. The States concerned must therefore feel that they are conforming to what amounts to
a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many
international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are
motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.

15. The court concluded that the equidistance principle was not binding on Germany by way of treaty or customary
international law because, in the case of the latter, the principle had not attained a customary international law
status at the time of the entry into force of the Geneva Convention or thereafter. As such, the court held that the
use of the equidistance method is not obligatory for the delimitation of the areas concerned in the present
proceedings.

- https://ruwanthikagunaratne.wordpress.com/2014/02/28/north-sea-continental-shelf-cases-summary/

US vs. Iran, Case Concerning United States Diplomatic and Consular Staff in Tehran (1980)

Facts:
In November 4, 1974, student militants of the group Muslim Student Followers of the Imam's Line barged into the
US Embassy in Tehran and held US diplomats and consulars hostage for 444 days. The cause of the Iranian students’
action against the US was believed to be the latter’s grant of medical asylum to Shah Mohammad Reza Pahlavi and
its refusal to turn the Shah over for trial.

The US sought recourse before the international court, asking that the hostages be freed and that reparations be
given to the US by the Iranian government for the latter’s failure to carry its international legal obligations. US
averred that Iran was responsible due to its initial inaction to the crisis and its subsequent statement of support to
the seizure.

Issue:
Whether or not Iran was liable to the United States for the seizure of the US embassy and the hostage-taking of the
US nationals by the Iranian militants.

Ruling:
Iran was under obligation to make reparations for the injury caused to the United States.

Iran’s failure to take appropriate steps to protect the US embassy and Consulates was a violation of its obligations
under the 1961 Vienna Convention on Diplomatic Relations, the 1963 Vienna Convention on Consular Relations, and
1955 Treaty of Amity, Economic Relations and Consular Rights between Iran and the United States. Iran had the
international legal responsibility to keep the embassy inviolable. Iran was fully aware of its obligations but it did
nothing to prevent the take over and the captivity of the US nationals.

Although the take-over of the embassy was not held to have been an act of the state, the consequent detention of
the US nationals was attributed to Iran because of its approval and support to said detention, such act was a
violation of the provisions in the aforenamed conventions and treaty. “Once organs of the Iranian State had thus
given approval to the acts complained of and decided to perpetuate them as a means of pressure on the United
States, those acts were transformed into acts of the Iranian State: the militants became agents of that State, which
itself became internationally responsible for their acts.”

For its breaches, the Islamic Republic of Iran had incurred responsibility towards the United States of America. Iran is
obliged to make reparations and to endeavor for the release of the hostages.

US vs. Nicaragua (1986)

Case: Case Concerning the Military and Paramilitary Activities In and Against Nicaragua (Nicaragua vs United
States) (Merits: focusing on matters relating to the use of force and self-defence)

Year of Decision: 1986

Court: ICJ

NB: This blog post will discuss matters on the use of force and self-defence. If you would like to read about the impact of
the Nicaragua judgement on customary international law and the US multilateral reservation please click here.

Overview: The case involved military and paramilitary activities conducted by the United States against Nicaragua from
1981 to 1984. Nicaragua asked the Court to find that these activities violated international law.

Facts of the Case:

In July 1979 the Government of President Somoza collapsed following an armed opposition led by the Frente Sandinista
de Liberacibn Nacional (FSLN) . The new government – installed by FSLN – began to meet armed opposition from
supporters of the former Somoza Government and ex-members of the National Guard. The US – initially supportive of
the new government – changed its attitude when, according to the United States, it found that Nicaragua was providing
logistical support and weapons to guerrillas in El Salvador. In April 1981 it terminated United States aid to Nicaragua and
in September 1981, according to Nicaragua, the United States “decided to plan and undertake activities directed against
Nicaragua”.

The armed opposition to the new Government was conducted mainly by (1) Fuerza Democratica Nicaragüense (FDN),
which operated along the border with Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated
along the border with Costa Rica, (see map of the region). Initial US support to these groups fighting against the
Nicaraguan Government (called “contras”) was covert. Later, the United States officially acknowledged its support (for
example: In 1983 budgetary legislation enacted by the United States Congress made specific provision for funds to be
used by United States intelligence agencies for supporting “directly or indirectly military or paramilitary operations in
Nicaragua”).

Nicaragua also alleged that the United States is effectively in control of the contras, the United States devised their
strategy and directed their tactics and that they were paid for and directly controlled by United States personal.
Nicaragua also alleged that some attacks were carried out by United States military – with the aim to overthrow the
Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan ports and attacks on ports, oil
installations and a naval base. Nicaragua alleged that aircrafts belonging to the United States flew over Nicaraguan
territory to gather intelligence, supply to the contras in the field and to intimidate the population.

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

Questions before the Court:

 Did the United States breach its customary international law obligation – not to intervene in the affairs of
another State – when it trained, armed, equipped and financed the contra forces or encouraged, supported and
aided the military and paramilitary activities against Nicaragua?

 Did the United States breach its customary international law obligation – not to use force against another State –
when it directly attacked Nicaragua in 1983 – 1984 and when its activities in bullet point 1 above resulted in the
use of force?

 If so, can the military and paramilitary activities that the United States undertook in and against Nicaragua be
justified as collective self-defence?

 Did the United States breach its customary international law obligation – not to violate the sovereignty of
another State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and by acts referred to
in bullet point 2 above?

 Did the United States breach its customary international law obligations – not to violate the sovereignty of
another State, not to intervene in its affairs, not to use force against another State and not to interrupt peaceful
maritime commerce – when it laid mines in the internal waters and the territorial sea of Nicaragua?

ICJ decision: The United States violated customary international law in relation to bullet points 1, 2, 4 and 5 above. On
bullet point 3, the Court found that the United States could not rely on collective self-defence to justify its use of force
against Nicaragua.

Relevant Findings of the Court:

1. The court held that the United States breached its customary international law obligation – not to use force against
another State: (1) when it directly attacked Nicaragua in 1983 – 1984; and (2) when its activities with the contra forces
resulted in the threat or use of force (see paras 187 -201).

The Court held that:

 The prohibition on the use of force is found in Article 2(4) of the UN Charter and in customary international law.

 In a controversial finding the court sub-classified the use of force as: (1) the “most grave forms of the use of
force” (i.e. those that constitute an armed attack) and (2) the “less grave form” (i.e. organizing, instigating,
assisting or participating in acts of civil strife and terrorist acts in another State – when the acts referred to
involve a threat or use of force not amounting to an armed attack).

 The United States violated the customary international law prohibition on the use of force when it laid mines in
Nicaraguan ports. It violated this prohibition when it attacked Nicaraguan ports, oil installations and a naval base
(see below). The United States could justify its action on collective self-defence, if certain criteria were met –
this aspect is discussed below.

 The United States violated the customary international law prohibition on the use of force when it assisted the
contras by “organizing or encouraging the organization of irregular forces and armed bands… for incursion into
the territory of another state” and participated “in acts of civil strife…in another State” when these acts
involved the threat or use of force.

 The supply of funds to the contras did not violate the prohibition on the use of force. Nicaragua argued that the
timing of the offensives against it was determined by the United States: i.e. an offensive could not be launched
until the requisite funds were available. The Court held that “…it does not follow that each provision of funds by
the United States was made to set in motion a particular offensive, and that that offensive was planned by the
United States.” The Court held further that while the arming and training of the contras involved the threat or
use of force against Nicaragua, the supply of funds, in it self, only amounted to an act of intervention in the
internal affairs of Nicaragua (para 227) – this aspect is discussed below.

What is an armed attack?

 A controversial but interesting aspect of the Court’s judgement was its definition of an armed attack. The Court
held that an armed attack included:

(1) action by regular armed forces across an international border; and

(2) “the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of
armed force against another State of such gravity as to amount to (inter alia) an actual armed attack conducted by
regular forces, or its (the State’s) substantial involvement therein”

NB: The second point somewhat resembles Article 3 (g) of the UNGA Resolution 3314 (XXIX) on the Definition of
Aggression.

 Mere frontier incidents are not considered as an armed attack – unless because of its scale and effects it would
have been classified as an armed attack if it was carried out by regular forces.

 Assistance to rebels in the form of provision of weapons or logistical support did not constitute an armed attack
– it can be regarded as a threat or use of force, or an intervention in the internal or external affairs of other
States (see paras 195, 230).

 Under Article 51 of the UN Charter and under CIL – self-defence is only available against a use of force that
amounts to an armed attack (para 211).

NB: In in the Case Concerning Oil Platforms and the advisory opinion on the Legal Consequences of of the Construction of
a Wall in the Occupied Palestinian Territory (hereinafter called the Palestine wall case) the ICJ upheld the definition
of “armed attack” proposed in the Nicaragua case. In the Palestinian wall case, the attacks from which Israel was
claiming self defence originated from non-State actors. However, the Court held that Article 51’s inherent right of self
defence was available to one State only against another State (para 139). Judges Higgins, Buergenthal and Kooijmans
opposed this narrow view. Articles on State Responsibility, prepared by the International Law Commission, provided
significant guidance as to when acts of non-State actors may be attributed to States. These articles, together with recent
State practice relating attacks on terrorists operating from other countries (see legal opinions surrounding the United
States attack on Afghanistan), may have widened the scope of an armed attack, and consequently, the right of self
defence, envisaged by the ICJ.

2. The Court held that the United States could not justify its military and paramilitary activities on the basis of
collective self-defence.
 Customary international law allows for exceptions to the prohibition on the use of force – including the right to
individual or collective self-defence (for a difference between the two forms of self defence, click here). The
United States, at an earlier stage of the proceedings, had asserted that the Charter itself acknowledges the
existence of this customary international law right when it talks of the “inherent” right of a State under Article
51 of the Charter (para.193).

 When a State claims that it used force in collective self-defence, the Court would look into two aspects:

(1) whether the circumstances required for the exercise of self-defence existed and

(2) whether the steps taken by the State, which was acting in self-defence, corresponds to the requirements of
international law (i.e. did it comply with the principles of necessity and proportionality).

 Several criteria must be met for a State to exercise the right of individual or collective self-defence:

(1) A State must have been the victim of an armed attack;

(2) This State must declare itself as a victim of an armed attack; [NB: the assessment whether an armed attack took
place nor not is done by the state who was subjected to the attack. A third State cannot exercise a right of collective self-
defence based its (the third State’s) own assessment]; and

(3) In the case of collective self-defence – the victim State must request for assistance (“there is no rule permitting the
exercise of collective self-defence in the absence of a request by the State which regards itself as the victim of an armed
attack”).

(4) The State does not, under customary international law, have the same obligation as under Article 51 of the UN
Charter to report to the Security Council that an armed attack happened – but “the absence of a report may be one of
the factors indicating whether the State in question was itself convinced that it was acting in self-defence” (see below).

“At this point, the Court may consider whether in customary international law there is any requirement corresponding
to that found in the treaty law of the United Nations Charter, by which the State claiming to use the right of individual or
collective self-defence must report to an international body, empowered to determine the conformity with international
law of the measures which the State is seeking to justify on that basis. Thus Article 51 of the United Nations Charter
requires that measures taken by States in exercise of this right of self-defence must be “immediately reported” to the
Security Council. As the Court has observed above (paragraphs 178 and 188), a principle enshrined in a treaty, if
reflected in customary international law, may well be so unencumbered with the conditions and modalities surrounding
it in the treaty. Whatever influence the Charter may have had on customary international law in these matters, it is clear
that in customary international law it is not a condition of the lawfulness of the use of force in self-defence that a
procedure so closely dependent on the content of a treaty commitment and of the institutions established by it, should
have been followed. On the other hand, if self-defence is advanced as a justification for measures which would
otherwise be in breach both of the principle of customary international law and of that contained in the Charter, it is to
be expected that the conditions of the Charter should be respected. Thus for the purpose of enquiry into the customary
law position, the absence of a report may be one of the factors indicating whether the State in question was itself
convinced that it was acting in self-defence (See paras 200, 232 -236)”.

 The Court looked extensively into the conduct of Nicaragua, El Salvador, Costa Rica and Honduras in determining
whether an armed attack was undertaken by Nicaragua against the three countries – which in turn would
necessitate self-defence (paras 230 – 236). The Court referred to statements made by El Salvador, Costa Rica,
Honduras and the United States before the Security Council. None of the countries who were allegedly subject
to an armed attack by Nicaragua (1) declared themselves as a victim of an armed attack or
request assistance from the United States in self-defence – at the time when the United States was allegedly
acting in collective self-defence; and (2) the United States did not claim that it was acting under Article 51 of the
UN Charter and it did not report that it was so acting to the Security Council. The Court concluded that the
United States cannot justify its use of force as collective self-defence.

 The criteria with regard to necessity and proportionality, that is necessary when using force in self-defence –
was also not fulfilled (para 237).

3. The Court held that the United States breached its CIL obligation – not to intervene in the affairs of another State –
when it trained, armed, equipped and financed the contra forces or encouraged, supported and aided the military and
paramilitary activities against Nicaragua.

 The principle of non- intervention means that every State has a right to conduct its affairs without outside
interference – i.e it “…forbids States or groups of States to intervene directly or indirectly in internal or external
affairs of other States.” . This is a corollary of the principle of sovereign equality of States.

A prohibited intervention must accordingly be one bearing on matters in which each State is permitted, by the principle
of State sovereignty to decide freely. One of these is the choice of a political, economic, social and cultural system, and
the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices,
which must remain free ones. The element of coercion, which defines, and indeed forms the very essence of, prohibited
intervention, is particularly obvious in the case of an intervention which uses force, either in the direct form of military
action, or in the indirect form of support for subversive or terrorist armed activities within another State (para 205).

 Nicaragua stated that the activities of the United States were aimed to overthrow the government of Nicaragua
and to substantially damage the economy and weaken the political system to coerce the Government of
Nicaragua to accept various political demands of the United States. The Court held:

“…first, that the United States intended, by its support of the contras, to coerce the Government of Nicaragua in respect
of matters in which each State is permitted, by the principle of State sovereignty, to decide freely (see paragraph 205
above) ; and secondly that the intention of the contras themselves was to overthrow the present Government of
Nicaragua… The Court considers that in international law, if one State, with a view to the coercion of another State,
supports and assists armed bands in that State whose purpose is to overthrow the government of that State, that
amounts to an intervention by the one State in the internal affairs of the other, whether or not the political objective of
the State giving such support and assistance is equally far reaching.”

 The financial support, training, supply of weapons, intelligence and logistic support given by the United States to
the contras was a breach of the principle of non-interference. “…no such general right of intervention, in
support of an opposition within another State, exists in contemporary international law”, even if such a request
for assistance is made by an opposition group of that State (see para 246 for more).

 However, in a controversial finding, the Court held that the United States did not devise the strategy, direct the
tactics of the contras or exercise control on them in manner so as to make their acts committed in violation of
international law imputable to the United States (see in this respect “Determining US responsibility for contra
operations under international law” 81 AMJIL 86).T he Court concluded that “a number of military and
paramilitary operations of the contras were decided and planned, if not actually by United States advisers, then
at least in close collaboration with them, and on the basis of the intelligence and logistic support which the
United States was able to offer, particularly the supply aircraft provided to the contras by the United States”
but not all contra operations reflected strategy and tactics wholly devised by the United States.

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

 Interesting, however, the Court also held that providing “…humanitarian aid to persons or forces in another
country, whatever their political affiliations or objectives, cannot be regarded as unlawful intervention, or as in
any other way contrary to international law” (para 242).

 In the event one State intervenes in the affairs of another State, the victim State has a right to intervene in a
manner that is short of an armed attack (210).

“While an armed attack would give rise to an entitlement to collective self-defence, a use of force of a lesser degree of
gravity cannot as the Court has already observed (paragraph 21 1 above). produce any entitlement to take collective
countermeasures involving the use of force. The acts of which Nicaragua is accused, even assuming them to have been
established and imputable to that State, could only have justified proportionate counter-measures on the part of the
State which had been the victim of these acts, namely El Salvador, Honduras or Costa Rica. They could not
justify counter-measures taken by a third State, the United States, and particularly could not justify intervention
involving the use of force.”

4. The United States breached its customary international law obligation – not to violate the sovereignty of another
State – when it directed or authorized its aircrafts to fly over Nicaraguan territory and when it laid mines in the
internal waters of Nicaragua and its territorial sea.

 The ICJ examined evidence and found that in early 1984 mines were laid in or close to ports of the territorial sea
or internal waters of Nicaragua “by persons in the pay or acting ion the instructions” of the United States and
acting under its supervision with its logistical support. The United States did not issue any warning on the
location or existence of mines and this resulted in injuries and increases in maritime insurance rates.

 The court found that the United States also carried out high-altitude reconnaissance flights over Nicaraguan
territory and certain low-altitude flights, complained of as causing sonic booms.

 The basic concept of State sovereignty in customary international law is found in Article 2(1) of the UN Charter.
State sovereignty extends to a State’s internal waters, its territorial sea and the air space above its territory. The
United States violated customary international law when it laid mines in the territorial sea and internal waters of
Nicaragua and when it carried out unauthorised overflights over Nicaraguan airspace by aircrafts that belong to
or was under the control of the United States.

- https://ruwanthikagunaratne.wordpress.com/2012/11/15/nicaragua-vs-us-case-summary/

Australia/New Zealand vs. Japan, on whaling in the Atlantic (2014)


On March 31, 2014, the International Court of Justice declared that Japan must halt its current whaling program in the
Southern Ocean.[1] The decision will not affect Japan’s whale hunt in the northern Pacific and it does not foreclose
Japan from all whaling in the future, as long as it is conducted within the requirements of the International Convention
for the Regulation of Whaling (ICRW).[2] Nor does this decision affect the other two nations that currently conduct
whaling operations, Norway and Iceland, which, though parties to the ICRW, have objected to and are therefore not
bound by the moratorium on nearly all whaling activity that it imposes.
Japan violated three provisions of the ICRW by conducting large-scale whaling under the second phase of the Japanese
Whale Research Program under Special Permit in the Antarctic (JARPA II). They were:
- the moratorium on all commercial whaling;
- the moratorium on use of factory ships to process whales; and
- the prohibition on whaling in the Southern Ocean Sanctuary.
The Court found that Japan met the procedural requirements for review of permits by the International Whaling
Commission, found in the ICRW Schedule, paragraph 30.[3]
The result is that Japan must revoke any extant authorization, permit or license to kill, take or treat whales in relation to
JARPA II and refrain from granting any further permits in pursuance of JARPA II. The Court observed that “[i]t is to be
expected that Japan will take account of the reasoning and conclusions contained in this Judgment as it evaluates the
possibility of granting any future permits under Article VIII, paragraph 1, of the Convention.―[4]
The Court based the judgment on its interpretation of the ICRW, finding a lack of scientific merit in Japan’s whaling
program, specifically, the lack of justification of the large scale of lethal sampling. In so doing, it demonstrated its
willingness and ability to address past criticisms of its treatment of scientific evidence. The Court decided that it did not
need to discuss several theories of international law as applied to the environment and wildlife advanced by Australia
and New Zealand (as intervenor);[5] and it did not discuss the question raised by Japan of whether the moratoria were
based on science.
ICRW, Whaling Moratorium and Article VIII Exceptions
The ICRW establishes the International Whaling Commission (IWC, Commission), which comprises representatives of its
eighty-eight state parties and a Scientific Committee. By amending its Schedule[6] the Commission sets catch limits for
commercial and aboriginal whaling—which may be zero catch—and addresses other aspects of research and hunting.
Parties that object to an amendment are not bound by it.
This dispute is focused on the interpretation of the ICRW, Article VIII, whose operative paragraph reads:
Notwithstanding anything contained in this Convention any Contracting Government may grant to any of its
nationals a special permit authorizing that national to kill, take and treat whales for purposes of scientific
research subject to such restrictions as to number and subject to such other conditions as the Contracting
Government thinks fit, and the killing, taking, and treating of whales in accordance with the provisions of this
Article shall be exempt from the operation of this Convention. Each Contracting Government shall report at once
to the Commission all such authorizations which it has granted. Each Contracting Government may at any time
revoke any such special permit which it has granted.
Other paragraphs of Article VIII require that research results be communicated and encourage “processing― the
whales taken for research, with the state to use the “proceeds.― The ICRW does not require states to
obtain approval of other parties or of treaty bodies when they authorize whale hunts under Article VIII, but the
Schedule, paragraph 30, requires states to provide the IWC with “proposed scientific permits before they are issued
and in sufficient time to allow the Scientific Committee to review and comment on them.―
Australia, Japan and New Zealand are parties to the ICRW. In 1982, the IWC established zero catch limits for all whaling,
with two exceptions: aboriginal whaling and special permit scientific whaling under Article VIII of the ICRW. In 1994 the
IWC established the Southern Ocean Whale Sanctuary and prohibited all whaling there. It also banned the use of factory
ships. Japan has a current objection to the moratorium on killing minke whales and to the establishment of the Southern
Ocean Sanctuary. Japan conducted two whaling programs, JARPA II and JARPN II (in the North Pacific Ocean, not at issue
in this case),[7] which it justified as falling under the article VIII exception for special permit scientific whaling. JARPA II
includes lethal sampling of fin, humpback and minke whales within and outside the Southern Ocean Sanctuary; it uses a
factory ship to process the meat. Its research objectives are: (1) monitoring the Antarctic ecosystem; (2) modelling
competition among whale species and future management objectives; (3) elucidating temporal and spatial changes in
stock structure; and (4) improving management of Antarctic minke whale stocks. On average, 450 minke whales were
killed annually under JARPA II, about half the target sample size of 850 minke whales, fifty fin whales, and fifty
humpback whales per season.[8]
Jurisdiction and Claims
The Court found that it had jurisdiction on the basis of Japan’s and Australia’s declarations of acceptance of the
Court’s compulsory jurisdiction under the ICJ Statute Article 36, paragraph 2. Japan contested jurisdiction on the
grounds that Australia’s declaration included a reservation excluding disputes “arising out of, concerning, or
relating to the exploitation of― maritime zones. Australia argues that the reservation is intended only to address
maritime boundary delimitations. Accepting this, the Court concluded that the reservation did not apply as in this case
there were no overlapping maritime claims between Japan and Australia.
Australia claimed that Japan had failed to act in good faith by ignoring the zero-catch limit for commercial whaling,
paragraph 10(e) of the Schedule, and the prohibition on commercial hunting for humpback and fin whales in the
Southern Ocean Sanctuary, paragraph 7(b) of the Schedule. Australia’s application also argued that Japan breached
its obligations to preserve marine mammals and the marine environment under the Convention on International Trade
in Endangered Species of Wild Fauna and Flora (CITES, or the Endangered Species Convention), and the Convention on
Biological Diversity.[9] Note that Australia accepted that under some circumstances, killing whales for scientific research
can be necessary and lawful.
Japan, on the other hand, argued that article VIII whaling was wholly outside the Convention[10] and that the Court did
not have the power to judge the character of the special permits that it granted under JARPA II. It further argued that
the species it hunted were not endangered and that the moratorium on hunting whales was not based on science.
New Zealand contended that article VIII was a limited exception, that JARPA II was not scientific research, and therefore
it did not qualify for an exemption from the moratorium under article VIII.
Science and the ICJ
The claims in this case hinged on the facts alleged by each party regarding the scientific nature of JARPA II. In a previous
case the Court was sharply criticized, by some of its own judges as well as public opinion, for poor handling of significant
scientific and technical issues.[11] This case presented a fresh approach.
The procedure for presenting scientific evidence followed a strict and rapid schedule. The parties were to inform the
Court by December 28, 2012 of the expert evidence they intended to present, including a list of experts to be called at
the hearing. They then had one month to comment on each other’s information and to amend their own. The
experts’ statements were to be provided to the Court within two and a half months after that; they were also
provided to New Zealand. The Court then gave the parties about one month to respond in writing. The oral hearings
were held about one month later (June 26 to July 16, 2014), when all of the written submissions were made public. Two
experts were called by Australia, one by Japan; the experts were examined and cross-examined and they responded to
questions posed by the judges. The Court did not appoint its own expert, which it is authorized to do under article 50 of
the ICJ Statute.
Decision – Interpretation of Article VIII – Standard of Review
The ICJ viewed the dispute over article VIII as an objective question of science and not as a matter entirely left to state
discretion or a question of whaling policy.[12] If article VIII conditions are satisfied by a permit, the whaling it authorizes
is exempt from the moratoria and the prohibition on whaling in the Southern Ocean Sanctuary. Japan argued that it was
entitled to a “margin of appreciation― in issuing the permits, as the state issuing the permit is best able to evaluate
the research proposed. In contrast, Australia and New Zealand maintained that permit requirements must conform to
an objective standard. The Court concluded that “whether the killing, taking and treating of whales pursuant to a
requested special permit is for purposes of scientific research cannot depend simply on that State’s
perception.―[13]
The Court stated that the standard of review was an objective assessment of the reasonableness of Japan’s
authorization of JARPA II. The Court found that it did not need to consider whether JARPA II constitutes commercial
whaling, which might have involved looking at factors like the amount of whale meat sales, employment, and capital
return. It examined, first, whether JARPA II involved scientific research and second, the purposes of the program. For the
latter analysis, the Court considered whether JARPA II’s design and implementation were reasonable in relation to its
stated objectives.
The Court was at pains, as it was throughout the decision, to distinguish the tools that it found appropriate for legal
interpretation of the treaty from the methods used within scientific disciplines. As “scientific research― is not
defined in the ICRW, the Court considered views of the party experts and the relevant law, but declined to adopt a
specific set of criteria. It found that JARPA II could be characterized as scientific research, based on its objectives, which
are within the scope of the Scientific Committee’s research categories, and its activities, which are the systematic
collection and analysis of data by scientists.
The second part of the analysis is key: the Court found that important aspects of JARPA II’s design and
implementation (i.e., lethal take) were not reasonable in relation to its research objectives. The Court found that lethal
methods would be necessary to obtain evidence from internal organs and were not per se unreasonable.[14] It refused
to engage with the parties’ dispute over the scientific value of the data sought, which it characterized as a matter of
scientific opinion. But the Court found Japan’s failure to assess the use of non-lethal alternatives unreasonable in
light of its obligations to cooperate with the IWC, its own scientific policy, and the advent of new technologies improving
non-lethal whale research. Also, several aspects of the study were not reasonably related to the objectives of the
research program, including: different durations for three studies that were supposed to produce related data; sample
sizes for some species that were insufficient for statistical analysis; weaknesses in the fin whale studies identified by
Japan’s own expert; failure to demonstrate a reasonable basis for questionable study parameters; and failure to
adjust the study protocol when actual take was less than half of the study’s required sample size. The Court also said,
“a State party may not, in order to fund the research for which a special permit has been granted, use lethal
sampling on a greater scale than is otherwise reasonable in relation to achieving the programme’s stated
objectives.―
Concluding that the special permits granted by Japan were not “for purposes of scientific research,― the
Court’s final findings were straightforward. Deprived of the article VIII exception for scientific research, Japan
breached its obligations by issuing permits for JARPA II; by allowing the use of a factory ship to take, kill and treat fin
whales; and by JARPA II’s operations within the Southern Ocean Sanctuary regarding fin whales. The ICJ ordered
Japan to terminate all aspects of JARPA II. It then said, “[i]t is to be expected that Japan will take account of the
reasoning and conclusions contained in this Judgment as it evaluates the possibility of granting any future permits under
Article VIII, paragraph 1, of the Convention.―
Conclusion
This judgment is an important advance in the ICJ’s approach to environmental disputes for its thoughtful method of
addressing the scientific issue on which the dispute hinged. The Court established an efficient procedure to elicit expert
opinion from the parties, allowing judges and counsel to interrogate and clarify their understanding. It also developed an
analytical approach that distinguishes the judge’s role from the scientist’s, respecting both.
Although it imposes a hiatus on Japan’s whaling activities, the decision does not resolve the fundamental cultural
conflict between those who believe whales should not be hunted and those who are willing to restrict hunting as part of
a wildlife management program.[15] The Court affirmed that the objectives and structure of the ICRW are oriented
toward both conservation of whale stocks and management of the whaling industry and to the extent that there is no
other international law that prohibits killing whales it is up to the parties to the ICRW, acting together, to determine
when and how whales can be killed. The Court, however, examined only the ICRW, which provided a sufficient answer to
the question posed by this dispute. It left for another day how CITES, the Convention on Biological Diversity, customary
international law, or evolving environmental norms would reply.
About the Author: Cymie R. Payne, an ASIL member, is Assistant Professor at Rutgers University. Thank you for the
comments of two guest editors, Timo Koivurova and Anastasia Telesetsky.
 https://www.asil.org/insights/volume/18/issue/9/australia-v-japan-icj-halts-antarctic-whaling

Peru vs. Chile, maritime dispute (2014)

See PDF

Distinguish between Public and Private International Law with respect to subject matter, parties, and forums of
dispute.

Public international law (or the law of nations) is a body of customary or conventional rules which are considered as
legal binding by civilized states in their intercourse with each other and is concerned solely with the rights and
obligations of sovereign states.

Private international law (or the conflict of laws) may be defined as the rules voluntarily chosen by a given state for
the decision of cases which have a ‘foreign’ element or complexion.

The private international law forms part of municipal laws of a state and is meant for purpose of deciding weather a
given case involving “foreign’ element (i shall be adjudicated upon by its own domestic laws or by laws of some
other state; and (ii) shall be subject of its courts of some other state.

Thus private international law deals with cases in which some relevant fact has a geographical connection with a
foreign country and may on that ground raise a question as to the application of Indian or some other appropriate
foreign law to they determination of the issue or as to the exercise of jurisdiction by Indian or foreign courts.

The public international law is concerned solely with rules concerning the rights and obligation of the states (i.e.
countries) interest. Whereas, generally, speaking individuals and their dealings are the sole concerns of private
international law.

Thus in the case of private international law, the disputes are of a private character ,though one of the dispute ,may
be a sovereign state .Moreover ,unlike public international law, private international law of every state is different.
Also there are as many systems of private international law as there are systems of municipal law, thus, we have
rules of private international law in the fields of birth, marriage, divorce insolvency, wells contracts death and the
like.

Private International Law - that branch of international law which regulates the comity of states in giving effect in
one to the municipal laws of another relating private persons, or concerns the rights of persons within the territory
and dominion of one state or nation, by reason of acts, private or public, done within the dominion of another, and
which is based on the broad general principle that one country will respect and give effect to the laws of another so
far as can be done consistently with its own interests (also conflicts of Laws)
DISTINCTIONS BETWEEN CONFLICT OF LAWS AND PUBLIC INTERNATIONAL LAW

CONFLICT OF LAW BASIS LAW OF NATIONS

1.) MUNICIPAL Nature INTERNATIONAL

2.) PRIVATE INDIVIDUALS Persons Involved SOVEREIGN STATES & ENTITIES POSSESSED OF
AN INTERNATIONAL PERSONALITY

PRIVATE Transactions GENERALLY AFFECTING PUBLIC INTEREST;


THOSE WHICH IN GENERAL ARE OF INTEREST
TO SOVEREIGN STATES

RESORT TO MUNICIPAL TRIBUNALS Remedies/ Sanctions MAY BE FORCIBLE OR PEACEFUL

Forcible:

1. severance of diplomatic relations,


2. retorsions,
3. reprisals,
4. embargo,
5. boycott,
6. non-intercourse,
7. pacific blockades,
8. collective measures under the UN Charter,
and
9. WAR

Peaceful:

1. diplomatic negotiation,
2. tender & exercise of good offices,
3. mediation,
4. inquiry and conciliation,
5. arbitration,
6. judicial settlement by the ICJ,
7. reference to regional agencies,
8. reference to the UN

Who was Hugo Grotius? What was his contribution to public international law?

Hugo Grotius

Hugo Grotius (/ˈɡroʊʃiəs/; 10 April 1583 – 28 August 1645), also known as Huig de Groot (Dutch: [ˈɦœyɣ də ɣroːt])
or Hugo de Groot (Dutch: [ˈɦyɣoː də ɣroːt]), was a Dutch jurist. Along with the earlier works of Francisco de
Vitoria and Alberico Gentili, Grotius laid the foundations for international law, based on natural law. A teenage
intellectual prodigy, he was imprisoned for his involvement in the intra-Calvinist disputes of the Dutch Republic, but
escaped hidden in a chest of books. He wrote most of his major works in exile in France.
It is thought that Hugo Grotius was not the first to formulate the international society doctrine, but he was one of the
first to define expressly the idea of one society of states, governed not by force or warfare but by actual laws and mutual
agreement to enforce those laws. As Hedley Bull declared in 1990: "The idea of international society which Grotius
propounded was given concrete expression in the Peace of Westphalia, and Grotius may be considered the intellectual
father of this first general peace settlement of modern times."[1]
Additionally, his contributions to Arminian theology provided the seeds for later Arminian-based movements, such
as Methodism and Pentecostalism and he is acknowledged as a significant figure in the Arminianism-Calvinism debate.
Because of his theological underpinning of free trade, he is also considered an "economic theologist".[2]

- Wikipedia

Hugo Grotius (Huig De Groot) was a Dutch wunderkind of the 17th Century. He was a child prodigy who entered
university at age 11, a member of an important diplomatic delegation from his native Holland to France at age 15,
awarded a French doctor of laws at age 16, an Attorney General of The Netherlands at age 24. He is now remembered as
the “father of international law.” Adam Smith described him in 1762 as “the first…to give the world anything like a
regular system of natural jurisprudence.”

Grotius was born in Delft, Holland in 1583. After matriculating at Leiden University in 1594, he
was chosen to accompany a Dutch diplomatic mission to the court of King Henry IV of France
in 1598. The following year the University of Orléans awarded him a degree of doctor of laws.

When Grotius returned to Holland, he began a career in politics. While serving as the
Advocate-Fiscal (Attorney General) of Holland, he became involved in a theological
controversy between the Arminian Remonstrants and the conservative Gomarists, (a religious
controversy that would puzzle most persons living today) which ultimately led to his
imprisonment for life in 1619. After a legendary escape (he was smuggled out of his cell in a trunk thought to be filled
with books), he lived the remainder of his life (except for one brief period) in political exile in France, Germany and
Sweden. He was at one time Sweden’s ambassador to France.

During these periods of personal and political turmoil in Europe, Grotius began to formulate his own
ideas on the law of nations that he saw as a system of mutual legal restraints, based on the belief
that the law emanated both from human reason, or natural law, and from custom. He authored
numerous essays and treatises and 60 books, among which were De Jure Praedae (On the Law of
Prize) and Mare Liberum (Freedom of the Seas). However, it is De Jure Belli ac Pacis (On the Law of
War and Peace), published in 1625, that had the most profound impact on the development of
international law.

Grotius sought in this latter book to produce a work that effectively addressed the idea of
international society, asserting the identity of individual states within the context of a larger
community bound together by a body of laws. This formed the basis of the “Grotian tradition” of international society -
the idea that while states are the primary actors, both individuals and non-state entities have rights and duties that give
them a place in a “great society of all mankind.”

Among the issues addressed by Grotius in his various writings were:

(1) Jus ad Bellum (right to war): Grotius represented a divergence from the ancient just war theory, which gave little
attention to the doctrine of self-defense. He believed that actions taken in self-defense fell within the realm of just war.
While Grotius’ other views on the justification of resort to war, namely for punishment or for recovery of property are
inconsistent with modern interpretations of the jus ad bellum, his main contribution lies in the fact that he put forth
strict limitations on the resort to war.
(2) Jus in Bello: Greatly disturbed by the brutality of war, Grotius centralized the notion of jus in bello (rights in war) by
making it part of the obligations found under just war theory. He believed states were not unlimited in the ways in which
they could pursue war, and that they were obligated to act justly and prudently when conducting and concluding war.
Most notably the Hague Conventions of 1899 and 1907 embraced his notion of a prohibition on unnecessary suffering.

(3) Rights of Individuals: Because Grotius endorsed a society of mankind and considered individuals to be actors in
international society, he wrote extensively on human law, a precursor of what is today known as international human
rights law. He presupposed certain fundamental human rights, such as the right to life, food, and medicine. More
importantly though, he argued for the protection of non-combatants during times of war (part of international
humanitarian law), an idea that foreshadowed the “protected persons” found in the current discourse on international
relations.

(4) Humanitarian Intervention: In general, Grotius was a non-interventionist. However, he did argue that states might
be able to act on behalf of individuals who were victims “of injuries which…excessively violate the law of nature or of
nations in regards to any person.” Many scholars view this as an implicit justification for humanitarian intervention in
certain instances.

(5) Freedom of the Seas: Grotius firmly believed that no state could claim exclusive ownership over any part of the seas,
although he did acknowledge the sovereignty of coastal states. In his view, freedom of the seas meant freedom of
navigation. There is a direct link between Grotius’ concept of freedom of the seas and the 1982 UN Convention on the
Law of the Sea. Although the UN Convention places spatial limitations on the high seas, it built upon Grotius’ ideas and
expanded freedom of the high seas to include, in addition to basic navigation, overflight, scientific research, and clearer
responsibilities of jurisdiction, protection, and enforcement.

Hugo Grotius crafted his work in direct response to the political situations facing Europe
during his lifetime, but which transcended and had important implications beyond his time
and geographical place. His thoughts and ideas were clearly discerning as they foreshadowed
modern dialogue on international law.

It is thus appropriate that Hugo Grotius, the “father of international law,” be recognized today
as a “leading figure in international law.”

by James G. Apple, Co-Editor, International Judicial Monitor and President, International Judicial Academy; and Christine
E. White, International Judicial Academy

- http://www.judicialmonitor.org/archive_1007/leadingfigures.html