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INTERNATIONAL

LAW

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Table of content

Topic Page number

United Nations and its organs

Peaceful Settlement of Disputes

International Court of Justice

Use of force

International Humanitarian Law

Law of the sea

International Human Rights Law

Environmental Law

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United Nations and its organs
• The forerunner of UN is League of Nations
• The Establishment of UN is through UN Charter and UDHR
• The principal organs of UN are General Assembly, Security
Council, Economic and Social Council, ICJ
• Function of Secretariat General and Secretariat
• Role of specialized agencies of UN

The forerunner of UN was League of Nations


• The forerunner of the UN was the League of Nations, an
organization conceived during the First World War
• It is established in 1919 through Treaty of Versailles
• It was to promote international co-operation and achieve peace
and security
• The number of members in League of Nations were 59
members consisting of European countries, Japan, Germany
and Italy
• However the organization failed because of World War 2.
However the failure was not due to the problem of constitution
or instrument. The failure was due to member states’ failure to
discharge their obligation to prevent invasion of Manchuria
• League of Nations officially ended on 20 April 1946
• In 1945, representatives of 50 countries met in San Francisco
at the United Nations Conference on International Organization
to draw up the United Nations Charter. The Charter was signed
on 26 June 1945 by the representatives of the 50 countries.
• Thus, UN came into existence on 24 October 1945 when the UN
Charter had been ratified by China, France, Soviet Union, UK,
US and a majority of other signatories
• UN is a legal personality
• Reparation case, the court admitted that the organization was
intended to enjoy and is in fact exercising and enjoying rights
which can only be explained on the basis of the possession of
international personality. Therefore, it must be acknowledged
that its Members by entrusting certain functions to it, have

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clothed it with the competence required to enable those
functions to be effectively discharged

The Establishment of UN is through UN Charter and UDHR


UN Charter
• UN Charter is a multilateral treaty which lays down the rights
and duties of signatory states
• UN Charter is the basic constitutional document of
organization
• The main purpose of UN is found Article 1 of UN Charter
which provides that the purpose of United Nations are to
(1) to maintain international peace and security and to that
end: to take effective collective measures for the prevention
and removal of threats to the peace and for the suppression
of acts of aggression or other breaches of peace and to bring
about by peaceful means and in conformity with the
principles of justice and international law, adjustment or
settlement of international disputes or situations which
might lead to breach of the peace
(2) to develop friendly relations among nations based on
respect for the principle of equal rights and self-
determination of peoples and to take other appropriate
measures to strengthen universal peace
(3) to achieve international co-operation in solving
international problem of an economic, social, cultural, or
humanitarian character and in promoting and encouraging
respect for human rights and for fundamental freedoms for
all without distinction as to race, sex, language or religion
and
(4) to be a centre for harmonizing the actions of the nations in
the attainment of these common ends
• It should be noted that there is inconsistency between Article
2(7) and Article 103 of UN Charter. In any event, Article 103 of
UN Charter shall prevail

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• Article 2(7) of UN Charter provides that nothing contained in
the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the
domestic jurisdiction of any state or shall require the
Members to submit such matters to settlement under the
present Charter but this principle shall not prejudice the
application of enforcement of measures under Chapter VII
• Article 103 of UN Charter provides that in the event of a
conflict between the obligations of the Members of the United
Nations under the present Charter and their obligations under
any other international agreement, their obligations under the
present Charter shall prevail
• The current members of UN is 193 members. South Sudan
being the newest members.

UDHR
• It is a guide for member states to identify the basic rights that
every person should enjoy
• It is not a treaty but a norm by 2 convention

PRINCIPAL ORGANS OF UN
Trusteeship Council
• It provides international supervision for 11 trust territories
under administration of 7 Member States. Its purpose is to
ensure adequate steps are being taken to prepare the
territories for self-government or independence. The last of 11
members is already member of United nation under
trusteeship council.

General Assembly
• It is the plenary organ of UN. It consists of 193 members each
with one vote but entitled to 5 representatives

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• What is plenary organ? Plenary organ is the BIGGEST organ.
UN is the representative of all member states. It is a policy-
making organ of institution. The Secretariat is a non plenary
organ
• General Assembly facilitates international treaty and
convention
• Membership of United Nation can be seen in Article 3, 4, 5 and
6.
• Article 3 of UN Charter states that the original members of the
united nations shall be the states which, having participated in
the United Nations Conference on International Organization at
San Francisco, or having previously signed the Declaration by
United Nations of 1 January 1942, sign the present Charter and
ratify it in accordance with Article 110
• Article 4 of UN Charter provides (1) Membership in the
United Nation is open to all other peace-loving states which
accept the obligations contained in the present Charter and
in the judgment of the Organization are able and willing to
carry out these obligations (2) The admission of any such
state to the membership in the United Nations will be
effected by a decision of the General Assembly upon
recommendation of the Security Council
• Article 5 of UN Charter provides that a member of the United
Nations against which preventive or enforcement action has
been taken by the Security Council may be suspended from the
exercise of the rights and privileges of membership by the
General Assembly upon the recommendation of the Security
Council. The exercise of these rights and privileges may be
restored by the Security Council
• Article 6 of UN Charter provides that a member of the United
Nations which has persistently violated the Principles
contained in the present Charter may be expelled from the
Organization by the General Assembly upon the
recommendation of the Security Council
• Rule 137 of Rules of Procedure of the General Assembly
provides that if the Security Council does not recommend the

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applicant State for membership or postpones the consideration
of the application, the General Assembly may after full
consideration of the special report of the Security Council send
the application back to the Council, together with a full record
of the discussion in the Assembly, for further consideration and
recommendation or report
• The function and powers of General Assembly is that it
proceeds through recommendation rather than binding
decision. There are circumstances when recommendation may
create legal obligation. For example, budget contribution. It can
also embody consensus of what law is. For example repeated
affirmations of the right of self determination (East Timur
Case) and permanent sovereignty (Resolution 1803)
(Texaco v Libya)
• Chapter 4 of UN Charter lays down the power of General
Assembly
• Article 11 of UN Charter provides (1) The General Assembly
may consider the general principles of co-operation in the
maintenance of international peace and security, including the
principles governing disarmament and the regulation of
armament and may make recommendations with regard to
such principles to the Members or to the Security Council or to
both (2) The General Assembly may discuss any question
relating to the maintenance of international peace and security
brought before it by any Member of The United Nations or by
the Security Council or by a state which is not a Member of the
United Nations in accordance with Article 35, paragraph 2 and
except as provided in Article 12, may make recommendations
with regard to any such question on which action is necessary
shall be referred to the Security Council by the General
Assembly either before or after discussion (3) The General
Assembly may call the attention of the Security Council to
situations which are likely to endanger international peace and
security (4) The powers of the General Assembly set forth in
this Article shall not limit the general scope of Article 10

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• Article 14 of UN Charter provides that subject to the provisions
of Article 12, the General Assembly may recommend measures
for the peaceful adjustment of any situation, regardless of
origin which it deems likely to impair the general welfare of
friendly relations among nations, including situations resulting
from a violation of the provisions of the present Charter setting
forth the Purposes and Principles of the United Nations
• The Security Council would notify the General Assembly if they
are dealing with the matter. Article 12 of UN Charter provides
that (1) While the security council is exercising in respect of
any dispute or situation the function assigned to it in the
present Charter, the General Assembly shall not make any
recommendation with regard to that dispute or situation
unless Security Council so requests (2) The Secretary General
with the consent of the Security Council shall notify the General
Assembly at each session of any matters relative to the
maintenance of international peace and security which are
being dealt with by the Security Council and shall similarly
notify the General Assembly or the Members of United Nations
of the General Assembly is not in session immediately the
Security Council ceases to deal with such matters
• Construction of the Palestine Wall case. The court held that
according to Section 24 of UN Charter, the Security Council has
a primary and not necessarily an exclusive competence with
respect to maintenance of international peace and security
• In Certain Expenses of the United Nation, the issue is
whether General Assembly has capacity to establish a UN
Force. The court held that Security Council had primary and
not exclusive authority and that whilst the taking of the
enforcement action was the exclusive prerogative of the
Council under Chapter VII, this did not prevent the Assembly
from making recommendations under Article 10 and 14.
Limitation in Article 11(2) does not apply since the UNEF
action was not enforcement action but rather recommended
measures under Article 14. UNEF is the first United Nations
peacekeeping force and it was established by the first United

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Nations peacekeeping force and was established by the first
emergency special session of the General Assembly which was
held from 1 to 10 November 1956. The mandate of the Force
was to secure and supervise the cessation of hostilities
including the withdrawal of the armed forces of France, Israel
and the United Kingdom from Egyptian territory and after the
withdrawal to serve as a buffer between the Egyptian and
Israeli forces and to provide impartial supervision of the
ceasefire. UNEF was withdrawn from May to June 1967, at
Egypt’s request
• Pursuant to Uniting for Peace Resolution (Resolution 377(V)),
the Assembly may also take action if the Security Council fails
to act owing to the negative vote of a permanent member, in a
case where there appears to be a threat to the peace, breach of
the peace and act of aggression. The Assembly can consider the
matter immediately with a view to making recommendations
to Members for collective measures to maintain or restore
international peace and security

Security Council
• It is an executive organ of United Nation with LIMITED
MEMBERSHIP. The Security Council has primary responsibility
under the Charter and is entrusted for the maintenance of
peace and security
• Each Council member has one vote. Decisions on procedural
matters are made by an affirmative vote of at least 9 of the 15
members. Decisions on substantive matters require 9 votes
including concurring votes of all 5 permanent members. This is
the rule of “great power unanimity” often referred to as the
veto power
• Article 27(3) provides for the right of veto the Security Council.
Only procedural questions cannot be subject to a veto. Thus it
is necessary to distinguish between procedural and non-
procedural question. The General Assembly adopted resolution

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1949 giving its opinion on which questions should be
considered as procedural.
• The composition of members can be seen in Article 23.
• Article 23 of UN Charter provides that (1) the Security Council
shall consist of 15 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 10 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 2 years. In the first
election of the non-permanent members after the increase of
the membership of the Security Council from 11 to 15, 2 of 4
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
• The function of Security Council is found in Article 24 till
Article 26 of UN Charter and Article 41 and 42 of UN Charter
• Article 24 of UN Charter provides that (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 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

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Council shall submit annual and when necessary special
reports to the General Assembly for its consideration
• Article 25 of UN Charter provides that 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 of UN Charter provides that 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.
• Article 41 of UN Charter provides that 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
• Article 42 of UN Charter provides that should the Security
Council consider that measures provided for in Article 41
would be inadequate or have proved to be inadequate, it may
take such action by air, sea or land forces as may be necessary
to maintain or restore international peace and security. Such
action may include demonstrations, blockade and other
operations by air, sea or land forces of Members of United
Nations

Enforcement action of UN
• Article 39 of UN Charter provides that the Security Council
shall determine the existence of any threat to the peace, breach
of the peace or the act of aggression and shall make
recommendations or decide what measures shall be taken in

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accordance with Articles 41 (not involving the use of armed
forces) and 42 (involving action by air, sea or land forces) to
maintain or restore international peace and security
• Article 43 of UN Charter provides that (1) All members of the
United Nations, in order to contribute to the maintenance of
international peace and security, undertake to make available
to the Security Council on its call and in accordance with a
special agreement or agreements, armed forces, assistance and
facilities, including rights of passage, necessary for the purpose
of maintaining international peace and security (2) such
agreement or agreement shall govern the numbers and types of
forces, their degree of readiness and general location and the
nature of the facilities and assistance to be provided (3) the
agreement or agreements shall be negotiated as soon as
possible on the initiative of the Security Council. They shall be
concluded between the Security Council and Members or
between the Security Council and groups of Members and shall
be subject to ratification by the signatory states in accordance
with their respective constitutional processes
• Article 42 of UN Charter provides that should the Security
Council consider that measures provided for in Article 41
would be inadequate or have proved to be inadequate, it may
take such action by air, sea or land forces as may be necessary
to maintain or restore international peace and security. Such
action may include demonstrations, blockade and other
operations by air, sea or land forces of Members of United
Nations
• Security Council has exercised its power under Chapter 7 of UN
Charter in the case of Congo 1960, Rhodesian Affairs (1966),
Arms Embargo against South Africa (1971), Iraq’s invasion of
Kuwait (Resolution 660, 671, 678), Arms embargo against
Yugoslavia 1991, Somalia 1992, Haiti 1993, East Timor 1999
• Security Council can establish criminal tribunal (Yugoslavia,
Rwanda)

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Economic and Social Council and its organs
Composition
1. Article 61 of UN Charter provides that (1) The Economic and
Social Council shall consists of 54 members of the united
nations elected by general assembly (2) Subject to the
provisions of paragraph 3, 18 members of the Economic and
Social Council shall be elected each year for a term of 3 years.
A retiring member shall be eligible for immediate re-election
(3) At the first election after the increase in the membership of
the Economic and Social Council from 27 to 54 members, in
addition to the members elected in place of the 9 members
whose term of office expires at the end of that year, 27
additional members shall be elected. Of these 27 additional
members, the term of office of 9 members so elected shall
expire at the end of 1 year, and of 9 other members at the end
of 2 years, in accordance with arrangement made by the
General Assembly (4) Each member of the Economic and Social
Council shall have one representative

Function
• Article 62 of UN Charter provides that (1) The Economic and
Social Council may make or initiate studies and reports
with respect to international economic, social, cultural,
educational, health and related matters and may make
recommendations with respect to any such matters to the
General Assembly to the Members of United Nations and to the
specialized agencies concerned (2) It may make
recommendations for the purpose of promoting respect for,
and observance of human rights and fundamental freedoms for
all (3) It may prepare draft conventions for submission to
the General Assembly with respect to matters falling within
its competence (4) It may call, in accordance with the rules
prescribed by the United Nations, international
conferences on matters falling within its competence

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• Article 62 has to be read together with Article 55 and 56 of the
UN Charter
• Article 55 of UN Charter provides that with a view to the
creation of stability and well being which are necessary for
peaceful and friendly relations among nations based on respect
for the principle of equal rights and self-determination of
peoples, the United Nations shall promote:
a) higher standards of living, full employment and conditions of
economic and social progress and development
b) solutions of international economic, social, health, and related
problems and international cultural and educational
cooperation and
c) universal respect for and observance of human rights and
fundamental freedoms for all without distinction as to race,
sex, language or religion
• Article 56 of UN Charter provides that all members pledge
themselves to take joint and separate action in co-operation
with the Organization for the achievement of the purposes set
forth in Article 55
• Article 60 of UN Charter provides that responsibility for the
discharge of the functions of the Organization set forth in this
Chapter shall be vested in the General Assembly and under the
authority of the General Assembly in the Economic and Social
Council, which shall have for this purpose the powers set forth
in Chapter X
• Article 65 of UN Charter provides that the Economic and Social
Council may furnish information to the Security Council and
shall assist the Security Council upon its request
• Article 66 of UN Charter provides that (1) The Economic and
Social Council shall perform such functions as fall within its
competence in connection with the carrying out of the
recommendations of the General Assembly (2) It may with the
approval of the General Assembly, perform services at the
request of Members of the United Nations and at the request of
specialized agencies (3) It shall perform such other functions

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as are specified elsewhere in the present Charter or as may be
assigned to it by the General Assembly
• Coordination of work with and between specialized
agencies is provided in Article 57 of UN Charter. Article 57 of
UN Charter provides that (1) the various specialized agencies,
established by intergovernmental agreement and having wide
international responsibilities, as defined in their basic
instruments in economic, social, cultural, educational, health
and related fields shall be brought into relationship with the
United Nations in accordance with the provisions of Article 63
(2) Such agencies thus brought into relationship with the
United Nations are hereinafter referred to as specialized
agencies

Secretariat
• It does daily work of United Nation. It was entrusted with
administrative function of United Nation
• It was placed under authority of Secretary General. It is known
as international civil service
• Independence of Secretariat. In Article 100 of UN Charter (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 authority external to the
Organization. They shall refrain from any action which might
reflect on their position as international officials responsible
only to the Organization (2) Each Member of the United
Nations 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
• For example: In 1980s, US asked its people who worked for UN
to fill in questionnaire concerning their opinion about
communism
• Article 101 of UN Charter provides that (1) The staff shall be
appointed by the Secretary-General under regulations

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established by the General Assembly (2) Appropriate staffs
shall be permanently assigned to the Economic and Social
Council, the Trusteeship Council and as required to other
organs of the United Nations. These staffs shall form a part of
Secretariat (3) The paramount consideration in the
employment of the staff and in the determination of the
conditions of service shall be the necessity of securing the
highest standards of efficiency, competence, and integrity. Due
regard, shall be paid to the importance of recruiting the staff on
as wide a geographical basis as possible
• It consists of 7,300 staff from 160 countries

Appointment of Secretary General


• Article 97 of UN Charter provides that the Secretariat shall
comprise a Secretary General and such staff as the
Organization may require. The Secretary General shall be
appointed by the General Assembly upon the recommendation
of the Security Council. He shall be the chief administrative
officer of the Organization
• The duration of appointment is 5 years
• Permanent Members must unanimously agree on the Secretary
General’s appointment
• Article 99 of UN Charter provides that the Secretary General
may bring to the attention of the Security Council any matter
which in his opinion may threaten the maintenance of
international peace and security
• Secretary General can assume a role to conduct diplomatic
activities on his own

Specialized Agencies
• It is an international organization of limited competence linked
to United National by special agreement. It is endowed with a
separate legal personality and complements the action of UN in
a more technical field. The specialized agencies’ relationship

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with the UN are established by agreements concluded under
Article 57 and 63 of UN Charter
• Article 57 of UN Charter provides that (1) the various
specialized agencies, established by intergovernmental
agreement and having wide international responsibilities,
as defined in their basic instruments in economic, social,
cultural, educational, health and related fields shall be brought
into relationship with the United Nations in accordance with
the provisions of Article 63 (2) Such agencies thus brought into
relationship with the United Nations are hereinafter referred to
as specialized agencies
• Article 63 of UN Charter provides that (1) The Economic and
Social Council may enter into agreements with any of the
agencies referred to in Article 57, defining the terms on which
the agency concerned shall be brought into relationship with
United Nations. Such agreements shall be subject to approval
by the General Assembly (2) It may co-ordinate the activities of
the specialized agencies through consultation with and
recommendation to such agencies and through
recommendations to the General Assembly and to the
Members of United Nations.

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Peaceful Settlement of Disputes
• The meaning of peaceful settlement of dispute is disagreement
about something and typically but not exclusively between
States with the consequences on the international plane
• Article 2(3) of UN Charter provides that all Members shall
settle their international disputes by peaceful means in such a
manner that international peace and security and justice are
not endangered
• The 1982 Manila Declaration on the Peaceful Settlement of
International Disputes imposes upon States the obligation to
seek, in good faith and a spirit of cooperation, an early and
equitable settlement of their disputes
• In Mavrommatis Palestine Concession case, dispute is
defined as a disagreement over a point of law or fact, a conflict
of legal views or of interests between two persons
• Article 33(1) of UN Charter provides that (1) The parties to
any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security shall first of all
seek a solution by negotiation, enquiry, mediation, conciliation,
arbitration, judicial settlement, resort to regional agencies or
arrangements or other peaceful means of their own choice (2)
The Security Council shall when it deems necessary, call upon
the parties to settle their disputes by such means
• Article 34 of UN Charter provides that the Security Council
may investigate any dispute or any situation which might lead
to international friction or give rise to a dispute, in order to
determine whether the continuance of the dispute or situation
is likely to endanger the maintenance of international peace
and security
• Article 35 of UN Charter provides that (1) Any Member of the
United Nations may bring any dispute, or any situation of the
nature referred to in Article 34, to the attention of the Security
Council or General Assembly (2) A state which is not a member
of the United Nations may bring to the attention of the Security
Council or of the General Assembly any dispute to which it is a
party if it accepts in advance, for the purposes of the dispute,

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the obligations of pacific settlement provided in the present
Charter (3) The proceedings of the General Assembly in respect
of matters brought to its attention under this Article will be
subject to the provisions of Article 11 and Article 12
• Article 36 of UN Charter provides that (1) The Security
Council may at any stage of a dispute of the nature referred to
in Article 33 or of a situation of like nature, recommend
appropriate procedures or methods of adjustment (2) The
Security Council should take into consideration any procedures
for the settlement of the dispute which have already been
adopted by the parties (3) In making recommendations under
this Article, the Security Council should also take into
consideration that legal disputes should as a general rule be
referred by the parties to the International Court of Justice in
accordance with the provisions of the Statute of the Court
• Article 37 of UN Charter provides that (1) should the parties
to a dispute of the nature referred to in Article 33 fail to settle
it by the means indicated in that Article, they shall refer it to
the Security Council (2) If the Security Council deems that the
continuance of the dispute is in fact likely to endanger the
maintenance of international peace and security, it shall decide
whether to take action under Article 36 or to recommend such
terms of settlement as it may consider appropriate
• The effect of these provisions is that, in the event of a dispute,
member States are not allowed to use force and must attempt
to settle the dispute peacefully
• However consent is a prerequisite to the dispute settlements
• The Status of Eastern Corelia, the court held that no state can
without its consent be compelled to submit its dispute with
other states either to mediation or arbitration or to any other
kind of pacific settlement
• As under Article 33(1) of UN Charter, there are two
categories of dispute settlement
• Diplomatic means: Where parties retain control over the
dispute whereby they accept or reject a proposed settlement.
(Negotiation, enquiry, mediation and conciliation)

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• Legal means: Has the effect of legally binding decisions
ordered upon parties to the dispute (Arbitration and judicial
settlement)

NEGOTIATION
• Negotiation is most widely used. It involves discussion
between interested parties with a view to reconcile divergent
opinions or to understand different position
• It can be used to resolve instrumental issue. It can be used as a
precursor to other dispute settlement mechanism. It may be
bilateral or multilateral but where it involves more than two
States, it often takes the form of a conference. It is more than
mere deliberation or a means of settling differences, as it can
also help prevent disputes from arising. For example, when a
government anticipates that a decisions or a proposed course
of action may harm another State, discussions (in the form of
consultation) with the affected party can provide a way of
preventing a dispute by creating an opportunity for adjustment
• The effect of a negotiation is that it may lead to an agreed
solution in the form a compromise by a State for the sake of
peace or friendly relations
• However, when a State refuses to conduct a negotiation or to
follow through on a negotiated agreement, other means of
dispute settlement must be used
• A state may bind itself to negotiate in treaty which means that
obligation arises from treaty
• The cons of negotiation are that it cannot guarantee that
dispute will be settled, the outcome of negotiation is limited
and it depends on goodwill, mutual respect of parties
• North Sea Continental Shelf case, in this case parties were
under an obligation to enter into negotiation with a view to
arrive at an agreement and not merely to go through a formal
process of negotiation as a sort of prior condition. Subsequent
to that, court determined good faith. They are under obligation
to conduct themselves. Negotiation is meaningful which will
not be the case when either of them insist upon its own

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position without contemplating any modification of it. This
case identifies what are the elements that needs to be satisfied.
• Lax Lanoux Arbitration “it must be genuine, comply with good
faith. If there is delay, there is no good faith”

MEDIATION AND GOOD OFFICES


• Where a dispute is unable to be resolved wholly by negotiation,
the intervention of a third party in the form of mediation or
good offices may produce an acceptable solution. This is an
extension of negotiation. It involves third party.
• Good offices involves the participation of a third party (a State,
an individual, or a body) in bringing the parties to the dispute
together, provided that the offer of a good offices is accepted by
the parties
• The third party participating must be impartial in order to
facilitate the communication between the parties and does not
participate in the actual settlement of dispute
• Once the settlement of the dispute begins, the third party’s role
comes to an end
• For example in 1993, Norway offered its services to facilitate
secret talks which took place in Norway between Palestinian
Liberation Organisation (PLO) and Israel which later led to the
signing of the Oslo Agreement
• Mediation is when a third party is actively involved in the
solution of a dispute by making non binding proposals to both
parties. Good offices can only turn into mediation if the third
party is accepted by the parties to further assist in mediating
the dispute. For example, in 1990 diplomatic hostages dispute
between Iran and the US, Algeria assisted the communication
between the parties and only with such assistance did they
conclude the Algiers Accords, which led to the establishment of
the Iran-US Claims Tribunal in the Hague in 1981
• Beagele Channel Arbitration (Chile-Argentina), the failure of
arbitration to determine an acceptable land and maritime
border, led to parties to call the pope to provide proposal
suggestion and advice. His compromy prove to be ore

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acceptable than earlier arbitral ward which led to settlement of
dispute
• Hague Convention 1899 laid down rules pertaining to
mediation and good offices

INQUIRY
• It involve third party investigation of the facts surrounding the
dispute
• Disputing States may agree to appoint an impartial body to
carry out an inquiry to produce an impartial finding of disputed
facts and thus prepare the way for a negotiated settlement
between the partieus
• Parties involved in a dispute are required to provide assistance
and cooperate during the investigation which may involve
examination of witnesses and site visits
• At the conclusion of an inquiry a report containing the factual
findings is submitted to the parties and may contain non-
binding recommendations
• For example, in 1983, an investigation was conducted on the
Korean Air Line Flight which involved the shooting down of a
South Korean jumbo jet over Soviet territory helped provided
the basis for a resolution condemning the Soviet attack. The
resolution facilitate an amendment to the Chicago Convention
on Civil Aviation designed to reduce the risk of such incidents
• Another example is during the war on Gaza, Israel used
phosphorus to attack. Commission of Inquiry was headed by
Mr Golesine. The issue was whether any party is liable for
breach of international law during the war. Based on the
report, both parties committed breach of humanitarian law.

CONCILIATION
• It is the process of settling a dispute by referring it to a
commission of persons whose task is to establish the facts and

22
to make a report containing non-binding proposals for a
settlement
• Unlike a commission of inquiry, the commission conducting
conciliation not only help establish the facts but also examines
the dispute as a whole
• Parties are free to reject the proposed solution, accept it or
consider it as a source for the future resolution of the dispute
• Multilateral treaties often provide for compulsory conciliation
as it is considered a popular alternative to binding procedures.
It satisfies States, which wish to have a pre-established
mechanism relating to the settlement of disputes that may
arise under a particular treaty. It is acceptable to State which
do not wish to have imposed upon them any legally binding
solution to a future dispute
• Article 1 of Regulations on Procedure of International
Conciliation 1961 provides that the role of conciliator is that
he investigates and provide proposal

ARBITRATION
• 1899 Convention for the Pacific Settlement of International
Disputes provides that International arbitration has for its
object the settlement of disputes between States by judges of
their own choice and on the basis of respect for law. Recourse
to arbitration implies an engagement to submit in good faith to
the award
The Main features of Arbitration
• Consent is a prerequisite in arbitration as it depends upon the
willingness of the States involved to submit to adjudication
• Arbitration focuses on party autonomy in that the settlement of
dispute is left in the hands of the parties as they are free to
decide on factors that will affect the conduct of the arbitration.
Unlike, other forms of dispute settlement, it provides parties
with the opportunity of obtaining a binding decision from
judges of their own choice

23
• Arbitration may be conducted as a result of a treaty of
arbitration concluded for the purpose of settling a particular
dispute. States may conclude a general treaty of arbitration
stipulating the kinds of differences that may arise in the future
that shall be settled by way of arbitration. A treaty which is not
one of arbitration may contain a clause providing that any
differences concerning matters of the treaty shall be
determined by way of arbitration
• The selection of arbitrators: This may be agreed upon by the
States themselves or by way of an agreed mechanism to
determine the arbitrators.
• Rainbow Warrior Case: The UN Secretary General was called
upon to arbitrate
• Parties may also appoint a body of individuals as an arbitration
commission
• However, the freedom that States enjoy in the appointment of
the arbitrators may undermine the treaty of arbitration itself
• Interpretation of Peace Treaties with Bulgaria, Hungary
and Romania: The former enemy States (Bulgaria, Hungary
and Romania) deliberately failed to appoint members of the
arbitral commission thus rendering the arbitral provision of
the treaties inoperative
• The selection of the form of an arbitral tribunal. The tribunal
may consist of a single arbitrator or a body comprising of two
or more arbitrators
• Heads of States or judges from neutral countries are most likely
the candidates to be a sole arbitrator
• Eg: The King of Italy in the 1931 Clipperton Island Arbitration
between France and Mexico; the Chief Justice of the US
Supreme Court in the Tinoco Arbitration between Britain and
Costa Rica
• Where the tribunal consists of collective body, it may be in the
form of a joint commission or mixed commission. Joint
commission has an equal number of arbitrators nominated by
each party. As the arbitrators represent the State that has
appointed them, for that reason joint commission often fail in

24
reaching any kind of agreement. Mixed commission has an odd
number of arbitrators who do not represent the States. Its
neutrality increases the likelihood of successful arbitration
• The choice of applicable law: The treaty of arbitration usually
stipulates the principles (general rules of international law)
according to which the arbitrators have to give an arbitral
award. However, parties are free to specify the law applicable
to their dispute and may decide to apply the principles of
equity in order to reach an equitable solution
• The effect of arbitral award: An arbitral award is binding upon
the States unless the treaty of arbitration provides otherwise
• General rule: A decision of an arbitral tribunal should not be
disturbed unless it was made under an error of law or fact,
irregularity in appointment of arbitrators or an essential
procedural error
• Maritime Delimitation between Guinea-Bissau and
Senegal: An appeal to the ICJ against an arbitral award is only
allowed where an arbitral body has exceeded the powers
conferred upon them in deciding for the dispute, which
nullifies the arbitral award. There is failure to reach a true
majority. There is insufficiency of reasoning to support the
decision of the arbitral tribunal but if a statement of reasoning
is clear precise regardless of how brief it is, it will be deemed
sufficient
• If an arbitral decision is overturned on appeal, the award will
be null and without binding force.

25
INTERNATIONAL COURT OF JUSTICE
Introduction
• Article 92 of UN Charter: ICJ shall be the principal judicial
organ
• It is empowered to give advisory opinion
• Some people refer it as the world court
• It is part of the dispute settlement mechanism. The court only
has jurisdiction if parties consent. This is contrary to national
courts where parties are compelled by national courts
• All nation members enjoy the access of court. Only a small
number of states accept compulsory jurisdiction of the court in
which they accepted compulsory jurisdiction of court. Member
States are allowed to put forward reservation only with a
certain type of dispute.

Brief History
• Created as successor to the Permanent Court of International
Justice (PCIJ)
• PCIJ was established under Article 14 of the Covenant of the
League of Nations in 1921
• 1922- 1940- PICJ had decided 29 contentious cases and
delivered 27 advisory opinion
• The activities of PCIJ had been diminished due to the outbreak
of the war in September 1939. In the aftermath of the war
when states created UN they decided to create another court to
replace PCIJ.
• ICJ was established under the UN Charter
• Came into existence with the election of the first members in
February 1946

26
Composition and structure
• Article 3 and 4 of ICJ statute: The ICJ consists of 15 judges
elected by the Security Council and General Assembly for a
term of 9 years
• Article 4 of the Rules of Court: Judges do not represent their
countries. Each member of the court has to make solemn
declaration that they are impartial and will act honorably and
faithfully
• Article 16 of the ICJ Statute: No member of the Court may
exercise any political or administrative function, or engage in
any other occupation of a professional nature
• Articles 12 of the Rules of the Court: The president of the court
directs the work and supervises the administration of the
court.
• With respect to the election of judges, Article 9 of ICJ Statute is
adhered: At every election, the electors shall bear in mind not
only that the persons to be elected should individually possess
the qualifications required, but also that in the body as a whole
the representation of the main forms of civilization and of the
principal legal systems of the world should be assured
• Africa 3, Latin America and the Caribbean 2, Asia 3, Western
Europe and the other States 5, Eastern Europe 2.
• The court has always included judges of permanent nationality

Election
• Article 13(1) of ICJ statute: The members of the Court shall be
elected for 9 years and may be re-elected; provided however
that of the judges elected at the first election, the terms of 5
judges shall expire at the end of 3 years and the term of 5 more
judges shall expire at the end of 6 years
• Article 4(1) of ICJ Statute: The members of the Court shall be
elected by the General Assembly and the Security Council from
a list of persons nominated by the national groups in the
Permanent Court of Arbitration in accordance with the
following provisions

27
• Members of PCA will nominate up to 4 jurist who can be called
as ICJ Judges
• The appointment of judges is a bit complex. The members of
PCA are nominated by their government and members of PCA
can nominate 4 jurists to become judges of ICJ. In the case of
Government who are not part of PCA, they are allowed to
nominate the judges to sit on ICJ.
• The names are submitted to Secretary General of UN and both
the new SG and SC have to conduct a vote. Majority of members
of General Assembly and Security Council MUST agree in order
to accept the person for them to sit in the bench of ICJ. They
must adopt MAJORITY vote in order to appoint judges to sit on
the bench.

The Registry
• The registry of the court is headed by the registrar
• The registrar is responsible for the day to day administration
of the court
• Article 22 of the Rules of Court: The court shall elect its
Registrar by secret ballot from amongst candidates proposed
by Members of the Court. The Registrar shall be elected for a
term of 7 years. He may be re-elected
• Article 29 of the Rules of the Court: The Registrar may be
removed from office only if, in the opinion of 2/3 of the
Members of the Court, he has either become permanently
incapacitated from exercising his functions or has committed a
serious breach of his duties

Disqualification and Withdrawal of Judges


• This issue is dealt in Article 17,18 and 24 of the ICJ Statute
• Article 17 of ICJ Statute: (1) No member of the Court may act as
agent, counsel or advocate in any case. (2) No member may
participate in the decision of any case in which he has
previously taken part as agent, counsel or advocate for one of
the parties or as a member of national or international court or

28
of a commission of enquiry or in any other capacity (3) Any
doubt on this point shall be settled by the decision of the court
• Article 18 of ICJ Statute: (1) No member of the Court can be
dismissed unless, in the unanimous opinion of the other
members, he has ceased to fulfill the required conditions (2)
Formal notifications thereof shall be made to the Secretary-
General by the Registrar (3) The notification makes the place
vacant
• Article 24 of ICJ Statute: (1) If for some special reason, a
member of the Court considers that he should not take part in
the decision of a particular case, he shall so inform the
President (2) If the President considers for some special reason
one of the members of the Court should not sit in a particular
case, he shall give him notice accordingly (3) If in any such case
the member of the Court and President disagree, the matter
shall be settled by the decision of the Court
• Disqualification of Judge Higgins where she was involved in
Gabcikovo Nagymaros’s case

Ad Hoc Judge
• Article 31(2) and (3) of the ICJ statute allows a State party to a
case to choose a person as ad hoc judge if :It does not have a
judge of its nationality on the bench. Note: both parties can also
make an agreement to not appoint ad hoc judge. If ad hoc judge
is appointed total number of judges could go up to 17. A judge
has the nationality of one of the parties. In pulau batu case,
Malaysia appointed John Duggard from Africa.
• The conditions for the appointment of ad hoc judges are laid
down in:
• Article 31 of ICJ Statute: (1) Judges of the nationality of each of
the parties shall retain their right to sit in the case before the
Court (2) If the Court includes upon the Bench a judge of the
nationality of one of the parties, any other party may choose a
person to sit as judge. Such person shall be chosen preferably
from among those persons who have been nominated as

29
candidates as provided in Articles 4 and 5 (3) If the Court
includes upon the Bench no judge of the nationality of the
parties, each of these parties may proceed to choose a judge as
provided in paragraph 2 of this Article (4) The provisions of
this Article shall apply to the case of Articles 26 and 29. In such
cases, the President shall request one or if necessary, two of the
members of the Court forming the chamber to give place to the
members of the Court of the nationality of the parties
concerned and failing such or if they are unable to be present,
to the judges specially chosen by the parties (5) Should there
be several parties in the same interest, they shall, for the
purpose of the preceding provisions, be reckoned as one party
only. Any doubt upon this point shall be settled by the decision
of the Court (6) Judges chosen as laid down in paragraphs 2, 3
and 4 of this Article shall fulfill the conditions required by
Articles, 2, 17, 20, and 24 of the present Statute. They shall take
part in the decision on terms of complete equality with their
colleagues.
• Article 7 of Rules of Court provides that (1) Judges ad hoc,
chosen under Article 31 of the Statute for the purposes of
particular cases, shall be admitted to sit on the Bench of the
Court in the circumstances and according to the procedure
indicated in Article 17, paragraph 2, Articles 35,36,37, Article
91, paragraph 2 and Article 102 (2) They shall participate in
the case in which they sit on terms of complete equality with
the other judges on the Bench (3) Judges ad hoc shall take
precedence after the Members of the Court and in order of
seniority of age
• Article 8 of the Rules of Court provides that (1) The solemn
declaration to be made by every judge ad hoc in accordance
with Articles 20 and 31, paragraph 6, of the Statute shall be as
set out in Article 4, paragraph 1 of these Rules (2) This
declaration shall be made at a pubic sitting in the case in which
the judge ad hoc is participating. If the case is being dealt with
by a chamber of the court, the declaration shall be made in the
same manner in that chamber (3) Judges ad hoc shall make the
declaration in relation to any case in which they are
30
participating, even if they have already done so in a previous
case, but shall not make a new declaration for a later phase of
the same case
• Article 17(2) of the Rules of Court provides that when the
parties have agreed, the President shall ascertain their view
regarding the composition of the chamber and shall report to
the Court accordingly. He shall also take such steps as may be
necessary to give effect to the provisions of Article 31,
paragraph 4 of the Statute.
• Article 35 of the Rules of Court provides that if a party
proposes to exercise the power conferred by Article 31 of the
Statute to choose a judge ad hoc in a case, it shall notify the
Court of its intention as soon as possible. If the name and
nationality of the judge selected are not indicated at the same
time, the party shall not later than two months before the time
limit fixed for the filing of the Counter Memorial, inform the
court of the name and nationality of the person chosen and
supply brief biographical details. The judge ad hoc may be of a
nationality other than that of the party, which chooses him.
• Article 36 of the Rules of Court provides that if the Court finds
that two or more parties are in the same interest, and therefore
are to be reckoned as one party only and there is no Member of
the Court of the nationality of any one of those parties upon the
Bench, the Court shall fix a time limit within which they may
jointly choose a judge ad hoc
• Article 37 of the Rules of Court provides that if a Member of the
Court having the nationality of one of the parties is or becomes
unable to sit in any phase of a case, that party shall thereupon
become entitled to choose a judge ad hoc within a time limit to
be fixed by the Court or by the President if the Court is not
sitting.
• Article 7 of the Rules of the Court provides that judges adhoc
chosen under Article 31 for the purposes of particular cases
shall be admitted to sit on the bench of the court in the
circumstances and according to the procedure indicated in

31
Article 17, paragraph 2, Articles 35, 36, 37, Article 91,
paragraph 2, and Article 102, paragraph 3 of these Rules
Arguments

Criticisms Support

• Vote consistently with the • The presence of a national


interests of the states of judge can ensure justice for
which they are nationals or the state of which he is a
states that appointed them national because he is more
• Judges ad hoc always vote familiar with views.
for states that appointed • This can be seen in the
them. comments provided by
court in these case
• Inter Allied Committee of
1943
“Countries will not in fact feel
full confidence in decision o f
the court in a case in which
they are concerned if the court
includes no judge of their own
national particularly if it
includes a judge of the
national of the other party.”
• Genocide in Bosnia Case
1993 (judge Ad Hoc
Lauterpacth)
“The adhoc judge no way
reduces the operative force of
his solemn declaration under
Art 20 of the ICJ statute. In
which adhoc judge is being
given opportunity to join the
work of the court to ensure
that so far as is reasonable
every relevant argument in

32
favour of the party that
appointed him has been fully
appreciated”

Contentious jurisdiction:
• Article 35(1) of ICJ Statute: Access to the court is open to States
who are parties to the Statute
• Article 93(1) of UN Charter: All UN Members are parties to the
Statute
• Article 93(2) of UN Charter: Non UN member States may
become parties to the Statute by complying with the conditions
set by the General Assembly on the recommendation of the
Security Council
• Article 35(2) of ICJ Statute: Access to the court to States who
are not parties to the Statute are, subject to special provisions
of treaties in force (at the date of the entry into force of the
Statute) to be determined by the UNSC

• Article 36(1) of ICJ Statute: The jurisdiction of the court


comprises of all cases which the parties refer to it and all
matters specially provided for in the UN Charter or in the
treaties and convention in force
• This provision implies that all the parties to the dispute must
agree for it to be referred to the court
• The court has expressly declared that its jurisdiction in
contentious cases is dependent on the consent of the parties
(Monetary Gold case), thus Article 36(1) provides for the
court’s voluntary jurisdiction

Consent to refer the dispute to the court may be expressed by 4


ways:
1. A special agreement (compromise): Where two or more
States agree to refer a particular and defined matter to the

33
court for a decision. For example: Pulau Batu Puteh Case,
where Malaysia and Singapore entered into special agreement.
2. A clause in a treaty: Where a treaty has a jurisdictional clause
stipulating that disputes are to be referred to the court, by
being a party to the treaty, States thus agree to confer
jurisdiction on the court to decide on any disputes that may
arise
3. Forum prorogatum: For the Court to exercise jurisdiction on
the basis of forum prorogatum, the element of consent must be
either explicitly or clearly deduced from the relevant conduct
of a State
• Once a party (applicant State) has made a unilateral application
under Article 40(1) for reference of the dispute to the court,
consent of the other party (Respondent State) to the court’s
jurisdiction may be express or implied
• Consent is said to be express in the Mutual Assistance case:
Dijbouti had commenced proceeding in the case by filing a
unilateral application against France. In response, in a letter to
the Court, France expressly agreed to the court’s jurisdiction in
the case
• Consent can be implied if the respondent State defends its case
without challenging the jurisdiction of the court:
• Corfu Channel case where there were damages to two British
warships by mines in the territorial water of Albania in the
corfu channel. UK made a unilateral application against Albania
under Article 41(1) of the ICJ Statute. UK argued the SC
resolution recommending the matter to be brought to ICJ
establish compulsory jurisdiction. The court does not accept
this argument. There is another evidence adduced by UK this is
by telegram by Albania to SC on 24th January 1947 in which
Albania had agreed to an invitation to take part in discussion
and declare that it fully accept the recommendation of SC to
refer to ICJ and accepted the jurisdiction of the court. Here
based on the evidence court held that the latter therefore in the
opinion of the court constitutes a voluntary and indisputable
acceptance of court’s jurisdiction.

34
• The court inferred consent from the unilateral application of
the UK coupled with subsequent letters to the court’s registrar
from Albania indicating acceptance of court’ jurisdiction
• Mavromattes Palestine Concession case, they wrote in their
pleadings to say they don't accept jurisdiction of court, it is
deemed that they have accepted jurisdiction of ICJ.

4. Acceptance of the court’s compulsory jurisdiction under Article


36(2) (Masuk exam)
• Article 36(2) ICJ Statute: States may declare that they
recognize the court’s compulsory jurisdiction without
special agreement, in relation to any other State accepting the
same obligation, in all legal disputes concerning:
✓ Interpretation of a treaty
✓ Any question of international law
✓ The existence of any fact, which if established would constitute
a breach of an international obligation
✓ The nature or extent of the reparation to be made for the
breach of an international obligation
• The provision is not obligatory upon States, as there is no
obligation to make a declaration under Article 36(2) thus
making it an optional clause. The court will only exercise its
compulsory jurisdiction once it is voluntarily accepted by the
parties

• Principle of reciprocity: States only accept the court’s


compulsory jurisdiction in relation to any other State accepting
the same obligation
✓ Both parties to a dispute must have made declarations under
Article 36(2)
✓ The court may only exercise its jurisdiction over the subject-
matters common to both States’ declarations
• If State A makes a declaration subject to reservation X and
State B makes a declaration subject to reservation Y, the court

35
has jurisdiction to hear disputes between these two States only
insofar as they are not covered by reservations X or Y
• In Nicaragua, us tried to use the principle of reciprocity, US
wanted to cheat using Nicaragua’s declaration to rely which
says US too can withdraw anytime. Court said cannot
reciprocity applies to subject matter not procedure. Giving 6
months notice is a matter of procedure.
• Interhandel case: Reciprocity enables the State which has
made a wider acceptance of the jurisdiction of the court to rely
upon the reservations laid down by the other party
• Loan’s case (France v Norway).A dispute arose between
France and Norway as to whether Norway was bound to pay
interest to French Holders of the Norwegian Bonds in France
currency rather than counts. In here France brought a claim
against Norway, Norway objects to court’s jurisdiction. In this
case both parties accepted jurisdiction of court by signing the
optional clause. However when France accepted the optional
clause they put forward a reservation. It states that the
declaration foes not apply to the differences relating to
matters, which are essentially within the national jurisdiction
as understood by the French. the court cannot exercise
jurisdiction with respect to domestic matters. The ICJ accepted
Norway’s argument that Norway could rely on the French
Reservation just now in which based on the reservation
although Norway had not included similar reservation, Norway
can rely on the reservation made by France as if matters
essentially within jurisdiction of Norway as understood by
Norway. The reservation works on basis of reciprocity so if
France puts forward reservation, it should be applied the same
for Norway.

• Reservations: The court has accepted that States may attach


reservations to their declarations in regards to certain States,
time or subject matter (Article 36(3))
• Types of reservation:
• Reservations relating to other parties (rationae personae)

36
• Eg: In order to avoid being surprised by suits, States have made
a reservation excluding the court’s jurisdiction over
applications filed less than 12 months prior to the other party’s
acceptance
• Case Concerning Legality of Use of Force (Yugoslavia v UK):
On the basis of such a reservation, the court dismissed the case
against the UK
• Reservations relating to time (rationae temporis)
• To exercise a time limit over the court’s jurisdiction
• The Phosphates in Morocco case: France made a declaration
accepting jurisdiction of the court over any disputes which may
arise after the ratification of the declaration in 1931 with
regards to the facts or situations subsequent to such
ratification. Held: Where the facts and situations of the dispute
occurred earlier (in 1920) than the ratification of the French
Declaration, the dispute thus fell outside the court’s
jurisdiction
• Reservations as to subject matter (rationae materiae)
• To limit the subject matters over which the court may exercise
its jurisdiction
• Eg: Philippines has made a reservation against disputes
concerning its continental shelf

• Fisheries Jurisdiction case: Declarations and reservations


are to be read as a whole
• Anglo-Iranian Oil Co case: In interpreting the relevant
words of a declaration including a reservation, the court
must seek the interpretation which is in harmony with a
natural and reasonable way of reading the text, thus having
due regard to the intention of the State concerned at the
time when it accepted the compulsory jurisdiction of the
court
• Norwegian Loans case: The French Declaration included a
reservation, which excluded the court’s jurisdiction from
matters, which are within the national jurisdiction of the

37
State. Norway though not having made such a reservation in
the Norwegian Declaration, relied on the reservation and
challenged the court’s jurisdiction on the ground that the
dispute was within its national jurisdiction. Held: Based on
the principle of reciprocity the court agreed that Norway
was entitled to rely on the reservation made in the French
Declaration, as a result of which excluded the court’s
jurisdiction
• However in a separate opinion, Judge Lauterpacht stated that
such a reservation which allows the State to claim itself the
power to determine whether a matter is within national
jurisdiction or not, is considered “automatic reservation” which
is inconsistent with the Statute

• Termination of declaration
• A declaration made for an indefinite period of time is
terminable on “reasonable” notice (Nicaragua case
(Jurisdiction and Admissibility)
• Notice should be given
• Termination should not be allowed unless done
within a reasonable period after the notification (in
practice, it is usually six months)
• A declaration that is made for a certain time and is terminable
upon notice given at the end of such period

Incidental proceedings
• Independent of the main proceedings, the court may be called
upon to exercise incidental jurisdiction to preliminary
objections, applications to intervene and ordering provisional
measures

Preliminary objections:
• Article 36(6) of ICJ Statute: In the event of a dispute as to
whether the court has jurisdiction, the matter shall be settled
by the decision of the court

38
• Also known as competence de la competence (the jurisdiction to
decide jurisdiction)
• Preliminary objection: Any objection by the respondent to the
jurisdiction of the court or to the admissibility of the
application or other objection the decision upon which is
requested before any further proceedings (Article 79(1)
Rules of Court)
• Objections to jurisdiction: A denial that the respondent State
ever gave its consent to the dispute being brought before th
court or that the particular dispute falls within the category of
disputes for which it did accept jurisdiction
• Objections to admissibility: May include several grounds such
as the applicant’s lack of locus standi; the non-exclusion of local
remedies; the essentiality of a third party’s presence to the
proceedings; failure to comply with the procedures required by
the treaty; failure to comply with the nationality of the claim
• The effect of a preliminary objection is that if any objection is
upheld, any further proceedings in the case will be interrupted
and suspended as it will be appropriate for the court to deal
with the objection before enquiring into the merits of the case
(The Panevezys-Saldutiskis Railway case)
• A separate proceeding will then be held to deal with the
preliminary objection in which the applicant State has the
opportunity of responding in writing to the objection
• The court may choose to uphold an objection or reject it or
declare that the objection does not possess an exclusively
preliminary character as a result of which the objection will be
represented and reargued along with the merits of the case

Provisional measures:
• Article 41(1) ICJ Statute: The court has power to indicate any
provisional measures which ought to be taken to preserve the
respective rights of either party
• To avoid facing the difficulty of indicating provisional measures
to a case which the court may ultimately decide its lack

39
jurisdiction in, there are two pre-conditions established to the
granting of such measures
• The existence of a prima facie for the exercise of jurisdiction by
the court over the merits of the dispute
• Nicaragua case: The court should not indicate such measures
unless the provisions invoked by the applicant State appear,
prima facie to afford a basis on which the jurisdiction of the
court might be founded
• The existence of a risk of imminent and irreparable damage to
the rights of the applicant State

• Aerial Incident at Lockerbie case: Libya alleged that the


interpretation of the UNSC Resolution imposing sanctions in
response to Libya’s refusal to hand over two Libyan nationals
suspected of destroying a Pan Am Flight over Lockerbie
amounted to a prima facie case over which the court should
exercise its jurisdiction. Libya also argued that the use of
sanctions and possible use of force put Libya’s interests at risk
of suffering irreparable and imminent damage. ICJ in rejecting
the provisional measures held:
• It did not find that the UNSC Resolution was ultra vires or that
there was an existence of a risk of imminent and irreparable
damage to Libya’s rights. In fact the court found that non-
compliance of the Resolution would more likely impair the
rights of the US than Libya
• Provisional measures often lack in compliance by States, as the
court has often issued measures without determining their
binding force against the parties
• However, in the LaGrand case the court examined its binding
force for the first time: The power to indicate provisional
measures entails that such measures should be binding as the
power in question is based on the necessity, to safeguard, and
to avoid prejudice to, the rights of the parties as determined by
the final judgment of the court

40
Intervention
• Article 62(1) ICJ Statute: If a State considers that it has a legal
interests which may be affected by the decision of the case, it may
submit a request to the court to intervene
▪ Land, Island and Maritime Frontier Dispute: The court allowed
Nicaragua to intervene although the case was in regards to the
legal regime of the Gulf of Fonseca
▪ However, an intervening State is not bound by the court’s
judgement as it is not a party to the case (absence of
jurisdictional link)
• Article 63(2) ICJ Statute: In a case where the main issue is the
construction of a multilateral treaty to which a third State is a
party that State has the right to intervene
• Article 63(1) ICJ Statute: The registrar of the court must then
notify all potentially relevant States of the proceedings
• If a State decides to intervene, it will be bound by the contruction
of the treaty given to the court

Enforcement of judgment
• A judgment given by the ICJ is final and without appeal
• However, in some instances, States have failed to comply with the
court’s judgment
▪ Corfu Channel case: Albania did not adhere to the court’s order
to pay compensation to the UK
• In situations of non-compliance with the court’s decision, there
are 4 ways to enforcing the judgment:
▪ Self help: This can only be applied within Article 2(3) & (4) UN
Charter limiting the use of force by a State
▪ Cooperation of third Staes
▪ Recourse to national courts
▪ Enforcement through international organisations
• Article 94(2) ICJ Statute: If a State fails to perform its
obligations imposed upon it under a judgment by the
court, the aggrieved party may have recourse to the
Security Council which may if it deems necessary make

41
recommendations or decide upon measures to be taken
to give effect to the judgment
Jurisdiction over third party States
• General principle: The court has no jurisdiction to rule on the
rights and obligations of third States, where consent is the basis of
the court’s jurisdiction
• Thus a court may not give judgment on a case between two States
that would require it to rule upon the rights and obligations of a
third State which had not given its consent
• This is subject to the intervention under Article 62 and 63
• East Timor case: The court cannot rule on the lawfulness of the
conduct of a State when its judgment would imply an evaluation of
the lawfulness of the conduct of another State which is not a party
to the case
▪ In this case, the effect of the judgment requested by Portugal
would amount to a determination that Indonesia’s entry into
and continued presence in East Timor is unlawful and that as a
consequence it does not have the treaty-making power in
matters relating to the continental shelf resources of East
Timor. Thus, Indonesia’s rights and obligations would
constitue the very subject matter of such a judgment made in
the absence of that State’s consent
▪ However, Indonesia had no wish to become a party to the case
and could not be brought before the court under Article 36(2)
as it had not made an “optional clause” declaration
▪ Such a judgment would oppose the “well established principle
of international law embodied in the Statute, namely the court
can only exercise jurisdiction over a State with its consent”

Advisory jurisdiction
• Aside from the court’s jurisdiction, in contentious case, it also
exercise an advisory jurisdiction in which the court presents its
opinion on certain maters

42
• Article 65(1) ICJ Statute: The court may give an advisory
opinion on any legal question at the request of whatever body
may be authorized by or in accordance with the UN Charter
• Article 96(1) UN Charter: The UNGA and the UNSC are
entitled to make a request for an advisory opinion and other
organs of the UN and international specialized agencies may
only submit questions relating to legal issues arising within the
scope of their activities
• Legal Consequences of the Construction of a Wall by Israel
in the Occupied Palestinian Territory: Where the UNSC was
actively engaged in the situation in Palestine, Israel argued that
UNGA had exceeded its competence by making a request for an
advisory opinion. In its argument, Israel relied on Article 12 of
UN Charter which disallows the UNGA to make any
recommendation with regards to a dispute or situation in
which the UNSC is exercising its function
• Held: An advisory opinion cannot be regarded as a
recommendation under Article 12 of UN Charter. Although
Article 24 entrusts the UNSC with the main responsibility for
maintenance of international peace and security, the
interpretation of Article 12 has changed in that there is now an
increasing tendency for both, the UNSC and UNGA to deal in
parallel with the same matter. Thus, UNGA’s action was
consistent with Article 12 and did not exceed its competence

• In regards to specialized agencies, the conditions necessary for


the court to exercise its advisory jurisdiction was provided in
the Legality of the Threat of Use of Nuclear Weapons case in
which the WHO requested an advisory opinion:
• The UNSC must authorize the specialized agency to submit a
request
• The opinion requested must concern a legal question
• The question must be one arising within the scope of activities
of the requesting agency
• In that case, the court rejected the WHO’s request as instead of
focusing on the effects on health of the use of nuclear weapons

43
and the issue regarding preventive measures to be taken in
order to protect the human population in the event of such
weapons being used, which is within the scope of WHO’s
activities, the request was centred on the legality of the use of
nuclear weapons in the context of their health and
environmental effects. However, the same request was then
made by the UNGA to which the court delivered an advisory
opinion

• By virtue of Article 65(1) of ICJ Statute, the court has the


discretion as to whether or not it will give an advisory opinion
that has been request
• WHO in the Nuclear Weapons case: Where there was a lack
of jurisdiction
• Eastern Carelia case: Where the nature of the advisory
opinion would be deciding the dispute without the consent of
one of the parties and without its account of the facts. The
refusal was due to the unusual circumstances of the request
which where that:
• The question directly concerned an already existing dispute
• One of the parties to the dispute refused to participate in the
proceedings
• The refusing party was neither a party to the Statute, nor a
member of the Leagues of Nation (as it was then)
• Legal Consequences of the Construction of a wall by Israel
in the Occupied Palestinian Territory: Israel argued that the
request for an advisory opinion concerned a contentious
matter between Israel and Palestine in respect of which Israel
did not consent to the court’s jurisdiction. ICJ, in outlining the
difference between its contentious jurisdiction and advisory
jurisdiction with regard to consent held:
• Whilst in the contentious cases the consent of all the parties to
the dispute is necessary in order to establish the court’s
jurisdiction, in advisory proceedings the consent of the parties
is not necessary as an advisory opinion has no binding force

44
and is given not to the States but to international organisations
requesting it
• Only when an advisory opinion has the effect of evading ‘the
principle that a State is not obliged to allow its dispute to be
submitted to the court without its consent’ would the issue of
lack of consent compel the court to decline its jurisdiction
• Advisory opinions are of a consultative nature, and thus not
binding on the requesting entities. It is up to the entities to
decide on the usefulness of an advisory opinion and on the
appropriate course of action.

45
Use of force

• The law governing the right to the use of force (jus ad bellum)

Prohibition on the use of force


• Article 2(4) of UN Charter: All members shall refrain in their
international relations from the threat or use of force against
the territorial integrity and political independence of any State
or in any other manner inconsistent with the Purposes of the
UN
• The provision also applies to non Members of the United
Nation
• Article 2(6) of UN Charter: The Organization shall ensure that
states which are not members of the United Nations act in
accordance with these principles so far as may be necessary for
the maintenance of international peace and security
• ‘Force’ under Article 2(4) only refers to an armed force and not
forms of economic or political pressure unless they amount to
a threat of force
• ‘Use of force’ not only includes the direct use of force
prohibited but also the use of indirect armed force
• Nicaragua case: The use of force in this instance includes:
✓ Laying of mines in Nicaraguan waters
✓ Attacks on Nicaraguan ports and oil installations
✓ Support for military by providing weapons and military
training (indirect use of force)
✓ The establishment, organization or control of a rebel force or
giving of material support (logistic support, bases) would
qualify
✓ A mere supply of funds would not amount to the use of force

• A ‘threat of force’ is also prohibited under the provision


• Legality of Nuclear Weapons case: A signaled intention to
use force if certain events occur could constitute a threat under
Article 2(4) where the envisaged use of force would itself be

46
unlawful. The notion of threat and use of force must be read
together, in that if the use of force is illegal then the threat is
also illegal. The mere possession of a nuclear weapon is not a
threat to the use of force.
• Eg: The ultimatum issued by France and the United Kingdom to
Egypt and Israel in 1956 demanding a ceasefire within 12
hours
• Guyana and Surinam case, former Dutch colonies, these 2
countries had a dispute pertaining to territory. Then, what
happened was that Guyana seeks recovery for damages
suffered as a result of Surinam’s unlawful action. This is with
regards to use of armed force against the territorial integrity of
Guyana an against its national agents and others lawfully
present in maritime areas within the sovereign territory of
Guyana and other maritime areas over which Guyana exercise
lawful jurisdiction. Within the disputed area, a company
constructed an oilrig, which Guyana says it belongs to them.
Gun boats from Surinam navy arrives at oil rig, they order the
people who were aboard to leave the areas within 12 hour if
they don't comply the consequences will be theirs. The court
inferred that if they don't leave the navy would result to use of
force to vessels and oil right. Court held that the Surinam’s
action constitutes to use of force and in contravention to use of
force and international law.

• ‘Against the territorial integrity and political


independence of any State’ refers to the non-consensual use
of a State’s territory or act to compel a State to make a decision
it would not otherwise have made
• Corfu Channel Case: No use of force is permissible
irrespective of its purpose

• The prohibition as jus cogen:


• A rule of jus cogen is a peremptory norm of international law
which no derogation (exemption) is permitted and all treaty
and customary rules contrary to it is null and void
47
• Nicaragua case: The law of the Charter concerning the
prohibition on the use of force in itself constitutes an obvious
example of a rule of international law having the character of
jus cogens

• Two different interpretations of Article 2(4):


• Permissive view:
• The use of force is allowed provided that its aim is not to
overthrow the government or seize the territory of the State
• A total ban on the use of force would be foolish

• Restrictive view (established law):


• Strict prohibition on all forms of use of force against another
State
• The only justification for the use of armed force by one State
against another under the legal regime of the UN Charter is self-
defence and participation in UN enforcement action
• Corfu Channel Case: The UK contended that a mine-sweeping
operation performed by the UK in Albanian territorial waters
was not contrary to Article 2(4) as it threatened neither the
territorial integrity nor the political independence of Albania
(permissive view). Albania suffered neither territorial loss, nor
any part of its political independence. ICJ rejected the defence
submitted and concluded that the action of the British Navy
constituted a violation of Albanian sovereignty (restrictive
view)
• In Entebbe incident in Uganda in 1976, with regards to
rescue mission performed by Israel of its nationals because a
few rebels in Uganda kidnapped several Israelis nationals.
Israel argued that the use of force was not against territorial
integrity. However, Uganda argued that it was done without
obtaining consent, so Israel breach article 2(4). SC rejected
argument put forward by Israel and decided that Israel breach

48
Article 2(4) of UN. The SC rejected the permissive view tried to
be argued by Israel.

There exist only two legitimate uses of force expressly provided for
in the Charter, namely:

• The right of self defence


• The enforcement action under Chapter VII of the Charter

The right of self defence of States


• Article 51 of UN Charter: 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
• If a state is attacked it is entitled in circumstances of necessity
to use armed force in order to defend itself against the attack to
repel the attackers and expel them from its territory
• The provision gives rise to 3 elements essential to establish a
lawful exercise of the right of self defence: Armed attack,
necessity and proportionality
• Caroline incident: It concerned a dispute between the US and
Britain over the destruction by British forces in American
waters of the Caroline, an American ship that was used to
transport rebels to assist a rebellion against British rule in
Canada. The British Government, upon claiming self-defence,
was informed that it would only succeed if it fulfills the
elements of necessity and proportionality

Armed attack
✓ Permissive view: Article 51 does not restrict the right of self-
defence to cases of an armed attack only

49
✓ However, the restrictive view holds: Article 51 is limited to the
situation of an armed attack which is clear, objective, easy to
prove, difficult to misinterpret or fabricate
✓ It is established law that the natural and ordinary meaning of
the phrase “if an armed attack occurs” can be nothing less than
the restriction of the right of self-defence to a case where there
is an actual armed attack against a State. Thus the right of self
defence of States arises only when there is an armed attack.
✓ Nicaragua case: ‘Armed attack’ includes not only action by
regular armed forces across an international border but
additionally the sending by or on behalf of a State of armed
bands or groups which carry out acts of armed force of such
gravity as to amount to an actual armed attack conducted by
regular armed forces or its substantial involvement. The scale
and effect of the use of force must be sufficient to constitute an
armed attack or else they will be considered as mere frontier
incidents

✓ Two types of armed attacks:


✓ Direct armed attack by a State:
✓ An attack by a regular army of one State against the territory or
against the land, sea or air force of another
✓ 1974 Definition of Aggression: A direct armed attack may
include:
• Invasion of attack by armed forces of a State. When large
armed formations of one State crosses an international border
into another State, without the consent of its government, the
former must be deemed to have commenced an armed attack
Any military occupation, however temporary, resulting from
such invasion or attack. The occupation of a territory
constitutes armed attack against which the right of self-defence
exists for as long as the occupation continues. For example,
Israeli occupation of Arab and Palestinian territories during the
Six-Day War of 1967

50
• Bombardment by the armed forces of/the use of any weapons
by a State against the territory of another State

• Indirect armed attack, by non-State entities which is


attributable to a State:
• The action of armed bands or irregulars (not part of the regular
armed forces) sent by a State can be classified as an armed
attack because of its “scale and effects”
• Only where there exists a sufficiently close link between the
Stat and the private groups will it be justified to hold the
sending State responsible for an armed attack
• A sufficiently close link can be established through the
substantial involvement of the State in the action of the armed
bands or irregulars
• Nicaragua case: Although mere assistance to rebels through
the State’s act of providing weapons or logistical or other
support may amount to an indirect use of force, it would not
constitute an armed attack for the purpose of self defence

• The armed attack against the victim State must have been
commenced or is ongoing
• Thus, the victim of a completed armed attack has no right to
claim self-defence through retaliation by armed forces
• Doing so would cause the State to be considered as engaging in
reprisal, rather than self-defence which is contrary to Article
2(4) and illegal (1974 Definition of Aggression)

• An attack by a State’s armed forces on the land, sea or air forces


or flagged marine or air fleets of another State which are
outside the national territory amounts to an “armed attack”
provided that the use of force is not considered as insignificant
• The right of self defence under Article 52 covers situations
where warships and combat aircraft are assaulted by foreign
forces on the high seas or in international airspace

51
• Oil Platforms case: Mining (unrestricted use of mines) of a
United States- flagged military vessel could constitute an
armed attack but an attack on a ship owned but not flagged by
the US did not amount to such. Thus, the ICJ in this case was of
the view that only attacks on vessels which are flagged to a
State could constitute an armed attack against the state

Both, the requirement of necessity and proportionality must be


exercised with due regard to the legitimate targets (military
objectives) of an armed action against the other State

Necessity
• The State claiming the right of self-defence must first establish
that there was in fact an armed attack against it
• The State attacked must not have had any means of stopping
the attack against it other than recourse to armed force
• Thus, in order for the victim State’s claim of the right of self-
defence to be justified, it must have retaliated only through the
use of armed force

• The element also gives rise to the requirement of “immediacy”


• Caroline incident ‘immediacy’: The armed attack necessitates
self-defence, instant, overwhelming, leaving no choice of means
and non moment for deliberation
• If a small-scale attack occurs, the response by the victim State
must be immediate, otherwise the requirement of immediacy
would not be fulfilled, and the use of armed force would
amount to an unlawful reprisal
• Once the armed attack is over the right of self defence comes to
an end and State must then rely on the Security Council for
assistance
• Nicaragua case: The condition of necessity was not fulfilled
when the US began its collective defensive measures many
months after the alleged attack by Nicaragua on El Savador had
begun

52
• Falkland conflict: The UK retained the right of self-defence for
a period of time after the initial attack by Argentina and the
ensuing occupation of the islands. However, in this instance,
although the initial armed attack had ceased, the military
occupation of the territory amount to a continuous armed
attack which justified the use of self-defence

Proportionality
✓ Self-defence warrants only measures which are proportionate
to the armed attack
✓ Whether or not the exercise of the right of self defence is
proportionate depends on the scale and the effect of the attack
✓ Oil Platforms case: The whole operation (by the US) which
involved the destruction of two Iranian frigates (warships) and
a number of other vessels and aircraft, as well as attacks on
Iranian oil platforms, was a response to the mining of a single
US warship by an unidentified agency which was severely
damaged but not sunk, and without loss of life. ICJ held that US
failed to establish a lawful exercise of self defence as:
• It failed to discharge the burden of proof that an armed attack
existed
• The requirement of necessity was not satisfied as the oil
platforms were not military facilities and thus were not
legitimate targets for an armed action in self defence
• Even if Iran was responsible for the supposed armed attack,
the scale of the whole operation cannot be considered as a
proportionate use of force in self defence, particularly because
the attacks on the oil platforms were disproportionate

• If the use of force on the basis on the exercise of the right of


self-defence by the victim State satisfies the three essential
elements, then the victim State may invoke the right of
individual or collective self-defence as under Article 51
• Nicaragua case: The exercise of the right of individual self-
defence is subject to the State concerned having been the

53
victim of an armed attack and reliance on collective self
defence does not remove the need for the State to be the victim
of an armed attack

Individual self-defence: Where the victim State defends itself


against an armed attack
• Oil Platforms case; Armed Activities in Congo case

PERMISSIVE VIEW FOR SELF DEFENCE UNDER ARTICLE 2(4)


Anticipatory self-defence: Based on the principle of military
necessity, where a State defends itself by attacking an aggressor State
first before it has the opportunity to attack
• This is considered a controversial attempt to widen the
exceptional right of self-defence
• However, many factors have evidence that it is not accepted
under Article 51 as its exercise would be regarded as a use of
force under Article 2(4)
• Caroline incident: Knowing that the Caroline was being used
to send more rebels to assist the rebellion against British ruling
in Canada, a British force seized the ship and shot her down.
The act was not accepted as a form of self-defence as the
British government failed to show that self-defence was
necessary in that situation
• Nuclear weapons and modern sophisticated missile system do
not make anticipatory self-defence a necessity
• Although a State is not expected to wait until it is attacked, an
attack must have been initiated upon it and is under way in
order for any defensive measures to be justified
• Israeli destruction of Iraq’s nuclear reactor: Israeli planes
raided and destroyed a nuclear reactor, which was meant for
research and peaceful purposes, situated near Baghdad causing
civilian casualties and severe damage. Israel claimed that it was
exercising its right of self-defence in anticipation that the

54
nuclear reactor would be used against it. A Resolution adopted
by the Security Council condemned the military attack as a
violation of Article 2(4)
• Bombing of Libya by US in 1986. Libya was subjected to attack
on basis to forestall future terrorist attack. The attack had been
criticized by several countries by supporting UN Resolution
condemning the attacks as violation of UN Charter
• US launched cruise missile attacks in self defence against
terrorism training camps in Afghanistan and Sudan used by Al
Qaeda in 1998
• US strikes against Iraqi intelligence headquarters in June 1993
as there was evidence that Iraq attempted to assassinate Bush.
8 people died. When US did this, they are allowed under Article
31. But this action was condemned on the ground that it
amount to aggression
Self-defence against a terrorist attack:
✓ Article 51 provides for the right of self-defence in situations of
an armed attack by a State against another State
✓ In order for the exercise of a right of self-defence against a
terrorist attack to fall within the ambit of Article 51 as ruled in
the Nicaragua case:
• The terrorist must be sent by or on behalf of a State so as to
allow the armed attack to be attributed to the State (armed
attack by non-State entities)
• The scale and effect of the attack must be sufficient as to
amount to an actual armed attack
• The armed attack must not be indirect in order to allow the
exercise of the right of self-defence
• Although States have the obligation to apprehend and
prosecute terrorists (1994 Declaration on Measures to
Eliminate International Terrorism), the act cannot be
regarded as an exercise of the right of self-defence unless it
falls within “an armed attack by non-State entities”
• Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory: Following the start of the
Second Intifada (armed conflict between Israel and Palestine),

55
Israel began building a 720km long wall in the region of the
boundary between Israel and Palestine. The main justification
for building the wall was based on self-defence. Israel
submitted that the well was a temporary measure and would
be dismantled once the terrorist attacks launched from the
West Bank ceased. ICJ held: The construction of the wall
amounted to a de facto annexation of the territories that Israel
had occupied, and was thus in breach of the prohibition on the
acquisition of territory by the use of force under Article 2(4)

Collective self-defence: Where any member of the UN is


authorized to assist the victim State with its armed forces
against an aggressor
✓ Nicaragua case: Nicaragua alleged that the US had carried out
a range of activities consisting of the mining of Nicaraguan
ports, the arming, training and directing of rebels and the
supplying of financial and logical support to them. In response,
the US raised the defence that they were acting in the collective
self-defence of El Salvador and Costa Risca against which they
alleged Nicaragua had involved in illegal uses to force to which
the ICJ rejected.
✓ The case established three conditions in the exercise of self-
defence:
• There must be an armed attack
• The victim State has formally declared itself to be under attack
• The victim State has requested the assistance of a third State. It
is not necessary for there to exist any threat to the assisting
State’s security

Role of UNSC (Article 51)


• Measures taken in self-defence shall be immediately reported
to the Security Council.

56
• Nicaragua case: A state could not invoke the right of self-
defence if it failed to comply with the requirement of reporting
to the Security Council
• Eg: Armed Activities in Congo case
• The right of self-defence can only be exercised until the
Security Council has taken measures necessary to maintain
international peace and security
• The victim state must stop its action in self-defence as soon as
the Security Council takes the measures necessary

Enforcement action by the UNSC (Second exception to


the prohibition on the use of force)
• Enforcement action (“collective security”) is the use of force on
behalf of the international community as a whole against an
aggressor State
• Article 39 UN Charter: The Security Council has the power to
determine whether or not there is a threat to the peace, a
breach of the peace, or an act of aggression and to decide on
the measures to maintain or restore international peace and
security
• Article 42 UN Charter: The Security Council may take
measures involving the use of armed forces

Armed reprisals
• Unlike self-defence, which is used to protect the sovereignty of
the State, reprisals are punitive (penal) in nature as it seeks to
impose reparation for the harm done or to compel the
aggressor State to abide by the law in the future
• 1970 Declaration on Principles of International Law: States
have a duty to refrain from acts of reprisal involving the use of
force
• Thus, it is established law that armed reprisals are illegal

57
Principle of Non-Intervention: The right of every sovereign State
to conduct its affairs without outside interference
• What amounts to a prohibited interference may be determined
by the State itself
• However, as a general rule, a third State is only allowed to
assist another State to put down an internal resurrection
(possible conflicts with the rights of self-determination)
• States may only intervene to assist a foreign government
experiencing low level civil strife and with the consent of the
foreign government but only against the rebels themselves and
within the limits imposed by territorial sovereignty
• A third state cannot give assistance to rebels as it is against the
principle of non-interference with domestic affairs of another
State
• Nicaragua case: Customary international law forbids all States
or groups of States to intervene directly or indirectly in the
internal or external affairs of other States. The element of
coercion clearly exists in the case of intervention which uses
force, either in the direct from of military action, or in the
indirect form of support for subversive or terrorist armed
activities within another State.
• In this case, the alleged acts of Nicaragua which was considered
below the level of an “armed attack” did not justify intervention
involving the use of force by the US
• Where intervention by a third State is allowable at the request
of the government of a State, El Savador could have invited the
US to send troops or provide arms to help it fight against the
rebels on El Savadoran territory but the US still would not be
permitted to effect countermeasures against Nicaragua
• Armed Activities in Congo case: During a period of extensive
ethnic and military conflict in the region (Second Congo War)
the Ugandan army invaded portions of the Democratic
Republic of Congo (DRC). Uganda initially sought to act against
rebel movements operating against it from the Congolese
territory and later began assisting rebels acting against the
Congo government (to which it claimed was an act of individual

58
self-defence). The court held it had violated the principle of
non-intervention because of its occupation of Ituri (a region
in Congo) and its active involvement in military, logistic,
economic, and financial support to irregular forces having
operated on the territory of the DRC

Humanitarian intervention
• When a State commits cruelties against and persecution of,
its nationals so as to deny them of their fundamental human
rights and to shock the conscience of mankind, intervention
in the interest of humanity is legally permissible
• However, unilateral humanitarian intervention (where one
State or a group of States intervene against another State on
humanitarian grounds) is a violation of Article 2(4)
• Kurdish crisis: Turkey and Iran, which were protecting
Kurdish refugees from the Iraqi army, established “no fly
zones” in Iraq against Iraqi aircraft in order to protect the
Kurds from further attack. However, the intervention was
seen as a fundamental breach of sovereignty of Iraq
• US intervention in Panama in 1989 to restore democracy:
On 20th December 1989, US deployed 26000 troops to
overthrow the government of panama and to capture its
leader general manuel norega, Bush argued that the military
action is done on the basis of safeguarding Americans and to
defend democracy. Bush argued that military action is
necessary to combat drug trafficking and to protect Panama
Canal. International community condemned the attack. SC
did resolution but was vetoed. GA made resolution to
condemn the attack. UNC prohibits use of force in those
seeking democracy
• Collective humanitarian intervention in the form of
enforcement action by the UN is legal
• Interventions in Somalia, Rwanda, Haiti and Yugoslavia:
Interventions based on Security Council Resolutions, which
are categorized as instances of humanitarian intervention
but are in effect enforcement action

59
International Humanitarian Law (IHL)
• The law that regulates the conduct of armed conflict or
hostilities (jus in bello)

Armed conflicts:
• Tadic case: Armed conflict exists whenever there is a resort to
armed force between states or protracted armed violence
between governmental authorities and organized armed
groups or between such groups within a state

Types of armed conflicts:


International armed conflicts:
• Geneva Convention and AP I applies
• Common Article 2: An international armed conflict occurs
whenever there is a resort to armed force between States
• Article 1(4), AP 1: International armed conflicts include
those in which people are fighting for self-determination
against colonial and alien occupation and against racist
regimes in the exercise of their rights to self-determination
Non-international armed conflicts (Internal armed conflicts)
• Common Article 3 of GC and AP II apply
• Common Article 3: A non-international armed conflict is an
armed conflict occurring in the territory of a State (civil
war)
• Prosecutor v Dusko Tadic: It exists whenever there is
protracted armed violence between governmental
authorities and organized armed groups, or between such
groups within a State
• Article 8(d) Rome Statute: Situations of internal
disturbances, such as riots, isolated and sporadic acts of
violence do not amount to a non-international armed
conflict
• Juan Carlos Abella v Argentina: Situations when it is
considered as not a non international armed conflict

60
• Riots or disturbances which from the start are not directed
by a leader and have not concerted intent
• Isolated and sporadic acts of violence as distinct from
military operations carried out by armed forces or
organized armed groups
• Other acts of a similar nature which incur in particular mass
arrest of persons because of their behavior or political
opinion
The concept of armed conflict in principle requires the existence of organized armed
groups that are capable of actually engaging in combat and other military actions
against each other

Internationalized armed conflict


• Prosecutor v Dusko Tadic: A non-international armed conflict
may become international if:
✓ Another State intervenes in that conflict through its troops or
✓ Some of the participants in the internal armed conflict act on
behalf of that other State. It must be proven that a State has
overall control over the particular group, and is not merely
assisting through financial or military means
✓ It is not only equipping or financing the group but is
coordinating or helping in the general planning of its military
activity

Main sources of IHL:


Customary IHL:
• Used particularly where a party to a conflict is not a party to a
relevant convention
• The application of customary IHL is through the Martens clause
provided in Article 1(2)
• AP 1: In situations not covered by the Protocol or existing
conventions, civilians and combatants remain under the
protection and authority of the principles of international law
derived from custom, principles of humanity and dictates of
public conscience

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Treaties:
• The four Geneva Conventions for the Protection of War Victims,
1949:
✓ Geneva Convention for the Amelioration of the Condition of the
Wounded and Sick in Armed Forces in the Field (GC 1)
✓ Geneva Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces at
Sea (GC II)
✓ Geneva Convention Relative to the Treatment of Prisoners of
War (GC III)
✓ Geneva Convention Relative to the Protection of Civilian
Persons in Time of War (GC IV)
• The Protocols Additional to the Geneva Convention were
adopted to cater to more complex situations of armed conflict:
✓ Protocol Additional to the Geneva Convention and Relating to
the Protection of Victims of International Armed Conflicts (AP
I)
✓ Protocol Additional to the Geneva Convention and Relating to
the Protection of Victims of Non-International Armed Conflicts
(AP II)
✓ Protocol Additional to the Geneva Convention and Relating to
the Adoption of an Additional Distinction Emblem (AP III)
• Judicial decisions
• Various international bodies (ICRC)
• Manuals of Military Law and Related Texts
• Writings of legal specialists

Principles of IHL:
Principles of distinction: Protects the civilian population and
civilian objects from the effects of military operation
• Only combatants and military objectives may be intentionally
targeted during an armed conflict
• Article 48 of AP I: Parties to the conflict must be able to
distinguish at all times between combatants and the civilian
population and between military objectives and civilian objects

62
• ‘Combatant’, Article 43(1) AP I: Any member of the armed
forces of a party to the conflict. May be the target of any
deliberate attack
• Article 4 of 3rd GC and Hague Regulations provide features of
combatants
• Article 44(4) of AP I: Combatants are obliged to distinguish
themselves from the civilian population while they are engaged
in attack or in a military preparation for an attack. If an armed
combatant cannot distinguish himself, he must carry his arms
openly. If they fail to do so, they can be prosecuted

• ‘Civilians’ Article 50(1) API: Persons who do not belong to the


category of combatants, prisoners of war and armed forces
• Prosecutor v Tihomir Blaskic: Persons who are not, or no
longer members of the armed force
• Article 53(1) API: Civilians enjoy general protection
(immunity) during an international armed conflict for as long
as they refrain themselves from taking any direct part in the
hostilities
• The Public Committee Against Torture in Israel v The
Government of Israel: A direct part in hostilities is when a
civilian bears arms, in an open or concealed manner and is on
his way to a place where he will use them or is using arms, or is
on his way back from such place
• Position of ICRC: Interpretive Guidance on the notion of
direct participation on humanitarian law: To establish
direct participation 3 requirements must be satisfied: 1.
Degree of harm, the disruption of military or military capacity
of causing death, or destruction on persons of object. 2. There
must be direct causation between the act and harm 3.
Belligerent nexus.
• With regard to the first element, direct participation refers to
specific hostile acts carried out by individuals to disrupt the
military capacity or causing death injury or damage to property
during the armed conflict. They use weapon to conduct

63
violence against enemy forces. The second criteria there must
be a direct causation between the act and harm. It entails that
the act must be integral to the military operation such as
identification or marking of targets. If civilian during armed
conflict help armed forces to identify or mark target, they have
participated directly. The analysis and transmission of tactical
intelligence to attack the enemy and the instruction and
assistance given the troops then they have participate directly
in armed conflict. These acts are integral to military operation.
The third criteria is belligerent nexus, the act must be done to
support the party to the conflict for the purpose of harming the
enemy force. In which in the guidance the ICRC argued that the
intention of participants is irrelevant because objective is
reflected in the design of the operation.

• ‘Military objectives’, Article 52(2) API: Objects which make an


effective contribution to military action, the destruction of
which would offer a definite military advantage

• ‘Civilian objects’, Article 52(3) API: Objects normally


dedicated to civilian purposes, such as place of worship, a
house, a school (general protection under Article 52(1))
✓ Civilian objects become military objectives if it can be
established that it is being used to make an effective
contribution to military action
✓ In the event of doubt, it shall be presumed to be a civilian
object

Principle of necessity: Military necessity is the need to employ


measures, which are indispensible in securing the ends of the war
(Lieber Code)

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• Any measure resorted to for the purpose of securing the
submission of the enemy is justified provided that it is not
inconsistent with the modern law and usages of war
• Although military necessity allows armed forces to engage in
conduct that will result in destruction and harm, it prohibits
the infliction of unnecessary sufferings and excessive injury or
the causing of widespread, long-term and severe damage to the
natural environment (Article 35, API)
• Nuremberg Tribunal in the Hostage case: The principle of
military necessity allows parties to apply any amount of force
necessary with the least expenditure of time, life and money to
achieve the partial or complete submission of the adversary
provided that:
• The force is subject to the law of wars
• The force is no greater than needed to achieve this
• The force is not prohibited

Principle of proportionality: Limits and protects potential harm to


civilians
• A military advantage (upper hand in the conflict) gained from
an attack launched must not be disproportionate to the amount
of civilian casualties or damage caused
• Article 51(5)(b) AP I: Attacks resulting in harm towards
civilians (collateral damage) must not be excessive as against
the military advantage
• Parties are prohibited from causing excessive collateral
damage
• The Public Committee against Torture in Israel v The
Government of Israel: The attack must be directed against a
military objective with means which are not disproportionate
but are suited to destroying only that objective
• The Israeli Strike Against Hamas Leaser Salah Shehadeh:
An Israeli fighter plane that dropped one-ton bomb to kill
Shehadeh, also killed 14 bystanders, nine of whom were
children, and injured more than 70 others. Although the bomb

65
landed with precision, the attack caused tremendous
destruction (excessive collateral damage)
• To ensure that civilian lives and civilian objects are spared
from harm and destruction, precautionary measures must be
taken before an attack is launched (Article 57(2)

Principle of humanity: All humans are deemed to have the capacity


and ability to show respect and care for everyone, even their enemies
• Although harm is allowed in an armed conflict, the principle
seeks to limit the harm
• The principle of humanity is the core of IHL (inspired the
establishment of ICRC), which is also upheld by all the other
principles of IHL

Principle of non-discrimination: Prohibits unlawful distinctions


based on race, nationality, religious belief or political opinion in the
treatment of prisoners of war, civilians, and hors de combat
• All protected persons are to be treated with the same
consideration by parties to the conflict
• Each person affected by the armed conflict is entitled to his
fundamental rights and guarantees, without discrimination
(Article 75 of AP I)

Protected persons in an armed conflict


• Article 27, GC IV: Protected persons shall at all times be
humanely treated and protected against acts of violence or
threats

Civilians:
• Article 53(1) AP I grants civilians immunity from any form of
attack during an armed conflict
• Article 51(4) AP I: Indiscriminate attacks which either
destroys all life in a specific area, or causes excessive collateral
damage against civilians are prohibited
• The use of civilians as human shield:

66
• Barake v Minister of Defense: Human shields is the use of
protected persons under IHL as a shield to deter attacks on
combatants and military objectives
• Article 51(7) AP I & Article 13(1) AP II prohibits the use of
civilians as a human shield
• In line with the precautionary measure to remove the civilian
population from the vicinity of military objective (Article
58(a) AP I) and to avoid locating military objectives within or
near densely populated areas (Article 58(b) API)

Wounded, sick and shipwrecked: (GC I&II)


• Article 8 of API:
• ‘Wounded’ and ‘sick’: Persons, whether military or civilian who
because of trauma, disease or other physical or mental
disorder or disability are in need of medical assistance of care
and who refrain from an act of hostility
• Article 41(1) & (2)(c) AP I: A hors de combat should not be
made the object of an attack. A person is horse de combat if he
is incapacitated by wounds or sickness and is incapable of
defending himself, provided that he abstains from hostility
• ‘Shipwrecked’: Persons whether military or civilian, who are in
peril at sea or in other waters as a result of misfortune affecting
them or the vessel or aircraft carrying them provided that they
refrain from any act of hostility
• Article 12 GC I: Members of the armed forces who are
wounded or sick shall be respected and protected at all times

Prisoners of war: (GC III)


• “Prisoners of war” are captured, surrendered or wounded
soldiers that are no longer considered a threat to a party
• Once a soldier attains such status, he is automatically
entitled to extensive protection and is prohibited from being
attacked.
• Article 13 of GC III: Prisoners of war must at all times be
humanely treated. They must be protected, particularly

67
against acts of violence or intimidation and against insults
and public curiosity. Any act that would seriously endanger
their health is prohibited
• Article 25&26 GC III: They are to be granted an adequate
amount of space within the premise that they are kept and
to be fed a sufficient amount of food
• Article 118 GC III: Once hostilities have come to an end, all
prisoners of war must be released and repatriated (sent
back to their State) without delay
• Prisoners of war cannot be discriminated based on their
sex:
• Article 14 of GC III: Female prisoners of war shall be
granted the same treatment given to male prisoners of war
• Article 88 of GC III: Women cannot be subjected to harsher
or heavier punishment than men
• Article 97 of GC III: Female prisoners of war shall be
confined in separate quarters from male prisoners of war
and will be under immediate supervision of women

Special protection for women


• Article 27 of GV IV (General protection): Women shall be
protected at all times during the period of an armed conflict
• Article 75(1) of AP I (fundamental guarantees): Each
person is entitled to her fundamental guarantees without any
adverse distinction based on sex
• Article 76(1) of AP I: Women shall be granted special respect
and protected especially against rape, forced prostitution and
any indecent assault

Special protection for children:


• Article 77(1) of AP I: Children shall be granted special respect
and protected against any form of indecent assault
• Article 77(2)&(3) AP I and Article 4 of AP II: Parties must
give due care and aid to the children in need and if they are
under 15 years old, they shall not be enlisted to take part

68
directly or indirectly in armed forces but if they do and are
captured, they shall continue to benefit from this protection.

Medical personnel:
• Article 24 GC I & Article 15 of AP I: Medical personnel shall
at all times be respected and protected

Protected objects in an armed conflict


• Article 52(1) of AP I (General protection): Civilian objects
(houses, schools) shall not be the object of an attack
• Article 53(1) of AP I: Any act of hostility against historic
monuments, works of art, or places or worship is prohibited
• Article 19 of GC I: Hospitals may in no circumstances be
attacked but shall at all times be respected and protected by
the parties to the conflict
• Article 54(1) of AP I: Objects which are considered
indispensable to the survival of the civilian population
(agricultural areas, crops, livestock, supplies of drinking water)
are prohibited from being attacked, destroyed, removed or
rendered useless
• Article 55 of GC IV: In any occupied territory, the State in
control has the duty to ensure good and medical supplies for
the civilians are sufficient

Methods of Warfare
• Although States may employ the necessary means to attain the
overall military advantage, they do not have unlimited freedom
of choice in the methods or weapons that they use
• Article 35(2)&(3) of AP I: Weapons, projectiles and material
and methods of warfare used to cause superfluous injury or
unnecessary suffering or widespread, long term and severe
damage to the natural environment are prohibited

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Nuclear Weapons
• Legality of the Threat or the Use of Nuclear Weapons: The
use of nuclear weapons is contrary to Article 35(2)&(3) of AP
I as well as unlawful under Article 2(4) of UN Charter as it
fails to meet all the requirements relating to self defence
• Shimoda v Japan: The use of nuclear bombs against the cities
of Hiroshima and Nagasaki was held to be a blatant violation of
the international law of armed conflict

Chemical weapons
• The 1993 Chemical Weapons Convention prohibits the
development, production, stockpiling, transfer, use and
destruction of chemical weapons
• Article 1 CWC: Imposes upon States the obligation to never
use chemical weapons under any circumstances, either in
international or non international armed conflicts, including
any production or manufacture of such chemical weapon
• US Assails Soviet for Reported Use of Toxin Waste: The
Soviet Union was liable for using chemical weapons that
destroy human skin by cancer-causing agents which also
produced other forms of unnecessary injury and suffering in
Afghanistan

Blinding laser weapon


• Article 1 of 1995 Protocol on Blinding Laser Weapons (to
the 1980 Conventional Weapons Convention): Laser weapons
are specifically designed to cause permanent blindness to
unenhanced vision that is to the naked eye or to the eye with
corrective eyesight devices
• Juan de Fuca Strait incident: In 1997, US Navy Lieutenant
Daly, and Canadian forces pilot, captain Barnes, sustained eye
injuries aboard a military helicopter during the surveillance of
a Russian merchant vessel suspected of espionage in US
territorial waters. The effects of the injury were consistent
with the effects of a blinding laser. Since the incident, the

70
injured Daly and Barnes suffered ‘agonizing chronic pain’ and
constant deterioration of eyesight which led to a lawsuit being
instituted against the shipping company that was partly owned
by the Russian government
• The use of blinding laser weapons is prohibited under the
Protocol and Rule 86, Customary IHL as it is said to cause
unnecessary suffering

Mines and booby traps:


• The 1996 Protocol on Prohibitions or Restrictions on the
Use of Mines, Booby-Traps and other Devices (to the 1980
Conventional Weapons Convention) restricts the use of land
mines, remotely delivered mines and booby traps
• The Protocol, which applies to both international and non-
international armed conflicts, prohibits the use of land mines,
remotely delivered mines, or booby traps to kill civilians or to
cause superfluous injury or unnecessary suffering to soldiers.
• It also prohibits the use of booby traps that are attached to or
associated with any of the protected objects under IHL
• The 1997 Anti-Personnel Mine Ban Convention prohibits
the use, development, production, stockpiling and transfer of
anti-personnel mines and requires the destruction of stockpiles
within 4 years for each State party
Incendiary weapons:
• The 1980 Protocol on Prohibitions or Restrictions on the
Use of Incendiary Weapons (to the 1980 Conventional
Weapons Convention) prohibits the aerial delivery (throwing it
from a great distance above) in relation to the conduct of
hostilities during armed conflict or incendiary weapons within
a concentration of civilians
• The weapon or munitions must be ‘primarily designed’ to act
through flame and/or heat (eg: flame throwers)

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Non-International Armed Conflict (Common Article 3 & AP II)
• Internal armed conflicts are governed by Common Article 3 to
the four Geneva Conventions 1949 and the Protocol Additional
to the Geneva Convention and Relating to the Protection of
Victims of Non-International Armed Conflicts (AP II):
• Common Article 3: Parties to the conflict must observe that
persons taking no active part in the hostilities is protected
from:
✓ Violence to life and person in particular murder of all kinds,
mutilation, cruel treatment and torture
✓ Taking of hostages
✓ Outrages upon personal dignity, humiliating or degrading
treatment
✓ the wounded and sick are collected and cared for

• In order for Common Article 3 to apply, an armed conflict must


be established
• La Tablada case: The concept of armed conflict requires the
existence of organized armed groups that are capable of and
actually do engage in combat and other military action against
each other
• Common Article 3 is generally understood to apply to low
intensity and open armed confrontations between relatively
organized armed forces or groups that take place within the
territory of a particular State. It typically involves armed strife
between governmental armed forces and organized armed
insurgents
• The application of Common Article 3 does not require the
existence of large-scale and generalized hostilities or a
situation comparable to a civil war in which dissident armed
groups exercise control over parts of national territory

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AP II is intended to supplement Common Article 3:
• In order for AP II to apply, a conflict must have taken place
within the territory of the State
✓ Between its armed forces and dissident armed forces, or
other organized armed groups
✓ Under responsible command
✓ Exercises control over a part of the State’s territory as to
enable them to carry out sustained and concerted military
operation
• Article 1(2): The Protocol is not applicable to situations of
internal disturbances and tensions such riots, isolated and
sporadic (infrequent) acts of violence
✓ Riots, all disturbances which from the start are not directed by
a leader and have no concerted intent
✓ Isolated and sporadic acts of violence, as distinct from military
operations carried out by armed forces or organized armed
groups
✓ Other acts of a similar nature which incur in particular mass
arrests of persons because of their behavior or political opinion
• La Tablada case: The case concerned an attack launched by 42
armed persons on military barracks of the national forces in
1989 at La Tablada, Argentina. The attack resulted in a battle
lasting approximately 30 hours and resulting in the deaths of
29 of the attackers and several State agents
• The inter-American Commission on Human Rights held:
The violent acts which occurred at the La Tablada military
cannot be characterized as a situation of internal disturbances.
The concerted nature of the hostile acts undertaken by the
attackers, the direct involvement of governmental armed
forces and the nature and level of the violence present at the
events at the La Tablada base, particularly, the careful
planning, coordination and execution of an armed attack by the
attackers against the military base constituted an internal
armed conflict to which IHL could be directly applied
• Tensions and disturbances (Domestic law & IHR law) -> An
armed conflict falling short of a civil war (Common Article 3,

73
domestic law, IHR law) -> High intensity civil war (AP II) -> The
civil war no longer remains an internal armed conflict when it
turns into a conflict involving national liberalization
movements: Armed conflicts in which people are fighting for
their right to self-determination against colonial domination,
alien occupation and racist regimes (Article 1(4) AP I)

Prosecution at the International Criminal Court (ICC) (Rome


Statute)
• Article 15(1) Rome Statute: Proprio motu power of the ICC
Prosecutor: The Prosecutor may decide to initiate an
investigation into a situation without referral to the UNSC or a
State Party
• Article 15(1) Rome Statute: In conducting a preliminary
investigation, he may request information from UN organs,
States, NGOs and other reliable sources to aid this process
• Article 15(3) Rome Statute: Only after he has analyzed the
seriousness of the information and concluded that there is a
reasonable basis to commence an investigation, can a request
be made to the Pre-Trial Chamber to launch an investigation
• The applicable standard that the Prosecutor must meet is that
of a reasonable basis under Article 15(4). Information
presented to the Chamber need not be conclusive or eliminate
all other possible interpretations of the information, but the
Chamber must be satisfied that a reasonable justification exists
for the belief that a crime within the ICC’s jurisdiction is being
or has been committed

• Article 8(2) defines ‘war crimes’ as:


✓ Grave breaches of the Geneva Conventions
✓ Other serious violations of the laws and customs applicable in
an international armed conflict
✓ Serious violations of Common Article 3 (in the case of a non-
international armed conflict)
✓ Other serious violations of the laws and customs applicable in a
non-international armed conflict

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Individual criminal responsibility:
• Nuremberg trial: The purpose of international law is to
combat international crimes and it is not artificial entities like
the State or organization that breaches the law but it is the
individual working behind them. Only by punishing individuals
who commit such crimes can the provisions of international
law be enforced
• Article 27 Rome Statute: The Statute applies equally to all
persons without distinction based on their official capacity. A
Head of State or Government shall not be exempted from
criminal responsibility under the Statute
• Arrest warrant against Sudanese President Omar al-
Bashir: The Sudanese President was issued an arrest warrant
for masterminding a campaign of crimes against humanity and
war crimes by government troops and Arab militias in the
Darfur region
• The ICC Pre-Trial Chamber I held: Al-Bashir’s official
capacity as a sitting Head of State does not exclude his criminal
responsibility nor does it grant him immunity against
prosecution before the ICC
• Thus any person found to be criminally responsible for the
commission of war crimes can be prosecuted under the Statute
• Article 25(2) of Rome Statute: A person shall be criminally
responsible and liable for punishment for a crime if he:
✓ Commits a crime, individually or jointly, with or through
another person
✓ Orders, solicits or induces the commission of such a crime
✓ Aids, abets or assists in the commission of the crime
✓ Contributes in any way to the commission of the crime
✓ In regards to genocide; directly and publicly incites others to
commit genocide
✓ Attempts to commit the crime by taking an action that
commences its execution
• Prosecutor v Dusko Tadic: The accused was convicted by the
ICTY of grave breaches of the Geneva Conventions and crimes

75
against humanity related to the torture and murder of Muslims
in Bosnia and Herzegovina
• Article 30 of Rome Statute: A person shall be criminally
responsible and liable for punishment for a crime only if it was
committed with intent and knowledge of the effect of the harm
that it will cause

Superior responsibility:
• Article 28(b) of Rome Statute: A superior shall be criminally
responsible for crimes committed by subordinates under his
effective control where
✓ He knew or consciously disregarded information that his
subordinates were committing or about to commit such crimes
✓ The crimes concerned activities within his effective command
and control
✓ He failed to take all the necessary and reasonable measures to
prevent the commission of the crime, or to submit the matter
to competent authorities
• Nuremberg Tribunal in United States of America v
Wilhelm List and Others: A superior cannot absolve his
liability simply by saying that he did not have knowledge of
his subordinates’ actions, as a superior is accountable for all
conduct within his territorial jurisdiction
• The accused was charged for the murder of civilians in
Greece, Yugoslavia, Norway and Albania between 1939 and
1945 by the use of troops of the German armed forces under
the command of and acting pursuant to orders issued,
distributed and executed by the first accused

State responsibility:
• The ICC can only be used to charge private persons and not
a State as a State cannot be criminally responsible
• However, violations of IHL entail the international
responsibility of a State

76
• Article 91 of AP I imposes the payment of compensation by
a State responsible for acts committed by persons in its
armed forces
• Japan’s Second World War Rape case: Japan was
obligated to pay compensation to Korea for raping captured
Korean women and making them “comfort women” during
the World War.

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Law of the sea

Territorial Sea:
• Article 2(1) UNCLOS: The sovereignty of a coastal State
extends, beyond its land territory and internal waters and in
the case of an archipelagic State, its archipelagic waters, to an
adjacent belt of sea, described as the territorial sea
• The territorial sea is a belt of the sea surrounding the coast of a
State over which international law permits the State to exercise
sovereignty, subject to the right of innocent passage of foreign
ships
• Article 3 UNCLOS: Every State has the right to establish the
breadth of its territorial sea up to a limit not exceeding 12
nautical miles, measured from baselines determined in
accordance with this Convention
• Article 2(2) UNCLOS: This sovereignty extends to the air space
over the territorial sea as well as its bed and subsoil
• A State’s territorial sea enables it to have exclusive jurisdiction
over fisheries, living and non-living resources of the sea bed
and its subsoil and extends to the airspace over the territorial
sea

78
• The extent of a State’s territorial sea and other maritime zones
must be measured from the baseline

Types of baseline:
• Article 5 UNCLOS: Except where otherwise provided in this
Convention, the normal baseline for measuring the breadth of
the territorial sea is the low-water line along the coast as
marked on large-scale charts official recognized by the coastal
State
• Article 7 UNCLOS: The drawing of straight baselines is
permitted where the coastline is deeply indented and cut into
or if there is a fringe of islands along the coast in its immediate
vicinity
o Where the coastline is heavily indented or fringed with
island, it may be impractical for the baseline to follow the
low mar water along the coast
o Anglo-Norwegian Fisheries case: The ICJ affirmed the
legality of using straight baselines for Norway’s deeply
indented coastline. It stated that in considering whether
baselines are drawn in reasonable manner, it is allowed
if there exists certain economic interests peculiar to a
region, the reality and importance of which are clearly
evidenced by long usage

Internal waters:
• Article 8(1) UNCLOS: Except as provided in Part IV, waters on
the landward side of the baseline of the territorial sea form
part of the internal waters of the State
• A state has complete and exclusive sovereignty subject to the
right of foreign vessels in distress to seek safety in internal
waters (Article 2(1))

79
• Article 8(2) UNCLOS: Where the establishment of a straight
baseline in accordance with the method set forth in article 7
has the effect of enclosing as internal waters areas which had
not previously been considered as such, a right of innocent
passage as provided in this Convention shall exist in those
waters
• There can be no right of innocent passage through internal
waters, except where a right of innocent passage had
previously existed before the establishment of a straight
baseline
• The only situation in which a foreign ship would be entitled to
enter internal waters is times of distress, and where it is
seeking safety
• States will nominate those of their ports which are open to
international trade and will so designate such ports of entry for
customs and immigration purpose
• A state is entitled to enforce its law against all ships and those
on board within its internal waters, subject to the rules of
sovereign and diplomatic immunity
• Wildenhus case: Wildenhus, a Belgian crew member of a
Belgian merchant ship, was found guilty by an American state
court of the murder of another Belgian crew member on board
the ship when it was docked in the port of Jersey City, New
Jersey

• Disorders which disturb only the peace of the ship or those on


board are to be dealt with exclusively by the sovereignty of the
home of the ship but those which disturb the public peace may
be suppressed or punished by the proper authorities of local
jurisdiction

Bays:
• Article 10(2) UNCLOS: For the purposes of this Convention, a
bay is a well-marked indentation whose penetration is in such
proportion to the width of its mouth as to contain land-locked

80
waters and constitute more than a mere curvature of the coast.
An indentation shall not however be regarded as a bay unless
its area is as large as or larger than that of the semi circle
whose diameter is a line drawn across the mouth of that
indentation
• Article 10(4) UNCLOS: If the distance between the low water
marks of the natural entrance points of a bay does not exceed
24 nautical miles, a closing line may be drawn between these
two low water marks and the waters enclosed thereby shall be
considered as internal waters
• Straight baselines may be drawn through bays with a
maximum length of 24 miles within the regime of internal
waters
• Historic bays do not fall within the ambit of Article 10:
• These are bays which the coastal State claims to be entitled to
treat as internal waters by virtue of a specific historic right
• Land, Island and Maritime Frontier Dispute Case: A state may
validly claim title to a bay on historic grounds if it can show
that it has for a considerable period of time, claimed the bay as
internal waters and effectively exercised its authority and that
such time the claim has been accepted by other States

Delimitation (defining the limit) of the territorial sea:


• Anglo-Norwegian Fisheries case: In 1935, Norway delimited a
certain fisheries zone which was exclusively reserved to its
nationals. This delimitation using straight baselines was
opposed by the UK. ICJ held: Norway’s baselines were valid. But
the Norwegian delimitation is still subject to certain principles
which make it possible to judge the delimitation’s validity
under international law
• The delimitation of the territorial sea cannot be dependent
merely upon the will of the coastal State as expressed in its
municipal law. Although, it is true that the act of delimitation is
a unilateral act (only done by the coastal State), its validity is
determined upon having due regard to other States

81
• Thus, certain considerations must be made in the delimitation
of the territorial sea of a State:
• A state must be allowed the latitude necessary in order to be
able to adapt its delimitation to practical needs and local
requirements. However, the delimitation should be contrary to
the customary international law
• In deciding on the choice of baselines, it must be considered
whether certain sea areas lying within these liens are
sufficiently closely linked to the land domain to be subject to
the regime of internal waters
• Straight baselines may be used where the geographical
configuration of a region is unusual, as in this case
• Certain economic interests of a region should be taken into
account, the reality and importance of which are clearly
evidenced by long usage

The right of innocent passage:


• Although States are granted sovereignty under Article 2(1), a
limitation exists whereby a State has to allow ships of all States
the right of innocent passage through its territorial sea
• Article 18(1) UNCLOS: Passage means navigation through the
territorial sea for the purpose of:
• Passing through the sea without entering its internal waters or
• Proceeding to or from internal water
• Article 18(2) UNCLOS: Passage shall be continuous and
expeditious (quick), except where stopping or anchoring is
necessary by force majeure or distress
• Article 18(3) UNCLOS: The exception extends to situations
where a ship seeks to assist another ship, person or aircraft in
danger or distress
• This provision disallows ships to cruise around a State’s
territorial sea, regardless of how ‘innocent’ their intentions are,
as their act would not fall within the ambit of ‘passage’
• Article 19(1) UNCLOS: Passage is innocent as long as it is not
prejudicial to the peace, good order or security of the State

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• Corfu Channel case: As long as the passage was conducted in a
fashion which presented no threat to the coastal State, it is to
regarded as innocent
• Passage of a foreign ship is considered prejudicial if its
activities fall within any of those listed under Article 19(2)(a)
to (l) to which a State may then exercise its right to suspend or
deny passage of such ship
• Article 25(1) UNCLOS: The Coastal state may take the
necessary steps in its territorial sea to prevent passage which
is not innocent

• Article 24(2) UNCLOS: The coastal state shall give appropriate


publicity to any danger to navigation of which it has knowledge
within its territorial sea
• Corfu Channel Case: British war ships were damaged by the
explosions of mines, while passing through the Corfu Channel
within the territorial sea of Albania. ICJ held: The laying of the
minefield could not have been accomplished without the
knowledge of the Albanian government, which had the
obligation of warning approaching war ships of such danger.
Failing to do caused Albania to be responsible under
international law
• A state may adopt laws and regulations, relating to innocent
passage through the territorial sea in respect of matters listed
under Article 21
• In exercising its criminal and civil jurisdiction against foreign
ships (ships not entitled to any immunity) the general rule is
that the flag State can exercise its jurisdiction, and only in
exceptional circumstances does the coastal State have the right
to do so
• Criminal jurisdiction: Article 27(1) UNCLOS: The criminal
jurisdiction of the coastal state should not be exercised on
board a foreign ship passing through the territorial sea to
arrest any person or to conduct any investigation in connection
with any crime committed on board the ship during its
passage, save only in the following cases:

83
a) if the consequences of the crime extend to the coastal state
b) if the crime is of a kind to disturb the peace of the country of
the good order of the territorial sea
c) if the assistance of the local authorities has been requested by
the master of the ship or by a diplomatic agent or consular
officer of the flag state or
d) if such measures are necessary for the suppression of illicit
traffic in narcotic drugs or psychotropic substances

• Civil jurisdiction:
o Article 28(1) UNCLOS: The coastal state should not stop or
divert a foreign ship passing through the territorial sea for
the purpose of exercising civil jurisdiction in relation to a
person on board the ship
o Article 28(2) UNCLOS: The coastal state may not levy
execution against or arrest the ship for the purpose of any
civil proceedings save only in respect of obligations or
liabilities assumed or incurred by the ship itself in the
course or for the purpose of its voyage through the waters
of the coastal state
• Section 32 UNCLOS: With such exceptions as are contained in
subsection A and in articles 30 and 31, nothing in this convention
affects the immunities of warships and other governmental ships
operated for non-commercial purposes
o Chung Chi Cheung v R: However, the national state of the
ship (flag state) may exercise its discretion to waive such
immunity, thus allowing the coastal state to exercise its
jurisdiction
• Although such ships are immune from local jurisdiction, they are
still under an obligation respect coastal State laws
• Failure to do so will allow the coastal state to seek remedies
o Article 31 UNCLOS: The flag state is responsible for any loss
or damage to the coastal state resulting from the non-
compliance by these ships with the laws and regulations of
the coastal state

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Straits used for international navigation:
• A strait is a naturally developed stretch of water connecting two
areas of sea
• Straits may be used for international navigation between one part
of the high seas or an EEZ and another part of the high seas or an
EEZ (Article 37-Article 44)
• Article 45(1) UNCLOS: The right of innocent passage applies in
straits used for international navigation
o Corfu Channel Case: The right of innocent passage cannot be
suspended on grounds of security in a part of the territorial
sea that it is an international strait used for navigation from
one State to another, as it in other parts of the territorial sea
(Article 45(2))
▪ States in times of peace have a right to send their
warships through straits used for international
navigation without prior authorization of a coastal
State, provided that the passage is innocent
• The right of transit passage through an international strait is more
generous than the right of innocent passage through the other
parts of the territorial sea
o Transit passage expressly allows passage by all aircrafts
including military aircrafts (Article 38(1))
o Transit passage allows underwater transit by submarines
o There are fewer restrictions on conduct during such
passage (Article 39- Article 41)
o There is less power accorded to a coastal state to regulate
transit passage (Article 41&42)

The contiguous zone


• A zone contiguous (adjacent) to a State’s territorial sea
• Article 33(2) UNCLOS: The contiguous zone may not extend
beyond 24 nautical miles from the baselines from which the
breadth of the territorial sea is measured

85
• Article 33(1) UNCLOS: In the contiguous zone, States may
exercise control necessary to:
o Prevent infringement of its customs, fiscal, immigration
or sanitary laws and regulations within its territory
o Punish any infringement committed within its territory
• Thus, ships that have committed any form of infringement may
be arrested even though they have left the territorial sea
• The state may also stop a ship from entering its water when it
has reason to believe that an offence would be committed if the
ship were to enter

The exclusive economic zone (EEZ)


• Article 55 UNCLOS: The exclusive economic zone is an area
beyond and adjacent to the territorial sea subject to the specific
legal regime established in this Part, under which the rights
and jurisdiction of the coastal State and the rights and
freedoms of other states are governed by the relevant
provisions of this convention
• Article 57 UNCLOS: The exclusive economic zone shall not
extend beyond 200 nautical miles from the baselines form
which the breadth of the territorial sea is measured
• It is subject to the specific legal regime established by the
UNCLOS
• States cannot by itself by establish the EEZ, as the EEZ is not
considered part of the State’s territory; it must be proclaimed
under the UNCLOS
• Article 56(1) UNCLOS: In its EEZ, a State has:
• Sovereign rights for the purpose of exploring and exploiting,
conserving and managing the natural resources whether living
or non living of the waters
▪ Unlike the territorial sea, a state cannot exercise
sovereignty over the EEZ, but only has sovereign
rights for specific purposes

• Jurisdiction with regard to:

86
(i) The establishment and use of artificial islands, installations
and structures
• Article 60(2) UNCLOS: The coastal state shall have exclusive
jurisdiction over such artificial islands, installations and
structures including jurisdiction with regard to customs, fiscal,
health, safety and immigration laws and regulations

(ii) marine scientific research


(iii) The protection and preservation of the marine
environment
• A state may enforce within its EEZ pollution laws and
regulations in three situations:
▪ Article 220(3) UNCLOS: A state may only seek
information from a foreign ship, only where there
are reasonable grounds to believe that the ship has
violated international rules and standards for the
prevention of pollution or laws and regulations of
that State, within its EEZ
▪ Article 220(5) UNCLOS: A state may conduct a
physical inspection of the ship where there is a
violation resulting in a substantial discharge
causing or threatening significant pollution of the
marine environment
▪ Article 220(6) UNCLOS: A State may institute
proceedings, including detention of the ship, in
accordance with its laws where there is clear
evidence of a violation resulting in a discharge
causing major damage or threat of major damage
to the coastline of the State

• Foreign ships in passage are also subject to the coastal State’s


enforcement of laws an regulations in respect of illegal fishing
(Article 73 UNCLOS)

87
• Article 73(2) UNCLOS: Arrested vessels and their crews shall
be promptly released upon the posting of reasonable bond or
other security
• Article 73(3) UNCLOS: Coastal state penalties for violations of
fisheries laws and regulations in the exclusive economic zone
may not include imprisonment in the absence of agreements to
the contrary by the States concerned, or any other for of
corporal punishment
• Article 56(2) UNCLOS: In exercising its rights and performing
its duties under this Convention in the exclusive economic
zone, the coastal state shall have due regard to the rights and
duties of other states and shall act in a manner compatible with
the provisions of this convention
• Article 58(1) UNCLOS: In the exclusive economic zone, all
States, whether coastal or land-locked enjoy subject to the
relevant provisions of this Convention, the freedoms referred
to in article 87 of navigation and overflight and of the laying of
submarine cables and pipelines and other internationally
lawful uses of the sea related to these freedoms, such as those
associated with the operation of ships, aircraft and submarine
cables and pipelines and compatible with the other provisions
of this convention
• However Article 58(3) UNCLOS: In exercising their rights and
performing their duties under this convention in the exclusive
economic zone, States shall have due regard to the rights and
duties of the coastal state and shall comply with the laws and
regulations adopted by the coastal state in accordance with the
provisions of this convention and other rules of international
law in so far as they are not incompatible with this part
• Article 62(2) UNCLOS: The coastal state shall determine its
capacity to harvest the living resources of the exclusive
economic zone. Where the coastal state does not have the
capacity to harvest the entire allowable catch, it shall through
agreements or other arrangements and pursuant to the terms,
conditions, laws and regulations referred to in paragraph 4,
give other states access to the surplus of the allowable catch.

88
The continental shelf:
• Article 76(1) UNCLOS: The continental shelf of a coastal State
comprises the seabed and subsoil of the submarine areas that
extend beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the
continental margin or to a distance of 200 nautical miles from
the baselines from which the breadth of the territorial sea is
measured where the outer edge of the continental margin does
not extend up to that distance
• Article 77(3) UNCLOS: The rights of the coastal state over the
continental shelf do not depend on occupation, effective or
notional or on any express proclamation
• Article 77(1) UNCLOS: The coastal state exercises over the
continental shelf sovereign rights for the purpose of exploring
it and exploiting its natural resources
• Article 77(2) UNCLOS: The rights referred to in paragraph 1
are exclusive in the sense that if the coastal state does not
explore the continental shelf or exploits natural resources, no
one may undertake these activities without the express
consent of the coastal state
• Article 81 UNCLOS: The coastal state shall have the exclusive
right to authorize and regulate drilling on the continental shelf
for all purposes
• Article 79(4) UNCLOS: Nothing in this part affects the right of
the coastal state to establish conditions for cables or pipelines
entering its territory or territorial sea or its jurisdiction over
cables and pipelines entering its territory or territorial sea, or
its jurisdiction over cables and pipelines constructed or used in
connection with the exploration of its continental shelf or
exploitation of its resources of the operations of artificial
islands, installations and structures under its jurisdiction
• Article 78(1) UNCLOS: The rights of the coastal state over the
continental shelf do not affect the legal status of the
superjacent waters or of the air space above those waters
• Article 78(2) UNCLOS: The exercise of the rights of the coastal
state over the continental shelf must not infringe o result in any

89
unjustifiable interference with navigation and other rights and
freedoms of other states as provided for in this convention
• Article 79(1) UNCLOS: All States are entitled to lay submarine
cables and pipelines on the continental shelf in accordance
with the provisions of this article

EEZ Continental Shelf

Need express proclamation Does not require any


proclamation

Maximum: 200 nautical miles Minimum: 200 nautical miles

Sovereign rights for the purpose Limited to the mineral and other
of exploring and exploiting, non-living resources of the sea-
conserving and managing the bed and subsoil together with
natural resources living organism belonging to
sedentary species, excluding
bottom fish, shrimps, prawns,
and octupuses

Delimitation of the continental shelf:


• There is a need for delimiting maritime boundaries between
neighboring States (States which are adjacent to one another)
as their maritime zones often overlap
• Such boundaries are usually delimited through negotiations,
resulting in maritime delimitation treaties
• Article 83(1) UNCLOS: The delimitation of the continental shelf
between States with opposite or adjacent coasts shall be
effected by agreement on the basis of international law
• Although each maritime zone demands a separation
delimitation (the limit of each zone must be defined
separately), there is a tendency to draw a single maritime
boundary without distinguishing between the different zones
(continental shelf and EEZ)
• North Sea Continental Shelf cases: The court was asked by the
parties to determine the principles and rules of international
law applicable to the delimitation as between them of the ares
of the continental shelf in the North Sea

90
• The court stated that the delimitation must be effected in
accordance with equitable principles taking into account
relevant circumstances, thus dismissing the argument that the
equidistance rule set out in Article 6(2) of the Continental Shelf
Convention had to be applied and rejected Germany’s claim to
a ‘just and equitable’ share
• The court’s departure from the equidistance rule created legal
uncertainty and unpredictability in the law of maritime
delimitation
▪ This was intensified when the equitable principle
was followed in the Continental Shelf case (Tunisia
v Libya) and Gulf of Maine case
• However, since 2001, the court has moved back to the
application of the equidistance rule under Article 6 of the
Continental Shelf Convention
▪ Qatar v Bahrain: The court affirmed the customary
character of the equidistance rule, stating that the
approach constituted the most logical and widely
practiced approach
• Maritime Delimitation in the Black Sea Case: Romania and
Ukraine which are adjacent to one another, requested the court
to draw in accordance with international law a single maritime
boundary line between their continental shelf and exclusive
economic zones in the Black Sea. ICJ held: In applying the
equidistance rule with an exception on special circumstances,
there are two steps that the court must take in drawing a single
maritime boundary line
• The first step is to establish a provisional
delimitation line (equidistance rule)
o Where adjacent coasts are concerned,
an equidistance line will be drawn
unless there are compelling reasons
that make this impossible in the
particular case
o Where opposite coasts are concerned,
the provisional delimitation line will

91
consist of a line in the centre between
two coasts
• The second step is to consider whether there
should be an adjustment to the line drawn
(special circumstances rule)
o Adjustments to the equidistance line
may be made in order to achieve and
equitable result. In making such
adjustments, consideration must be
made towards:
o Disparities in the lengths of coasts
▪ A substantial difference in the
lengths of the parties’ respective
coastlines may be a factor to be
taken into consideration
▪ The presence of small islands in
a State’s vicinity may be taken
into consideration
• However, very small
islands may not be taken
into account where they
are too small to have
maritime zones (Article
121(3))
o The effect of the delimitation on the
States’ resources
▪ However, the resource-related
criteria would be relevant only
where the equidistance line will
have ‘catastrophic
repercussions’
o The legitimate security consideration
of the States involved

92
Romania’s
claim

New
maritime
Ukraine’s
boundary
claim
line
established
by the court

The high seas


• Article 86 UNCLOS: The provisions of this Part apply to all
parts of the sea that are not included in the exclusive economic
zone, in the territorial sea or in the internal waters of a State,
or in the archipelagic waters of an archipelagic State. This
article does not entail any abridgment of the freedoms enjoyed
by all States in the exclusive economic zone in accordance with
article 58
• Article 87(1) UNCLOS: The high seas are open to all States,
whether coastal or land-locked. Freedom of the high seas is
exercised under the conditions laid down by this Convention
and by other rules of international law. It comprises, inter alia,
both for coastal and land-locked States:
a) freedom of navigation
b) freedom of overlight
c) freedom to lay submarines cables and pipelines
d) freedom to construct artificial islands and other installations
permitted under international law
e) freedom of fishing
f) freedom of fishing

93
• Such freedoms must be exercised by all States with due regard
for the interests of other States, as well as rights under the
UNCLOS for activities in the Area
• No state has the right to prevent ships of other states from
using the high seas for any lawful purpose
• The flag state of a ship has the exclusive right to exercise
legislative and enforcement jurisdiction over its ships on the
high seas
o Article 94(1) UNCLOS: Every State shall effectively
exercise its jurisdiction and control in administrative,
technical and social matters over ships flying its flag
o Only the flag State has locus standi before the
international courts and tribunals on behalf of a
particular ship
o Lotus case: Ships on the high seas are subject to no
authority except that of the State whose flag they fly, thus
no State may exercise any kind of jurisdiction over
foreign ships
o The Grand Prince case: Evidence revealed that at the
time of detention of the ship, Belize had already decided
to de-register the ship and that it was going to be
reflagged and registered in Brazil. International Tribunal
for Law of the Sea held: There was failure to establish
that Belize was the flag State of the ship, thus it had no
jurisdiction over the ship
• However, there are several exceptions (including the
commission of international crimes on the high seas) in which
other States share legislative or enforcement jurisdiction:
o Collisions at sea
▪ Article 97(1) UNCLOS: In the event of a collision,
no proceedings may be instituted against a person
except before the judicial or administrative
authorities of the flag State or the State which such
person is a national
o Slavery

94
▪ Article 99 UNCLOS: Every States shall take effective
measures to prevent and punish the transport of
slaves in ships
o Piracy
▪ Article 101 UNCLOS: Piracy consists of any illegal
acts of violence or detention committed for private
ends by the crew or passengers of a private ship
directed against another ship, or persons or
property on board the ship, on the high seas or in a
place outside the jurisdiction of any State
• For ‘private ends’: To constitute piracy, the
acts must be committed on the basis of
private reasons such as greed, hatred,
revenge. If they are committed for political or
public ends, they cannot be regarded as
piratical
▪ Piracy is an international crime which attracts
universal jurisdiction (any State can arrest, try and
punish pirates)
• Re Piracy Jure Gentium: A person guilty of
piracy has placed himself beyond the
protection of any State
• Article 105 UNCLOS: On the high seas or in
any other place outside the jurisdiction of
any State, every State may seize a pirate ship
or aircraft or a ship or aircraft taken by
piracy and under the control of pirates and
arrest the persons and seize the property on
board. The courts of the State which carried
out the seizure may decide upon the
penalties to be imposed, and may also
determine the action to be taken with regard
to the ships, aircraft or property subject to
the rights of third parties acting in good faith
o Unlawful acts against maritime safety (Maritime
terrorism)

95
▪ Achille Lauro incident: An Italian liner was seized
by Palestinian Liberation Organisation (PLO)
hijackers disguised on board as passengers. The
crew and passengers were held hostage and the
hijackers demanded for the release of Palestinian
prisoners held by Israel. As they committed the
offence for political ends, their acts does not
constitute piracy but instead amount to an
unlawful act against maritime safety
▪ As a result of the incident, the Convention for the
Suppression of Unlawful Acts against the safety of
Maritime Navigation 1988 together with a Protocol
for the Suppression of Unlawful Acts against the
safety of fixed platforms located on the continental
shelf 1988 was adopted to cover “maritime
terrorism”
o Drug trafficking
▪ Article 108(1) UNCLOS: All States shall cooperate
in the suppression of illicit traffic in narcotic drugs
and psychotropic substances engaged in by ships
on the high seas contrary to international
conventions
o Unauthorised broadcasting from the high seas
▪ Transmission of broadcasts from a ship on the high
seas intended for reception by the general public
contrary to international regulations (Article
109(2))
▪ Article 109(1) UNCLOS: All States shall cooperate
in the suppression of unauthorized broadcasting
from the high seas
The right of hot pursuit:
• Article 111(1) UNCLOS: The hot pursuit of a foreign ship may
be undertaken when the competent authorities of the coastal
State have good reason to believe that the ship has violated the
laws and regulations of that State. Such pursuit must be
commenced when the foreign ship or one of its boats is within

96
the internal water, the archipelagic waters, the territorial sea of
the contiguous zone of the pursuing State and may only be
continued outside the territorial sea or the contiguous zone if
the pursuit has not been interrupted. It is not necessary that, at
the time when the foreign ship within the territorial sea or the
contiguous zone receives the order to stop, the ship giving the
order should likewise be within the territorial sea or in the
contiguous zone. If the foreign ship is within a contiguous zone,
as defined in Article 33, the pursuit may only be undertaken if
there has been a violation of the rights for the protection of
which the zone was established.
• The requirements of a lawful hot pursuit under Article 111:
o Competent authorities of the coastal State have good
reason to believe that the ship has violated its laws and
regulations within any of its maritime zones (the internal
waters, territorial sea, contiguous zone, EEZ, continental
shelf)
o Pursuit must commence when the foreign ship or its boat
is within the limits of the particular maritime zone
o Pursuit may only commence once a visual or auditory
signal to stop has been given at a distance in which it can
be seen or heard by the foreign ship
▪ The ship giving the signal need not be within the
same maritime zone
o Pursuit may only continue on the high seas if it is
continuous and uninterrupted
o The right may only be exercised by warships or military
aircraft or that which is marked and identifiable as being
on government service
o The right of hot pursuit ceases as soon as the foreign ship
pursued enters the territorial sea of its own state or of a
third state

o The M/V Saiga case: The conditions for the exercise of


the right of hot pursuit are cumulative, each of them has

97
to be satisfied for the pursuit to be legitimate under the
Convention

• Article 111(8) UNCLOS: Where a ship has been stopped or


arrested outside the territorial sea in circumstances which do
not justify the exercise of the right of hot pursuit, it shall be
compensated for any loss or damage that may have been
thereby sustained
• The M/V Saiga case: An oil tanker was arrested and boarded by
Guinean authorities when it was sailing south of the southern
limit of the EEZ of the Guinea. The international tribunal for the
law of the sea held that there was no legal basis for the exercise
of the right of hot pursuit by Guinea
o Contrary to what Guinea alleged (illegal importation of
oil), the tribunal found that Saiga had not violated any
laws or regulations of Guinea in this instance
o Guinea’s exercise of the right of hot pursuit was unlawful
as it failed to comply with several conditions under
Article 111, namely that no visual or auditory signals to
stop were given to the Saiga, and that the pursuit was
interrupted when the patrol boats were recalled before
they resumed the case
o Guinea had used excessive and unreasonable force in
stopping and arresting the Saiga, an unarmed tanker
almost filled gas oil, through solid shots
▪ The tribunal held that the use of force was
unjustified, and that where force is unavoidable it
must not go beyond was is reasonable and
necessary as considerations of humanity must also
be applied in the law of the sea
▪ In order to stop a ship at sea, there must be an
auditory or visual signal to stop, given using
internationally recognized signals
▪ Where this does not succeed, a variety of actions
may be taken including the firing of shots across
bows of the ship

98
▪ It is only after the appropriate actions fail that the
pursuing vessel may as a last resort, use force
• Red Crusader case: A Danish Fishery protection ship arrested a
Scottish fishing boat, the Red Crusader and ordered it to
proceed into Danish territory for fishing in a prohibited area.
After obeying it for a while, the boat sought to escape. The
Danish, ship fired solid shots against the boat which hits its
radar scanner, lights and eventually the stern (rear end of a
boat). The commission of inquiry held:
o The commanding officer exceeded legitimate use of
armed force on two counts:
a) Firing without warning of solid gunshot
b) Creating danger to human life on board the red crusader
without proved necessity
o Although the escape of the Red Crusader in flagrant
violation of the order received may explain some
resentment on the part of the Danish authorities, those
circumstances however, cannot justify such violent
action
o Other means should have been attempted by the
authorities
• Im Alone case: The Im Alone was a British sailing ship
registered in Canada. It was 10 miles off the Louisiana coast
when it was ordered to stop by a United States coastguard
vessel on suspicion of smuggling. The sailing ship fed and was
pursued by the coastguard vessel, which caught up with it
more than 200 miles off the coast of the United States. When it
refused to stop, shots were fired by the coastguard vessel,
which eventually caused the ship to sink, resulting in the death
of a crew member and the loss of the cargo. The Joint
Commissioners held:
o The United States might use necessary and reasonable
force for the purpose of effecting the objects of boarding,
searching, seizing and bringing into port the suspected
vessel; and if sinking should occur incidentally as a result
of the exercise of necessary and reasonable force for such
purpose, the pursuing vessel might be entirely blameless
99
o However, in this instance, the admittedly intentional
sinking of the suspected vessel was not justified by any
principle of international law
The doctrine of constructive presence:
• Under the right of hot pursuit, a coastal State may exercise such
right even where the foreign ship has not entered the maritime
zone, but has instead sent its boat to commit the offence
(recognized under Article 111)
• The Araunah (simple constructive presence): Russia seized a
Canadian vessel outside the territorial sea because its crew were
using canoes for illegal sealing within Russian territorial sea
• R v Mills (extended constructive presence): The Poseidon, a ship
registered in Saint Vincent, transferred a cargo of cannabis to the
Delvan, a British registered ship, worth 24million pounds on the
high seas, 100 miles west of the United Kingdom. The transfer was
observed by a British Naval ship close by. When the Delvan landed
the cannabis in Britain, those involved were arrested. Soon after,
the British naval ship was instructed to arrest the Poseidon, and
the crew members who were not UK nationals, were then charged
with conspiracy to import cannabis. The accused argued that their
arrest was in breach of international law. Held: Where there was
constructive presence of the ship, the arrest was said to be legal

The international seabed area


• The seabed and ocean floor and subsoil thereof beyond the
limits of national jurisdiction and is subject to control by the
international seabed authority
• It is not subject to appropriation by States and the freedom of
high seas applies
• The Area and its resources are proclaimed to be the common
heritage of mankind

100
International Human Rights Law (IHRL)
• Rights which are inherent (natural) in all human beings by virtue
of their humanity alone

Historical Background
• Golden rule found in all religions
a. Islam: No one of you is a believer until he desires for his
brother that which he desires for himself
b. Christianity:
• Magna Carta Liberatum, the Great Charter of Freedom
formulated in 1215. It requires the king to renounce certain
rights, respect certain legal procedures and accept that his will
will be bound by the law. The king is not allowed for the
civilians to do slavery work.
• It starts during age of enlightenment in Europe. The doctrine of
natural law place individual rights as the center of legal and
social systems
• State also drew their mandate on the basis of the need to
protect individual’s rights
• Individual rights theory has its roots in the teaching of
Philosophers
• John Locke: Two Treatises of Government 1690: “The great and
chief end, therefore of men uniting into commonwealths and
putting themselves under Government, is the preservation of
their property, that is their lives, liberties and estates”
• American Declaration of Independence: We hold these truth to
be self evident that all men are created equal that they are
endowed by their creator with certain inalienable rights, that
among governments are constituted among men deriving their
just powers from the consent of the governed
• Certain rights emerged in the 17th and 18th century: Respect of
property, no force labour, freedom of expression/religion and
deprivation of liberty
• In the 19th century, Karl marx, he argues that the right to
private would lead to capitalism and stands in the way of all
other human rights particularly the right to equality
101
• Socialism advances the idea of unity of the state and the society
• Promote the precedence of economic, social and cultural rights
(second generation of human rights) over civil and political
rights
• In comparison to classical human rights, it entails the state to
do something.
• Until the 2nd world war, human rights were not developed
within international law but within the framework of national
constitution
• International law was not responsible for the rights of
individuals except for:
a) Diplomatic protection
b) International humanitarian law
c) Prohibition of slavery and the slave trade
• United Nations was founded after the 2nd WW to save
succeeding generations from further wards, to reaffirm faith in
human rights and dignity of human person
• Before establishment of UN, before and during second world
war, international law does not regulate how sovereign states
can treat their citizens. They can commit genocide without
interference from other states
• Massacre of the jews: Nazi Holocaust: Systematic
discrimination on states for their religious background.
• The situation changed after establishment of UN. Every
member states commits itself to fundamental human rights and
the principle of equality
• Tunisia-Morocco: What is considered as domestic matter is
decided by international law. (the question of nationality, etc)
• Filitiga and Pina Ilera: The court held that universal human
rights norm contains in declaration of human rights and attain
CIL. The Plaintiff Dr Joil Filatirga, and his daughter citizens of
Paraguay and went to us using political visa and asked for
asylum. They initiated action against pina Irela citizen of
Paraguay in us. They argued that pina caused death dr joil’s
son. The son was accused of being tortured by pina irela. They
found that pina sold his apartment and moved to NY. Pina was

102
the chief police in Paraguay and he was alleged to have
tortured son of Dr Fila. When Dr brought action he was also
tortured by pina irela but court dismissed their case in
Paraguay. So they brought it to NY court. They are claiming for
damages for 10million. They claim under UN Charter, UDHR,
UND human torture, American Declaration of rights and duties
of men. The cause of action is based on provision of torture.
The court decided in favour of fila tiga and said that in the 20 th
century has recognized basic human rights particularly the
right to be freed from torture. Human rights is considered as
international norm.
• Preamble of UN Charter: We the people of UN are determined
to reaffirm faith in fundamental human rights in the dignity
and worth of the human person in the equal rights of men and
women and of nations large and small

Categorization of human rights:


• Civil and political rights
o They help protect those who are governed by law form
encroachments of the government
o Eg: Freedom of expression, freedom of assembly, freedom
from torture, freedom from arbitrary arrest and detention,
right to a fair trial
• Economic, social and cultural rights
o Eg: Right to work, right to education, right to access to
health care
• Groups or peoples’ rights
o Focuses on the rights of a collective group of people, not on
individual rights
o Eg: Right to development, right to self-determination

• Article 1 UN Charter lists among the main purposes of the UN, the
achievement of international cooperation in promoting and
encouraging respect for human rights and for fundamental
freedom for all without distinction as to race, sex, language or
religion

103
o Article 55(c) UN Charter: The UN has the duty to promote
universal respect for an observance of human rights and
fundamental freedoms for all without distinction as to race,
sex, language or religion
o Article 56 UN Charter: All Members pledge to take joint and
separate action in cooperation with the Organization for the
achievement of Article 55
Universal Declaration on Human Rights (UDHR)
• It contains a list of two main categories of human rights:
o Civil and political rights (Article 3-21)
o Economic, social and cultural rights (Article 22-27)
• It represents a consensus of the international community
regarding human rights which each State must respect, promote
and observe
• However, as it is not a treaty, the declaration has no binding force
and thus, does not impose any immediate duty upon Member
States to implement its provisions
o It merely provides a list of human rights that member states
have pledged themselves to promote (Article 56 UN
Charter)
• From the UDHR, which is the first comprehensive universal
catalogue of human rights, specific human right treaties, both at
the universal and regional level were adopted to transform the
general principles of the UDHR into legally binding instruments

1966 International Covenant on Civil and Political Rights


(ICCPR)

• Article 2(1) ICCPR: Each State party undertakes to respect and


ensure to all individuals the rights recognized in the Covenant
without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social
origin, property, birth or other status

104
• Each State party must therefore ensure that anyone within the
power or effective control of that State is ensured the rights
under the Covenant
o This applies not only to citizens but also individuals of
other nationalities such as asylum seekers, refugees,
migrant workers and other persons
• The Covenant is applicable in times of peace, and in situations
of armed conflict
• Article 4(1) ICCPR: In the event of an officially proclaimed
public emergency which threatens the life of the nation, States
may derogate (deviate) from certain obligations under the
Covenant to the extent strictly required by the necessities of
the situation, provided that such measures are not inconsistent
with their obligations under international law and do not
involve discrimination
• A State party seeking to invoke the right to derogate from the
Covenant must be able to justify that:
o There exists a public emergency which threatens the life
of the nation
▪ Greek case: A public emergency must have 4
characteristics:
• Actual or imminent
• It effects the nation as a whole
• The continuance of the organized life of the
community is threatened
• The normal measures or restrictions
permitted for the maintenance of public
safety, health and order are inadequate
o All their measures derogating from the Covenant are
strictly necessary in that situation
▪ Refers to the duration, geographical coverage (the
parts of the State affected) and material scope of
the state of emergency
• Non derogable rights:

105
o Article 4(2) ICCPR lists the rights from which no
derogation can be made, even in a state of public
emergency such as an armed conflict
▪ Right to life (Art 6), prohibition against torture or
cruel, inhuman or degrading treatment or
punishment (Art 7), prohibition of slavery and
slave trading (Art 8(1) & (2)), no imprisonment for
failure of contractual obligation (Art 11), non-
retroactivity of criminal law (Art 15), recognition
as a person before the law (Art 16), freedom of
thought, conscience and religion (Art 18)
o Although the list does not include the right to non-
discrimination (Art 26), this is considered as implied non
derogable right, as Art 4(1) has provided that the
measures taken must not involve discrimination
• Article 4(3) ICCPR: Any State party invoking the right of
derogation must immediately inform the other State Parties to
the Covenant through the Secretary General of the UN

Enforcement of ICCPR
• Article 28 ICCPR provides for the establishment of the Human
Rights Commission (HRC) for the supervision and monitoring of
the implementation of its provisions
• The HRC oversees compliance with the ICCPR in several ways:
o It examines periodic reports submitted by contracting
parties
▪ A State has to provide a report within a year of the
ratification of the ICCPR, and subsequent reports are
required at a different time specified by the HRC for
each State
▪ For each report, a country task force (CRTF) is
established to prepare a list of issues to be addressed
to a State
▪ After examining the report, the HRC will indicate
measures which a State must take to comply with the
ICCPR

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o It adopts General Comments
▪ Article 40(1) ICCPR empowers the HRC to make
general comments as it may deem appropriate
▪ These comments must help promote cooperation
between States in the implementation of the ICCPR;
summarise the experience of the Committee in
examining the States’ reports; draw the attention of
States to matters relating to the improvement of
reporting procedures and implementation of the
ICCPR
o It examines inter-State complaints
▪ Article 41 ICCPR: HRC is entitled to hear inter-State
complaints provided that both States are parties to
the ICCPR and have made a declaration recognizing its
competence
o It examines individual complaints under the First Optional
Protocol to the ICCPR
▪ An applicant must be able to prove several things in
the complaint:
• He is an individual (natural person) who is a
victim of a violation of rights guaranteed by the
ICCPR (personally affected by the violation)
• The event occurred after the entry into force of
the First Optional Protocol
• The event took place within the jurisdiction of
the State
• The subject matter is not currently being
considered by another international body
• All local remedies have been exhausted
• It is a prima facie case; there is sufficient
evidence to support his case
• Although the HRC is not a judicial body; its high moral authority is
often sufficient to ensure compliance. However, if a state refuses
to comply, the only sanction is bad publicity, whereby the State’s
refusal will be noted by the HRC in its annual report

107
• The Second Optional Protocol which provides for the abolition of
death penalty, prohibits the execution of any individual within a
States jurisdiction. It requires States to submit reports to the HRC
on measures taken to implement the Protocol

Freedom from torture or cruel, inhuman or degrading treatment


or punishment under the ICCPR and Convention Against Torture
(CAT)
• Article 7 ICCPR: No one shall be subject to torture or to cruel,
inhuman or degrading treatment or punishment
• Article 1 CAT: Torture: Any act by which severe pain or
suffering, whether physical or mental is intentionally inflicted
on a person for such purposes as obtaining information or a
confession and is inflicted by a public official or other person
acting in an official capacity
• Under the definition in order for an act to constitute torture,
there must be:
o An infliction of severe pain or suffering, whether physical
or mental
o An intentional infliction
o Torture is inflicted for a purpose
o Infliction by a public official or other person acting in an
official capacity
▪ A state will not be held liable for acts beyond its
control, however private acts of torture to which a
State fails to respond to or take reasonable
measures against, will cause it to be held liable
• Under the CAT, a contracting State must:
o Take all necessary measures to prevent, investigate and
punish acts or torture, cruel, inhuman or degrading
treatment
o Either punish or extradite an alleged offender
o Compensate victims of torture
• Dzemajl et al v Yugoslavia: 65 people of Romania origin were
either tortured or treated cruelly and inhumanly by ethnic

108
Montenegrins in the Federal Republic of Yugoslavia. These
torturous and inhuman acts took place for the purpose of
punishing them for the act of a third person in raping a girl on
Montenegrin origin and that they were committed with
consent or acquiescence of the police. The CAT Committee
against Torture held that CAT had been violated
• The HRC in deciding on situations in violation of the freedom
under Article 7 does not distinguish between the different
punishments or treatment
• The prohibition is complemented by the requirement for all
persons deprived of their liberty to be treated with humanity
and with respect for the inherent dignity of the human person
(Article 10 ICCPR)
• Estrella v Uruguay: The author was arrested and taken to a
place of detention where he was subjected to severe physical
and psychological torture. He was then taken to prison where
he spent 40 days in solitary confinement in a cage like cell and
went 7 months without mail and recreation and was subjected
to harassment and searches. HRC decided: There was a
violation of Article 7 because he was subjected to torture, as
well as violation of Article 10(1) because he was detained
under inhuman prison conditions

Equality and non-discrimination under the ICCPR and other UN


treaties
• Article 2(1) ICCPR explicitly prohibits any form of
discrimination by State parties
• Article 26 ICCPR narrows the scope to equality and prohibition
against discrimination: All persons are equal before the law
and are entitled without any discrimination to the equal
protection of the law. Thus, the law is to prohibit any
discrimination and guarantee to all persons equal and effective
protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status

109
o The provision has been identified by HRC as one which
exists independently as a general right of non-
discrimination and is not dependent upon the existence
of any other rights
• HRC General Comment 18, ‘discrimination’: Any distinction,
exclusion, restriction or preference which is based on any
ground listed and which has the purpose or effect of nullifying
of impairing the recognition, enjoyment or exercise by all
persons on an equal footing, of all rights and freedoms
• Thus, a person receiving less favourable treatment on one of
the grounds of distinction under Article 26 can be regarded a s
victim of discrimination
• Waldman v Canada: A complaint was made against an Ontario
law which gave the government power to provide special
funding for Catholic schools while excluding other religious
schools from funding. The HRC found that there was
discrimination on the ground of religion
Convention on the Elimination of All Forms of Racial
Discrimination (CERD)
• Article 1 CERD: Racial discrimination: Any discrimination,
exclusion, restriction or preference based on race, colour,
descent, national or ethnic origin which has the purpose or
effect of impairing or nullifying the recognition, enjoyment or
exercise, on an equal footing, of human rights, and fundamental
freedoms in the political, economic, social, cultural, civil or any
other field
• A State is required to eliminate any racial discrimination, direct
or indirect and to prevent, prohibit and eradicate the practice
of apartheid
• Article 1(4) CERD permits in some circumstances the taking of
special measures to secure advancement of racial or ethnic
groups, provided that they do not result in the maintenance of
separate rights for different racial groups and are terminated
upon the achievement of its objective
• The Committee on the Elimination of Racial Discrimination was
set up with the task of monitoring its implementation

110
• Similar to HRC, the CERD Committee examines periodic
reports, issues General Comments, processes inter state
complaints and petitions from individuals or groups of persons
who claim to be victims of violations of the Convention
• The Committee is allowed to use early warning measures and
urgent procedures to try prevent serious violations of the
CERD

Convention on the Elimination of All Forms of Discrimination


against Women (CEDAW)
• Article 1 CEDAW: Discrimination against women: Any
distinction, exclusion or restriction made on the basis of sex
which has the effect or purpose of impairing or nullifying the
recognition, enjoyment, or exercise by women irrespective of
their marital statuses, on a basis of equality, of men and
women, of human rights and fundamental freedoms, in the
political, economic, social, cultural, civil or any other field
• Article 2 CEDAW: State parties are to condemn discrimination
in all its forms and agree to pursue by all appropriate means,
and without delay a policy of eliminating discrimination
against women
• Article 17 establishes the Committee on the Elimination of
Discrimination against Women that oversees the
implementation of the Convention
• The main function of the Committee is to review reports, which
consist of the legislative, judicial and administrate measures a
State has taken in implementing the Convention and must be
submitted to it every 4 years
• Once reports have been reviewed, recommendations and
suggestions must be made and reported to the UNGA through
UN Economic and Social Council (ECOSOC)
• An Optional Protocol to the CEDAW authorizes communication
from individuals or groups of individuals. Thus, women whose
rights have been violated may seek in international remedy
• This is often referred through 2 mechanisms:

111
• Communications procedure: provides individuals and groups
the right to lodge complaints with the CEDAW Committee
• Inquiry procedure: Enables the CEDAW Committee to conduct
inquiries into serious and systematic abuses of women’s rights
Convention on the Rights of the Child (CRC)

• Article 1 CRC: Child: A human being below the age of 18 unless


majority is acquired prior to that age according to the law
applicable to the child
• Article CRC: In decisions affecting a child, the best interests of the
child shall be the primary consideration
• CRC provides for a number of basic rights such as the right to a
life, a name and a nationality, as well as the right of freedom of
expression, thought and conscience.
• State parties also agree to protect the child from:
o Forms of mental or physical violence
o Economic exploitation
o Illicit use of drugs
o Sexual exploitation
o Torture and other cruel and inhuman punishment
o Employment of children below the age of 15 in an armed
conflict
• Article 43 CRC establishes the Committee on the Rights of the
Child

1966 International Covenant on Economic, Social and Cultural


Rights (ICESCR)
• The Covenant covers 3 categories of rights:
o Rights to work and to employment of just and favourable
conditions of work, including the right to form and join
trade unions
o Rights to social protection, to an adequate standard of
living and to the enjoyment of the highest attainable
standard of physical and mental health
o Rights to education and to participation in cultural life

112
• The ICESCR does not require an immediate implementation but
allows progressive realization of its obligations by a State
party. This is subject to 2 exceptions:
o Rights which can be implemented without imposing any
burden on a State, such as the right of non-discrimination
must be done immediately
o Each State Party must undertake to take steps to the
maximum of its available resources, with a view to
achieving progressively the full realization of the rights
recognized by all appropriate means including the
adoption of legislative measures (Article 2(1))
▪ Thus regardless of the level of economic
development, a State has a duty to ensure that
persons within its jurisdiction is provided with
food, housing, access to health services and
education
▪ ‘The maximum of its available resources’ means
that when a party is unable to ensure the bare
minimum, it has an obligation to seek international
assistance and cooperation in order to fulfill its
duty under the ICESR

113
• Once progress has been achieved, a State is prohibited from
taking any deliberate step backwards (to when progress had
not been achieved) that cannot be justified on the grounds of
severe economic difficulties, force majeure or similar
circumstances
• The essence of the covenant’s rights must at all times be
guaranteed by national law
• The committee on economic, social and cultural rights was
established to ensure compliance to the covenant
• The committee may make recommendations to ECOSOC based
on annual reports, but has no power to hear inter-State or
individual complaints

Enforcement of IHRL at the universal level


• A compromise between State sovereignty and the requirement
for State to comply with international standard on human
rights has led to the establishment of monitoring mechanisms
Monitoring mechanisms established by the UN:
• Article 13 UN Charter: The UNGA may initiate studies and
make recommendations on human rights issues
• The UN ECOSOC which is primarily responsible for human
rights matters, can make recommendations on human rights,
draft conventions, convene international conferences and hear
reports from various bodies (Article 62 UN Charter)
• In 1946, ECOSOC established a Commission on Human Rights
under Article 68:
o However, its value was limited as politics played a role in
choice and treatment of cases (described as political
animal, with its initiatives and priorities reflecting the
interests of those with superiority)
o Thus, the Commission was highly criticized as even in the
most serious cases, there were no legally binding
sanctions available
• This led to the establishment of the Human Rights Council in
2006 which replaced the Commission on Human Right

114
o The Council which is a subsidiary organ of the UNGA, has
strengthened the UN’s human rights machinery and
elevated the institutional standing its human rights work
o The Council is aimed at creating a more efficient and less
politicized organization that would respond quickly to
cases of human right abuses. It functions:
▪ To promote universal respect for the protection of
human rights without discrimination
▪ To address and make recommendations on
situations of violations of human rights including
gross and systematic violations
▪ To make recommendations on the promotion and
protection of human right and for further
development of international law in this field
• The Council has established procedures, mechanism and
structures of its work:
o A Universal Periodic Review on the human rights record
all of UN Members whereby a review of each member
take place once every 4 years
▪ The review is based on a report submitted by the
reviewed State
▪ The process of review ends with the adoption of
recommendations for implementation by the State
o Special procedures to examine human rights violations in
specific State or to examine a specific human rights
problem
o Human Rights Council Advisory Committee was
established to act as ‘think tank’ for the Council, whereby
its main role is to advise the Council on specific issues at
its request
o The complaints procedure was modified to examine not
the situation of a particular individual but the situation of
a particular country. Thus a complaint must show that
there is consistent pattern of gross and reliably proven
violations of human rights

115
Monitoring mechanism established by treaties:
• International human rights treaties have established their own
monitoring mechanism to ensure compliance:
o ICCPR: Human Rights Committee
o ICESCR: Committee of Economic, Social and Cultural
Rights
o CAT: Committee against Torture
o CERD: Committee on the Elimination of Racial
Discrimination
o CEDAW: Committee on the Elimination of Discrimination
against Women
o CRC: Committee on the Rights of the Child
• These monitoring mechanisms have 3 general types of
monitoring procedures:
o Periodic reports: Submitted by State parties when
requested
o Inter State complaints: A state party can make a
complaint against another State party for violation of
human rights, which is only possible where the States
have ratified the treaty and made a declaration
recognizing its competence
o Complaints (individual communications): Individuals or
groups of individuals may file with the monitoring body a
communication stating the violation allegedly committed
• Problems with enforcement:
o Each human rights treaty creates it own system for
enforcement through general monitoring procedures
o States have not responded either consistently or
cooperatively with reporting requirements
o Rarely do States bring complaints against other States
o Effective enforcement of human rights depends on the
procedural capacity of the individual to complain to the
relevant treaty based Committee

116
o There is no procedural capacity to enforce human rights
in many parts of Africa, the Middle East and the Asia
Pacific Region
o There exist wide reservation to treaty obligations
▪ Eg: Reservations made to CEDAW
o Overdue and inadequate State reports
• The fact that these monitoring bodies are not judicial bodies
(whether established under UN or treaties) renders their
findings and recommendations not binding upon States
o Non-compliance by States of their recommendations will
not give rise to sanction or legally binding enforcement
methods
o This is because these monitoring bodies operate in an
area where States though they may have assumed
international obligations by acknowledging the
declaration or treaty are not prepared to submit to
international adjudication in the event of a violation
▪ This is supported by the fact that the area of
international protection of human rights cover
matters that are politically, socio-economically and
culturally sensitive to each State
o Thus, international protection of human rights at the
universal level is only effective to the extent of gradually
inducing States to improve their human rights record

117
Differences between IHL and IHRL

IHL IHLR

When? IHL is applicable only In principle, IHRL


in times of an armed applies both in times
conflict, whether of peacetimes and in
international or non situations of armed
international. As IHL conflict. Some IHRL
deals with treaties permit
exceptional situations governments to
in armed conflicts no derogate from certain
derogation rights in situations of
whatsoever from its public emergency
provisions are (armed conflict)
permitted threatening the life of
the nation. However,
certain human rights
are non derogable

Who is bound? IHL binds all parties IHRL lays down rules
in an armed conflict. binding government
In international in their relations with
conflicts it must be individuals
observed by the
States involved and
binds the
government as well
the as the armed
groups fighting
against in or among
themselves. Thus, IHL
lays down rules that
are applicable to
both, State and non
State actors

Who is protected? The wounded, sick, All human beings


shipwrecked, without distinction to
members of the race, religion, sex and
armed forces,
118
prisoners of war, etc
civilians

Individual criminal IHL imposes Generally, individuals


responsibility obligation on an do not have specific
individual and also duties under IHRL.
provides that However, individuals
individuals may be may held criminally
held criminally responsible for
responsible for ‘grave violation of human
breaches’ of the rights that are so
Geneva conventions heinous and declared
as international
crimes. Eg: Genocide
and crimes aginst
humnaity

• Although there are differences between the two, both IHL and
IHRL can be said to complement each other
o Committing a crime against humanity not only violates
IHL but also IHRL
• The international criminal court (ICC) and tribunals such as the
ICTY and ICTR have jurisdiction over violations of both IHL and
IHRL

119
Environmental law

Development and codification


• 19th century: Marine fisheries agreements, treaties containing
anti-polluting provisions, treaties regulating fisheries in
international river (1882 North Sea Fisheries Convention)
were concluded
• Treaties relating to the protection of certain species of wild life,
flora and fauna such as the 1900 convention on the
preservation of wild animals, birds and fish
• International environmental law has emerged as a new branch
of international law based on the increasing number of treaties
resulted from the need for legal response against the global
environmental degradation
• Other legal arrangements concerning the environment include
the 1994 Agreement establishing the world trade organization
which provides for the optimal use of the world’s resources
Concept of environmental law
• Limitation of the principle of territorial sovereignty of states to
use their natural resources within their boundary regardless of
the impact to the neighboring
• A state is not allowed to alter the natural conditions of its own
territory to the disadvantage of the natural conditions of the
territory of the neighboring state
o Eg: A state is not allowed to divert the river (Gabcikovo
Nagymaros) in which the court held that this is with
regard to the construction of the water log.
o Land Recommention case in Singapore: A state cannot
alter its natural resources that can affect its neighbor
• A state must exercise its sovereignty by taking into account the
principle of good neighborliness
• A state should use its property not to cause damage to its
neighbor

120
• General principle of classical international law concerning
environment also include the principle of state responsibility
for actions causing trans boundary damage to other state
Case law pertaining to sovereignty and environmental
preservation
There are two ways the law can be codified:
• Disaster law: Measures that have been adopted by states in
the aftermath of a disaster. Eg: Dumping of toxic waster,
nuclear explosions
o The Chernobyl nuclear power station led to the adoption
of two international agreement (International atomic
agency on early notification and international assistance
following international nuclear incidents)
• Systematic regulation: to prevent environmental damage by
proper conservation of nature and natural resources
o Eg: The Vienna Convention on the Protection of the
Ozone Layer
o 1972 Stockholm Declaration contains 26 principles and
principle 21 stipulates that states have in accordance
with un charter and il principle the sovereign right to
exploit their own resources and the responsibility to
ensure that activities within their jurisdiction do not
cause harm to other states.
o As a result of the UN Conference on the human
environment leads to UNEP as a special agency of UNGA.
UNEP: head office is in Nairobi Kenya

• Island of Palmas Case (US v Netherlands): Territorial


sovereignty involves the exclusive right to display the activities
od a state. This right has a corollary duty: the obligation to
protect within the territory the rights of other states in
particular their rights to integrity and inviolability in peace and
war, together with the rights which each state may claim for its
nationals in foreign territory.

121
• Trail Smelter Case: The tribunal decided that Canada was
required to take protection measures in order to reduce air
pollution in the Colombia river belly caused by sulphur dioxide
emitted by zinc and lead smelter plants in Canada in which the
plant was located only 7 miles from the Canadian us border.
The tribunal held that Canada was liable for the damage caused
to crops, trees, in the state of Washington and fix the amount of
compensation to be paid. The tribunal held that Canada is
responsible with regard to pollution. The factory is located
near to the border of Canada and US.
• The tribunal held that under the principles of international law,
no state has the right to use or permit the use of its territory in
such a manner as to cause injury by fumed in or to the territory
of another or the properties or persons therein, which the case
is of serious consequence and the injury is established by clear
and convincing evidence
• Lac Lanoux Case (Spain v France): Concerning the utilization
by france of waters of lac lanoux. The water was used to
generate electricity and for that purpose part of the water had
to be diverted from its course. It affects the consumption of
water on the population of spain. However france refuted this
claim, they argued that it had ensure restoration of original
water flow and had even guarantee that Spanish users’ rights
would be met. The tribunal concluded that the works envisage
by France did not constitute infringement of Spanish rights
because France had taken adequate measures to prevent
damage to Spain and Spanish users
• Nuclear Test case (NZ v France): “The existence of the general
obligation of states to ensure that activities within their
jurisdiction and control respect the environment of other
states or the areas beyond the national control is now part of
the corpus of international law relating to environment.”

Main principles of international environmental law (12
principles)
• Permanent sovereignty over natural resources

122
o States have to conserve and utilize their natural wealth
and resources for the well being of their people
o States need to take into account interest of other states
as well those present and future generation of mankind
• Due care for the environment and precautionary action
o It requires states to act with prudence and caution:
▪ Constant monitoring
▪ An assessment of the environmental impact of
plans
o Preventive measures to protect the environment
o Precautionary principle (1982 Law of the Sea
Convention, the 1992 Climate Change Convention and
the Biodiversity convention)
▪ Southern Blue Fin Tuna: Australia and NZ initiated
proceeding against Japan alleging that the
unilateral fishing programme by Japan contravenes
the UNCLOS and conservation of southern blue fin
tuna and customary international law. Held:
parties should act with prudence and caution to
ensure that effective conservation measures are
taken to prevent harm to the stock of southern
blue fin tuna. In this case, the tribunal held that
Australia, japan and nz should not exceed the
agreed annual catches and that each should refrain
from experimental fishing.
▪ Dissenting opinion by Judge Lang: Precautionary
principle is not CIL but the obligation to exercise
precautionary action is derived from law of the sea
convention
• Intra and Inter generational equity
o Intra-generational equity: Equitable use of natural
recourse to take into accounts the needs of other uses
and necessitating assistance by the industrialized states
to the developing states.
o Inter generational equity: The obligation imposed on
states to safeguard resources for future… (World

123
Heritage Convention). This right has been acknowledged
in Nuclear test case, Stockholm declaration
▪ Whether it tantamount to justiciable right to
conserve environment for future generation?
▪ What is the procedure mechanism to protect such
right?
▪ Juan Antonio Oposa v Secretary of Department of
Environment and Natural Resources of Phillipines:
The court ruled that petitioners had standing to
sue on behalf of the succeeding generations based
on the concept of intergenerational responsibility
in so far as the right to a balanced and healthful
ecology is concerned as every generation has a
responsibility to the next
• Good neighborliness
o States may not use their territory and resources under
their jurisdiction in such a way to cause significant harm
to the environment of other states
o Land Reclamation case by Singapore in around the straits
of Johor: The issue was has Singapore breach its
obligation under the 1982 the law of the sea convention
and general international law by continuing its land
reclamation activities without due notification and full
consultation with malayasia? Held: Singapore has failed
to conduct assessment and Malaysia and singapore shall
cooperate to conduct study of Singapore land
reclamation, to exchange information regarding risks.
The court acknowledged the fact that the state has to
make conduct especially if it affect neighboring state.
• Equitable utilization and apportionment
o States should utilize resources and the environment in
such a way that other states can utilize them as well or
atleast obtain a reasonable and equitable shares.
o States must coordinate and cooperate for the optimus
use of resources and prevent appreciable transboundary
damage

124
▪ Article 118 of ANCLOS: state must cooperate to
conserve and manage high seas leaving resources
in which article 119 provides that state must
allocate for the quota to catch fishes and establish
other conservation measures.
• Prior information, consultation and early warning
o Whenever trans boundary resources are at stake or
activities within the territory of one state may seriously
affect the environment in other states or persons or
property therein, states are under obligation to inform
and consult these other countries well in advance
o ASEAN transboundary haze pollution convention: inform
if there is a haze happening
• State responsibility and liability
o States have a duty to abstain from measures of economic
and environmental policy which are incompatible with
their international obligation
▪ Nuclear Test case: States have the obligation to
respect and protect environment
▪ Corfu Channel Case: Court imposed the obligation
on the part of Albania to notify any approaching
ships of the existence of the mines in the territorial
water.
• Termination of unlawful activities and the making of
reparation
o States are under an obligation to terminate activities
which have ben found to be unlawful or incompatible
with their international obligation and make reparation
for damage inflicted
• Common but differentiated obligations
o International environmental instrument differentiate
between industrialized and developing countries
o Different standards, delayed compliance timetable, less
stringent commitment may be appropriate for different
groups of countries.

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▪ Climate Change Convention: “To achieve the
stabilization of green house gas concentrations in
the atmosphere at a level which would prevent
dangerous anthropogenic interference with the
climate system and which commits industrialized
countries to take measures with the aim of
returning by the year 2000 to 1990 emission level
of greenhouse gases
▪ Rationale for the differentiation:
a) So far the bulk of global emission of green house
gases has originated in industrialized country and
that they should bear the main burden of
combating climate change.
b) Developing countries need to access to resources
and technologies in order to be able to achieve
sustainable development.
• Article 4.7 of Climate Change Convention provides
that the extent to which developing counties will
effectively implement their commitments under
the convention will depend on the provision of the
financial resources and technology by
industrialized countries.
• Social and economic development and poverty
eradication are the first priorities of developing
countries.
• The convention identifies various sub-categories of
developing countries based on their geographical
features
• Preservation of res comunis and the common heritage of
mankind
o Relate to areas beyond national jurisdiction such as high
seas, ocean floor, outer space and perhaps antartica.
o Natural resources of this areas beyond national
jurisdiction should not be exploited solely by those states
whose commercial enterprise and able to do so but

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rather constitute the common heritage of mankind to be
utilized for the benefit of all states.
• Duty to cooperate in solving transboundary problem
o States and people should cooperate in good faith and in a
spirit of global partnership to conserve, protect and
restore the health and integrity of the earth’s ecosystem
▪ There is a duty of industrialized countries to assist
developing countries in protecting the global
environment
▪ Assistance can be in the form of financial aid,
transfer of environmentally sound technology and
cooperation through international organization
o Obligation to negotiate

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