MODULE 5

AKEHURST (p. 110-121)

Essence of legal personality

- Entity is a legal person or a subject of the law when it has capacity to enter into
legal relations and to have legal rights and duties
- Central issues of legal personality = capacity to bring claims arising from the
violation of international law
- Unlimited (all rights and obligations can be accorded to a subject which are the
states)

International Organizations

1. Basis for legal personality

- International organization – organization set up by agreement between two or
more states; its international legal personality means that it is an entity separate
from the member-States who have created it.
- Legal personality of international organisations is established and limited by the
treaty which States have concluded to constitute them and to accord them rights
and duties to achieve their specific tasks.
- Article 104 of the UN Charter – “the organization shall enjoy in the territory of each
of its members such legal capacity as may be necessary for the exercise of its
functions and fulfilment of its purposes”
o Enables the UN to act under the municipal laws of its member states.
- Reperation for Injuries case – The Court held that if an agent of the UN in the
performance of his duties has suffered injury in circumstances involving the
responsibility of a State, then the UN had the capacity to bring an international
claim against the responsibl egovernment with a view to obtaining the reparation
due in respect of the damaged caused.
- Powers of the organization NEED NOT BE EXPRESS ; can have IMPLIED
POWERS as are necessary for the most efficient performance of its functions.

2. Scope of legal powers and functionality

- International organisations are bound by CUSTOMARY INTERNATIONAL LAW,
along with treaties whereby member-States have established them.
- These standards determine the SCOPE of the organisations’ powers (VIRES)
- Relevance of vires – some powers delegated to international organisations enable
them to exercise discretion and to bind member-States through their decisions.
o Vires considerations also apply to organisations whose membership and
jurisdiction are limited to a particular group of States, such as those situated
in a particular region.
o REGIONAL ORGS are also bound by general international law towards
third states.
 - All organisations are biund by jus cogens. Any decision against jus cogens is NULL
AND VOID.

3. The notion of supranationality

- Supranational organsation: independent international organization created on a
higher level of integration of member-States.
- Elements of supranationality
a. The organs of the organization are composed of persons who are not
government representatives
b. They have the authority to adopt binding acts that have direct legal effect on
individuals and companies
c. The constituent treaty of the organization and the measures adopted by its
organs form a ‘new legal order’
- It is the extent of powers DELEGATED to supranational organisations that
distinguishes them from other orgs.

Non-governmental organisations (NGOs)

- The role of NGOs in the international legal system is INFORMAL.
- At the global level, there are no international legal standards governing the
establishment and status of NGOs and they are NOT created through international
law.
- The relevant law is that of the STATE where an NGO is based.

Belligerents, insurgents and national liberation movements

- No clear cut legal distinction between belligerents and insurgents
o Civil wars ordinarily begin with insurgency
o Subsequent attitude of third states may qualify the relevant insurgent’ status
as belligerent
- Insurgency: they control some territory and aspire either to become the effective
new government of the state or to secede
o Insurgents can be recognized as belligerents.
- Under international law, territory controlled by rebels or insurgents REMAINS
under the SOVEREIGNTY OF THE TERRITORIAL STATE.

National liberation movements

- The international status of the three aforementioned distinct types of national
liberation (South West Africa Peoples Organisation (SWAPO), the African National
Congress (ANC) or the Palestine Liberation Organization (PLO)) movement does
not rest primarily on the control of territory, but rather on the international
recognition of their political goals of freedom from colonial domination, racist
oppression or alien occupation.
- The reason is, as the territory and people entitled to self-determination are entitled
to establish a state, national liberation government is potentially at least seen as
the entity that would be forming that new State’s government.

Individuals and companies

- many rules of international law exist for the benefit of individuals and companies.
o Treaty conferring the rights gives the individuals or companies access to an
international tribunal in order to enforce their rights. (Most international
tribunals are not open to individuals or companies)
o Ex: Under customary law, the claim of a national of State X against State Y
for denial of justice or wrongful expropriation of property is not a claim
belonging to the individual citizen of State X but TO ITS HOME STATE X,
unless there are special agreements to the contrary. It is up to the
government of State X to decide whether it wants to pursue the claim
diplomatically or in an international forum against State Y. Compensation is
paid to State X and international law does not demand that State X pays
any of it to the injured individual or company. Srare X is free to waive the
claim or to arrive at a settlement which leaves the individual without
international remedy.
o It has sometimes been suggested that individuals (or companies) can
acquire rights under international law by making agreements with States (or
international organisations) containing a provision that the agreements
should be governed by international law.
o Employment of individuals in international organisations is generally NOT
governed by municipal law but by an elaborate set of rules enacted by the
organization and interpreted in the light of general principles of
administrative law.
o Individuals and companies cannot participate at treaty-making or creation
of rules of customary international law.
o It is also awkward to argue that States can bind individuals directly through
treaties that regulate individuals’ conduct because in many DOMESTIC
LEGAL SYSTEMS which regulate the conduct of individuals, international
treaties do not even have direct applicability.
o Individuals are not international legal persons just because they can be tried
before international criminal tribunals.
AKEHURST (p. 373-381)

Self-determination

1. Entities entitled to self-determination

- Article 1 ICCPR provides that all “peoples” have the right to self-determination.
o Peoplehood may signify common subjective attachment to the idea of
becoming an independent State, or relatively objective criteria of a common
territory, ethnicity, language or culture.
- Important factor is whether the relevant population and territory they inhabit have
been placed and continue to be under external control against their will.
- Self-determination is not inherent; it’s about people being entitled by international
law to express that will accordingly on the statys and qualification that international
law bestows to the relevant people, thus entitling them to determine their own
future, independently of the will of the state.

2. Colonial and non-colonial contexts

- Articles 1 and 55 of the UN Charter impose no limitation on self-determination to
colonial contexts, and this right applies to all peoples.
- The right to self-determination remains live after the attainment of independence
and continues as a safeguard against foreign occupation or intervention as a tool
of disrupting the ability of the relevant people to choose their political status and
organization.
- The status of a self-determination unit to be enjoyed by the relevant entity or people
is endorsed through the UN system, notably in General Assembly resolutions or
decisions of the International Court.

3. General law and unilateral claim or concession

- Self determination is an entitlement conferred on the relevant entity under general
international law, and an occasional expression of political will or consensus will
not make an entity a self-determination unit.
- Self-determination cases produce that claim regardless of the will of their mother
states.

4. Legal entitlement and processes of political transition

- Situational and contextual differences may exist as to the way in which self-
determination units purport to exercise their right to self-determination. Some units
may engage in the agreed process of the realization of their right to self-
determination which presupposes that the sides are agreed on an outcome.
o Most self-determination units do not have enough power to establish
themselves as States in confrontation with colonial or occupying powers.
- If there is no consensus between both sides, it doesn’t offset the basic right to self0
determination.
- Basically, in the 1st situation, the colonial or occupying power agrees to respect the
wishes of the self-determination unit and follows through the agreed process and
in the 2nd situation, it does not agree to be bound
- ENTITLEMENT TO STATEHOOD IS NOT OBSTRUCTED BY THE FACT THAT
THE COLONIAL OR OCCUPYING POWER REFUSES TO RESPECT IT.

5. Disruptions to the exercise of the right to self-determination

- The right to self-determination cannot be violated by the conduct of an independent
State’s government against its own population, unless the whole State is subject
to a racist minority regime.
- International law proscribes the disruption of the geographical unity of the territory
and population of the self-determination unit.

6. Permanent sovereignty over natural resources

Permanent sovereignty is an area illustrating the connection between the self-
determination claim of a people, sovereignty of the State established as a result of
the realization of that claim, and the disposal or management of natural resources.
- Any act impeding the free disposal of national will or control of natural resources
can amount to the breach of self-determination.
- Thus, permanent sovereignty over natural resources is affected by activities that
either prevent the State from freely disposing of its natural resources or deny
means of subsistence to its population.
- Permanent sovereignty over natural resources is an emanation of self-
determination, indeed evidence that the self-determination principle continues
after the achievement if statehood. The difference this principle makes is to
preserve the continuing autonomy of the State.
- The very permanence of control over natural resources means that whenever a
self-determination unit is prevented from governing its natural resources, it retains
entitlement to it.
o This applies to cases of belligerent occupation or alien domination
- As the population of a territory under foreign occupation or colonial domination
becomes entitled to self-determination, its permanent sovereignty becomes
activated and opposable to the occupier.
ANNE PETERS

D. Responsibility towards whom? The Principals of the Council

1. General
- ‘responsibility’ implies a position of trust.
- The Council is a TRUSTEE.
o Art 24 – the ‘members confer’ the responsibility on the Council and ‘agree’
that it acts ‘on their behalf’.
- States themselves are the actual principal of the Council, and not the United
Nations (as an international organization) itself.
- 2 opposing views
o The members, who have ‘delegated’ parts of their sovereignty, remain the
source of authority of the Council. This means that the States, being the
trust givers, are in consequence also the principals.
§ From that perspective, ‘the predominant accountability-holder in the
case of the SC acting under Chapter VII is neither the membership
of the Organization constituted as a Plenary organ, nor the public at
large or the individuals affected by the exercise of its power, but
rather each and every member state’
o In contrast, the Council’s authority and its powers arise from a constituent
act, the Charter, but not from members’ parallel delegations
§ the founding act has severed the ‘umbilical cord’ between members
and organization. Powers exercised by the latter’s organs are not a
mere prolongation of the members’ powers, but qualitatively different
from the former; they are a new type of public authority. The
consequence would seem to be that the Security Council is
accountable not to the members individually, but to the Plenary organ
in which these are represented.
§ The General Assembly is, from that perspective, the proper
institutional (p. 776) frame which has swallowed the individual
States, and is therefore the rightful recipient of the Council’s
accounts.
- Sociologically speaking, the United Nations, as any other international
organization, is to some extent both, in varying degrees: an alter ego of its
members, but also an autonomous actor
- Although the Organization is supposed to work in the interests of its members,
the whole point of setting up an organization is to render it to a certain extent
autonomous from its individual members, with the objective to fulfil certain public
functions more effectively.
- From a strictly legalist perspective, the principal of the Council is the
Organization itself. The Security Council, being an organ of the United Nations,
formally acts on behalf of that legal person and not on behalf of the members
individually
o Still, doctrinally, acts of the Council are imputable to the Organization.77
Any decision of the Council taken in discharge of its responsibilities must,
 therefore, be considered as an action taken by the Organization as a
whole.

2. Reporting to the General Assembly under Article 24 (3)

a. General

- The reporting obligation enshrined in Art. 24 (3) is a corollary to the principle that
the Security Council acts, under Art. 24 (1), on behalf of all members
- Its counterpart is Art. 15 (1), under which the General Assembly shall ‘receive
and consider annual and special reports from the Security Council’. Article 15 (1)
also requires ‘an account of the measures that the Security Council has decided
upon or taken to maintain international peace and security’.
- These two provisions underscore the idea that the Security Council is a trustee of
the membership (or of the ‘international community’), institutionalized in the
General Assembly, which must render its ‘accounts’ to the trust givers.

b. Practice on Annual Reports

- The rapid growth in Council activity from 1989 onwards was accompanied by its
increased reliance on informal consultations to which non-members of the
Council were not admitted.
- The exclusionary and closed character of the action was deemed unfair by those
non-members especially as the effects of decisions, such as economic sanctions,
affected many States.
- The delivery of the report by the Council provided an opportunity for States to
express their frustration.
- The quality of the reports is ‘descriptive rather than analytical in nature’.88 The
lack of analysis has been defended by Council members as an inherent feature
of the report, because it is impossible for the fifteen members of the Security
Council to agree on a common understanding of the action and on a shared
analysis.

c. Special Reports

- Under Art. 24 (3), the Council shall ‘when necessary’ submit special reports to
the General Assembly. This has been done only rarely
- The Council must submit a special report if it does not recommend an applicant
State for membership or postpones the consideration of the application

3. The Accountability Function of the Reports

- The reports are submitted ‘for the consideration’ of the General Assembly.
 - It does not give the General Assembly the right to take specific action, let alone
to adopt any political or legal sanctions against the Security Council, upon a
report.
- Secondly, Art. 24 (3) does not convey to the General Assembly the power to hold
Security Council responsible for failing to report or for presenting a deficient
report.
- In order to fulfil its accountability function, the report should be analytical and not
purely enumerative, and it must contain explanations for the decisions taken (or
not taken).1
o Giving reasons for legal acts (and for their omission) is instrumental in
enabling members to exercise scrutiny and to formulate critique.
o Giving reasons to that extent has a quasi-democratic function. It is also a
requirement of the rule of law, because it clarifies the Council action not
only in political but also in legal terms.
- In conclusion, while the annual reports were in the past barely used by the
General Assembly as an accountability tool, that use has always been a topic of
debate and has been continuously intensified.

E. In ‘Accordance with the Purposes and Principles of the United Nations’

- Under Art. 24 (2), the Security Council must act in ‘accordance with the Purposes and
Principles of the United Nations’. These are first of all enshrined in Arts 1 (purposes)
and 2 (principles).

- The Security Council is additionally bound by the entire UN Charter.109 It is moreover

arguably bound by norms of general international law which (p. 781) mostly overlap with
the Charter principles mentioned as further developed through practice

F. The ‘Powers Granted to the Security Council’

1. Specific Powers and Implied Powers

- Article 24 (2) sentence 2 reads: ‘The specific powers granted to the Security
Council for the discharge of these duties are laid down in Chapters VI, VII, VIII,
and XII.’
- Namibia Advisory Opinion’s concern for an effective fulfilment of functions by
relying on the principle of implied powers which governs international
organizations. According to that principle, the United Nations ‘must be deemed to
have those powers which, though not expressly provided in the Charter, are
conferred upon it by necessary implication as being essential to the performance
of its duties’

2. Various Types of Powers

- The main activity of the Council has been of an executive type in the sense of
taking and enforcing decisions which relate to concrete situations.

3. Notably the Power to Take ‘Legislative’ Measures

It now seems settled that the Council may in principle ‘legislate’ but only under
specific conditions which can be drawn from the Charter framework and from
practice.

a. Practice

- A Council decision has a legislative character when it imposes general and

abstract obligations, and when it is not limited to one particular and concrete
situation, but applicable to an indefinite number of cases.
- A different type of quasi-legislative effect is brought about through the
enforcement by the Council of non-binding standards (such as industrial codes of
conduct), by the Council’s contribution to the formation of customary law,123 and
by Council decisions pushing members to accede to entire existing treaties.

b. Admissibility in Principle

- The Council is entitled to adopt legislative resolutions. Decisions of that kind are
not inadmissible or even illegal on the ground that they are of a wrong type.
- As a matter of practice, by far the majority of members has supported the
legislative resolutions. Those few members who objected could not block the
development towards an overall acceptance
- Article 41 constitutes a sufficient legal basis for legislative acts. That provision
authorizes the Council to take ‘measures’ not involving the use of force.
‘Measures’ is a broad term which does not limit the Council to concrete and
particular decisions, but which encompasses legislative measures.
- 2 objections against legislative decisions
o First: It is the General Assembly which is entrusted with the ‘progressive
development of international law’
§ However, law-making by the Council does not—as a matter of
form—interfere with the Assembly’s competences.
o Second: Imposition of binding, general, and in temporal terms unlimited
obligations on States which are for the most part not members of the
Council overturns the cornerstone of the international legal system,
namely the principle that States can be bound only on the basis of their
consent which ultimately flows from sovereignty.
§ However, by not delineating the Council’s powers more strictly,
the members have not forgone their right to protest against
novel types of decision-making. They have not given a blank
cheque to the Council.

c. Normative Constraints on Legislative Action of the Council

- Numerous members have formulated conditions under which they would be
prepared to accept law-making resolutions. These statements, together with the
acquiescence of other States, constitute subsequent practice which must guide
the interpretation of the Charter which both founds and limits the Council’s
powers.
- At the same time, these conditions accommodate the normative concerns
sketched out above. Based on this, the Charter can and should be interpreted so
as to allow law-making decisions if the following requirements are met.
- In substance, the subject-matter must fall into the context of Chapter VII
o First, law- making by the Council should react to a significant, new, and
urgent threat in an emergency situation which qualifies as a threat to the
peace in terms of Art. 39.
o Second, the Council must respect the institutional balance between the
main organs and must therefore not adopt ‘laws’ which contradict General
Assembly resolutions.
o Third, the resolution should be as little intrusive as possible in terms of
material scope and temporary extension.
§ This would imply that a Council decision cannot simply reduplicate
entire treaties which are not in force or which have been ratified
only by a small number of States, because such a far- reaching
step is not necessary to address a threat to international peace and
security.
o A fourth factor is discussed controversially under the heading of the ‘gap
requirement’
- In procedural terms, the elaboration of legislative resolutions should be
transparent. Also, the Council should seek a broad consensus among States.
- As far as the implementation of legislative decisions is concerned, the Council
should grant members a leeway, and should assist them in carrying out the
decisions.
- Overall, the Council must remain an exceptional and auxiliary law-maker only, it
must make an effort of self-restraint, and may in no way rise up to a ‘world
legislator’
MODULE 6

AKEHURST

AIR SPACE AND OUTER SPACE

Air space

1. Access to and overflight through national airspace

- First bilateral agreement = 1913 exchange of notes between France and Germany
stipulated that aircraft belonging to military service of one party could not fly over
the territory of another party except upon the latter’s invitation
o However, civilian aircraft could fly over and on the territory of another State,
subject to compliance with some national regulations as to exclusion zones.
- First multilateral treaty = 1919 Paris Convention (Pertinent articles = Articles 1,
15, 30) *ilagay sa footnotes
- Customary rule = aircraft from one State have a right to fly over the high seas but
not over the territory or territorial sea of another State.
o Affirmed by the 1944 Chicaco Convention on International Civil Aviation
which states that ‘every State has complete and exclusive sovereignty over
the airspace above its territory’
- It is a SERIOUS BREACH OF INTERNATIONAL LAW for a State to order its
aircraft to violate the air space of another State.
- Assembly of the ICAO amended the 1944 Chicago Convention.
o ‘every State, in the exercise of its sovereignty, is entitled to require the
landing at some designated airport of a civil aircraft flying above its territory
without its authority’
o ‘the Contracting States recognize that every State must refrain from
resorting to the use of weapons against civil aircraft in flight and that in case
of interception, the lives of persons on board and the safety of aircraft must
not be endangered’
2. Regulation of flights

- 1944 Chicago Convention and the rules adopted by the ICAO = international
standards.
- Multilateral rights = failed. Current system is mostly governed by BILATERAL
TREATIES.
o ICAO Convention
§ Non scheduled flights – enjoy the right of flight into and transit over
the territory of a State party (Article 5)
§ Scheduled flights – require permission from the territorial State
(Article 6)

Outer Space
1. Basic rules and instruments

- The basic substantive framework of the present law on outer space is contained in
the Outer Space Treaty of 1967. (Pertinent articles = Articles 1 - 12)
o Article 4 provides that the moon and other celestial bodies shall be used
[…] exclusively for PEACEFUL purposes
§ However, as regards spacecraft orbiting the Earth, Article 4 merely
provides that NUCLEAR WEAPONS and OTHER WEAPONS of
mass destruction must NOT be placed in orbit around the Earth.

2. Assertion and development of State rights

- Since Sputnik 1, artificial satellites have passed over the territory of other States
on innumerable occasions and no State has ever protested.
- The conduct of States launching satellites, coupled with the acquiescence of other
States, may have given rise to a new permissive rule of customary international
law.
o States are ENTITLED to put satellites in orbit over the territory of other
States, but not necessarily to pass through their air space to get into orbit
in outer space.
- The precise location of the point where air space ends and outer space begins is
not important because the minimum height at which satellites can remain in orbit
is at least twice the maximum height at which aircraft can fly.
- There is no customary law allowing the passage of space objects through the
national air space of another State.

3. Treaty mechanisms of State cooperation

- General international law does not hold States responsible for the activities of
private individuals.
o Article VI = State parties bear international responsibility for national
activities in outer space, including activities carried out by non-
governmental entitities.
o 1972 Liability Convention
§ Article II provides for “absolute” liability of States for damage caused
by a space object on the surface of the Earth or to aircraft in flight.
§ Article XXII provides that an intergovernmental organization active in
space is liable as a State, if a corresponding declaration is made and
the majority of the member-States are parties both to the Liability
Convention and to the Outer Space Treaty.
§ It also provides for a Claims Commission at the request of either
party, if diplomatic negotiations fail. The decision is only final and
binding ONLY IF the parties have so agreed.
The ‘common heritage of mankind’ principle

- Integrated in Article 1 of the Outer Space Treaty, stating that the exploration and
use of outer space shall be the common province of all mankind.
- Article 4 likewise provides that the exploration and use of the moon ‘shall be the
province of all mankind and shall be carried out for the benefit and in the interests
of all countries, irrespective of their degree of economic or scientific development’