International Law Notes.



Muhammad Asif Nawaz.
 Basics - International Law

Definition:

“Law of Nations or international law is the name for the body of customary law
and conventional rules which are considered binding by civilized states in their
intercourse with each other.” - Oppenheim.


History:

Recorded history about 7000 years old.

Modern international law generally recognised as having its genesis in the Middle
Ages in Western Europe - where, at the time, process of decentralisation leading
away from Roman Catholic Church and Holy Roman Empire towards the
Reformation and rise of Nation-States
- Thirty Years of War (1618-1648) came to an end with Treaty of Westphalia
(significant event for international law) - treaty based on recognition of
community of independent and equal "sovereign" entities
- "Natural law", given universalist empire and Church, initially theological
(including divine revelation as one of its sources) - however by time of Hugo
Grotius (1583-1645) natural law adopting a rationalist approach, being seen to
derive from universal reason - Independence and equality of States translated
into need for consent - clear tension between natural law and notion of consent
- "Positivism" challenged natural law in 18-19C - means complete preoccupation
with practice and thus consent of States in law creation
(a) State only bound by rules it consents to.
(b) If international law did not prohibit conduct, State free to act.

In contrast to national laws that apply to all citizens of the state, a specific feature
of written international law is that treaties and conventions only apply to the
states that have signed and ratified the treaty or convention in question or agreed
to it (so-called states parties). This is also indirectly implied in the withdrawal
provisions found in most treaties and conventions in which a state party has the
right to withdraw from the agreement if it no longer wants to be legally bound by
the treaty or convention.

Three major parts of International Law:


Law of peace.
Law of war.
Law of neutrality.
Basis of International Law.

Three theories on this matter:

The Naturalist – under this theory, there is a natural and universal principle of
right and wrong, independent of any mutual intercource or compact, which is
supposed to be discovered and recognized by every individual through the use of
his reason and his conscience.

The Positivist – under this theory, the binding force of international law is
derived from the agreement of sovereign states to be bound by it. It is not a law of
subordination but of coordination.

The Eclectics or Groatians – this theory offers both the law of nature and the
consent of states as the basis of international law. It contends that the system of
international law is based on the “dictate of right reason” as well as “the practice
of states.”

Functions of International Law:

. To establish peace and order in the community of nations and to prevent the
employment of force, including war, in all international relations;
. To promote world friendship by levelling the barriers, as of colour or creed;
. To encourage and ensure greater international cooperation in the solution of
certain common problems of a political, economic, cultural or humanitarian
character; and,
. To provide for the orderly management of the relations of states on the basis of
the substantive rules they have agreed to observe as members of the international
community.

Is it really a law?

Some argue it is not law, just international morality - e.g. John Austin (19th
century English lawyer); not positive law - duties imposed are enforced by moral
sanctions: "by fear on the part of nations... of provoking general hostility, and
incurring probable evils, in case they shall violate maxims generally received and
respected"
Prof. Hart: primitive legal system, lacking secondary rules (rules of recognition,
change and adjudication)
No constitutional body.
No real punishment mechanism.
No hard and fast rules.
No real enforcement mechanism.
Can be moulded by powerful states.

Subjects of international law:

From the Peace of Westphalia (1648) till the creation of the United Nations
system, it was considered that the 'State' was the sole subject of international law:
that international law only applied as between States. States, as the subjects of
international law had international personality which meant that they had the
right to have their claims respected internationally.

The state as a person of international law should possess the following
qualifications: (a) a permanent population; (b) a defined territory; (c)
government; and (d) capacity to enter into relations with the other
states. (Montevideo Convention, 1933)
The International Court of Justice, in its 1949 Reparations of Injuries Advisory
Opinion, confirmed that other entities could be subjects of international law.
Though it made plain that while States possess all the rights and duties on the
international plane, that other entities such as Inter-Governmental
Organizations, as well as the Individual, and Multi-National Corporations, might
posses rights and duties which States would ascribe to them.


Required reading: https://www.britannica.com/topic/international-
law/International-law-and-municipal-law

Sources of International Law

Article 38 (1) of the Statute of the International Court of Justice is

generally recognized as a definitive statement of the sources of
international law.

a international conventions, whether general or particular, establishing rules

expressly recognized by the contesting states;

b international custom, as evidence of a general practice accepted as law;

c the general principles of law recognized by civilized nations;

d judicial decisions and the teachings of the most highly qualified publicists
of the various nations, as subsidiary means for the determination of rules
of law.

International Conventions:

Treaties and conventions are the “hard law”.
Treaties as law.
Treaties as customs.
Article 103 of the United Nations Charter, the obligations under the United
Nations Charter overrides the terms of any other treaty.

Other names of conventions: treaties, contracts, agreements, accords, protocols,
pacts.

Bilateral / multilateral.

International customs:

Practice by states.
Practice by international organisations.

> Concordant practice by a number of states.
> Continuation/repetition of practice.

> Conception that the practice is required by law.

> General acquiescence.

General principles of law recognised by civilised nations.


> International law doesn’t have procedural law.

Eg principles of natural justice.

Judicial works:

Precedents. 

Judicial decisions.
Judicial writings.

Primary sources of international law:


The first three.

International soft law:

The term soft law is used to denote agreements, principles and declarations that
are not legally binding.

Effectiveness of international Law.

The common good
psychological rubicon
Flexible nature
Practitioners of I Law.
Political cost.

Limitations of International Law.

1. Limited scope.
In the present circumstances it seems ambiguous and of limited scope. There is
no solid organ of International Law, which can resolve the matters of states
equitably. It could not devolve person into state.
2. Ambiguous law: Some of its rules and regulations are not only uncertain
but also ambiguous. Pace of its development and promotion is deadly slow.
It cannot combat with changing environment of the society.
3. No apparent authority: There is not executive class who can enforce the
laws. It lacks the force of law, which enforces the law, and gets exercised.
Only International Court of Justice exists. There is not existence of special
courts that can decide the particular disputes. International Court of Justice
cannot settle certain matters. States do not allow International Court of
Justice in the settlement of disputes. After the decision is given, there is no
such power that may get it enforced.
4. No administration power: There is no administrative power behind it
that can get its decisions enforced.
5. Little enactment: It has little room of enactment. Mostly matters such as
excise, intercourse between two or more states, taxes, and market etc. are
excluded from its scope.
6. Non interference: International Law does not intervene in the matters,
which takes place in any member state.
7. Uncertainty about facts: There may be a genuine uncertainty about the
facts. For instance, before one who decide whether United States
participation in the Vietnam fighting is legal or illegal, has to decide whether
the National Liberation Front (Viet-cong) in South Vietnam represents
spontaneous internal revolt or whether it represents subversion from North
Vietnam.
8. Uncertainty about law: There may be a genuine uncertainty about the
law. For instance, some states think it is lawful to nationalize foreign
property without compensation, others disagree. When dispute arises
between a state in the first group and a state in the second group, each will
be convinced that it is in the right, and it is impossible to predict how an
international Court would decide the case.
9. Internal disintegration: Sometimes international dispute may cause
internal disintegration such as demand for the increase of wages in
employment. However wages are fixed by the contract of employment and
contracts can be altered by mutual agreement.
10. Unfriendly legal act: International Law does not prevent a state
increasing its tariffs on goods coming from another state, even though the
result may be to cause severe unemployment in the other state.
11. Dualism: Dualism can easily be observed in the solution of the
international disputes. Dispute of North Tamour has been solved whereas
dispute of Kashmir stands unresolved. Terrorism in Israel has not been
condemned while liberation struggle of Palestine is condemned.
 The settlement of international disputes




Article 2(3) of the UN Charter states that all Member States have to settle their
international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.



Pacific or coercive means.

1) Pacific: Article 33 of the UN Charter provides a number of alternatives to

choose from in resolving disputes.

a) Arbitration. 

b) Judicial settlement.
c) Negotiations.

d) Good offices.

e) Mediation.

f) Conciliation.

g) Enquiry.

h) Settlement under the auspices of UN.

2) Coercive:

a) Retorsion. (an act perpetrated by one nation upon another in retaliation for
a similar act perpetrated by the other nation)

b) Reprisal. (Retaliation)

c) Embargo. (an official ban on trade or other commercial activity with a
particular country)

d) Pacific blockade.

e) Intervention.
 State jurisdiction


Jurisdiction is an aspect of sovereignty: it refers to a state’s competence under

international law to regulate the conduct of natural and juridical persons. The
notion of regulation includes the activity of all branches of government:
legislative, executive, and judicial.

Max Huber: “Territorial sovereignty means independence over a definite territory

to the exclusion of other states.”


According to international law, sovereignty is neither indivisible or illimitable.

Principles of jurisdiction:



1) Territorial principle: 

The principle that the courts of the place where the crime is committed may
exercise jurisdiction

2) The Nationality Principle:


Nationality, as a mark of allegiance and an aspect of sovereignty, is also generally
recognized as a basis for jurisdiction over extra-territorial acts.

3) Passive Personality Principle:


Jurisdiction based on the nationality of the victim.

4) Protective Principle:

Nearly all states assume jurisdiction over aliens for acts done abroad which affect
the internal or external security or other key interests of the state, a concept
which takes in a variety of offences not necessarily confined to political acts.

Further reading: https://lawexplores.com/jurisdictional-competence/

Universal jurisdiction:

“Universal jurisdiction can be defined as prescriptive jurisdiction over offences
committed abroad by persons who, at the time of the commission, are non-
resident aliens, where such offences are not deemed to constitute threats to the
fundamental interests of the prescribing state or, in appropriate cases, to give rise
to effects within its territory.” - O’Keefe.
War crimes.
Piracy Jure Gentium.
A case can be made for hijacking.
Exceptions to the exercise of jurisdiction:

i) Diplomatic agents.
ii) Foreign embassies.
iii) Foreign sovereigns.
iv) Immunity in respect of public property of foreign sovereign states.
v) International organisations.
vi) Foreign troops.
vii) Extradition treaties.

Criminal jurisdiction theories:


1) The initiatory or subjective theory.
2) The terminatory or objective theory.
 State Succession

“The succession of an international person occurs when one or more

international persons take place of another international person, in consequences
of certain changes in the latter’s conditions.” - Oppenheim.

Incorporated from the Roman law by Grotius.

Types of succession:

1) Universal succession.
2) Partial succession.

An example of a partial state succession is the case of the split of Bangladesh

from Pakistan, there was no challenge to Pakistan's claim to continue to exist and
to retain its membership of the United Nations: it was a continuator and not a
successor. Bangladesh eventually was recognized as a new state: it was a
successor and had to apply for UN membership.
An example of a universal state succession is the dissolution of Czechoslovakia.
Neither part claimed any continuity: both the Czech Republic and Slovakia were
new successor states.

Theories of state succession: (Prof D.P.O. Connel)




1) Theories of continuity:

The successor state inherits all pre-existing treaties whether or not the
predecessor state continue to exist  and the treaties of the predecessor state
automatically devolve to the successor state if they apply either to the territory of
the successor state. Under the continuity theory, there can be only two ways to
view the division of a state: 

(i) as a breakaway.

(ii) as a complete dissolution.



a) Theory of universal succession:

The first and perhaps oldest theory of succession of state is that of universal
succession theory. According to this theory upon
change of sovereignty over a given territory, the new sovereign i.e. successor state
succeeds all the rights and obligations of the predecessor state in relation to the
territory affected by such change, without exceptions and modifications.

b) Theory of popular continuity:


According to this theory, a state has two personalities of its own; one is social and
the other is political. Territory and the populace who occupy such territory, are
the basis of social personality of the state because the territory are inseparably
connected with each other and forms a permanent social identity. Whenever state
succession takes place only the political identity of a state is affected while the
social personality remains intact.

c) Theory of organ substitution:

According to this theory, in the event of state succession the factual element of
the people and the territory are integrated in a new organic bond, the change
takes place only in the juridical element of the organization. As a result, state
loses its identity but, the organic forces, which previously governed it remain
unaffected. The successor state gets a new personality and absorbs all the
surviving factual elements of the predecessor state. Thus, the successor state
substitutes itself in the place of extinguished personality of predecessor state, and
thereby it takes over all the rights and obligations of the letter.

d) Theory of self abnegation:


The state is at liberty to take over or reject whatever suits it in the previous legal
order. It integrates within its own legal order all existing law which is compatible
therewith and which is not expressly repealed. This theory emphasizes the
continuity rather than disruption and constructs the legal bond of continuity on
the basis of tacit consent of all the parties involved.

Examples of continuity theories in practice:


i) British India and Independent India - Pakistan a new state.
ii) Bangladesh a new state.

2) Negative theories: 

This theory contends that the sovereignty of the predecessor state over the
absorbed territory is abandoned. It means that upon succession, the new
sovereign is absolutely free of any of its predecessor’s obligations. The successor
state does not exercise its jurisdiction over the territory in virtue of a transfer of
power from its predecessor but it has acquired the possibility of expanding its
own sovereignty.

3) Theories importing International Law:


According to this theory, international law based on the positive practice of state
directs the successor state to discharge certain of its predecessor’s obligations
and vests certain of its predecessor’s right.  This approach is useful with respect
to the effect of change of sovereignty on relationships governed by international
law, such as, treaties.

4) Communist theory of state succession:


The Communist Theory of State Succession signifies that a successor state is
burdened by the economic and political commitments of the predecessor.
Further reading:

https://shodhganga.inflibnet.ac.in/bitstream/
10603/129013/14/07_chapter%202.pdf (Only the theories of continuity)

http://bistasarojlaw.blogspot.com/2017/02/continuity-theory-of-state-
succession.html (Only the conclusion)

Rights and duties arising out of state succession:


i) Political rights and duties: No succession.
ii) Local rights and duties: Genuine succession.
iii) Fiscal property debts: Yes.
iv) Public debts: Controversial.
v) Contracts: Jurists endorse. Though discretionary.
vi) Concessionary contracts: Yes, also discretionary.
vii) Laws: Civil law continues unchanged.
viii) Unliquidated damages for torts: No. (But if the former state had accepted,
then controversial)
ix) Unliquidated damages for breach of contract: Same as above.
x) Nationality: New.
xi) Property: Succeeding states become owners.
xii) Treaties: Vienna convention on succession of states in respect of treaties. 23
August, 1978.
 Neutrality

Oppenheim: “The attitude of impartiality adopted by the third states towards the
belligerents and recognised by the belligerents, such attitude creating rights and
duties between the impartial states and belligerents.



The UN perspective limiting neutrality?


Article 2(5): “All Members shall give the United Nations every assistance in any
action it takes in accordance with the present Charter, and shall refrain from
giving assistance to any state against which the United Nations is taking
preventive or enforcement action.”

Article 25: “The Members of the United Nations agree to accept and carry out
the decisions of the Security Council in accordance with the present Charter.”

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



Article 43: “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.”



Article 49: “The Members of the United Nations shall join in affording mutual
assistance in carrying out the measures decided upon by the Security Council.”



Article 51: “Nothing in the present Charter shall impair the inherent right of
individual or collective self-defence if an armed attack occurs against a Member
of the United Nations, until the Security Council has taken measures necessary to
maintain international peace and security. Measures taken by Members in the
exercise of this right of self-defence shall be immediately reported to the Security
Council and shall not in any way affect the authority and responsibility of the
Security Council under the present Charter to take at any time such action as it
deems necessary in order to maintain or restore international peace and
security.”



Duties of a neutral state:

1) Abstention.

2) Prevention.
3) Acquiescence. (the reluctant acceptance of something without protest)
4) Restoration.
5) Reparation.

Duties of a belligerent:

1) Abstention.
2) Prevention.
3) Reparation.

Types of neutrality:

Lauterpacht lists various types of neutrality:

1) Perpetual neutrality:

The status of states permanently neutralized by special treaty. Eg Switzerland.

2) General & Partial neutrality: 


General neutrality covers the territory of an entire State, but circumstances may
exist in which only a part of its territory is neutral, for example, by treaty.

3) Voluntary & Conventional neutrality: 


In some instances a state is bound by treaty to remain neutral; in all others the
status is purely voluntary.

4) Armed neutrality: The status of a state which takes military measures to

protect its neutral status.

5) Benevolent neutrality: An obsolete term for less than neutral behaviour.

6) Absolute vs. Qualified neutrality: Qualified neutrality implied the giving

of some kind of aid to one belligerent.

Neutralisation: A permanent status of neutrality of a state which is guaranteed

by an agreement / treaty.
Neutralism: A political attitude.

Further reading: https://opil.ouplaw.com/view/10.1093/law:epil/

9780199231690/law-9780199231690-e349
 State Responsibility

State responsibility is one of the fundamental principles of International

Law. It arises out of the international legal system and the principles of State
sovereignty and equality of States. It implies that if a State commits an
internationally wrongful (unlawful) act against another State, it will be
internationally responsible for reparation.
Codified by the the International Law Commission’s Articles on the State
Responsibility.

Definition:
“The rules of International Law as to State Responsibility concern the
circumstances in which and the principles whereby, the injured state becomes
entitled to redress for the damage suffered.” - Starke.

Elements of state responsibility:

1) The existence of an international legal obligation in force.
2) The commission or omission of an act in violation of that
obligation, imputable to the state.
3) Loss / damage resulting from such an omission / commission.


Imputability: 

State only responsible for its own actions and doings.
For practical purposes, state identified with its government.
Imputable even when officials “abuse” their duties, acting with “apparent
authority”.
Rioting, rebellion: state not responsible but has to exercise “due diligence.”



Generally, actions are imputable when they’re done by people:

a) Working on behalf of the state.

b) Working at behest of state.

Fault:

Risk theory / objective responsibility.

Fault theory / subjective responsibility.

Legal consequences of state responsibility:

1) Cessation of wrongful act.
2) Guarantee of non-repetition.
3) Reparation. (Kind. Compensation. Satisfaction)
The implementation of State responsibility:
a) Diplomatic protection and Nationality of claims.
b) The exhaustion of local remedies.
c) Unreasonable delay and improper activities of the injured national.
d) Resorting to countermeasures.


 State Recognition

A state becomes international person only after recognition.

States are made and re-made; for an international standing, they have to be
recognised.

Definition:
Recognition is a discretionary unilateral act exercised by the government of
a State officially acknowledging the existence of another State or government or
belligerency.

Theories of state recognition.

1) Constitutive theory: Recognition is a necessary act before the recognized
entity can enjoy an international personality

2) Declaratory theory: Recognition is merely a political act recognizing a
preexisting state of affairs.

Complications in state recognition.

a) A political process. National interest.
b) Lack clearly defined rules or protocols.
c) Many different categories of recognition.

De jure and de facto recognition:

De jure: De jure recognition means that according to the recognizing State the
recognized State or government fulfils the requirements laid down by
International Law.
De facto: De facto recognition means that in the opinion of the recognizing
State, with all due reservations for the future, the recognized State or government
provisionally and temporarily fulfils the above requirements in fact. As such, de
facto recognition is provisional and temporary and could be withdrawn at any
future date, although it is usually followed by de jure recognition.

Whatever the basis for the distinction between de jure and de facto
recognition, the effects of the two types are mostly the same. Nevertheless, there
are certain important differences between these two types, which are:
(a) Only the de jure recognized State or government can claim to receive
property locally situated in the territory of the recognizing State.
(b) Only the de jure recognized State or government can represent the old
State for the purposes of State succession or with regard of espousing
any claim of its national for injury done by the recognizing State in
breach of International Law.
 (c) The representatives of the de facto recognized state or government may
not be entitled to full diplomatic immunities and privileges.

Express and implied recognition:

Express: Express recognition indicates the acknowledgment of the recognized
State by a formal declaration. In the practice of States, this formal declaration
may happen by either a formal announcement of recognition, a personal message
from the head of a State or the minister of foreign affairs, a diplomatic note, or a
treaty of recognition.
Implied: Implied recognition is recognition of a State or a government through
actions other than official declarations or actions intended to grant recognition.
The required actions for implied recognition must be unequivocal, leaving no
doubt of the intention of the State performing them to recognize the State or
government and to deal with it as such. Eg. Bilateral treaty.

Conditional recognition.
> Recognition of a state, government and belligerency.
Belligerents: able to exercise such control and maintain some degree of popular
support, and conduct themselves according to the laws of war.
Two conditions should exist before a third-party State grant belligerent
recognition, the insurgency has progressed to a state of general war and the
effects of this war have gone beyond the borders of the State to affect other
States. By this recognition, the insurrectionary movement is elevated to the status
of a quasi-international person having certain rights and duties under
International Law.

Legal effects of recognition:

International: Recognition of a State by another State does not lead to any
obligation to establish diplomatic relations or any other specific links between
them. Nor does the termination of diplomatic relations automatically lead to
withdrawal of recognition. Even if unrecognized, international law applied to it.
Does not apply to its relation with the unrecognising state.
Internal: Rights to enjoy privileges and immunities of a foreign State before the
national courts
 Use of force. (Law of War)

Governing the resort to force (ius ad bellum) and the rules governing the
actual conduct of force (ius in bello) in International Law (Humanitarian law).
These rules together with other principles such as territorial sovereignty,
independence and equality of States provide the framework for the international
order. While a domestic system prescribes the monopoly on the use of force by a
State, through its governmental institutions, in order to enable the State to
preserve its authority and maintain its control within its territory, the
International Law seeks to minimize and regulate the use of force by States in
their international relations in order to preserve and maintain peace and security
in the world community.

Before 19th century:


War was legal both as a means of occupation and dispute settlement.
the doctrine of ‘just war’ was further influenced by Christian theologians such as
St. Augustine and St. Thomas Aquinas, the latter famously stated in Summa
Theologica that the three criteria for just war are:
1 it should be waged by a sovereign authority (prohibition of waging a
private war)
2 it must have a just cause (punishment of wrongdoers)
3 a just cause must be accompanied by the right intention.

19th century:
Focus shifted on the use of force, though war still being legal.

20th century:

League of Nations. The covenant discouraged war. These efforts resulted in
the conclusion of the General Treaty for the Renunciation of War in 1928 (known
as the Kellogg-Briand Pact or Pact of Paris). The parties to this multilateral treaty
condemned recourse to war for the solution of international controversies, agreed
to renounce war as an instrument of national policy in their relation with one
another, and agreed to settle all disputes or conflicts only by pacific means. This
trend was adopted by the
Charter of the United Nations in 1945.

The United Nations:

Prohibited the use of force. Only allowed in exceptional circumstances.
The prohibition of the use of force:

The preamble of the Charter of the United Nations starts with the determination
of the peoples of the United Nations to save succeeding generations from the
scourge of war, and their willingness to practice tolerance and live together in
peace with one another as good neighbors, and not to use armed force except in
the common interest.

Article 2(4) of the UN Charter:

All members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in
any other manner inconsistent with the Purposes of the United Nations.

Article 2(3):
“settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.:



The 1970 Declaration on Principles of International Law:
Provides that the threat or use of force constitutes a violation of International
Law and the Charter of the United Nations and should not be employed as a
means of settling international issues. It declares that a war of aggression
constitutes a crime against peace, for which there is responsibility under
International Law.

The exceptions: 


1) The right of self-defence:


Article 51 of the Charter of the UN:

“Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken measures necessary to maintain
international peace and security. Measures taken by Members in the exercise of
this right of self-defence shall be immediately reported to the Security Council
and shall not in any way affect the authority and responsibility of the Security
Council under the present Charter to take at any time such action as it deems
necessary in order to maintain or restore international peace and security.”

2) Authorization by UNSC:

Article 42 of the UN Charter: (Chapter VII)

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

3) Collection Action:

Article 25 of the UN Charter:

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

4) Self-determination and independence:

Article 7 of the 1974 General Assembly Resolution on “the Definition of
Aggression” grants the peoples forcibly deprived of their right of self-
determination, freedom and independence, particularly peoples under colonial
and racist regime or other forms of alien domination, the right to struggle for the
purpose of achieving their self determination, freedom and independence. This
implies that those peoples can use armed force in their struggle, and this is a
forth exception to the principle of prohibition of the use of force in international
relations.


5) Recommendation by General Assembly:

The “Uniting for Peace” Resolution, adopted by the General Assembly on
November 3, 1950, grants the General Assembly of the United Nations the power
to act in place of the Security Council if the latter fails to discharge its primary
responsibility in maintaining international peace and security. Under this
resolution, the General Assembly may do by recommendations anything that the
Security Council can do by decisions under Chapter VII.

Further reading: Please see the free course on the use of force at https://
www.open.edu/openlearn/society-politics-law/the-use-force-international-law/
content-section-0?active-tab=content-tab
 International Humanitarian Law.

“International Humanitarian Law” (called also “Law of Armed Conflicts”) is that

branch of International Law which regulates the conduct of armed conflicts
(war). It is inspired by a feeling for humanity and is centered on the protection of
human being in time of war (armed conflicts). It seeks to mitigate the effects of
armed conflicts by limiting the choice of means and methods of conducting
military operations and providing protections to persons and civilian objects
during armed conflicts.

Always in customary practice. The 1864 Geneva Convention was the first
modest step in the process of codifying rules of International Humanitarian Law.

Fundamental to IHL are the following two principles:

1 Persons who are not, or are no longer, participating in hostilities must be
protected; and
2 The right of parties to an armed conflict to choose methods and means of
warfare is not unlimited.

Current Codification of International Humanitarian Law:


The Law of Geneva and the Law of The Hague. While the Law of Geneva has a
precisely defined subject area, which is the protection of persons against abuse of
force, the Law of The Hague covers all the other problems of the law of war.

(1) The Law of The Hague

The Law of The Hague consists of the several Conventions adopted at the
Hague Peace Conferences of 1899 and 1907. The Hague Conventions regulates
various aspects of the laws of war and neutrality. Almost all these conventions are
still in force, although many of their provision have been overtaken by the
modern conditions of warfare. The conventions regulates matters such as the
opening of hostilities, the laws and customs of war on land, the rights and duties
of neutral powers and persons in case of war on land, the status of enemy
merchant ships at the outbreak of hostilities, the conversions of merchant ships
into warships, the laying of automatic submarine contact mines, bombardment
by naval force in time of war, capture in naval war, and rights and duties of
neutral powers in naval war.
(2) The Law of Geneva
The Law of Geneva consists of four conventions of 1949 and two additional
protocols of 1977. The conventions are:
 -The First Geneva Convention of 1949: Geneva Convention for the
Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field.
-The Second Geneva Convention of 1949: Geneva Convention for the
Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members
of Armed Forces at Sea.
-The Third Geneva Convention of 1949: Geneva Convention relative to
the Treatment of Prisoners of War.
-The Fourth Geneva Convention of 1949: Geneva Convention relative
to the Protection of Civilian Persons in Time of War.
The additional protocols to the Geneva conventions are:
-Protocol I:Protocol Additional to the Geneva Conventions of 12 August
1949, and Related to the Protection of Victims of International Armed Conflicts.
-Protocol II: Protocol Additional to the Geneva Conventions of 12 August
1949, and Related to the Protection of Victims of Non-International Armed
Conflicts.

Almost universal.

Protection under International Humanitarian Law:


1) The wounded and sick.
2) Shipwrecked.
3) Medical personnel.
4) Religious personnel.
5) POWs.

All combatants. organized resistance movements, belonging to a party to the
conflicts and operating in or outside their own territory, provided that such
groups fulfill the conditions specified in the Third Geneva Convention, which are:
1) They are commanded by a person responsible for his subordinates; 2) They
have a fixed distinctive sign recognizable at a distance; 3) They carry arms
openly; and 4) They conduct their operations in accordance with the laws and
customs of war.
6) Civilians and civilian populations.
7) Other protected persons.
Journalists etc.
b) Objects:

1) Objects serving medical purposes.
2) Civilian objects.
Executing bodies:

States. Protecting power. Red Cross / Crescent societies.

Further reading: https://www.icrc.org/en/doc/assets/files/other/

icrc_002_0703.pdf
 Diplomatic and consular law

Rules regulating the various aspect of diplomatic relations are the result of
centuries of States practice. They constitute one of the earliest expressions of
International Law. Whenever in history there have been independent States
coexisting, special customs have developed on how the representatives of one
State would be treated by other State. Traditionally, diplomatic relations have
been conducted through ambassadors and their staffs. However, with the growth
of trade and commercial transactions the office of consul was established. Today,
diplomats and consuls perform useful functions in the host states. They provide
permanent presence in host States, pursue friendly relations between their States
and the host States, and promote the various interests of their States in the host
states.

A. Members of a Mission and Classification of Heads of a Mission

Under the 1961 Vienna Convention on Diplomatic Relations, members of the
diplomatic mission are the following:
(1) The head of the mission: The person who is charged by the sending
State with the duty of acting in that capacity.
(2) Members of the diplomatic staff: The members who have diplomatic
rank.
(3) Members of the administrative and technical staff: The members who
are employed in the administrative and technical service of the
mission.
(4) Members of service staff: The members who are employed in the
domestic service of the mission.
The Convention divided Heads of diplomatic missions into three classes,
namely:
(1) Ambassadorstates.
(2) Special envoys and ministers accredited to Heads of States.
(3) Charges d’affaires accredited to Ministers for Foreign Affairs.

B. Appointment of Heads and Diplomatic Members of the Missions

Under the Convention, the appointment of a diplomatic agent (the head of
the diplomatic mission or any member of the diplomatic staff) is subject to the
agreement of the receiving States which has the right to refuse the appointment
of any particular person without being obliged to give reasons. Because of the
possibility of refusing the proposed person, it is the practice of States that the
sending State usually notifies the receiving State of the name of the person
proposed to be appointed a diplomatic agent
C. Functions of the Diplomatic Mission
The functions of a diplomatic mission as stated by the Convention consist
among other things of:
(1) representing the sending State in the receiving State;
(2) protecting in the receiving State the interests of the sending state and
its nationals, within the limits permitted by International Law;
(3) negotiating with the Government of the receiving State;
(4) ascertaining by all lawful means conditions and developments in the
receiving State, and reporting thereon to the Government of the
sending State;
(5) promoting friendly relations between the sending State and the
receiving State, and developing their economic, cultural and scientific
relations.

D. Privileges and Immunities of a Diplomatic Agent

The Convention grants the head of the diplomatic mission and members of
the diplomatic staff of the mission as well as members of their families certain
privileges and immunities from jurisdiction of the receiving State. It has been the
practice that an ambassador to a certain State submits to the Ministry for Foreign
Affairs of that State a list containing the names of members of the diplomatic
mission with their positions, ranks and functions, and the names of persons who
should be granted full or limited immunity.
The most important privileges and immunities granted to a diplomatic agent
(the head of the mission and members of diplomatic staff) are:
(1) A complete immunity from the criminal jurisdiction of the receiving
State;
(2) Immunity from the civil and administrative jurisdiction of the receiving
state, except in the case of:
i. a real action related to private immovable property situated in the
territory of the receiving state, unless he holds it on behalf of the
sending State for the purpose of the mission.
ii. an action related to succession in which he is involved as executor,
administrator, heir or legatee as a private person and not on
behalf of the sending State;
iii. an action related to any professional or commercial activity
exercised by him in the receiving State outside his official
functions.
(3) The inviolability of his person.
 (4) Exemption from all dues and taxes, personal or real, national, regional
or municipal in the receiving state, except indirect taxes, taxes and dues
on private immovable, dues on inheritance, dues and taxes on private
income, and charges levied for specific services rendered;
(5) Freedom of communication for official purposes;
(6) The right to move freely in the territory of the receiving State.
(7) The inviolability of his private residence.
(8) The inviolability of his papers, correspondence and property

E. Termination of a Diplomatic Mission or of the Functions of a

Diplomatic Agent
A diplomatic mission or the functions of a diplomatic agent may be
terminated permanently or temporary by various means and for various reasons,
some are stated in the Convention and others are established by States practice.
Among these means and reasons are the following:
(1) Breaking off the diplomatic relations between the sending and the
receiving States because of a war or any other reason.
(2) A recall of the diplomatic agent by his sending State upon its initiative,
or at the request of the receiving State.
(3) A notification by the sending State to the receiving State that the
functions of the mission or the diplomatic agent has come to its end.
(4) A notification by the receiving State that the diplomatic agent is a
persona non grata.
(5) Resignation of the diplomatic agent.
(6) Death of the diplomatic agent.
Consular Post
The institution of consular post is much older than that of diplomatic
mission. The modern system of consular post is dated back to the 16th Century.
The 1963 Vienna Convention on Consular Relations is the law governing consular
representation. A consular officer (any person, including the head of the consular
post, entrusted with the capacity to exercise consular functions) like a diplomatic
agent, represents his State in the receiving State. However, unlike a diplomatic
agent, he is not concerned with political relations between the two States, but
with a variety of administrative functions, such as issuing visas and passports,
looking after the commercial interests of his State, and assisting the nationals of
his State in distress.
A. Members of the Consular Post and Classification of the Heads of
the Post
The members of the consular post as stated by the 1963 Vienna Convention
are:
(1) The head of the post: The person charged by the sending State with the
duty of acting in that capacity.
(2) Consular officers, other than the head of the consular post: Persons
entrusted to exercise consular functions.
(3) Consular employees: Persons employed in the administrative and
technical service of a consular post.
(4) Members of the service staff: Persons employed in the domestic service
of the consular post.
(5) Members of the private staff: Persons employed exclusively on the
private service of members of the consular post.
The heads of a consular post are divided into four classes, namely:
(1) Consuls-General.
(2) Consuls.
(3) Vice-Consuls.
(4) Consular agents.
The class to which a head of a consular post is assigned is a matter of
agreement between the concerned states.

C. Functions of a Consular Post

Consular post is different from diplomatic mission in its functions. While
diplomatic mission is concerned with political relations between the two States,
the consular post exercises a variety of administrative functions. Furthermore,
while there is only one diplomatic mission in a State, there can be more than one
consulate in one State. The major functions of consular posts are:
(1) Protecting the interests of the sending State and its nationals in the
receiving State.
(2) Furthering the development of commercial, economic, cultural and
scientific relations between the sending State and the receiving State.
(3) Promoting friendly relations between the sending State and the
receiving State.
(4) Reporting to the sending State on the conditions and developments of
the commercial, economic, cultural and scientific life of the receiving
State, and giving such information to interested persons.
 (5) Issuing passports and travel documents to nationals of the sending
State, and giving visas to persons wishing to travel to that State.
(6) Helping and assisting nationals of the sending State, safeguarding their
interests in certain cases, and representing or arranging for their
representation before the courts and other authorities of the receiving
State.
(7) Transmitting judicial and extra-judicial documents to the receiving
State.
(8) Exercising a supervision and inspection powers over vessels and
aircrafts having the nationality of the sending State, and over the crews
of these vessels and aircrafts.
(9) Acting as notary and civil registrar, and performing certain functions of
administrative nature.

D. Privileges and Immunities of Consular Officers

Nowadays, many States combine its diplomatic and consular services
together. Thus, a person who acts simultaneously as a diplomatic agent and a
consular officer enjoys the diplomatic privileges and immunities under the 1961
Vienna Convention on Diplomatic Relations. If the consular functions are
exercised by the consular post, then the consular officer enjoys the consular
privileges and immunities under the 1963 Vienna Convention on the Consular
Relations.
Under the 1963 Vienna Convention on the Consular Relations, consular
posts, members of a consular post (consular officers and employees), members of
their families and members of their private staff enjoy certain privileges and
immunities. These privileges and immunities are less than what diplomatic
mission and diplomatic agents are entitled to. The most important privileges and
immunities are the following
(1) A consular officer (the head of the consular post and any person entrusted to
exercise consular functions) is immune from an arrest or detention pending
trial, except in the case of a grave crime and pursuant to a decision by the
competent judicial authority. He is immune from imprisonment or any
other restriction on his personal freedom save in execution of a final judicial
decision. If criminal proceedings are instituted against him, he must appear
before the competent authorities. The proceedings must be conducted in a
manner that respects his official position and does not hamper the exercise
of consular functions, and with the minimum delay.
(2) A consular officer and a consular employee (any person employed in the
administrative or technical service of the consular post) are immune from
the jurisdiction of the judicial or administrative authorities of the receiving
 State only in respect of acts performed in exercise of consular functions.
However, they do not enjoy such immunity in respect of a civil action either:
i. Arising out of a contract concluded by them not as agents of the
sending State; or
ii. Brought by third party for damages arising from an accident in the
receiving State caused by vehicle, vessels or aircraft.
(3) A consular officer and a consular employee and members of their families
forming part of their households are exempt from all dues and taxes, except
on certain specified cases.
(4) A member of the consular post (the head of the post, any person entrusted
to exercise consular functions, any person employed in administrative or
technical service of the post and in the domestic service of the post) is under
no obligation to give evidence concerning matters connected with the
exercise of his functions or to produce official correspondence and
documents related thereto. He is also entitled to decline to give evidence as
expert witness with regard to the law of the sending state.
(5) A member of the consular post enjoys the freedom of communication for
official purposes.
(6) A member of the consular post enjoys the right to move freely in the
territory of the receiving State.
(7) The archives, documents, official correspondence and consular bag are
inviolable at any time and whenever they may be.
(8) The premises of the consular post and the private residences of members of
the consular post are inviolable. They are, also, exempt from all taxes and
dues other than such as represent payment for specific services.

E. Termination of a Consular Functions

The consular functions may be terminated by various ways and reasons.
Among these ways and reasons are the following:
(1) A recall of the member of the consular post by his appointing State
upon its initiative, or at the request of the receiving State.
(2) A notification by the appointing State to the receiving State that the
functions of the post or any of its members are terminated.
(3) The withdrawal of the exequatur by the receiving State.
(4) Resignation of the member of the consular post.
(5) Death of the member of the consular post.
(6) The breaking off relations between the sending and receiving States,
such as in case of a war.
 Institutions

International Criminal Court:


The International Criminal Court (ICC or ICCt)[2] is an intergovernmental

organization and international tribunal that sits in The Hague, Netherlands.
The ICC has jurisdiction to prosecute individuals for the international crimes of
genocide, crimes against humanity, war crimes, and crimes of aggression. It is
intended to complement existing national judicial systems and it may therefore
exercise its jurisdiction only when certain conditions are met, such as when
national courts are unwilling or unable to prosecute criminals or when the United
Nations Security Council or individual states refer situations to the Court.
The ICC began functioning on 1 July 2002, the date that the Rome Statute
entered into force. 122 member states.


The ICC has four principal organs: the Presidency, the Judicial Divisions, the
Office of the Prosecutor, and the Registry.


Thus far, 44 individuals have been indicted in the ICC, including Ugandan rebel
leader Joseph Kony, former Sudanese president Omar al-Bashir, Kenyan
president Uhuru Kenyatta, Libyan leader Muammar Gaddafi, Ivorian president
Laurent Gbagbo, and DR Congo vice-president Jean-Pierre Bemba.


The ICC has faced a number of criticisms from states and civil society, including
objections about its jurisdiction, accusations of bias, questioning of the fairness
of its case-selection and trial procedures, and doubts about its effectiveness.


As a judicial institution, the ICC does not have its own police force or
enforcement body; thus, it relies on cooperation with countries worldwide for
support, particularly for making arrests, transferring arrested persons to the ICC
detention centre in The Hague, freezing suspects’ assets, and enforcing sentences.


- The principle of complementarity means that the Court will only prosecute an
individual if states are unwilling or unable to prosecute.
- The Court will only initiate proceedings if a crime is of "sufficient gravity to
justify further action by the Court”
- The Prosecutor must determine whether a prosecution would serve the interests
of justice "taking into account all the circumstances, including the gravity of the
crime, the interests of victims and the age or infirmity of the alleged perpetrator,
and his or her role in the alleged crime”


Jurisdiction: Territorial. Personal. Temporal.
Further reading: https://www.icc-cpi.int/about/how-the-court-works

International Court of Justice:


The International Court of Justice (ICJ), sometimes called the World

Court, is the principal judicial organ of the United Nations (UN). The ICJ's
primary functions are to settle international legal disputes submitted by states
(contentious cases) and give advisory opinions on legal issues referred to it by the
UN (advisory proceedings). Through its opinions and rulings, it serves as a source
of international law.
The ICJ is the successor of the Permanent Court of International Justice (PCIJ),
which was established by the League of Nations in 1920 and began its first
session in 1922. After the Second World War, both the League and the PCIJ were
succeeded by the United Nations and ICJ, respectively. The Statute of the ICJ
draws heavily from that of its predecessor, and the latter's decisions remain valid.
All members of the UN are party to the ICJ Statute.

The ICJ comprises a panel of 15 judges elected by the General Assembly and
Security Council for nine-year terms. The court is seated in the Peace Palace in
The Hague, Netherlands, making it the only principal U.N. organ not located in
New York City. Its official working languages are English and French.
Article 94 establishes the duty of all UN members to comply with decisions of the
court involving them. If parties do not comply, the issue may be taken before the
Security Council for enforcement action.
Compulsory jurisdiction is limited to cases where both parties have agreed to
submit to its decision, and so instances of aggression tend to be automatically
escalated to and adjudicated by the Security Council.
Other existing international thematic courts, such as the ICC, are not under the
umbrella of the International Court. Unlike ICJ, international thematic courts
like ICC work independently from United Nations. Such dualistic structure
between various international courts sometimes makes it hard for the courts to
engage in effective and collective jurisdiction.


The International Court does not enjoy a full separation of powers, with
permanent members of the Security Council being able to veto enforcement of
cases, even those to which they consented to be bound. Because the jurisdiction
does not have binding force itself, in many cases, the instances of aggression are
adjudicated by Security Council by adopting a resolution, etc.
The United Nations: 


The United Nations (UN) is an intergovernmental organization responsible for

maintaining international peace and security, developing friendly relations
among nations, achieving international cooperation, and being a center for
harmonizing the actions of nations.
It is the largest, most familiar, most internationally represented and most
powerful intergovernmental organization in the world. The UN is headquartered
on international territory in New York City; other main offices are in Geneva,
Nairobi, Vienna and The Hague

The UN system is based on five principal organs: the General Assembly, the
Security Council, the Economic and Social Council (ECOSOC), the International
Court of Justice and the UN Secretariat.

The General Assembly is the main deliberative assembly of the UN. Composed of
all UN member states, the assembly meets in regular yearly sessions, but
emergency sessions can also be called.

The Security Council is charged with maintaining peace and security among
countries. While other organs of the UN can only make "recommendations" to
member states, the Security Council has the power to make binding decisions
that member states have agreed to carry out, under the terms of Charter Article
25.[93] The decisions of the Council are known as United Nations Security Council
resolutions.[94]

Situations in which the UN has not only acted to keep the peace but also
intervened include the Korean War (1950–53) and the authorization of
intervention in Iraq after the Gulf War (1990–91).
Failures: Cambodian genocide of the 1970s, and the Rwandan genocide in 1994.
Iraq. Afghanistan.



Though sometimes confusing, the rules that form the UN Charter determines the
powers of the UN Security Council. Two chapters are especially relevant if one is
to understand the meaning of the Security Council’s power and the resolutions it
passes.
Resolutions under Chapter VI:
Resolutions the Security Council adopts under Chapter VI are intended to be
followed and implemented via negotiated settlements between concerned parties.
One of the UN resolutions adopted under Chapter VI of the UN Charter is
Resolution 242, adopted in 1967 after the Six-Day War. It calls on Israel and its
Arab neighbors to accept the resolution through negotiation, arbitration and
conciliation. Under Chapter VI of the UN Charter, the recommendations of UN
Resolution 242 cannot be imposed on the parties concerned, as Arab leaders
often argue. In fact, the title of Chapter VI also offers a clue to its nature, for it
deals with “Pacific Resolution of Disputes.”
Resolutions under Chapter VII:
In contrast, resolutions adopted by the Security Council under Chapter VII invest
the Security Council with power to issue stringent resolutions that require
nations to comply with the terms set forth in the resolution. This leaves no room
to negotiate a settlement with the affected parties. Thus, Chapter VII deals with
“Threats to Peace, Breaches of the Peace and Acts of Aggression.”

The general assembly is not nearly as powerful as the security council,

which can pass binding resolutions
General assembly= world parliament.
But the general assembly can express world opinion, make recommendations to
the security council and elect the council’s non-permanent members.
The General Assembly consist of all members of the United Nations while the
Security Council consists of fifteen members. Five of these are permanent
members those are China, France, UK, Russia and the USA of the other ten three
each year are elected by General Assembly for two year terms. The General
Assembly elects its president for each session while Security Council works as its
cabinet. The General Assembly members have no veto power while five
permanent member of Security Council have veto power.
 THE LAW OF TREATIES

Introduction
A treaty is a written international agreement concluded between
States or other persons of International Law and governed by
International Law, whether embodied in a single instrument or in two
or more related instruments and whatever its particular designation.
In English, the term ‘treaty” is used as a generic term embracing all kinds of
international agreements in written form. In addition to the term “treaty”, many
other terms are used, such as “accord”, “act”, “arrangement”, “charter”,
“covenant”, “convention”, “declaration”, “general act”, “pact”, “protocol”,
“statute”, as well as the term “agreement” itself. Whatever the appellation of the
agreement, it does not affect its validity under International Law.
Treaties can be traced back as far as the early-recorded history of Mankind.
Evidence for their existence has been found throughout the history. Treaties have
been the major legal instruments for regulating relations between States. States
concluded treaties in every conceivable subject. Ten of thousands treaties have
been registered with the United Nations since 1946. Until 1980, treaties had been
governed by international customary law. In 1969, the Vienna Convention on the
Law of Treaties was signed, codifying and developing existing customary rules; it
came into force in 1980.
The 1969 Vienna Convention on the Law of Treaties defines “treaty” in
Artile 1 as “an international agreement concluded between States in
written form and governed by International Law, whether embodied
in a single instrument or in two or more related instruments and
whatever its particular designation.” It further provides that it “does not
apply to international agreements concluded between States and other subjects of
international law or between such other subjects of international law, or to
international agreements not in written form”. These provisions exclude
agreements between states which are governed by other than International Law,
agreements between States and international organizations or between
international organizations, and oral agreements. The reason for the exclusion of
these types of international agreements is to avoid complication and complexity if
they are included in a single convention with written agreements between States,
since the rules governing them differ in certain aspects from the rules governing
written agreements between States. A special convention applicable to
agreements between states and international organizations, or between
international organizations, namely “the Convention on the Law of Treaties
between States and International Organizations or between
International Organizations”, was signed in 1986. However, this
Convention has not yet entered into force.
 The rules provided by this Convention are not inclusive; other rules existed
under customary international law continue to govern questions not regulated by
the Convention.
Conclusion of Treaties
Treaties may be concluded by States in any manner they wish. There are no
obligatory prescribed forms or procedures to be followed. Negotiating,
formulating, signing and adopting a treaty are subject to the intention and
consent of the contracting States. However, the 1969 Convention on the Law of
Treaties provides general rules applicable to the conclusion of treaties, rules
regarding the capacity and the competent persons to conclude treaties, the
adoption and authentication of the text of treaties, and the adoption of treaties.
A. The Capacity to Conclude Treaties
Under the Convention, every State possesses capacity to conclude treaties.
Since States are represented by persons, the Convention provides rules to ensure
that persons representing States have the power to adopt or authenticate the text
of a treaty, or to express the consent of the State bound by a treaty. Such persons
must produce what is known as “full powers”. “Full powers” refers to the
document issued by the competent authority of the concerned State certifying
that the persons represent it. This requirement is necessary to ensure the States
parties to the treaty that they are dealing with the competent persons. However,
there are certain persons who need not to produce the “full powers”. These
persons are:
(1) Heads of States, heads of governments and the ministers for foreign
affairs, for the purpose of performing all acts related to the conclusion
of a treaty;
(2) Heads of diplomatic missions, for the purpose of adopting the text of a
treaty between their States;
(3) Representatives accredited by States to an international conference or
to international organization or one of its organs, for the purpose of
adopting the text of a treaty in that conference, organization or organ.
B. Authentication of the Text of Treaties
Once a draft of a treaty has been agreed upon by the competent persons,
several stages need to be followed before it becomes legally binding. First, the
text of the treaty has to be adopted. The adoption of the text of a treaty implies
that the form and content of the text of the proposed treaty are settled. It takes
place by the consent of all the States participating in its drawing up, except the
adoption at an international conference, which takes place by the vote of two-
third of the States present and voting, unless by the same majority they decide to
apply a different rule. The adoption of the text of a treaty does not mean that the
participating States have expressed consent to be bound by the treaty, or that the
treaty has been adopted.
Second, the text of a treaty has to be authenticated. Authentication is a
procedural step whereby the text of the treaty is established as correct and
genuine, and not subject to alteration. It is necessary to enable the States parties
to the treaty to know definitively its content so that there will be no confusion as
to its exact terms. The authentication of the text of a treaty takes place according
to the procedure provided in the text or agreed upon by the States participating in
its drawing up. Failing such procedure, authentication may take place by the
signature, signature ad referendum or initiating by the representatives of the
participating States.
C. The Adoption of Treaties (Article 11)
A treaty has to be adopted by the participating States to become binding
upon them. States adopt a treaty by giving their consent to it. The consent of the
States parties to a treaty is an essential factor because States are bound only by
their consent. The consent may be expressed by signature, exchange of
instruments constituting a treaty, ratification, acceptance, approval or accession,
or by any other means if so agreed.
(1) Consent by signature
A State may be regarded as consented to a treaty by signature when the
treaty provides that signature shall have that effect, when it is established that the
negotiating States were agreed that signature should have that effect, or when the
intention of the State to give that effect to the signature appears from the full
powers of its representatives or was expressed during the negotiation. Signing the
treaty means officially affixing the names of the representatives of the contracting
States.
The act of signature is usually a formal event. Often in important treaties,
heads of States formally affix their signatures in a ceremony. Usually in
multilateral conventions, the representatives of the participating States sign the
treaties during a special closing session held for that reason.
(2) Consent by exchange of instruments constituting a treaty
A State may be regarded as consented to a treaty by an exchange of
instruments constituting a treaty when the treaty provides that the exchange of
such instrument has that effect, or when it is established that the States were
agreed that the exchange of the instrument should have that effect. Nowadays,
often each State signs an instrument constituting a treaty and sends it to the
other State (or States) for its signature.
(3) Consent by ratification, acceptance or approval
The signing of the treaty by the representative of a State is either a means of
expressing the final consent of the State to be bound by the treaty, or an
expression of provisional consent subject to ratification, acceptance or approval.
The effect of signature depends upon the terms of the treaty, the agreement of the
negotiating States or their intention. If the treaty is subject to ratification
(acceptance or approval), then it does not become binding until it is ratified by
competent authority of contracting State, namely the head of the State.
Ratification by the competent authority of the contracting State is a step well
established historically to ensure that the representative of the State did not
exceed his powers or instructions with regard to the conclusion of the treaty. It
allows a State to examine the provisions of a treaty before undertaking formal
obligations. Moreover, it enables a State, in the period between signature and
ratification, to pass the required legislation or to obtain the required approval.
The question of how a state ratifies treaties is a matter for its internal law alone.
The rules related to ratification vary from State to State.
(4) Consent by accession
In addition to signature and ratification, a State may become a party bound
by a treaty by accession. Accession is a formal acceptance of a treaty by a State
which did not participate in negotiating and signing it. It is possible if the treaty
provides that consent to it may be expressed by accession, if it is established that
the negotiating States were agreed that consent may be expressed by accession,
or if all the States parties to the treaty have subsequently agreed that consent may
be expressed by accession. Accession has the same effects as signature and
ratification combined. It is the practice in the modern times that certain treaties
remain open for accession by particular States for some periods.
D. Reservation to a Treaty
A reservation is defined by this Convention as “a unilateral statement,
however phrased or named, by a State, when signing, ratifying, accepting,
approving or acceding to a treaty, whereby it purports to exclude or modify the
legal effects of certain provisions of the treaty in their application to that State.
A reservation established with regard to another party modifies for the
reserving State in its relations with that other party the provisions of the treaty to
which the reservation relates to the extent of the reservation, and modifies those
provisions to the same extent for that other party in its relations with the
reserving State. However, the reservation does not modify the provisions of the
treaty for the other parties to the treaty inter se, i. e. in their relations with each
other.
Entry into Force, Registration and Depositary of Treaties
The Convention provides rules applicable to the entry into force of treaties
as well as rules applicable to registration and depositary of treaties.
A. Entry into Force of Treaties
According to the Vienna Convention on the Law of Treaties, a treaty enters
into force in such a manner and upon such date as it may provide or as the
negotiating States may agree. In the absence of any such provisions or
agreement, a treaty enters into force as soon as consent to be bound by that treaty
has been established for all the negotiating States. When the consent of a State to
be bound by a treaty is established on a date after the treaty has come into force,
the treaty enters into force for that State on that date, unless the treaty provides
otherwise.
B. Registration and Depositary of Treaties
After the entry of a treaty into force, the Vienna Convention requires that the
treaty to be transmitted to the Secretariat of the United Nations for registration
or filling and recording, as the case may be, and for publication. This requirement
follows the one provided for by the Charter of the United Nations. Article 102 of
the Charter provides that every treaty and every international agreement entered
into by any Member of the United Nations must, as soon as possible, be
registered with the Secretariat and published by it. Under this article, non-
registered treaty or agreement remains valid but the parties to it may not invoke
it before any organ of the United Nations, including the International Court of
Justice. This requirement is intended to prevent States from entering into secret
treaties and in general to ensure publicity for treaties.
Observance and Application of Treaties
Once treaties enter into force, they must be observed and applied by the
parties. Observance and application of treaties are subject to certain established
principles and rules.
A. Observance of Treaties
The Latin principle “Pacta Sunt Servanda”, which means that treaties shall
be observed, is the fundamental principle of the customary law of treaties and the
very foundation of International Law. This principle is included in the Preamble
and Article 26 of the 1969 Vienna Convention on the Law of Treaties, which
states that “[e]very treaty in force is binding upon the parties to it and must be
performed by them in good faith. ”Another long-standing principle of customary
international law included in Article 27 of the Convention is that “[a] party may
not invoke the provisions of its internal law as justification for its failure to
perform a treaty.”
 According to these two principles, the parties to a treaty are under a duty to
observe the treaty in good faith, and a duty not to invoke its internal law as
justification for failure to perform the treaty.
B. Application of Treaties
Under the Vienna Convention on the Law of Treaties, the application of
treaties is subject to the following rules:
(1) Non-Retroactivity of Treaties
The Vienna Convention provides that the provisions of a treaty, unless a
different intention appears from the treaty or is otherwise established, do not
bind a party to it in relation to any act or fact which took place or any situation
which ceased to exist before the date of the entry into force of the treaty with
regard to that party. The general rule here is that a treaty does not operate
retroactively; any fact, action or situation must be assessed in the light of the
rules of law that are contemporary with it, not of the provisions of the subsequent
treaty, unless a contrary agreement so provides.
(2) Territorial Scope of Treaties
The Vienna Convention provides that unless a different intention appears
from the treaty or is otherwise established, a treaty is binding upon each party in
respect to its entire territory. This is a general rule, but it is possible for a State to
stipulate that the treaty will apply only to part of its territory.
(3) Application of Successive Treaties Related to the Same Subject
Matter
Sometimes, it happens that a party to a treaty subsequently enters into
another treaty related to the same subject matter, and that the provisions of the
two treaties are inconsistent; or it happens that the other party or parties to the
second treaty may or may not also be parties to the first treaty. These situations
raise certain problems which need to be resolved. Article 30 of the Vienna
Convention lays down the rules which constitute the general guide to be followed
in resolving such problems. It is still possible, however, for the parties themselves
to resolve the raised problems by their mutual agreement.
(4) Treaties and Third States
The Latin principle “pacta tertiis nec nocent nec prosunt”, which means that
a treaty creates neither right nor obligation for third States (not parties to the
treaty) without their consent, is a general principle which constitutes part of the
customary international law. The reasons for this principle can be found in the
fundamental principles of the sovereignty and independence of States, which
contemplate that States must consent to rules before they can be bound by them.
This principle is codified in article 34 of the 1969 Vienna Convention on the Law
of Treaties as a general rule corollary of the principle of consent and of the
sovereignty and independence of States. However, this Convention states certain
exceptions to this general rule.
An example of a treaty imposes obligation upon non-party State is the 1815
agreement concerning the neutralization of Switzerland. The apparent examples
of rules which are binding upon third States as customary international law are
the rules of the 1899 and 1907 Hague Conventions concerning land warfare, and
the principles stated in Article 2 of the Charter of the United Nations, especially
those related to the peaceful settlement of disputes and the prohibition of
resorting to threat or use of force. As far as rights conferred upon third States by
a treaty are concerned, there are many treaties containing provisions in favor of
third States (pactum in favorem tertii). Examples of such treaties are the 1919
Treaty of Versailles which contains provisions in favor of Denmark and
Switzerland, and the 1888 Constantinople Convention which contains provisions
guaranteeing freedom of passage for ships through the Suez Canal.
Interpretation of Treaties
Interpretation of treaties is the most frequent focus of disputes arising with
regard to treaties. Because language is not a perfect means for expressing legal
rules, ambiguities and uncertainties in treaty-texts are common phenomena.
Thus interpretation of treaties has been a major task in International Law.
Obviously the parties to a treaty have competence to interpret a treaty, but other
entities may perform such a task. The treaty itself may confer competence on an
ad hoc tribunal, an international organ, or the International Court of Justice
(ICJ). The Charter of the United Nations is interpreted by the organs of the
United Nations, which may request advisory opinions from the ICJ.
Interpretation of treaties is a rational process of clarifying and elucidating
the meaning of unclear and ambiguous treaty provisions. Its purpose is to
ascertain in good faith the intention of the parties. It is governed by numerous
principles and rules developed by international tribunals, publicists, organs of
international organizations and diplomatic practice. Though, there is no coherent
and mandatory system of rules of treaty interpretation in International Law.
The 1969 Vienna Convention on the Law of Treaties, however, lays down
certain fundamental rules and guidelines for treaty interpretation. It contains
specific provisions concerning general rules of treaty interpretation,
supplementary means of interpretation, and interpretation of treaties
authenticated in two or more languages.
A. General Rules of Treaty Interpretation
The first general rule for treaty interpretation provided by the Vienna
Convention is that “[a] treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the treaty in their context
and in the light of its object and purpose.” This rule is the textual approach of
treaty interpretation.
 The second general rule for treaty interpretation provided by the Convention
is that “[a] special meaning shall be given to a term if it is established that the
parties so intended. ” This is the “intention of the parties” approach of treaty
interpretation.
However, there are other established approaches of treaty interpretation not
provided for in the Vienna Convention on the Law of Treaties. Among these
approaches is “the principle of effectiveness” which involves the interpretation of
the terms of a treaty in a way that will render the treaty most effective and useful.
This principle is of particular importance in the interpretation of multilateral
treaties establishing international organizations.
B. Supplementary Means of Interpretation
The Vienna Convention provides that “recourse may be had to
supplementary means of interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion”, when the meaning resulting from
the application of the above general rules needs to be confirmed, or when the
interpretation according to the said general rules leaves the meaning ambiguous
or obscure, or leads to a manifestly absurd or unreasonable result.
C. Interpretation of Treaties Authenticated in Two or More
Languages
In case of a treaty authenticated in two or more languages, as often happens
with multilateral treaties, the Vienna Convention provides that when a
comparison of the authentic texts discloses a difference of meaning which the
application of the provided general rules and supplementary means of
interpretation does not remove, “the meaning which best reconciles the texts,
having regard to the object and purpose of the treaty, shall be adopted. ”
Nevertheless, the Convention provides that the treaty may provide or the parties
may agree that, in such a case, a particular text shall prevail.
Amendment and Modification of Treaties
Although amendment and modification of treaties are two processes share a
common aim which is an alteration or revision of a treaty, they are two separate
processes accomplished by different manners and subject to different rules and
conditions. Amendment relates to a formal alteration or revision of certain treaty
provisions or the treaty as a whole, affecting all the parties to that treaty.
Modification relates to an alteration or revision of certain treaty provisions as
between particular parties only. Thus the 1969 Vienna Convention on the Law of
Treaties deals with these two processes in separate articles.
A. Amendment of Treaties: (Article 39, 40)
The Vienna Convention refers to three manners to accomplish amendments
to treaties. The first manner is that a treaty may be amended by agreement
between the parties. In such a manner, the rules described by the Vienna
Convention which are related to the conclusion and entry into force of a treaty
will be applied.
The second manner is that a treaty may be amended in accordance with the
procedure laid down in the treaty itself. Multilateral treaties, particularly those
establishing international organizations, normally provide detailed procedure for
amendments. The Charter of the United Nations, for example, lays down in
Articles 108 and 109 the procedure for its amendments and revision. Under these
Articles such amendments or revision shall take effect when adopted and ratified
by two-thirds of the members of the United Nations, including all the permanent
members of the Security Council.
The third manner is that a treaty may be amended in accordance with the
basic rules of procedure described by the Vienna Convention. The Vienna
Convention specifies that any proposed amendment must to be notified to all
contracting States. All contracting States shall have the right to participate in the
decision as to the action to be taken in regard to such proposal, and in the
negotiation and conclusion of any agreement for the amendment of the treaty.
B. Modification of Treaties
The Vienna Convention provides that two or more of the parties to a
multilateral treaty may conclude an agreement to modify the treaty as between
themselves alone if one of two conditions is fulfilled. The first condition, if “the
possibility of such a modification is provided for by the treaty. ” The second
condition, if “the modification in question is not prohibited by the treaty” and
provided it “does not affect the enjoyment by the other parties of their rights
under the treaty or the performance of their obligation, and “does not relate to a
provision, derogation from which is incompatible with the effective execution of
the object and purposes of the treaty as a whole. ”
Termination and Suspension of the Operation of Treaties
Despite the general rule that “every treaty in force is binding upon the
parties to it and must be performed by them in good faith,” the Vienna
Convention provides that a treaty may be terminated, denounced, withdrawn
from or suspended.
A. Termination of a Treaty
Termination of a treaty means the end of the operation of a treaty, resulting
in depriving all the parties of all the rights, and in releasing them from
performing further obligations, under the treaty. Under the Vienna Convention
termination of a treaty or the withdrawal of a party may take place either in
conformity with the provisions of the treaty, or at any time by consent of all the
parties after consultation with the other contracting States. Actually, most of the
modern treaties contain provisions for their termination or for the withdrawal of
a party. A treaty may provide that it shall come to an end automatically after a
certain time, or at the occurrence of a particular event. A treaty may give a party a
right to withdraw from it after giving a certain period of notice.
B. Suspension of the Operation of a Treaty
Under the Convention, a treaty may be suspended by the following
circumstances: 1) the conclusion of a later treaty related to the same subject
matter, if it appears from the later treaty or otherwise established that such was
the intention of the parties; 2) a material breach of a treaty which consists in
either a repudiation of the treaty not permitted by the Vienna Convention or the
violation of a provision essential to the accomplishment of the object or purpose
of the treaty; 3) the temporary impossibility of performing a treaty; or 4) a
fundamental change of circumstances occurs with regard to those existing at the
time of the conclusion of that treaty.
Suspension of the operation of a treaty releases the parties from any further
obligation to perform the treaty during the period of suspension; however, it does
not affect any right, obligation or legal situation of the parties created through the
execution of the treaty prior to its suspension.
Invalidity of Treaties
Invalidity of a treaty means nullity of a treaty or its particular provisions
because of the existence or absence of certain circumstances or conditions
affecting its legal status. Customary international law does not provide clear and
acceptable rules governing validity or invalidity of treaties. The 1969 Vienna
Convention on the Law of Treaties, however, provides some general rules on this
matter. This Convention describes rules governing invalidity of treaties in
general, grounds for invalidity of treaties, and consequences of the invalidity of
treaties.
A. General Rules on Invalidity of Treaties
The Vienna Convention on the Law of Treaties provides that “the validity of
a treaty or the consent of a State to be bound by a treaty may be impeached only
through the application of the present Convention.”Under the Convention, a
ground for invalidating (as well as for terminating, withdrawal from or
suspending the operation of a treaty) may be invoked only with respect to the
whole treaty, except where the ground relates solely to particular clauses which
are separable and unessential, or relates to a material breach of a treaty by one of
the parties. A State cannot invoke a ground for invalidating (as well as for
terminating, withdrawal from or suspending the operation of a treaty) if, after
becoming aware of the fact, it expressly agreed that the treaty is valid or remains
in force, or it, by reason of its conduct, may be considered as having acquiesced in
the validity of the treaty or in its continuance in force or in operation.
B. Grounds for Invalidating Treaties
The Vienna Convention specifies the following grounds for invalidating
treaties:
(1) Manifest violation of a provision of fundamental importance of State’s
internal law regarding competence to conclude treaties: A violation is
manifest “if it would be objectively evident to any State conducting
itself in the matter in accordance with normal practice and in good
faith. ” (Article 46)
(2) Lack of the State’s representative appropriate full powers. (Article 8)
(3) Excess of authority by the representative: Such an excess will be a
ground to invalidate a treaty if the specific restriction imposed by the
State upon its representative to express its consent to be bound by the
treaty was notified to the other negotiating States prior to his
expressing such consent. (47)
(4) Error: A State may invoke an error in a treaty as invalidating its
consent to be bound by the treaty if the error relates to a fact or
situation mistakenly assumed by that State to exist at the time when
the treaty was concluded, and that fact or situation forms an essential
basis of its consent to be bound by the treaty. If the State in question
contributed by its own conduct to the error or if it was put on notice of
a possible error, it is not allowed to invoke such an error as a ground
for invalidating its consent. An error relating only to the wording of the
text of a treaty does not affect its validity. (48)
(5) Fraud: A State may invoke the fraud as invalidating its consent to be
bound by the treaty if it has been induced to conclude that treaty by the
fraudulent conduct of another negotiating State. (49)
(6) Corruption of a representative of a State: A State may invoke the
corruption of its representative as invalidating its consent to be bound
by the treaty if the expression of its consent has been procured through
the corruption of its representative directly or indirectly by another
negotiating State. (50)
(7) Coercion of a representative of a State: Acts or threats directed
personally against a representative of a State as an individual in order
to procure the expression of a State’s consent to be bound by a treaty
render such expression of consent without any legal effect. (51)
(8) Coercion of a State by the threat or use of force: A treaty is void if its
conclusion has been procured by the threat or use of force in violation
of the principles of International Law embodied in the Charter of the
United Nations. (52)
(9) Conflict of the treaty with an existing and emerging peremptory norm
of general International Law (Jus Cogens): A treaty is void if, at the
 time of its conclusion, it conflicts with a peremptory norm of general
International Law. If a new peremptory norm of general International
Law emerges, any existing treaty conflicting with that norm becomes
void and (543)
C. Consequences of Invalidity of Treaties
The consequences of invalidity of treaties vary according to the nature of the
ground of invalidity. The Vienna Convention makes a distinction between void
and voidable treaties. In cases of lack of full powers, coercion of a representative,
coercion of a State and conflict with an existing and emerging of peremptory
norm of general international law, the treaty is void, which means that the
expression of consent of the State to be bound by the treaty is without any legal
effect from the beginning (ab initio). In cases of violation of the internal law of
the State, excess authority by the representative, error, fraud, and corruption of
the representative, the treaty is probably voidable rather than void; the treaty is
valid until the State claims that it is invalid. The State may invoke the ground to
invalidate the treaty. However, this right may be lost for the following reasons:
(a) if after becoming aware of the fact, the concerned State expressly agreed that
the treaty is valid or remains in force or it, by reason of its conduct, may be
considered as having acquiesced in the validity of the treaty or in its continuance
in force or in operation; or (b) if the concerned State contributed by its own
conduct to the error or was put on notice of a possible error.
The Convention provides that an invalid treaty is void and without any legal
effect. If acts have nevertheless been performed in reliance on such a treaty, each
party may require any other party to establish as far as possible in their mutual
relations the position that would have existed if the acts had not been performed.
Acts performed in good faith before the invalidity was invoked are not rendered
unlawful by reason only of invalidity of the treaty.
Procedures to be followed with Respect to Invalidity, Termination,
Withdrawal from, or Suspension of the Operation of a Treaty
The Vienna Convention provides that a party invoking a ground to invalidate
a treaty, terminate it, withdraw from it or suspend its operation, must notify, in
writing, the other parties of its claim and give them time to make objections
before it takes any action. If after the expiry of a period which shall not be less
than three months from the receipt of the notification, no objection has been
raised by any party, the party making the notification may carry out the measures
it has proposed. If, however, objection has been raised by any party, the parties
must seek a solution through the peaceful means indicated in Article 33 of the
Charter of the United Nations.
If no solution is reached within twelve months, the dispute is to be
submitted to a special conciliation commission set up under an annex to the
Convention or, in cases of dispute involving peremptory norms of general
International Law to be submitted to the International Court of Justice (ICJ).
 Miscellaneous.

Q) What are Jurisdictional constraints to the right of self-determination in

context to Montevideo Convention on the recognition of state?

The convention sets out the definition, rights and duties of statehood. Most well-
known is Article 1, which sets out the four criteria for statehood that have been
recognized by international organizations as an accurate statement of customary
international law.

Furthermore, the first sentence of Article 3 explicitly states that "The political
existence of the state is independent of recognition by the other states." This is
known as the declarative theory of statehood.

An important part of the convention was a prohibition of using military force to

gain sovereignty. According to Article 11 of the Convention[7],
The contracting states definitely establish the rule of their conduct the precise
obligation not to recognize territorial acquisitions or advantages that have been
obtained by force whether this consists in the employment of arms, in
threatening diplomatic representations, or in any other effective coercive
measure

Nature of relationship of a state with an individual:

TWO opposite views may be held as to the relation which ought to subsist
between the Individual and the governing power of the State—views which, in
their extreme form, may be expressed thus—the Paternal, in which the State
does everything for the Individual, and the Independent, in which he is left to
shift for himself in every respect, except protection from actual aggression by
foreign or domestic foes. On the one hand, we are told that it is the duty of the
State to have a paternal care over the morals and the welfare of its citizens; on the
other hand, that the province of the Government is simply the protection of his
person and his goods. To a certain extent both views are correct. The true
function of the Executive Government may be laid down as the protection of the
individual citizen, and of everything that belongs to him, against adverse
influences that are not under his own control. A man's morals are his own
concern, and the law has no right to interfere with them or to regulate them, any
more than it has to interfere with his religion, provided that in carrying out his
views of morality he in no way interferes with his neighbour's welfare or comfort.
Then at once the injured party has the right of appeal to the assistance of the law
to check his neighbour's aggressive morality or immorality.



Monism and Dualism:

The terms monism and dualism are used to describe two different theories of the
relationship between international law and national law. Many states, perhaps
most, are partly monist and partly dualist in their actual application of
international law in their national systems.
Monists accept that the internal and international legal systems form a unity.
Both national legal rules and international rules that a state has accepted, for
example by way of a treaty, determine whether actions are legal or illegal.[1] In
most so-called "monist" states, a distinction between international law in the
form of treaties, and other international law, e.g., customary international law or
jus cogens, is made; such states may thus be partly monist and partly dualist.
n a pure monist state, international law does not need to be translated into
national law. It is simply incorporated and has effect automatically in national or
domestic laws. The act of ratifying an international treaty immediately
incorporates the law into national law; and customary international law is treated
as part of national law as well.
n its most pure form, monism dictates that national law that contradicts
international law is null and void, even if it post-dates international law, and even
if it is constitutional in nature
Dualists emphasize the difference between national and international law, and
require the translation of the latter into the former. Without this translation,
international law does not exist as law. International law has to be national law as
well, or it is no law at all. If a state accepts a treaty but does not adapt its national
law in order to conform to the treaty or does not create a national law explicitly
incorporating the treaty, then it violates international law. But one cannot claim
that the treaty has become part of national law. Citizens cannot rely on it and
judges cannot apply it

Reading on Prisoners of War:


https://www.icrc.org/en/doc/war-and-law/protected-persons/prisoners-war/
overview-detainees-protected-persons.htm