INTERNATIONAL LAW:

4. “Generalizing very broadly, conventional approaches to international law assert that

international law is a European creation: the fundamental doctrines and principles of
international law were a product of European history, practice and thinking.” – Antony
Anghie [6 Baltic Y.B. Int'l L. 79 (2006)]. Considering the statement, examine the
relationship between imperialism and international law.

* INTRO

Imperialism has always been a central aspect of international law. In order to establish the
relation between imperialism and international law it is essential to understand the historical
background of the origin and further developments in international law and the simultaneous
global developments. It was in the beginning of the fifteenth century that marks the emergence of
modern international law. This period witnessed a series of factors that contributed to the
accelerated development of international law leading to its current framework. But it was
significantly around the seventeenth century and the subsequent conclusion of the “Peace of
Westphalia” in 1648, which is considered to be the groundbreaking event in international law. It
was also around this same time that the world was dominated by the ideas of imperialism and
colonialism and mostly led by the advanced European Nations who set out to colonize and
subsequently civilize the other non-European nations. The establishment of a relationship
between imperialism and international law, can be traced through various stages in the global
social, political and economic changes from the time of advent of international law to the current
times.

International law consists of a series of doctrines and principles that were developed in Europe,
that had emerged out of European history and European needs and experiences and that were
later brought or introduced, in time to the non-European world which existed outside the ambit
of European international law. Thus, for instance, the Treaty of Westphalia 1648, which is
considered to be the originating point of the idea of sovereignty, which talked about equality of
sovereigns and the absolute control of the Sovereign states over their own territory. Since Non-
European states lacked this sovereignty, hence developments in international law, in the concepts
relating to Sovereignty can be said to be the Expansion of International Society and their
thoughts and ideas which the non Eyropean counterparts were unaware of . Meaning the process
by which Westphalian sovereignty was extended to include the societies of the non-European
world can be a correct example of the imperial character of international law and its
development.

The need for making of various legal doctrines was felt at that time because there had been
numerous interactions between the European and the non-European people. The Europeans or
the colonizers are actually credited for the formation of these doctrines, which they created and
adapted on their own and were mostly in their own interest.

The jurisprudence that existed during that time, can usually be seen to have ignored or more so
not taken into consideration, the issues concerning the use of international law for all nations,
that is its egalitarian application and mostly Non-European territories were disregarded.for
example, when the idea of world order, in terms of order between Sovereign states was
considered, the non- Europeans were not taken as a party.

Moreover the analogy of bridging the gap between the civilized and the uncivilized gave rise to
creation of various doctrines in international law, which meant that the European colonial
masters after having decolonized their colony, had an impact on the law that was to govern them
as being equal sovereigns on international level. This explains how imperialism played a central
role in the very formation of international law and also its universal reach and application.

Around the nineteenth century, when positivist jurisprudence was the major accepted
jurisprudence of international law and a majority of contributions in that jurisprudence came
from the advanced imperial states, had made certain doctrines in such a way that they would use
prescribe the characteristics of who was civilized and who was not based on cultural or racial
lines and they further went on to claiming them to be sovereigns and non sovereigns
respectively. As a result, non-European societies were expelled from the realm of international
law, which scrapped them of the title of legal personalities and hence they could not advance and
could also not question their non-inclusion in the international law. This non-inclusive law
legitimized the idea of conquering lands and territories and also prescribed that the territories
that were inhabited by uncivilized populations were terra nullius, meaning unoccupied or
uninhabited. As a result of which the accepted European standards were made universally
applicable laws and if the Non-European states acted in contravention of these laws, then it
meant that they were uncivilized and hence conquest or intervention of any kind by Europeans
was justified in their territories as a result.

As far as the Westphalian sovereignty is concerned, it talked about the right of the state to
establish its own system of government, within its territory. But in the case of non-european
states, however, they had to comply with standards of European polity and accept their law.

Non-European societies which failed to establish the conditions under which Europeans could
live and trade could then be justifiably replaced by European government, which claimed to
bring civilization and peace with it, and indeed better protection for the natives themselves. Such
government was necessary and unavoidable. This ensured the there would be Eurocentric laws
in various sovereign states and they would continue to exist for the purpose of governance of
international order. By the end of nineteenth century, European expansion ensured that European
international law became the universal law, applicable to all societies.

What followed next was the process of Decolonization. Decolonization was marked by the
transformation of previous colonies into new, Sovereign states. In and around the twentieth
century, when decolonization became an essential feature of the international landscape, the
former colonies, which were now sovereign, faced several difficulties. The third world countries
and their relationship with international law, hence become important considerations. The nation
forming process became a new priority for the newly Sovereign nations and hence issues such as
poverty eradication, provision of civic amenities, economic policy frameworks, etc became their
major aims and these new Sovereigns also expected their involvement and consideration to be
reflected in international law. This was another important way in which imperialism had an
impact in the major international law formation mechanisms.

Consequently, the League of Nations came into existence. It was one of the first major
organizations in the area of international order and governance. The League later focused on the
economic parameter to categorize nations as advanced or backward, in order to formulate
doctrines of international relations. It is necessary to highlight here that the League had a
majority of powerful, “civilized” states of the first world making important decisions concerning
international law. and so, again, the first, major international institution also had access to law
making keeping in mind the non-European territories whereas the Western states were quite
immune to the scrutiny of the League. Sovereignty of the third world was then created in a way
that could continue to serve Western interests, at least to the extent that it was shaped by
international institutions, and by Western states acting through international institutions. The last
decade of the twentieth century set trends in motion that encouraged the use of international law
as a unilateral instrument for achieving the goals of the single superpower, to the detriment of the
developing world in particular. This helps to further explain the imperial or colonial influence
and relationship with international law.

The failure of League of Nations brought into existence, the United Nations, which would now
be the new global organization for world affairs and creating and regulating body for the Laws
governing Nations. The United Nations, however took steps to address the issues of the third
world, such as the fear of recolonization, military domination by first world, etc. However, even
after that, many international laws, such as the International Economic law, were the areas
where the impact of imperialism could be seen for much longer as a struggle between the
western states and the newer Sovereigns, where the latter complained of the the laws being the
creation of the west to further their own interest. Since, the Third World was majorly bound by
the older, unchanged economic laws, Third World sovereignty was again articulated principally
as a basis for being bound by international norms.

The following phenomenon was that of Capitalism. And the success of Capitalism, which is very
much a concept closer to the first world nations, became dominant. This dominance once again
paved way for the changes in international law that favored the dominance of the first world and
also impacted the international law governing the same. Similarly globalization had its share of
influence on the law of the nations. This phase was once again seen to have had a hegemonic,
first world intervention. Where newer organizations such as the World Bank and the IMF,
represented the interest of the more dominant first world.

Even though areas of international law such as international human rights law, came as a light at
the end of the tunnel for many third world nations, but it also somehow reflected the Eurocentric
characteristics of the law where, it was deemed controversial precisely because it legitimised the
intrusion of international law into the internal affairs of a State: it could be used to justify further
Western intervention in the Third World. Imperial imprints in international law can hence be said
to be present quite recently as well.
Imperialism was followed by several other changes in world politics which were implicitly
interconnected and so the impact of these newer phases in the global scenario on international
law formation, basically helps understand the relationship between imperialism and international
law. Imperialism had not only shaped those doctrines of international law which were explicitly
conceived for the very purpose of suppressing the Third World, but had also shaped the very
foundations of international law.

3. ALPHA BETA GAMMA VS NEUTRON :

I) ISSUES:

1. IS THE STATE OF NEUTRONS RESPONSIBLE UNDER THE INTERNATIONAL LAW

FOR THE EXPLOSION OF THE VESSEL “MV RAYS” AND FOR THE DAMAGE AND
INJURY TO HUMAN LIFE SO CAUSED IN ITS TERRITORIAL WATERS AND SHOULD
THE STATE OF NEUTRONS COMPENSATE FOR THE SAME?

- In the given case, the state of Neutrons put a mine in the Rhine strait, which caused an
explosion resulting in damage of a vessel chartered to a company in state of Beta and also
injured two crew members of the nationality of the state of sate of Gamma. Under the “Draft
Code On the Responsibility of States for Internationally Wrongful Acts” (draft), adopted by the
International Law Commission in August 2001, there are various provisions which discuss the
theory of “state responsibility”. With reference to Article 1 and Article 2 of the draft, a state’s
internationally wrongful act entails its international responsibility and there is an internationally
wrongful act of a State when conduct consisting of an action or omission: (a) Is attributable to
the State under international law; and (b) Constitutes a breach of an international obligation of
the State respectively. Hence, with respect to article 2 of the draft, the conduct of the state of
Neutrons in putting up mines in the Rhine strait is attributable to it since the mines were set up in
an area over which the state of Neutrons had exclusive territorial control. Furthermore, the act of
setting of mines and simultaneous omission of not communicating about its dangers to the
respective states is a breach of an international obligation on the part of the state of Neutrons
under the “Peace Treaty” of which Neutrons was a party along with the states of Alpha, Beta and
Gamma. A 1949 judgment of the ICJ in the Corfu Channel case had very effectively addressed
the fact that, the exclusive control exercised by a State within its frontiers might make it
impossible to furnish direct proof of facts incurring its international responsibility. The State
which is the victim must, in that case, be allowed to have a more liberal recourse to inferences of
fact and circumstantial evidence ; such indirect evidence must be regarded as of especial weight

when based on a series of facts, linked together and leading logically to a single conclusion. The
authority of the application of the “Draft Code on the Responsibility of States for Internationally
Wrongful Acts” is correctly justified by Article 38 (1)(c) of the Statute of the International Court
of Justice authorizes the Court to apply the general principle of law recognized by civilized
nations in addition to international conventions and custom.

As of Article 26 of Chapter 5 of the “DRAFT”, which talks about the preclusion of

wrongfulness of an act of state which is not in conformity with obligations that arise under a
peremptory norm of general international law. but, there was an omission on the part of neutrons
of not communicating about the mine and according to the principle of state responsibility, they
should have taken all necessary steps immediately to warn the Vessel about the mine. In fact,
nothing was attempted by the State of Neutrons to prevent the mishap. These grave omissions
involve the international responsibility of the state of Neutrons.

Further, the International Court of Justice case of “The Corfu Channel” ( The United Kingdom of
Great Britain and Northern Ireland V. Albania ), it arose from the explosions of mines that
caused damage to some British warships while passing through the Corfu Channel in 1946, in a
part of the Albanian waters that had previously been swept. The ships sustained severe damage
and crew members were killed. In this case, the ICJ held Albania responsible under   
international law for the explosions which occurred in 1946, in Albanian waters, and for the
damage and loss of human life that resulted from the act.

Furthermore, the United Nations Convention on the Law of the Sea (UNCLOS), 1982, which is
an international treaty that has provisions for international marine and maritime activities is also
applicable. The act of the state of Neutrons goes against the very Preamble of the UNCLOS
which specifically talks about maintenance of peace and peaceful uses of the seas and oceans.
Also, The act of the State of Neutrons gravely violates Article 301 of Part XVI of the UNCLOS
which mentions about the peaceful uses. The article mainly talks about refraining from any threat
or use of force against the territorial integrity or political independence of any State, or in any
other manner inconsistent with the principles of international law embodied in the Charter of the
United Nations in the exercise of their rights and performance of their duties. And hence the
State of Neutrons has violated the said article of the UNCLOS.

As far as the justification on the part of the State of Neutrons is concerned, the setting up of
mines for the reason of “ neutrality order”, is also subject to certain limitations under the
UNCLOS. The Article 297(1)(b), Part XV ( SEC 3), clearly mentions that the exercise of the
sovereign rights of the costal state is subject to limitations of the UNCLOS, when,   it is alleged
that a State in exercising the aforementioned freedoms, rights or uses has acted in contravention
of this Convention or of laws or regulations adopted by the coastal State in conformity with this
Convention and other rules of international law not incompatible with the UNCLOS. And hence
the act is not justified.

Further, under the Article 146,( Part XI), Section2, it is the responsibility of state of Neutrons to
ensure the protection of human life in the strait.

Hence, taking into consideration the aforementioned facts and analyses, the state of Neutrons
must be held responsible under international law and must therefore be obligated to compensate
for the damage so caused under Part XVI OF UNCLOS - Article 304, Part XVI of the UNCLOS
under “Responsibility and liability for Damage”. And also under Article 31 (Part 2, chapter I)
and Article 36 ( chapter II) of the Draft Code on Responsibility of the States for Internationally
Wrongful acts.
CONCLUSION OF ISSUE 1 --- The obligations incumbent upon the Albanian authorities consisted in
notifying, for the benefit of shipping in general, the existence of a minefield in Albanian territorial
waters and in warning the approaching British warships of the imminent danger to which the minefield
exposed them. Such obligations are based, not on the Hague Convention of 1907, No. VTII, which is
applicable in time of war, but on certain general and well-recognized principles, namely: elementary
considerations of humanity, even more exacting in peace than in war; the principle of the freedom of
maritime communication; and every State's obligation not to allow knowingly its territory to be used for
acts contrary to the rights of other States. The Court therefore reaches the conclusion that Albania is
responsible under international law for the explosions which occurred on October 22nd, 1946, in
Albanian waters, and for the damage and loss of human life which resulted from them, and that there is
a duty upon Albania to pay compensation to the United Kingdom.

2. HAS THE STATE OF NEUTRONS VIOLATED ITS TREATY OBLIGATION WITH THE
STATES OF ALPHA, BETA AND GAMMA, BY REFUSING PASSAGE TO MV RAYS?

The vessel, MV Rays, was a vessel which was registered in the state of Alpha, and was chartered
to a company in the state of Beta. It was carrying two thousand tones of arms and ammunition
and was headed to the state of Gamma. The vessel was denied passage through the Rhine Strait
by the state of Neutrons. This act of not allowing passage through its territorial waters to the
vessel is in question.

The states of Alpha, Beta and Gamma filed an application against the state of Neutrons in this
regard, for having violated various provisions of the Peace treaty ( treaty) that all the states,
including Neutrons was a party. The treaty in question had several provisions which made it
obligatory for the state of Neutrons to allow the passage of the vessel without any reservations,
unless there were any. An article in the treaty also specifically mentioned that the Rhine Strait
will be free and open to vessels of all nations at peace with Neutrons. The state of Alpha and
Beta also contended that they were at peace with the state of Neutrons and hence the vessel
should have been allowed safe passage as part of the treaty obligation. On the contrary, the state
of Neutrons refused passage to the vessel because of its “ Neutrality Order” of having a neutral
stand in the ongoing war between the states of Gamma and Gina.
As far as the Vienna Convention on the Law of Treaties ( VCOLOT)1969 is concerned, it is
the law relating to treaty functioning, has a specific article, that is, Article 18, which says that a
state which a party to the treaty is under an obligation not to defeat the objects and purpose of the
treaty. Being a party of the Peace treaty, and not allowing the passage of the vessel, is a clear
violation of this article, since it is presupposed that a party to the treaty has consented to all the
provisions that the treaty entails.

Even though, a state can make it clear at the time of being a part of the treaty, to not comply with
a certain part of the treaty or modify legal effects of certain provisions of the treaty in their
application to that State, before he treaty comes into force, in the form of a reservation to the
treaty as mentioned in article 2(1)(d) of the Vienna Convention on the law of treaties. But, such
reservation is subject to the article 20(2) of the Vienna Convention, which clearly mentions that
When it appears from the limited number of the negotiating States and the object and purpose of
a treaty that the application of the treaty in its entirety between all the parties is an essential
condition of the consent of each one to be bound by the treaty, a reservation requires acceptance
by all the parties in the case in question. In the treaty between the States in question, it clearly
appears that the nature of the treaty was of such a form that any reservation on the part of any
party to it, required the consent of all the states involved, which in this case was not taken by the
state of Neutrons. And hence taking the justification of the Neutrality order was not valid, since
prior reservations had not been made.

Also, according to Article 17( Part II, Section1) of the United Nations Convention on the Law of
Seas (UNCLOS), the ships of all states enjoy the right of innocent passage throughout the
territorial sea. In the case in question, the passage of the vessel, MV Rays is justified as innocent
passage under article 19(1) of the UNCLOS.

Article 45(1)(b) and 45(2) Part III, Section 3, of the UNCLOS that the regime of innocent shall
apply in straits used for international navigation and that there shall be no suspension of innocent
passage through them.

Moreover, Article 24(1) (Part II, Section 3) of the UNCLOS, makes it obligatory for the state to
not hamper the innocent passage of foreign ships through the territorial sea. But most
importantly, Article 24(2) of the same section prescribes that the state shall make it a point that
they shall give appropriate attention to any danger to navigation, that it has knowledge of within
its territory. In this case, the destruction caused by the mines clearly points to the fact that this
article of the UNCLOS was violated.

In a July, 2020, the Permanent Court of Arbitration, in the Italian Marines Case, ruled that; that
India is entitled to payment of compensation in connection with loss of life, physical harm,
material damage to property (including to the “St. Antony”) and moral harm suffered by the
captain and other crew members. In this case too there was injury to human life and damage to
property for which the state of Neutrons shall be deemed to be liable.

The Justification used by the state of Neutrons , that they didn’t allow passage and also put mines
in the strait is based on an unfounded assumption about the arms in the vessel being carried to
the state of Gamma for the purpose of use in war. It is not explicitly mentioned, nor has any such
explicit intentions on the part of the states of Alpha and Beta had been portrayed, which is the
reason why the act was unjust and against the principles of international law.

With the above considerations, it can be determined that the state of Neutrons violated their
treaty obligation as under the Vienna Conventions and they had actually unjustly violated
principles of international law through their acts. And hence the state of Alpha, Beta and Gamma
must be compensated for the same.

5. The case of Nottebohm, is a 1955 judgement given in the case named ‘ Liechtenstien V.
Guatemala’ of the International court of justice. In the given case the court upheld the principle
of the “Bond of Nationality” between the individual and his country and hence ruled in favor of
Guatemala. The claims of Liechtenstien were dismissed on the grounds that there must exist a
need of an interest on the part of the citizen or individual the tradition and culture of his country.
The case mainly dealt with the issues of granting of citizenship and the recognition of the
citizenship so conferred.

The ruling in this particular case came under scrutiny for several reasons. And so, in the light of
these criticisms about the judgment, following are the claims from the side of Liechtenstein for
re-appeal in the given case of 1955:
(a) Under International Law, there is no limit to the responsibility of the state to determine
their own rules of Nationality.

The International Court of Justice has time and again acknowledged the right of the state
to determine their own rules of nationality and moreover it is also highlighted in the
Nottebohm Case Judgment. Therefore the question of the ‘means’ by which Liechtenstein
granted citizenship to Mr. Nottebohm does not arise at all. International bodies of
adjudication do not per se have a say in enquiring about the nature of the citizenship
being granted as being inconsistent with the national laws. In fact, the question to be
enquired by the ICJ was that whether the citizenship granted by Liechtenstein to Mr.
Nottebohm was to be recognized by Guatemala or not. In the very case, the ICJ itself
referred to the Convention on certain questions relating to Nationality Law, 1930 of the
UN, wherein, Article 1 of the convention explicitly mentions that ‘it is solely upon each
state to determine who are its nationals’. And therefore it is clear that the burden of proof
here, lies with Guatemala since, according to the aforementioned article, that the
citizenship granted by Liechtenstein must be accepted by Guatemala also because it was
consistent with the generally accepted principles relating to nationality law across
nations.

(b) For the conferring of citizenship, the existence of bond of nationality is not required.

The existence of a ‘previous or prior connection’ between the citizen and his country is
actually not necessary and hence the claim of Guatemala that there did not exist a prior
connection between Nottebohm and Liechtenstein is not acceptable. This is because, as
mentioned earlier, the ICJ does acknowledge that citizenship laws are to be decided as
per the rules of the individual state. And since Mr. Nottebohm had followed all the
requirements to be a citizen of Liechtenstein and was hence given the citizenship of
Liechtenstein, there was no foul play and therefore it can be inferred that nottebohm had
a legitimate Liechtenstein citizenship and that he had given up his German citizenship as
per the rules of Liechtensteinian law. This was also accepted by Guatemala when they
registered his citizenship in the national register. Moreover the principle of bond or real
connection is very impractical. This is because, only if someone resides in some other
 country , which is not his own, does not mean that he has lost all contact with the culture
and traditions of his country of origin. And therefore as long as there is a legal procedure
followed for acquiring the citizenship of any other nation where a person has resided for
a long time, he should be considered as a citizen of his original country. Similarly, as and
when Mr. Nottebohm was given a citizenship of Liechtenstein legally and legitimately,
he was to be considered a national of Lichtenstein.

(c) In the Dual Citizenship question, the ‘tie-breaker rule’ and the ‘genuine link’ collide with
each other.

While deciding the cases relating to the question of dual Citizenship, the arbitral tribunals
use the ‘tie-breaker rule’. This rule advocates the presence of a prior real link between the
person and the country concerned when determining which country will have the right to
extend diplomatic protection in cases of dual citizenship. But in the given case, Mr.
Nottebohm didn’t actually have a dual citizenship because he had given up his German
citizenship when he became a citizen of Liechtenstein. In this case the question of
acceptance of conferring the Liechtenstein citizenship by Guatemala, this rule cannot be
used. This is because it does not pertain to the domain of Public International Law, and it is
not accepted for the purpose of Public International Law.

(d) The act of rendering Mr. Nottebohm stateless is unjust.

The court in its 1955 judgment in this case declared that the citizenship which was granted
to Mr. Nottebohm by Liechtenstein was invalid. And since Mr. Nottebohm had given up
his German citizenship after he got the Leichtensteinian citizenship, now he is stateless.
This act is unjust, as mentioned in article 12(4) of the International Covenant on Civil and
Political Rights (ICCPR), which states that no one shall be arbitrarily denied the right to
enter their own country. Thus it is important for the Court to acknowledge this fact and to
provide necessary recourse to Mr. Nottebohm regarding the same. The court moreover,
must also answer the question relating to whether the revocation of Liechtensteinian
citizenship, gives him back his German citizenship.
There are several issues that have been highlighted through this judgement. The major ones
being that there are no clear or uniform rules relating to granting or losing of nationality.
Therefore there should be some international ruling on such rules for creating uniformity.
Further it should not solely be dependent on the will of the states and that there should also
be universality in citizenship rules for the betterment of order in international law.