Examinations Answer Sheet Trinity 2020/Advent Semester 2021

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COURSE OF EXAMINATION; International Law 1

(As Shown on the question paper)
DATE OF EXAMINATION: January 22nd 2021th – February 5th 2021
NB: No Answer Script shall be accepted after 05th February 2021 midnight
NOTE:
Uganda Christian University Integrity Covenant
For Examiners Use
As a student of the Uganda Christian University, it is my responsibility to
Only
conduct the whole of my academic career with unwavering integrity. I do
this because I value integrity and because the entire scholarly enterprise Q I.E. E.E.
is balanced on the assumption that we can trust one another.
Therefore, I pledge to act with academic integrity by;      
i. Writing this examination
Question 1
ii. Identifying/acknowledging the source of the ideas or words or
images that I used in my work      
A)
By writing this examination I accept to be bound by this covenant, and
accept the
A unilateral consequences
declaration as perifthe
I am in breach
Black’s law thereof
dictionary is defined as a country's      
Your Response Should
unilateral pronouncement that affects the rights and duties of other countries 1. In
 Be typed in digital word format and submitted in Portable      
some instances unilateral
Document Formatdeclarations
(.pdf) of states may give rise to binding
 Use
international theobligations.
legal Trebuchet MS font instances
In such type; sizethe
11, intentions
Line spacing
of 1.5
the state making      
Submit your examination answers to the University through the email
the declaration
provided oninthe question
questiontopaper
be bound is crucial as will be the element of
     
publicity or notoriety for instance state officials including the president, minister of
foreign affairs or the prime minister make declarations then they are binding to      
Kenya as a country. A reflection of declaration was seen in the case of The legal Total
status of Eastern Green land case (Norway v Denmark), where the Ihlen Mark    
Declaration was binding on Norway after World War 2, Denmark sought to
1 4 5
LIST QUESTIONS
attain declaration ANSWERED
for several (in their
of the allied Numeric
powers order)that they
to the effect
would not object to recognize Danish sovereignty over the whole of

1
Brian A Garner, Black’s law dictionary; West Publishing Co, 2009 9th Edn. pg. 467

01Trinity 2020/Advent 2021Examinations Page 1

Greenland2. It was held that court considers declarations beyond all dispute that a reply of this nature given by
the Minister for Foreign Affairs on behalf of his Government in response to a request by the diplomatic
representative of a foreign Power, in regard to a question falling within his province, is binding upon the country
to which the Minister belongs.

It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may
have the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When
it is the intention of the state making the declaration that it should be bound according to its terms, that
intention confers on the declaration the character of a legal undertaking, the state being thenceforth legally
required to follow a course of conduct consistent with the declaration. A case in point is that of Nuclear Tests
Cases (Australia and New Zealand v France) where the minister for defense went to parliament and made a
declaration in regards to the atmospheric test. The President of France told the UN Gen assembly that France
had reached a test3. An undertaking of this kind, if given publicly, and with an intent to be bound, even though
not made within the context of international negotiations, is binding.

The legal status of declarations is enshrined under Article 37 paragraph 1 (c) of the Convention which stipulates
that, “The Court may at any stage of the proceedings decide to strike an application out of its list of cases where
the circumstances lead to the conclusion that (c) for any other reason established by the Court, it is no longer
justified to continue the examination of the application”. Unilateral acts, while not sources of international law
as understood in article 38(1) of the Statute of the ICJ, may constitute sources of obligation 4. Equally crucial will
be the element of the good faith on the part of the state making declaration. In regards to the facts above we
get to see that at first the president being a senior government official made a declaration not in support of the
earlier agreement they had entered. This meant that the agreements will not be legally enforceable as treaties
if it can be shown that one or more of the parties did not intend that the agreement should create binding legal
obligations. As was observed above, to have legal effect, there was no need for these statements to be
addressed to a particular State, nor was acceptance by any other State required. The general nature and
characteristics of these statements are decisive for the evaluation of the legal implications, and it is to the
interpretation of the statements that the Court must now proceed.

In Tahsin Acar v. Turkey, the Court further elaborated on the acceptance criteria for a unilateral declaration.
Relevant factors to be when assessing the effect of unilateral declarations include; the nature of the complaints
made, existing case law, and the impact of these measures on the case at issue 5. Therefore the action of waging
war against a state that opposes its decisions is not justiciable in law as war is condemned. Also the chasing of

2
The legal status of Eastern Green land case (Norway v Denmark) (1933) PCIJ rep Ser A/B No 53
3
Nuclear Tests Cases (Australia and New Zealand v France)
4
Statute of the Intern atonal Court of Justice Article 38(1)
5
Tahsin Acar v. Turkey, 37

01Trinity 2020/Advent 2021Examinations Page 2

diplomats brings to an end the legal obligations with other states and therefore undermining the principle of
recognition which can thereby be withdrawn by other states.

B)

A state has been defined under the Black’s law dictionary as the political system of a body of people who are
politically organized6. It may also be simply understood to mean people who permanently occupy a fixed
territory, bound together into one politic body by a common subjection to some definite authority exercising,
through the medium of an organised government, a control over all persons and things within its territory,
capable of maintaining relations of peace and war, and free from political external control 7. Recognition on the
other hand under International law has been defined to mean Official action by a country acknowledging,
expressly or by implication, de jure or de facto, the existence of a government or a country, or a situation such
as a change of territorial sovereignty8.

There are basically two theories with regard to the effect of recognition on the legal status of the entity being
recognized that is the constitutive theory and the declarative theory. Under the constitutive theory, the major
profounders are Lawrence Oppenheim, G.W.F Hegal and Anziloti9. According to this theory the only certificate to
issue international personality to a new born state is the consent of the already existing states. In other words a
new entity shall only be called a state when the existing states admits about its statehood. So, the independence
of a new entity shall not amount it to be called a state unless it has not recognized by the existing states 10.
However under the theory states do not seem to accept recognition as a legal duty. The theory however creates
many hitches when a community claims of being a new state and its non-recognition will, according to this
theory, imply that it has no rights, duties and obligations under international law. The other theory under
recognition is the declarative theory with the main exponents of this theory are Boalt Hall, Polk Wagner and
Roger Fisher. According to this theory, the statehood or the authority of new Government is not dependent on
the consent of the existing state but is based on some prior or existing fact. According the followers of this
theory, the recognition by the existing states is merely a formal acknowledgement of the statehood and not the
condition. In fact the statehood is dependent on the some prior conditions necessary for an entity to be called as
a state.

There are two modes of recognition that exist. First is De facto recognition which stipulates that the provisional
grant of recognition is subject to the execution of all the aspects of statehood, of recognition to a new state
which has acquired sufficient territory and control over the same, but the recognizing states considers it not
stable more, is considered to be De facto Recognition. The other mode is De jure Recognition which is to the
6
Brian A Garner, Black’s law dictionary; West Publishing Co, 2009 9 th Edn. pg. 1537
7
International law, “A student introduction” 2 ND Edn. pg. 107
8
Brian A Garner, Black’s law dictionary; West Publishing Co, 2009 9th Edn. pg. 1833
9
Online Source: https://www.legalbites.in/recognition-state-implication-modes-necessity/ Accessed on
February 1, 2021
10
Ibid

01Trinity 2020/Advent 2021Examinations Page 3

effect that the grant of recognition to a new born state by an existing state, when it considers that such new
born state has attained all the attributes of statehood with stability and permanency, is called De jure
Recognition. Recognition may take three distinct forms that is to mean the declaration or notification by an
existing state which purports the intention to recognize a newly born state, the recognition is said to be express
recognition whereas when the existing state shows its intention of recognition of a newly born state by some
acts, the recognition is said to be implied recognition and lastly the grant of recognition by an existing state to
a newly born state stipulated on fulfilment some conditions in addition to the requirements of statehood is said
to be conditional recognition.

In regards to recognition, it can be argued that if a state recognises another state, it means that each accepts
the other as entitled to exercise all the capacities of statehood in international law. Recognition is a pre-
condition to full bilateral relations between states, like diplomatic representation and treaty agreements. The
legal criteria for state hood are generally accepted to be those set out in Article 1 of the 1933 Montevideo
Convention on Rights and Duties of States. The duties raised are; a permanent population, a defined territory,
government and capacity to enter into relations with other states 11. In as much recognition can come into place,
it can also be withdrawn for both modes of recognition. Withdrawal of de facto Recognition is considered
possible under international law only on the ground that if the recognized state has been failed to fulfil the
prerequisite condition for statehood.

In such a case the recognizing state may withdraw from the recognition by communicating a declaration to the
authorities of recognized stated or by a public statement. On the other hand Withdrawal of de jure Recognition
takes different views about the withdrawal of de jure recognition. But according to the strict letters of
international law and by the virtue of some conventions in this behalf, it is evident that the withdrawal of de
jure recognition is not valid in any case. Though recognition is a political act but de jure but it by nature and
status it is a legal oriented. But some jurists think that de jure recognition may be withdrawn, because it is a
political act. But in fact it is not so. Only those de jure recognitions may be withdrawn where a state
subsequently loses any essential of statehood. In such a case the state withdrawing from recognition shall send
his express intention to the concerned authority issue a public statement to that extent.

In regards to the above facts we get to see that Junda state entered into a treaty but failed to perfect it.
Unperfected treaties are a form of agreement which has not undergone the formal steps and met the procedural
requirements necessary for a treaty to create legal obligations based on the accepted principles of customary
international law regarding treaties12. Unperfected treaties may include unratified treaties, unilateral
statements by government officials. In not perfecting the treaty, it meant that they had no legal obligations or
rights under the treaty. Despite Junda state not ratifying the treaty, they had already acquired recognition by

11
Montevideo Convention on Rights and Duties of States 1933 Article 1
12
Bahir Dar University Journal of Law Vol.4, No.1 (2014) 179

01Trinity 2020/Advent 2021Examinations Page 4

way of their expression and implied conduct therefore the states under the treaty agreed and other recognized
stated are bound by the recognition principle.

Recognition comes along with different rights, obligations and duties between states for instance De facto
recognition has the effect of giving the recognized state or government access to the courts of the recognizing
state. This was expressed in the case of Republic of Somalia v Wood house Drake and Carey Suisse where the
court held that on the evidence the provisional government of Somalia had not been recognized and hence had
no lawful standing in the English court13. Also a recognized state of government enjoys sovereign immunity from
suits in the court of recognized state and cannot be sued without its consent as was explained in the case of
Transporters Airos de Angola v Ronair14. Recognition further creates few essential rights and duties for
recognized and recognizing states with clear illustration drawn from the case of The Arantzazo Mendi 193915.
Also recognition creates It creates full diplomatic intercourse between the parties. With the above aspects
evident as a result of recognition, Azania can withdraw its recognition status from Junda as a result of Junda’s
failure to undertake international duties and obligations such as chasing of diplomats. Therefore Azania’s
withdrawal is permissible under International law as a result of failure to fulfill the pre requisite condition for
statehood.

C)

International Law according to Osborn’s Concise Law dictionary is defined as the sum of the rules accepted by
civilized States as determining their conduct towards each other, and towards each other's subjects 16.
International Law consists of the rules and principles of general application dealing with the conduct of States
and of international organizations, and with relations with each other, as well as with some of their relations
with private individuals, minority groups and transnational companies. Sources of international law are the forms
of existence of international legal norms. The materials and processes out of which the rules and principles
regulating the international community are developed apply to the similar characteristics of the sources of law
in the general legal theory17.

The sources of law basically articulate what the law is and where it can be found. The sources of law are both
formal and informal. The formal sources of international law being treaties, customs and general principles of
law and then informal being writing of publicists. Article 38 of the International Court of Justice (ICJ) states
the sources of International law. It provides that when deciding disputes submitted to it in accordance with
international law, the Court shall rely on; International conventions whether general or particular that establish
rules expressly recognized by the contesting states; International custom will be applied as evidence of a general
13
Republic of Somalia v Wood house Drake and Carey Suisse
14
Transporters Airos de Angola v Ronair
15
The Arantzazo Mendi 1939
16
P .G. Osborn, Osborn’s Concise Law dictionary; Percy Lund. Humphries & Co. Ltd pg. 141
17
Online source; https://primeessays.com/samples/law/sources-of-international-law.html Accessed on
01/02/2021

01Trinity 2020/Advent 2021Examinations Page 5

practice accepted as law; also the general principles of law recognized by civilized nations subject to the
provisions of Article 59, judicial decisions shall also be considered and the teachings of the most highly qualified
publicists of the various nations as subsidiary means for the determination of rules of law 18.

It is convenient to start with customary law as this is both the oldest source and the one which generates rules
binding on all States. A custom under International Law is referred to mean a practice that by its common
adoption and long, unvarying habit has come to have the force of law 19. Customs in International law can also be
understood to mean a constant and uniform usage accepted as law. Proof of customary International law
depends on two factors that is; state practice and the sense of legal obligation mostly considered to be the
opinion juris. Customary law is not a written source. A rule of customary law, for instance requiring States to
grant immunity to a visiting Head of State, is said to have two elements. The first element is that, there must be
widespread and consistent State practice which is understood to mean that the states must, in general have a
practice of according immunity to a visiting Head of State.

A case in regards to state practice is the Asylum case – Columbia v Peru where the court declined to find a
custom relating to diplomatic asylum stating that there was no custom on which to go by because of the rapid
succession of conventions that concerned the asylum charge thus the asylum was not granted to Columbia 20.
Secondly, there has to be what is called “opinio juris”, usually translated to mean “a belief in legal obligation
that states must accord immunity because they believe they have a legal duty to do so. In the Paquete Habana
case (Spanish American war) it was held that the opinio juris is a subjective element that is used to judge
whether the practice of a state is due to a belief that it is legally obliged to do a particular act 21. In North Sea
Continental Shelf cases, it was averred that “a belief that this practice is rendered obligatory by the existence
of a rule requiring it. The States concerned must feel that they are conforming to what amounts to a legal
obligation22.”

The other source of International law is mentioned in Article 38 of the ICJ Statute should not be ignored.
General principles of law recognized by civilized nations the third source are seldom mentioned in judgments 23.
They are most often employed where the ICJ or another international tribunal wants to adopt a concept such as
the legal personality of corporations as was illustrated in the Barcelona Traction Co. case which is widely
accepted in national legal systems 24. General principles of law are usually referred to by courts or tribunals when
they must decide a legal dispute between two States. As depicted in Chorzow Factory case Germany v Poland
it was stated that Before a court can adopt, recognize and incorporate a “general principle of law” as that term
is used in Article 38 (1) there must be; a principle, it’s surrounding subsidiary rules being ignored, then it should
18
International Court of Justice statute (ICJ) Article 38
19
Brian A Garner, Black’s law dictionary; West Publishing Co 2009 9 th Edn. pg. 442
20
Asylum case – Columbia v Peru1950 ICJ Rep 226
21
Paquete Habana case (Spanish American war) 175 U.S. 677 (1900).
22
North Sea Continental Shelf cases, ICJ Reps, 1969, p. 3 at 44
23
International Court of Justice statute (ICJ) Article 38
24
Barcelona Traction Co. case

01Trinity 2020/Advent 2021Examinations Page 6

be general in that it is present in all developed municipal legal systems, it should also be relevant to
International relations, and necessary for resolution of the dispute before court for it to be considered 25.

The other source of International law is Judicial Decisions. Article 38(1) (d) refers to judicial decisions as a
subsidiary means for the determination of rules of law 26. The Statute of the ICJ expressly provides that a decision
of the Court is not binding on anyone except the partiers to the case in which that decision is given and even
then only in respect of that particular case (Article 59). Nevertheless, the ICJ refers frequently to its own past
decisions and most international tribunals make use of past cases as a guide to the content of international law,
so it would be a mistake to assume that “subsidiary” indicated a lack of importance. Article 38(1) (d) does not
distinguish between decisions of international and national courts 27. The former are generally considered the
more authoritative evidence of international law on most topics. Decisions of a State’s courts are a part of the
practice of that State and can therefore contribute directly to the formation of customary international law.

Principles of Equity are also considered as a source of International law. Although some authorities consider
equity as a separate source of international law, most consider principles of equity as a part of general principles
of law that can be involved to resolve a particular dispute. For instance the equity maxim of he who comes to
equity must come with clean hands has been seen to be applied in the Chorzow Factory case that “one party
cannot avail himself of the fact that the other has not fulfilled some obligations… if the former has by some
illegal act, prevented the latter from fulfilling obligation” 28. Equity concept of Estoppel has also been applicable
in International. This is a legal principle which precludes someone from denying the truth of a fact which has
been determined in an official proceeding or by an authoritative body.

As ‘a principle of justice and of equity it arises when ‘a man, by his words or conduct, has led another to believe
in a particular state of affairs, he will not be allowed to go back on it when it would be unjust or inequitable for
him to do so in Temple case (I.C.J 1962) an action tried on the merits, the court invoked equitable estoppels to
hold that a party’s prior conduct barred it from later asserting a position inconsistent with that conduct 29.
Additionally, the writings of the highly qualified publicist (authors) of the various nations. Doctrines constitute
subsidiary evidence of law resorted to only in the absence of customs, treaties or general principles of law.
Conclusively the above can be said to be the other sources of International law apart from treaties which are
considered the main source of International law.

Question 4

The facts of the case are that both Denmark and the Netherlands submitted an individual dispute with
Germany to the International Court Justice (ICJ) involving claims to the North Sea Continental Shelf. The

25
Chorzow Factory case Germany v Poland (PCIJ. 128)
26
International Court of Justice statute (ICJ) Article 38
27
Christopher Greenwood, Sources of International Law An Introduction; 2008 pg. 4
28
Chorzow Factory case Germany v Poland (PCIJ. 128)
29
Temple case (I.C.J 1962)

01Trinity 2020/Advent 2021Examinations Page 7

parties sought a method by which the Continental Shelf could be fairly delimited. All parties agreed the
Court was not to physically apportion claims, but merely prescribe a method of delimitation for the parties
to follow. Denmark and the Netherlands argued that the method of equidistance should be implemented.
This is that each State claimed all areas that are closer to itself than any other state. They claimed that the
Geneva Convention supported this method30. Germany, who had not ratified the Geneva Convention,
claimed that the rule of equidistance was unfair. The State also argued for an apportionment of the shelf
that was proportional to the size of each state’s adjacent land.

Two main issues were raised first is whether the Geneva Convention is binding on a State that has not
ratified it and the second issue was whether the equidistance rule is international law? The court found
that the Geneva Convention is not binding on German, as it did not ratify it. If such principle in Article 6 of
the Geneva Convention on the Continental Shelf 1958 was followed, Germany would get less seabed than
she would ordinarily have gotten if the coastlines were all straight 31. The court rather ruled that the
boundary should be redrawn on the basis of equitable principles. The Court departed from the provisions of
Article 6 of the Convention and stated that the use of the equidistance method had not crystallized into
customary law and is not obligatory for the delimitation of the areas in the North Sea related to the present
proceedings.

With the coming into play of the case, the principles that arose from the case remained evident in
International law overtime. The international law elements of the case are the power of treaties, customary
International law, and the principle of equidistance in claims to sea territory. The rule of law upheld in this
case is the Geneva Convention. There are several principles in this case manifested in the Geneva
Convention. The court upheld the idea of “equitable principles,” which is only defined as those which
maximizes land claims based on several cooperative factors. The significance of the case in future decisions
is to deny the equidistance principle legal weight and direct disputing parties to customary International law
and cooperative action.

The North Sea Continental Shelf case has impacted differently in contemporary the International law as I
shall explain. We get to see the case led to the coming into force of the 1982 United Nations Convention on
the Law of the Sea (UNCLOS)32, is probably the most important development in the settlement of
international disputes since the adoption of the UN Charter and the Statute of the International Court of
Justice33. Not only does the Convention create a new international court, the International Tribunal for the
Law of the Sea (ITLOS), it also makes extensive provision for compulsory dispute-settlement procedures

30
Geneva Convention
31
Geneva Convention on the Continental Shelf 1958
32
United Nations Convention on the Law of the Sea 1982 (UNCLOS)
33
Boyle AE, “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and
Jurisdiction” (1997) International and Comparative Law Quarterly 37 pg.46

01Trinity 2020/Advent 2021Examinations Page 8

involving States, through International Seabed Authority (ISBA)34. A number of cases have already been
handled by the established judicial institutions for instance ITLOS handled the matter of Bangladesh v
Myanmar case which talked about the equitable principle to be considered in matters of law of the sea 35.

Another impact of the case is that different states have ratified the Geneva Convention on the Continental
Shelf of 1958 which has further led to establishment of laws in the party states to the convention. For
instance in Kenya, the Convention on Continental shelf was ratified by the Continental Shelf Act Cap 312 36
and the Maritimes Zones Act Cap 37137. This therefore has impacted by bringing in new legislation to the
member states of the main convention. This development was broadly reflected in the composition of the
Geneva Conference on the Law of the Sea; it is now similarly reflected within the number of States which are
parties to the Convention on the Continental Shelf. These include States of all continents, among them States
of various political systems, with both new and old States representing the main legal systems of the world 38.

As a result of the case different principles gained recognition and became of great importance one of them
being the delimitation principle. Black’s law dictionary defines delimitation as fixing of limits or
boundaries. The delimitation of a continental shelf that is adjacent to the territories of two or more states,
distinguishing cases where the said states have ‘opposite’ coasts from cases where the coasts of the relevant
states are ‘adjacent’ to each other39. Interestingly, the method of delimitation is essentially identical in both
cases40 priority is given to delimitation by agreement between the states and, if agreement cannot be
reached, the boundary will be a line equidistant from the nearest points of the baselines of the parties,
unless special circumstances warrant drawing a different delimitation line. As the ICJ observed in Romania v
Ukraine case, “the task of delimitation consists in resolving the overlapping claims by drawing a line of
separation of the maritime areas concerned 41.” Maritime delimitation is a relatively new and emerging
branch of international law.

In the case of North Sea Continental Shelf case the court went ahead to there are several principles in the
case which are manifested in the Geneva Convention. Court went ahead to rejected the principle of
equidistance and instead upheld the idea of “equitable principles”. The emergence of equitable principles
in the law sets to accomplish fairness and proper agreement without exploitation of the other. The
prevalence of equitable principles was ultimately incorporated into the relevant provisions of UNCLOS, which
mandates the achievement of an equitable solution as the ultimate goal 42.The International Court of Justice

34
Ibid
35
Bangladesh v Myanmar case
36
Continental Shelf Act Cap 312
37
Maritimes Zones Act Cap 371
38
North Sea Continental Shelf cases (Denmark/ Netherlands v Federal Republic of Germany) [1969] ICJ Rep 3
39
Malcolm Evans, Relevant Circumstances and Maritime Delimitation Oxford, Clarendon Press, (1989) pg.124
40
Prosper Weil, The Law of Maritime Delimitation Reflections; Cambridge, Grotius Publications, (1989) pg. 247
41
Romania v Ukraine, [2009] ICJ Rep 61 at para 77
42
Barbados v Trinidad and Tobago 2006

01Trinity 2020/Advent 2021Examinations Page 9

further elaborated on this fundamental rule in the 1982 Tunisia v Libya case by recalling that “delimitation”
is to be effected in accordance with equitable principles, and taking account of all relevant circumstances 43.

With the North Sea Continental Shelf case setting precedence in regards to handling matters concerned
with laws of the sea, we get to see that it made an impact to International law by creating relevant guiding
principles for laws of the sea another principle being the land dominate sea principle. The fundamental
rationale behind this principle is that the methods used should not distort the natural reality and the general
geographical balance between the parties. A delimitation line should be made in consideration and in respect
of the overall characteristics of the actual geographical context given by nature 44. A reflection of the
principal stated above was evidenced in Croatia v Slovenia case, the arbitral tribunal was of the opinion that
the delimitation line should “take account of the special circumstances arising from the closed-in
geographical configuration of the area” 45. With the above explanation given we get to see that the precedent
case gave a call for formulations of more principles, rules and standards, clarification of concept in terms to
be understood in all countries so as to influence practice by all state parties. Therefore it is trite to say that
the case expounded the scope and the Principles and rules of International law which have remained
pertinent.

Question 5 A)

In 1975 the Central Bank of Nigeria issued a letter of credit in favor of a Swiss Company for the price of
cement to be sold to an English company. The latter in its turn had a contract with the Nigerian Government
to supply it with cement. Then under instructions from the Nigerian government, the bank refused to honor
the letter of credit to the Swiss company. The plaintiffs brought an action in personam against the bank in
the English HC. The bank successfully claimed state immunity. The plaintiffs appealed to the CA. It stated,
“In concurrent with the other two judges in the application of the doctrine of restrictive immunity and so
allowing the appeal, L.D Denning famously uttered that, “If the government department goes into different
market places of the world and buys goods of cement, as a commercial transaction, the government
department should be subject to all the rules of the market place”

The statement above became a reiteration in International law and saw it being a precedent case in different
matters that delt with state immunity. State immunity is a principle of international law that is often relied
on by states to claim that the particular court or tribunal does not have jurisdiction over it, or to prevent
enforcement of an award or judgment against any of its assets. As such, state immunity should always be
considered whenever dealing with states or state entities. State immunity, or sovereign immunity as it is
often referred to, is derived from the theory of the sovereign equality of states, as a consequence of which
43
Tunisia v Libya 1982
44
Yunus Emre Acikgonul, “Equitable Delimitation of Maritime Boundaries: The Uncontested Supremacy of
Coastal Geography in Case Law” (2017) pg. 31
45
Croatia v Slovenia 2017

01Trinity 2020/Advent 2021Examinations Page 10

one state has no right to judge the actions of another by the standards of its national law. It protects an
entity in two ways: by conferring immunity from adjudication and by conferring immunity from enforcement
and execution.

If a party is immune from adjudication, the court will be prevented from considering claims against that
party and awarding a judgment or declaring rights and obligations against it. If a party is immune from
enforcement and execution, the court will be prevented from recognizing a foreign judgment or an arbitral
award against the immune party and from making and executing orders or injunctions against it.
International attitudes towards state immunity vary. In general, there are two approaches: the absolute
doctrine and the restrictive doctrine. Absolute immunity originally, the first and only approach is the
absolute doctrine. Under this doctrine, any proceedings against foreign States are unallowable unless the
State agrees to waive immunity.

This means that no sovereign State can impleaded in the court of another without their consent. In other
words, States that are based on this doctrine can enjoy absolute immunity in their acts, regardless it is public
or private. The classical case of absolute immunity is the case of Schooner Exchange v Mc Faddon where the
court held that the war vessel of the foreign State was exempted from the jurisdiction of its courts as the
United States was at peace and the government allowed it to either to its harbors 46. The rules of absolute
immunity was affirmed in the case of Campania Naviera Vascongado v Christina where all the Law Lords
agreed that the vessel which is in control and possession of Spanish government where the writ was issued,
the writ impleaded a foreign State and must be set aside 47.

The other approach is derived from the involvement of States in World Trade activities led to the
development of a more restrictive approach to State immunity. Based on restrictive theory, a distinction is
drawn between the government acts (acta jure imperii) and commercial acts (acta jure gestionis). Under
this theory, immunity is only available in regards of the acts that result from the exercise of sovereign
power. This means that a State has no immunity in regards of commercial activities. A State undertakes
commitments of a private law nature, there is no good reason why any dispute arising from the commitments
not to be determined by ordinary courts of law. As per the case of Rahimtoola v Nizamof, Lord Denning
expressed the desirability to embrace the restrictive immunity approach48.

The distinction between sovereign act and commercial act is not easy. Some jurisdiction base the distinction
between sovereign act and commercial act by looking at the purpose of the act. The purpose of the act test
suggests that act that is done for governmental purposes shall be categorized as jure imperii or juri gestionis.
If the act of a foreign government in another State was a commercial or financial activity where a private

46
Schooner Exchange v Mc Faddon
47
Campania Naviera Vascongado v Christina
48
Rahimtoola v Nizamof

01Trinity 2020/Advent 2021Examinations Page 11

persons can engage in that other State when the act is considered as commercial act. The application of a
purpose test favours the State part and enlarges its immunity. It has not found favor with national courts. In
the case of Trendtex Trading Corporation v Central Bank of Nigeria, the court held that the purpose of the
State in doing such activity was immaterial when deciding if it was governmental or commercial 49. It is
sufficient if the nature of the transaction or the activity was commercial type.

The United Nations Convention on Jurisdictional Immunity of States and Their Property, 2004 reaffirms the
restrictive immunity theory. The distinction between a commercial act and a sovereign act, it appear to
follow contextual approach. Contextual approach was developed in the case of United States v Public
Service Alliance of Canada where court held that the nature of the disputed transaction was crucial to
decide whether the transaction was commercial but the purpose of the transaction may affect what the
nature really is. Since State practice is not uniform, it is unable to conclude that any of the mentioned tests
became an established rule of customary law. Hence, set aside those States who are parties to a convention
on State immunity, a State may follow its own national law in distinguishing a sovereign act from a
commercial act.

B) According to the Vienna Convention on Succession of States in relation to Treaties 1978, state
Succession was understood to mean the replacement of one state by another in the responsibility for the
international relations of territory50. This definition was upheld in Opinion 1 of the Arbitration Commission
of the European Community Conference on Yugoslavia of November 29th 199151. State Succession may be
universal or partial; where under partial a part of a state is separated from it through revolts, attaining
independence, becoming the protectorate of another state or becoming a federal state of another for
example Union of Soviet Socialist Republics (USSR) commonly known as Russia where other states broke away
from it such as Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and others yet Russia as a state did not
cease to exist. Whereas under universal a country or state completely ceases to exist such as the dissolution
of Socialist Federal Republic of Yugoslavia (SFRY).

Succession arises when one state conquers another, when two states merge into one, when one state divides
into two, when a state acquires part of another’s territory by prescription, when a state gives up territory by
cession, by occupation, and by accretion. The rule is that the relevant date of succession is the date at which
successor state replaces the predecessor state in the responsibility for international relations of the territory
to which the succession relates52. The general rule applicable to succession of states is the “clean state
rule” which is provided for under Article 16 of the Vienna Convention on Succession of States in Respect
of Treaties53. It provides that a new independent state is not bound to maintain in force, or become a party
49

50
Vienna Convention on Succession of States in relation to Treaties 1978
51
Arbitration Commission of the European Community Conference on Yugoslavia
52
Rebbeca M.M Wallace, International Law 3rd Ed. pg. 244
53
Article 16 of the Vienna Convention on Succession of States in Respect of Treaties

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to any treaty by reason only the fact that at the date of the succession of states relates. This was illustrated
under Article 11 of the Germany Unification Treaty where East and West Germany agreed to leave treaties
of the Federal Germany Republic in option to adopt or not to adopt the treaties of its predecessor 54.

The above general rule however has exceptions like many other have. This rule doesn’t apply to treaties
establishing boundaries because it may cause disputes to neighboring states; for example the secession of
Southern Sudan form Northern Sudan doesn’t affect the territorial treaties concerning boundaries with
neighboring states like Uganda. This rule doesn’t also apply to treaties establishing territorial regimes.
Thirdly, the rule does not apply to restrictions for the benefits of other states such as; when Southern
Sudan broke away from Sudan, the Nile treaty which affects Uganda, Sudan and Egypt was not affected.
Lastly, is that the successor state will be bound by the treaties of its predecessor when they unite or
separate by a convention or agreement that the treaties will remain in force. This was also illustrated during
the unification of Germany where both East and West Germany agreed to leave the treaties of Federal
German Republic in Force.

The subsequent are the modes through which a state may acquire territory. First is through Accretion; this is
the geographical process by which new land is formed and becomes attached to existing land through gradual
accumulation of land by natural forces 55. This happens in the creation of islands or where a river mouth
changes direction or where a boundary of a river becomes dry land. Where new land comes into being within
the territory of a state, it forms part of the territory and that is not to be in dispute. This was illustrated
when an island emerged in the Pacific Ocean after an undersea volcano erupted in January 1986. The UK
government notes that “We understand the island emerged within the territorial sea of the Japanese island
and we take it therefore to be Japanese Territory.

The second way of acquiring a territory is through Cession. This involves the peaceful transfer of territory
from one sovereign to another with the intention that sovereignty should pass 56. This has often taken place
within the framework of a peace treaty following a war. A reflection of cessation is derived from the I sland
of Palmas case57. In addition, a territory may be acquired through creation of a new state. Territory may be
acquired or lost at the creation of new states. The International Community has traditionally approached the
problem of new states in terms of recognition rather than in terms of acquisition of territory 58. This means
that states have examined the relevant situation and upon ascertainment of the factual conditions have
accorded recognition to the new entity as a subject of international law 59. The other form of territory
acquisition is through conquest and the use of force. This method essentially involves the act of

54
Article 11 of the Germany Unification Treaty
55
Brian A Garner, Black’s law dictionary; West Publishing Co. 2009 9 th Edn. pg. 23
56
Brian A Garner, Black’s law dictionary; West Publishing Co. 2009 9th Edn. pg. 259
57
Island of Palmas case
58
Malcom Shaw, International Law; Cambridge University press, 2008 5 th Edn pg. 414
59
Ibid

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overpowering an opponent and occupying all or part of its territory. By virtue of the Kellogg -Briand Pact of
192860, war was outlawed as an instrument of national policy and by Article 2(4) of the United Nations
Charter, all member states must refrain from the threat or use of force against the territorial integrity or
political independence of any state61.

Another way of territory acquisition is through absorption and merger. This is when one state is absorbed by
another be it voluntarily or by subjugation and no new state is formed or the former becomes extinct
whereas the latter simply continues albeit in an enlarged form62. This was illustrated when Russia adopted
the old state of Poland. Article 31 of the Vienna Convention on succession of states in respect to treaties
provides that where two or more states unite and form one successor state, treaties continue in force unless
the successor state and another state party or state parties agree otherwise 63. This was epitomized during
the union of Tanganyika and Zanzibar in 1964. It should further be noted that mergers occur in two distinct
ways that is when one state merges into another and merely becomes a part of it or where two states merge
to form one.

An alternative way through which a state may acquire a territory is derived from the terra nullis principle.
Occupation is an original mode of acquisition whereby a state acquires sovereignty over a terra nullius
whether newly discovered or abandoned by the former sovereign. Territory inhabited by tribes or people
having a social and political organization cannot be of the nature of terra nullius. Territory is occupied when
it is placed under effective control a relative concept varying according to the nature of the territory
concerned. In the legal status of Eastern Green land case, the permanent Court of International Justice
stated that for occupation to be effective as a basis of a claim to sovereignty over territory two elements
must be shown to exist namely intention/will and exercise/display.

Last but not least a state may acquire territory through Prescription which Black’s law dictionary defines it
as acquisition of a territory through a continuous and undisputed exercise of sovereignty over it 64. Like
occupation, it is based on effective control over territory but whereas occupation is acquisition of terra
nullius prescription is the acquisition of title/territory which belongs to another state. A case in point is the
Frontiers Lands Case Belgium and Netherlands, where the ICJ held that mere routine and administrative
acts performed by the local Netherlands Officials in a certain area could not displace the legal title of
Belgium to that area under a duly concluded convention 65. Conclusively, it should be noted that state
succession is legally recognized by the international community as long as it is attained by the above
methods except the use of force which is prohibited by Article 2(4) of the United Nations Charter of 1945

60
General Treaty For The Renunciation of War ( Kellogg-Briand Pact) Paris 27/08/1928
61
Article 2(4) of the United Nations Charter
62
Brian A Garner, Black’s law dictionary; West Publishing Co. 2009 9 th Edn. pg. 8
63
Vienna Convention on Succession of States in relation to Treaties 1978
64
Brian A Garner, Black’s law dictionary; West Publishing Co. 2009 9th Edn. pg.1302
65
Frontiers Lands Case Belgium and Netherlands

01Trinity 2020/Advent 2021Examinations Page 14

and that it’s a general rule that a state is not to be tied by its predecessor state unless expressly or impliedly
stated by an arrangement66

BIBLIOGRAPHY

Conventions

The Vienna Convention on Succession of States in Respect of Treaties

Germany Unification Treaty

United Nations Convention on the Law of the Sea 1982 (UNCLOS)

Statutes

Continental Shelf Act Cap 312

Maritimes Zones Act Cap 371

Case Law
66
Article 2(4) of the United Nations Charter of 1945

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Dictionaries

Brian A Garner, Black’s law dictionary; West Publishing Co. 2009 9th Edition

Text Books

Rebbeca M.M Wallace, International Law 3rd Edition

Malcolm Evans, Relevant Circumstances and Maritime Delimitation Oxford, Clarendon Press, (1989)

Prosper Weil, The Law of Maritime Delimitation Reflections; Cambridge, Grotius Publications, (1989)

Articles

Yunus Emre Acikgonul, “Equitable Delimitation of Maritime Boundaries: The Uncontested Supremacy of
Coastal Geography in Case Law” (2017)

General Treaty for the Renunciation of War (Kellogg-Briand Pact) Paris 27/08/1928

Boyle AE, “Dispute Settlement and the Law of the Sea Convention: Problems of Fragmentation and
Jurisdiction” (1997) International and Comparative Law Quarterly.

Online Source

https://primeessays.com/samples/law/sources-of-international-law.html

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