PUBLIC INTERNATIONAL LAW

1. NATURE OF INTERNATIONAL LAW

International law is also called the law of nations. It is the body of law composed of rules and
principles which govern the relation between states with each other on the basis of either
customary international law or treaties (either multilateral or bilateral); but mostly multilateral
treaties.

International law also includes the rules of law relating to the functioning of relations between
states themselves, states or individuals. International law also includes the rules and regulations
relating to individuals and non-state entities in so far as the rights of such individual vis-à-vis the
non-state entities are a concern of the international community.

The above definition of international law is holistic in that it covers recent developments which
have gone beyond the traditional conception of international law as relating to states only. There
have emerged numerous international organs and institutions which have been endowed with
international legal personality and are capable of entering into legal or other relations with states
on the international plane.

Additionally, the need to protect human rights and fundamental freedoms of individuals has led
to granting of individuals legal personality for purposes of punishment of international crimes
e.g. genocides, war crimes, and crimes against humanity. Individuals have also been granted legal
personality for purposes of prevention and punishment of crimes that threaten international
peace and security e.g. piracy, terrorism etc.

Public International Law and Private International Law (Conflict of Laws)

Public International Law is very different from and indeed has nothing to do with Private
International Law. The latter relates to the sections of municipal law of a state which deal with
cases having a foreign element (i.e. contacts between the local laws of a state and the laws / legal
order of another state or body). Example of such a contact may include a contract made in or to
be performed in another country; a tort is committed in another country, a property is situated in
another country, or parties to a legal issue are non-nationals of the forum state.

In such cases, the issue will be the choice of law applicable to the situation. Private International
Law is a necessary part of the corpus of laws of a state because different countries have different
legal systems containing different rules. Public International Law is the same everywhere while
the rules of Private International Law are different from country to country.

Origin and development of International Law

From the early times, there were rules and regulations concerning relations between independent
communities. These rules and regulations emerged from the usages observed by the
independent communities in their mutual relations. The usages included immunities of envoys,
laws and usages of war etc. These existed even before the dawn of Christianity, i.e. in the Middle
Ages,e.g. between Egypt & India. There were historical cases of recourse to arbitration and
mediation in ancient China and the early Islamic world.

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In the period of Greek city states (8th to 6th Centuries BC), there developed some rules of
international law which comprised mainly rules of state practice which had crystallized into law
from the long-standing usages followed by the states in relations between themselves as well as
with the neighbouring states. These rules were heavily influenced by religion, characteristic of
this era when law, religion, justice and morality were not distinct from each other.

In the period of Roman Empire (800AD) there emerged rules governing relations between
Rome and the various nations which had contact with it. The main characteristic of these rules
was their legal character which contrasted with the religious character of the customary rules that
had been observed by the Greek city states. The legal rules developed analogies and principles
that could be easily adapted to the regulation of relations between modern states.

The emergency of the many independent civilized states in Europe in the 15th and 16th centuries
led to further development of international law as they sought to regulate their relations with one
another.

The development of international law was further affected by the discovery of the New World,
the renaissance of learning and the reformation. The latter was a religious revolution which
disrupted the political and spiritual unity of Europe. The growth of states necessitated the
process of formation of customary rules of international law from the usages and practices
followed by the states in their mutual relations, e.g., in Italy, there were small independent states
which maintained diplomatic relations with one another as well as with the outside world. There
developed between these states a number of a customary rules relating to diplomatic envoys and
their inviolability.

The role of Jurists

During the medieval times, several jurists began to address the need to regulate certain aspects of
relations between states. They thus began to consider the evolution of a community of
independent sovereign states, recognizing the different problems of the law of nations, and
hence the need for a body of rules to regulate certain aspects of their relations.

The jurists wrote on the established customary rules existing; and where there were no such
established customary rules, the jurists came up with working principles by reasoning and
analogy.They drew analogies from the principles of the Roman law, precedents of ancient
history, theology, canon law and other semi-theological, concepts of the law of nature.

The greatest among these jurists was the Dutch legal scholar Hugo Grotius (1583 – 1645). His
writing had the greatest impact on international law. His treatise De Jure Belli ac Pacis Libre Tres
(The Law of War and Peace) which first appeared in 1625 was the first comprehensive
framework of the modern science of international law. This treatise involved the natural law
notion of societas humanas(the universal community of humankind). He elaborated that the law of
nature was an independent source of rules of the law nations apart from customs and treaties.
His work provided an authoritative reference point by courts and other writers in the area of
international law.

Another great piece of work of Grotius was the Mare Liberum(Freedom of the Seas), which under
lay the doctrine of freedom of seas.

The final phase of evolution of the modern state system in Europe began with The Peace of
Westphalia of 1648 and went on for the next two centuries. The Peace of Westphalia was a
treaty signed on the May 15 and October 24 of 1648 and formally ended both the Thirty Years
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 War in the Holy Roman Empire and the EightyYears War, which had began in 1618 for religious
reasons, mainly the struggle between catholic and protestant countries but soon turned out to be
an all out struggle for military and political hegemony in Europe.The treaties of peace were
signed in the Westphalian towns of Munster and Osnabruck, but are considered in law as a single
instrument. It provided the watershed in the evolution of modern international community and
legal order for the following reasons:

i. They recognized Protestantism at an international level and consequently legitimized the

existence of states based on Calvinist or Lutheran faith. Henceforth even from the point
of view of religion, it was recognized that the state was independent from the church.

ii. The treaties granted the members of the Holy Roman Empire the right to enter into
alliances with foreign powers (jus federationis) and to wage war provided that those
alliances or wars were neither against the Empire nor against public peace and the treaty.
Accordingly, a number of small countries were upgraded to members of the international
community with almost sovereign rights.

iii. The treaties crystallized a political distribution of power in Europe that saw the decline
of the Church and the de facto disintegration of the Empire and the emergence of an
international order based on multiplicity of international states recognizing no superior
authority over them.

The expansion of the scope of international law continued steadily into the 19th century. Several
factors accelerated this expansion.A number of new and powerful states in and outside Europe
emerged, and this had great impact on the development of international law. The increasing
European influence over the world and peace, the modernization of the world transport, the
influence of new inventions and the greater destruction of warfare, all made it urgent for the
international society of states to acquire a system of rules and principles which would regulate
the conduct of international affairs in an ordered fashion.

With the new world order, there was considerable development in the law of war as well as
neutrality of states not parties to a war. There was an increase in resort to international
arbitration tribunals which adjudicated disputes as well as provided an important source of rules
and principles.At this time too, the states began the practice of negotiating general treaties for
purposes of regulating the affairs of mutual concern or interest.

The 20th century also saw landmark developments in the area of international law. The Hague
Conferences of 1899 and1907 came up with the Permanent Court of Arbitration to deal with
international disputes. After the World War I (1914 – 1918), the League of Nations was created
as an international institution charged with the responsibility of avoiding the recurrence of
world-wide armed conflicts. The League was to be, in the words of US presided Woodrow
Wilson, “a general association of nations under specific covenants for the purposes of affording
mutual guarantees of political independence and territorial integrity to small and great states
alike.”

The Covenant of the League of Nations was thus signed by 42 states at the onset and laid down
the terms of engagement of the world states then, it being a set of undertakings between states,
whose prime objective was the promotion of international cooperation and the achievement of
peace and security by the acceptance principally, of ‘obligations not to resort to war.’

Under the League of Nations, the Permanent Court of International Justice (PCIJ) was set up in
1921 as an authoritative judicial tribunal for the international community. In 1946, however,
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after the end the World War II, the League of Nations andthe PCIJ were replaced by the United
Nations (UN) and the International Court of Justice (ICJ) respectively.

In the 20th century too, a number of international organs were created, largely under the auspices
of the UN, or operating in collaboration therewith, whose functions are in effect those of a
world government in the interests of peace and human welfare e.g. ILO, ICAO, UNFAO,
WHO.

International law has also developed in areas beyond the original areas of peace, economic and
social interests affecting states, but also in other vast and complex areas of international concern
e.g. laws of war, law of the sea, nuclear energy, international communications, environment,
fundamental human rights and freedoms of the individual.

With the growth and widening of the scope of international law, the influence of writers has
tended to decline. Rules of international law have instead been tailored to cater for modern
developments in technology, economic exigencies and other socio-economic affairs of the world.

Multilateral treaties have also emerged in the last century as a mode of codifying and laying down
rules and principles to be observed by nations, as well as determining the modes of resolution of
disputes in the areas concerned, mainly through the avenue of arbitration.

The ICJ has also made significant contribution to the development of international law through
its various judgments on disputes between states, as well as its advisory opinions to the organs
and agencies of the UN.

The International Law Commission has also worked under the auspices of the UNGeneral
Assembly to codify and progressively develop the international law. Hence, there is a greater
certainty and stability of international law.Customary rules have also been put into writing and
hence greater precision and specificity in their understanding.

Another factor that has substantially shaped the development of international law in the last
century has been the increase in the number of independent states, mainly in Africa and Latin
America, which have joined the international community.These new states have participated in
the international processes of law making. These new states realized that the international law
rules and principles did not reflect their interests and hence they have taken an active part in re-
modeling and adjusting the old rules and principles to the new international political realities. As
a result, the international law has gradually shed off its Eurocentric character to a more universal
one.

In significant ways too, the role played by the Multi National Corporations (MNC’s),
international civil service as well as individuals has also broadened further the scope of
international law. Many policies, particularly touching on labour and human rights have emerged
on the international plane, largely targeted at the MNC’s.The so called international civil service
has also broadened the traditional concepts of immunity and privileges originally reserved for
functionaries of the state.

In the more recent times, attention has been paid to crimes that take place on and have an
international character. These include crimes of genocide, war crimes, crimes against humanity,
terrorism, piracy and gross violations of human rights. These concerns have remodeled the
content and practice of international law, by, for instance, establishment of internationalcriminal
tribunals to try and punish thoseguilty of such crimes, the elevation of individual persons to
acquire the status of international legal capacity, and international politics and policies.
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Theories of International Law (Basis of obligation in international law)

Is international law a proper law?

For a long time, there has been controversy as to whether or not international law is proper law.
Some jurists have contended that international law is positive law while others have argued that
international law is not law proper, but only a body of rules and principles of international
morality.

Positivism and international law:

A popular position that has been advanced by positivists is that international law is not true law.
The jurists that have advanced this theory include John Austin, Thomas Hobbes, Samuel von
Pufendorf and Jeremy Bentham. The most influential of these has been Austin.

Austin conceived the idea of ‘laws properly so called’, which he termed as positive laws. In his
theory, laws properly so called are commands emanating from a determinate sovereign. He
defined a sovereign as a person who received the habitual obedience of the members of an
independent political society, and who in turn did not owe such obedience to any other person.

In Austin’s view, only the positive laws are the appropriate matter for jurisprudence. According
to him, laws are the results of edicts issuing from a determinate sovereign legislative authority.
Therefore, where the rules concerned did not issue from a sovereign authority which was
politically superior, or where there is no sovereign, then the rules concerned were not legal rules
but merely rules of moral and ethical validity.

In Austin’s view, therefore, because international law does not emanate from a visible authority
with legislative or any determinate power over the society of states, and as in his time the rules of
international law were almost exclusively customary, Austin concluded that international law was
not true law, but only positive international morality, comparable to rules binding a club or a
society.He further opined that international consisted of ‘opinions or sentiments among nations
generally’.

Criticisms of the Austinian view of international law.

Austin’s theory has been criticized on a number of fronts. Firstly, there are many communities
without any formal legislative authority, yet a system of law was in force and being observed.
Such a system of law was not any different in its normative framework and operation from the
laws of any community or state with a true formal legislative authority.

Secondly, although it may have been true in his time that international law did not come from a
determinate codified source (they were mainly rules of customary law), today, the corpus of
international law consists of a number of international legal instruments which have come up as
a consequence of law making treaties and Conventions, to such an extent that the proportion of
customary rules of international law has correspondingly diminished.

In the place of a determinate sovereign legislative authority in the international field are elaborate
procedures for the formulation of rules of international law by means of international
conferences, or through existinginternational organs which are as settled and efficient as are any
state legislative procedure.

Thirdly, matters of international law are usually taken as legal questions rather than moral
questions in the course of the conduct of international relations in various foreign offices or
through the various existing administrative bodies. Additionally, nations of the world have
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usually asserted the legally binding force of international law in various conferences. The UN
Charter, for instance explicitly and implicitly espouses the true legality of international law.
Article 38 of the statuesof the ICJ which form part and parcel of the UNC, states that the
function of the Court is decide such disputes as are submitted to it in accordance with the
international law.

Non-observance of a rule of international law may give rise to a claim by one state against
another for some kind of reparation, whether of a diplomatic character or whether it takes the
concrete form of indemnity.

Natural law theory and international law

The concept of the law of nature has had a great influence on the development of international
law. A number of theories regarding the binding nature of international law have been based on
the law of nature. The basic concept of the law of nature regards the ideal law as being founded
on the nature of man as a reasonable being and therefore the law that nature dictates to human
reason.

With regard to international law, the law of nature is rationalized by the idea that states submit to
it because their relations are regulated by a higher law, which is the law of nature, and which
international law forms part of. Traces of the theories of natural law are still discernible in the
present day international law, although in a much less dogmatic form than in the earlier days.
Examples of the areas of international law which contain considerable degree of natural law
principles are as follows:

▪ The current movement to bind states to international covenants, especially relating to

protection of human rights and fundamental freedoms relies heavily on concepts of natural
law. The 1949 Draft Declaration on the Rights and Duties of States, prepared by the
International Law Commission of the UN is a good example of the application of principles
of law of nature into international law.

▪ Natural law has been invoked to justify the punishment of offenders guilty of international
crimes e.g. genocide, crimes against humanity, etc

▪ Generally, natural law has generated respect for international law as has provided it with a
moral and ethical foundation.

Criticism of natural law theories over international law

The main defect of the natural law theory has been noted to be that it is aloof from the realities
of international relations, shown by the lack of emphasis on the actual state practice although the
majority of rules of international law originally spring from such practice.

Positivist theorists have held that rules of international law, after all is said and done, are of the
same character as the positive municipal laws in as much as they also issue from the will of the
state, i.e. states are bound by international law because states are so willing to be bound. They
believe that international law can, ideally, be reduced to a system of rules as long as their validity
is confirmed by the states’ willingness to be bound by them.

They argue further that international law consists of those rules which have been accepted by the
wills of the states by a process of self restriction/ self-limitation. In this regard, the states are
regarded as free agents which can only be obliged to comply with rules of international law if
they have in the first place, manifestly agreed to be so bound or obliged. Without such
manifestation of consent, international law would not be binding on the society of states.
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However, this theory may not readily apply to rules of customary international law. To this, the
theorists admit that sometimes it is not possible to find an express manifestation of consent in
the form of treaties, state papers, public documents and diplomatic notes to being bound by
rules of customary international law.Nevertheless, in such situations, positivists argue that
consent must be regarded as tacit or implied. This reasoning is augmented by the argument that
membership of the society of states involves an implied consent to the binding operations of the
established rules of customary international law.

Observance and Enforcement of International Law.

Unlike municipal law which enjoys local state machinery for enforcement, international law does
not have an effective institutional mechanism for the efficient application and enforcement of
international law. Existing judicial bodies and agencies including the ICJ are usually by-passed
more than they are utilized, to such an extent that the judicial tribunals and other agencies may
not be regarded as the enforcers of international law.For instance, in the case of Military and
Paramilitary Activities in and Against Nicaragua (Nicaragua vs. U.S.A.), (1984) ICJ Rep.
392 (Nicaragua Case), US vetoed draft resolutions of the UNSecurity Council, and the parties had
to resolve the matter diplomatically.

In the case, Nicaragua had taken the USA to the ICJ complaining about violation of international
law and treaty provision by the government of the USA. The USA had been accused of
supporting the Contra guerillas that were fighting the Sandinista government in Nicaragua and
for mining the Nicaragua’s harbours, infringement of the Nicaragua airspace as well as taking
adverse economic measures against Nicaragua. The USA declined to participate in the
proceedings before the ICJ, insisting that the ICJ did not have jurisdiction. The Court eventually
ruled in favour of and awarded reparations to Nicaragua. However, Nicaragua did not get any
compensation. The parties settled the dispute amicably, but not before withdrawing the
complaint from the ICJ.

Another handicap in the enforcement of international law is that there is no hierarchy of

tribunals under international law so that, for example, a decision of a tribunal may be appealed
against before a higher tribunal.

Additionally, there is no effective authority for the enforcement of decisions or wards made by
the courts and tribunals under international law. Nevertheless, there have been developed
various avenues, in state practice, through which international law has been enforced.

Various writers have come up with justifications why international law ought to be complied
with by states as a matter of necessity. Briarly, one of the writers proceeds from a natural law
perspective to argue that the ultimate reason for the binding force of any kind of law is that man,
whether alone as an individual or in association with others in any form, like in a state, as a
reasonable being, is compelled to believe that his world should be governed by order rather than
chaos. Therefore, various factors of non-legal nature have borne upon states to observe
international law. One of these is principle of ‘enlightened self interest’ which implies that states
have adopted the attitude that it is justified and only proper that it loses a decision through the
application of the law as long as this brings about the advantage of living in a world society in
which disputes are settled peacefully under a common set of rules of law. The more this
fundamental principle is practiced by the community of states, the closer the world gets to the
realization of a world ruled by law.

Another factor that has borne upon states to obey international law is the world public opinion.
Such opinion is usually expressed in such fora as the UNGA, where the reactions to a particular
issue by statesmen and peoples collectively on a global scale would act as a deterrent towards
violations of international law.
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Yet another factor that motivates states to comply with international law is the natural desire for
social approval found in human beings, whether individually or in groupings like states.

Also contributing to the preference by states to follow international law is the factor of costs.
The alternative of using force has the inevitable costs to be borne in pursuit of the goal, far more
dearly than using legal mechanisms, and hence the motivation to resort to legal processes for
settlement of disputes.

The issue of expedience has also been a critical factor that has ensured that states comply with
international law. There are numerous advantages associated with pursuing international policies
along established and accepted channels, as against the numerous disadvantages that may attend
headstrong tactics of ruthlessness and going against the will and military strength of other
states.Such disadvantages may be unnecessary irritations, aggravation of situations as well as lack
of cooperation from the other states. With these realities in mind, it behooves a state to consider
the possible reactions of other states before it decides to go against international law.

Nevertheless, there are various other means through which the community of states ensures the
compliance by a state with the provisions of international law. These are:

i. Diplomatic protests: This has been the traditional method which states have employed to
preserve the integrity of international law. Diplomatic protests may be delivered in
written form (note) or verbally. Normally, the protests are usually coupled with demands
that the wrong done be made right in an appropriate manner. Diplomatic protests are
usually effective in correcting minor violations of international law. In the event that the
disagreement about claimed violations persist, various devices may be employed to
secure the compliance with international law.

ii. Mediation, commission of inquiry and conciliation.

iii. Reference to arbitral tribunals or international courts: These may be resorted to after or
in alternative to mediation, commission inquiry or conciliation. It may also happen as a
term of a treaty that demands that parties to it refer a dispute arising out of the
interpretation or implementation of the treaty to a particular tribunal or court, or a
tribunal to be set under provisions of the treaty itself.

iv. Reference to and subsequent action by a regional or universal agency e.g. AU, OAS, EU,
UNGA, UNSC, or treaty bodies like CCPR, CESCR etc. Such reference would initially
secure extensive publicity for the violation of international law, and possibly, the public
condemnation of the delinquent state. The reference may lead to imposition of sanctions
against the offending state. If such sanctions fail, further and more serious sanctions e.g.
boycotts, trade embargoes, reprisals or pacific blockades may be resorted to at the behest
of an international agency (Art. 41 & 42 of the UNC).

v. Suspension and Expulsion from an international agency/organization:This may be

resorted to in cases of continued breach of international law, whereby the offending state
may be deprived of the benefits accruing from such membership as well as the ability to
vote on policies and decisions of such agencies.

vi. Use of military force: This is the ultimate sanction that may be employed against a state
to secure compliance with the rules of international law.

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 2. SOURCES OF INTERNATION LAW

There are formal sources of International Law as well as material sources of International Law.
The former refers to the legal procedures and methods for the creation of rules of general
application legally binding on the bodies or institutions to which they are directed, hence
addresses the basis of their validity. The latter provide evidence of the existence of the rules of
law which, when proved, have the status of legally binding rules of general application (i.e., the
substance of the international law). Because International Law does not have a formal legislature
body like a municipal one, the term ‘sources of law’ with regard to International refers to the
material sources.

The material sources of international law are set out in Article 38(1) of the Statute of the
International Court of Justice (ICJ). This article provides that ‘in deciding, in accordance with
international law such disputes as are submitted to it, the ICJ shall apply:

a) International Conventions, whether general or particular, establishing rules expressly

recognized by the contesting states.
b) International custom, as evidence of general practice accepted as law.
c) The general principles of law recognized by civilized nations.
d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicities of the various rations, as subsidiary means for the
determination of the rules of law.

Under Article 38(2) of the SICJ, the ICJ is empowered to decide a case ex aequo et bono if the
parties agree thereto. Under this provision a court may ignore rules which are products of any of
the above sources of law and substitute itself as a law creating agency for purposes of fairness in
the particular dispute. This, however, depends on the agreement between the parties to the
dispute. This provision for decisions ex aeque et bono enables the court to avoid the situation of a
non-liqueti.e.‘we cannot decide this case.’

However, it is worth noting that the order in which the sources have been arranged in Article
38(1) does not imply a hierarchy of the sources, even though sources (a) and (b) are obviously
the most important ones. This is due to the fact that there is a lot of interplay between the
sources, each one of which may be validated or invalidated by the other e.g.

▪ A treaty or Convention contrary to an international custom or general principles of law

would be void or voidable.
▪ Interpretation of a treaty may involve general principles of law recognized by civilized
nations.
▪ A treaty may be replaced by a subsequent custom where such effects are recognized through
the subsequent conduct by the parties thereto.

a. International Conventions

The most commonly used term to refer to these is ‘treaty’. Other terms normally used to the
same effect (though generally the nature of the subject matter would normally guide the
nomenclature) are: Conventions, Charter, Pacts, Acts, Statutes, Covenants, Protocols, etc. A
treaty is defined under Article 2(1)(a) of the Vienna Convention on the Law of Treaties as ‘an
international agreement concluded between states written form and governed by international
law. If the international agreement is between two states only, it is referred to as a
bilateral/particular treaty; if between more than two states, it is a multilateral/general treaty.

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 The terms of a treaty constitute the law as between the states which the court will apply in the
event of a dispute between the states touching on the subject matter of the agreement.

Treaties may either enunciate rules of universal international law (e.g. the UNCharter) or lay
down rules of the international law applicable to a particular region (regional international law)
e.g. the Act of the AU, the EAC Treaty etc. They may relate to a general area of concern to
international law e.g. the ICPR and ICESCR or to a particular technical or sectoral matter of
interest to the signatories thereto (e.g. the UNCLOS).

They may also impose duties on the states parties thereto to enact legislation (e.g. the Geneva
Conventions and the Rome Statute), or may offer areas of choice within the ambit of which
states are to apply the principles laid down therein.

Treaties may also either confirm or represent a codification of rules of customary international
law (peremptory norms) e.g. the 1961 Vienna Convention on Diplomatic Relations, the Geneva
Conventions etc.

States and other persons are bound by the treaties which they have validly concluded and made
to enter into force with their regard under the principle of pacta sunt servanda. Under this
principle, state parties to treaties are bound to observe them in good faith. This principle was
initially a rule of customary international law and is the basis of positive international law upon
which the entire framework of the contemporary international law rests.

However, the functions of treaties as a source of international law are limited by two factors:

i. Treaties bind only parties thereto (pacta tertiisnec nocent nec prosunt). This means that legal
rights and duties cannot be conferred or imposed on non- parties without their consent.

ii. The principle of jus cogens: i.e. a treaty cannot provide for derogation from the accepted
peremptory norms of international law.

b. Customs

The corpus of international law, until recently, comprised almost exclusively customary rules.
The other sources of law have borrowed heavily from the customary rules, and even presently a
considerable part of international law consists of customary rules, albeit adopted to be in
synchrony with the changing practices of international relations.

Rules of customary international law evolved after a long historical process which has culminated
in their being recognized by the international community, hence their description by Art.
38(1)(b) of the SICJ “as evidence of a general practice accepted as law”. International customs
are deciphered from various sources like diplomatic correspondence, official manuals on legal
questions and the passage of time.

Elements of Custom

i. General practice: the practice that would qualify as a custom under international law would
have the following aspects in order to be considered as general practice:

▪ Duration: This is no particular duration of time required for an international practice to

conceal as a custom. What counts more is consistency and generality of the practice; that
is regular and respected.

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 ▪ Uniformity and generality: it is not necessary that there is complete uniformity in the
practice substantial uniformity is adequate. This point is illustrated in the leading case,
The Assylum Case

❖ The Assylum Case (Colombia vs. Peru); (1950) ICJ Rep. 266.

After an unsuccessful uprising in Peru in 1948, one of the leader of the rebellion, Haya de la
Tore, sought refuge and was granted asylum by Columbia in her Embassy in Lima,
Peru.Columbia had sought that Peru grants Torre a safe conduct out of the country, and Peru
refused. Colombia brought this case against Peru and asked the court to rule, inter alia,that
Colombia, as the state granting asylum was the one to qualify the offence for purposes of
granting the asylum. It based its argument on treaty provisions and also on ‘American
international law in general’. The court pronounced that “the party which relies on a custom of
this kind must prove that this custom is established in such a manner that it has become binding
on the other party. The Colombian government must prove that the rule invoked by it is in
accordance with a constant and uniform usage practiced by the states in question and that this
usage is the expression of a right pertaining to the state granting asylum and a duty incumbent on
the territorial state.”

The court observed that the facts before it disclosed so much uncertainty and contradiction, so
much fluctuation and discrepancy in the exercise of diplomatic asylum and so much
inconsistency that it was not possible to discern a constant and uniform usage accepted as law.

For purposes of generality, universality of the practice is not necessarily mandatory. The realistic
approach is usually to determine the value of abstention from a protest by a substantial number
of states in the face of a practice followed by others.

ii. Opinio juris et necessitatis: This is the psychological element of custom. This element
implies the perception of the practice comprising the custom as obligatory; i.e., that the
practice is required by, or is consistent with the prevailing international law. The state
practice becomes part of the binding rules of international law when the practice is not only
uniform, consistent and general, but it is also coupled with a belief that the practice is
obligatory and not merely habitual or motivates of courtesy, fairness or morality.

The international courts and tribunals have adopted two methods of determining the existence
of opinio juris with regard to a particular practice in question. Firstly, the court will assume the
existence of opinion juris where the proponent of a particular rule of customary law has
established a general practice, on that basis, or a consensus in the literature, or the previous
determination of the court or tribunal. This approach is the one widely taken in practice.

The second approach, taken in a significant minority of cases, the courts (particularly the ICJ)
and tribunals adopt a more rigorous approach and call for positive evidence of the recognition of
validity of the rules on question in the practice of the states. The requirement of opinio juris has
been illustrated in two cases:

❖ The S.S. Lotus Case (France vs. Turkey); (1929), PCIJ Series A, No. 10.

A French steamer (S.S. Lotus) avoid a Turkish steamer (S.S.Boz Kourt) collided on the high seas.
The Turkish carrier sank and some of its crew and passengers lost their lives. The French
steamer voluntarily put port in Turkey, and Turkish officials arrested the officers on the watch
on board of the French steamer at the time of collision.They were tried and convicted of
involuntarily manslaughter. France objected to the exercise of this penal jurisdiction by the
Turkish authorities. The dispute was referred to the PCIJ to decide whether in exercising penal
jurisdiction over the French officers, Turkey was a breach of International law. France argued
11
that Turkey had no right to institute penal proceedings against its officers because the flag state
of the vessel alone had jurisdiction over acts performed on board the vessel in the high seas.
Turkey replied that vessels in the high seas form part of the territory of the nation whose flag
they fly and further that the penal jurisdiction of a sovereign state is not bound to keep within
the limits of territorial and personal jurisdiction. France argued further that there was a rule of
customary international law that conferred exclusive penal jurisdiction to the flag state and that
evidence of this rule was to be drawn from the fact that conflicts of jurisdiction had often
occurred in civil courts, but rarely in criminal acts because there had been few disputes over
jurisdiction in criminal cases. France argued that it could be assumed that prosecutions had
normally taken place in the courts of the flag state, a practice which demonstrated an implied
acceptance by states that the courts of the flag state were entitled to exclusive jurisdiction in such
cases. The court rejected the French argument saying:

“Even if the rarity of the judicial decision to be found among the reported cases was
sufficient to prove the circumstance alleged by the French government, it would merely
show that states had often in practice abstained from instituting criminal proceedings and
not that they recognized themselves as being obligated to do so. For only if such
abstention were based on their being conscious of having a duty to abstain would it be
possible to speak of an international custom. The alleged fact does not allow one to infer
that states have been conscious of having such a duty.”

The court needed proof that such abstention from the exercise of penal jurisdiction was based
on a legal obligation. The court further found that there was no customary rule conferring
exclusive penal jurisdiction on matters of collision in the high seas because state laws were
inconsistent, decisions of municipal courts conflicted, no uniform trend could be deduced from
treaties and publicists were divided in their views.

❖ The North Sea Continental Shelf Cases, (Federal Republic of Germany vs.
Netherlands &Denmark) (1969) ICJ Rep.4.

In this case, an attempt was made to show that the provisions of a treaty (the 1958 Geneva
Convention on the Continental Shelf) dealing with the median line delimitation of the adjoining
areas of the continental shelf had become part of customary international law.

A number of bilateral agreements had been made drawing lateral or median lines delimiting the
North Sea continental shelves of adjacent and opposite states including two Lateral Line
Agreements between the Netherlands and the Federal Republic of Germany in 1964 and
between Denmark and the Federal Republic of Germany in 1965. Each of these two Agreements
did no more than drawing a dividing line for a short distance from the coast beginning at the
points at which the land boundaries of the states concerned were located. Further Agreements
proved impossible. Special Agreements were then concluded between the Netherlands and the
Federal Republic of Germany and between Denmark and the Netherlands referring the problem
to the ICJ. In each Special Agreement, the question put to the court was ‘what principle and
rules of international law are applicable to the delimitation, as between the parties of the areas of
the Continental Shelf of the North Sea, which appertain beyond the particle boundary already
determined?’ The court consolidated the two cases. Denmark and the Netherlands argued that
the Equidistance Special Circumstances Principle in Article 6(2) of The 1958 Geneva
Convention on the Continental Shelf applied. The Federal Republic of Germany derived this
and proposed the doctrine of “just and equitable share”. The reason for the latter’s opposition
to the Danish and Dutch argument was that the principles espoused in Act. 6(2) of the 1958
Convention had the effect, on a concave coastline such as the one shared by the three states

12
concerned, of giving the state in the middle, in this case the Fed. Rep. of Germany, a smaller
continental shelf than it might otherwise obtain.

The court rejected the German proposal. It also rejected the Danish and Dutch arguments that
Art 6(2) of the Convention stated a crystallized customary international law at the time of its
adoption. The court stated:

“To constitute the opinio juris sive necessitatis, two conditions must be fulfilled. Not only
must the act concerned amount to a settled practice, but they must also be such or be
carried out in such a way as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it. The need for such a belief, that
is, the existence of a subjective element is implicit in the very notion of opinio juris sive
necessitatis. The states concerned must therefore feel that they are conforming to what
amounts to a legal obligation.The frequency or even habitual character of the act is not in
itself enough. There are many international acts which are performed almost invariably
but which are motivated only by considerations of courtesy, convenience or tradition and
not by any sense of legal duty.”

The principle of Persistent Objector

A state may opt out of a custom in its process of formation so that the custom is not taken to
bind it. This is because as a custom emerges, there will always be presumption, to be rebutted if
need be, that all states observing the emerging custom do accept it. In the case of a persistent
objector, evidence of the objection must be clear in order to rebut any presumptions of
acceptance. However, some persistent objections may amount to violation of jus cogens, and may
thus not be validated vis-à-vis other evident procedures like the views of publicists, resolutions
and recommendations of international fora, practice of states and the decisions of tribunals on
issues of international law.

c. General principles of law recognized by civilized nations.

All nations are now considered civilized. However, perhaps the term ‘peace loving’ at Article 4
of the UNCharter has the qualitative aspect of this ‘civilization’. Reference is made by this term,
not to the economic or political status, but rather to the level of development of the legal
systems. However, there is no consensus on what the general principles of law means, but it has
been settled that the intention of the drafters of the SICJ (Art. 38(1)) was to authorize the Court
to apply general principles of municipal jurisprudence, in particular private law, in so far as they
are applicable to the relations between states.

Accordingly, the international tribunals have applied elements of legal reasoning and private law
analogies in order to make international law a viable system for application in a judicial process.
The tribunals will choose, edit and adapt elements from better developed legal systems with the
result being a new element of international law the content of which is influenced historically and
logically by municipal law.The rationale for reliance of such principles of municipal law is that a
principle which has been found reasonable and common to various municipal law systems must
surely be so reasonable as to be necessary for any system of international law.

This source of law relates to the doctrine of jus cogensi.e. ‘compelling law’. Jus cogens isnot
expressly mentioned as such in the SICJ, but it is the body of legal application that are
recognized by the civilized nations as the compelling law in international law discourse. It is
13
essential for the understanding of the comparative authority of international legal norms. Article
53 of the Vienna Convention on the Law of Treaties defines jus cogens as ‘a norm accepted and
recognized by the international community of states as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character’. States do not need to consent to a jus cogens norm
to be legally bound by that norm.

For a municipal law principle to qualify for incorporation into international law, it must fulfill
three requirements: i.e.

i. It must be a general principle of law as distinct from a legal rule of a more limited
functional scope.
ii. It must be recognized by civilized nations as distinct from primitive or savage
communities.
iii. It must be shared by a fair number of nations including the principal legal systems of the
world it common law, civil law or Dutch Roman law.

These principles include:

▪ The rule that one party cannot rely on breach of international law by another party to justify
its own act of breaking international law.
▪ The rule that any breach of an engagement involves an obligation to make reparation.
▪ The rule that one cannot be a judge in one’s own case.
▪ The principle that parties to a case before a tribunal must abstain from any measure capable
of exercising a prejudicial effect in regard to the execution of the decision to be given.

❖ Abu Dhabi Arbitration; I ICLQ 247, 1952.

The case concerned a dispute over the interpretation of the terms of an Oil Concession Contract
between the state of Abu Dhabi and Petroleum Development (Trucial Coast) Ltd, a foreign oil
company. The dispute was submitted to arbitration in accordance with the provisions of the
contract and the arbitrator had to decide first upon the law governing the contract.The contract
provided that the parties ‘declare that they base their work in the agreement on goodwill and
sincerity of the belief and on the interpretation of this agreement in a fashion consistent with
reason’.

The sole Arbitrator, Lord Asquith of the English Court of Appeal held that the municipal law of
Abu Dhabi could not apply to the dispute between the Sheikh of Abu Dhabi could not apply to
the dispute between the Sheikh of Abu Dhabi and the English company because “the Sheikh
administers a purely discretionary justice with the assistance of the Quran and it would be
fanciful to suggest that in this very primitive region there is any settled body of legal principles
applicable to the construction of modern commercial instruments.”

Although the general principles have been validly recognized as a source of international law,
they have rarely been used because the jurisdiction of the ICJ is founded on the consent of the
parties before it. The court is usually so keen to proceed on the basis of the consent of the
parties that even though it has the power to decide a case ex aeque et bono, it rarely does so.

d. Judicial decisions and writings of publicists.

Article 38(1) (d) of the SICJ authorizes the Court to apply judicial decisions and the teachings of
the most highly qualified publicists as subsidiary means for the determination of the rules of law.
Article 59 of the SICJ was intended to apply the doctrine of res judicata, and also rule out a system
14
of binding precedent.The object of this article is to prevent legal principles accepted by the Court
in a particular case from being binding on other states in either disputes, because the jurisdiction
of the court is based on the consent of the parties before it.

However, despite the bar on the adoption of the general doctrine of precedent, in practice, the
decisions of the ICJ are treated as having the highest authority. Its decisions are usually generally
interpreted as the legal position on such matters as the court addressed, and are of high
persuasive value in other cases.

State parties to cases that come before the ICJ frequently refer to previous decisions of the Court
as well as other international tribunals. The ICJ itself tends to follow or distinguish its own
jurisprudence.It relies heavily upon this jurisprudence and rarely refers to that of other courts or
tribunals.

The writings and teachingsof the most highly qualified publicists of the various nations may also
be useful as a subsidiary means for the delineation of law. Various publicists have contributed
greatly to the general body of legal materials referred to in the application of international law;
e.g. Francis Lieber authored the “Army Order No. 100 (the Lieber Code) which specified
regulations on the conduct of warfare; Fredrick de Martens who authored the de Maltens Clauseto
the Hague Regulations of 1907, and which has also been incorporated in the Geneva
Conventions and theProtocols thereto.

However, this source has two main limitations: One, the writers or publicists normally reflect
certain national prejudices in their approach to the rules of international law. Secondly, the
juristic views may be either writer’s own view on what the law ought to be rather than what the
law actually is.

15
 3. RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL
LAW

International law generally governs the relations between states among themselves or with other
entities upon whom the legal capacity has been conferred. Municipal law on the other hand
governs the relations between individuals among themselves and also between individual and the
state institutions. On the face of it, therefore, it would appear that the international law and the
municipal law are two distinct parallels. In practice however, there are situations where the two
systems of law govern one and the same subject e.g., expropriation of foreign owned assets,
refugees (extradition), punishment of pirates, etc.

The relationship between municipal law and international law can be looked at from both a
theoretical and practical approach

Theoritical Approach:

The theoretical approach to the relations between international law and municipal law normally
takes after the dualist and monist doctrines

a. The Dualist Doctrine

Under this doctrine, international law and municipal law are two separate and distinct systems of
law, with neither of the systems having the power to affect the other. Therefore, where the
municipal law provides that international law shall apply in its jurisdiction either wholly or in part
this is merely a function of the authority of the municipal law (just like legislation) by which
international law is adopted or transformed into the municipal arena. In this respect, where there
is a conflict between international law and municipal law, a municipal court will apply municipal
law as far as the conflict falls within the ambit of municipal law. Any conflict that falls within
international law will be solved by the international law, because in this area international law is
superior and the only legal system available for the resolution of the disputeof international law.

The proponents of this theory argue that the two systems of law have two different subjects,
being individuals for municipal law and states for international law, and that they also have
different juridical origins in that the former originates from the will of the state itself, the latter
16
originates from the common will of the states. Further, municipal law is argued to be
conditioned by the grund norm,while international law is conditioned by the principle of pacta sunt
servanda i.e., that treaties/agreements between states are to be carried out in good faith. Due to all
these differences, the dualists argue that the two legal systems are so distinct that any conflict
between them is impossible.

b. The Monist Doctrine

The doctrine argues that both the municipal law and international law are part and parcel of a
universal legal order. Theorists of this doctrine state that all laws are to be considered as one
system composed of binding legal values. It does not matter whether it is the individual or state
to be bound, because, ultimately the state is but a group of individuals looked at as an entity.
According to them, it is the doctrine of monism that gives international law the true legal
character. This doctrine has conflicting views on the supremacy contest between municipal law
and international law. Some theorists attribute supremacy to international law, while others do so
to municipal law. Kelsen argues that both the systems are supreme depending on the view taken.
However these views have attracted criticism on various fronts. Firstly, if it were to be argued
that in certain respects the municipal law is supreme, then ideally, supremacy should be
attributed to the more than 150 separate legal systems of municipal law. Such a situation would
lead to anarchy.

Secondly, if international law were to draw legitimacy from municipal law whose grund norm is
the constitution of the state, international law would cease to operate/be in force once the
constitution from which it derives legitimacy is displaced, e.g. through coup d’états. This in
practice does not happen as even in such situations states are still bound by international law; i.e.
international law does not lose its validity and force due to any constitutional changes in a state.

Thirdly, international law binds new states entering the international society even without their
consent. Additionally, any such consent, whether expressed, is merely declaratory of the actual
position that international law binds the state.

Fourthly, much as it may be argued that municipal law is supreme on the basis of the doctrine
of sovereignty, state sovereignty is not absolute. Where international law is supreme, its
supremacy is based on specific rules and principles, rather than a law as such. This is because the
states, even when implementing international law, have some autonomy to ensure that the
international law fits within their circumstances. In this regard, states have taken specific steps to
ensure a smooth operation of international law within their domestic spheres. This is done
through the process of adoption specific incorporation into the municipal law of the
international law rules and principles. For treaties they have to be transformed into municipal law
through legislation. It is the process of domesticating the international law rules and principles
that they extend to individuals within the municipal states.

Practical Approach

This refers to the actual state practice, which is indeed more important than the theoretical
debates involved. Before the international courts and tribunals, where there is a conflict between
municipal law and international law, it is settled that international is supreme and will apply.
Accordingly, a state cannot plead the provisions of its own laws or deficiency therein in an in an
answer to a claim against it for an alleged breach of its obligations under international law

❖ The Alabama Arbitration (1872)

During the American Civil war, a number of ships were built in England for private buyers. The
ships were usually unarmed when they left England, but they would be fitted out as warships by
17
the confederate states in order to attack the Union’s maritime trade and these attacks caused
heavy loses to the American shipping. Alabama was the most famous of the raiders.USA brought
a claim against Britain for the losses under an Agreement called “The Three Rules of
Washington” under which Britain had undertaken to remain neutral in the war. The British
government argued that under the English law as it then stood, it was not possible to prevent
selling of ships constructed under private contract. The Arbitrators dismissed the British position
and allowed the claim on the ground that it was upon Britain to exercise due diligence and take
care that its municipal laws prohibited acts that contravened neutrality under the Agreement.

❖ The Treatment of Polish Nationals in the Territory of Danzig, (1932) PCIJ, Series B
No.44.

The dispute concerned the application to the Polish nationals of the provisions of Danzig
Constitution and other laws about which the Polish government had complained to be
discriminatory between the majority German population on the one hand and the Danzig
citizens of Polish origin or Polish citizens or other persons of Polish origin or speech on the
other hand, all of whom were citizens of Danzig. The Polish and Danzig governments submitted
the dispute to the PCIJ through a Memorandum seeking an advisory opinion on, interalia,whether
the question of treatment of Polish nationals or any other person of Polish origin or speech in
the territory of the Free City of Danzig was to be decided solely by reference to the Treaty of
Versailles and the Convention of Paris, or also by reference to the Constitution of Danzig; and
whether the Polish government was entitled to submit to the organ of the League of Nations
under the rules of the Treaty of Versailles and Paris Convention, the question of application to
its nationals the constitution and other laws of Danzig. The Court said

‘’A state cannot adduce as against another state its constitution with a view to evading
obligations incumbent upon it under international law or treaties in force. Applying these
principles to the present case, it results that the question of treatment of Polish origin or
speech must be settled exclusively on the basis of the rules of international law and treaty
provisions in force between Poland and Danzig.”

Where there is a conflict between international law and municipal law in a municipal
tribunal

This depends on the practice of the state. International law is not concerned with the
instruments that states use to effect international obligations. Its concern is only that states
comply with international law in a manner most suitable to them. States adopt international law
by either incorporating or transforming them into their municipal systems

Practice in the USA

In the US system, rules of customary international law are administered as part of the municipal
law and all Acts of Congress have to be interpreted so as not to violate rules of customary
international law.

Under Act VI section 2 of the US Constitution, treaties made or shall be made under the
authority of the US shall be supreme laws of the land and the judges in every state shall be
bound thereby.However, there are self-executing treaties(i.e. those that once ratified by The US
become part of the laws of the US even if they conflict with other statutes; except the
Constitution.There are also non-self-executing treaties(i.e. those that require legislative
enactment of their provision before they become binding on the states). Ratification of the
treaties is a legislative, not an executive action.

18
 In case of a conflict, the municipal laws will prevail even under the rules of customary
international law

Practice in the UK

Like the USA, in the UK, rules of customary international law are considered as part of the
municipal laws and are applied by the British states except where the rules are inconsistent with
municipal statutes or the decision of the House of Lords

❖ Mortensen v Peters, (1906) 8 F (J) 93

The appellant was a Danish citizen resident in England, and master of a trawler registered in
Norway. He was charged and convicted by the English court of first instance of violating some
two statutes that prohibited fishing by trawling in a bay called the Moray Firth. The appellants
argued that only British territory were amenable to the statutes, and that the point at which the
alleged crime took place was outside British territory under international law, and hence he was
not subject to the British statutes and by- laws were universal and that even if international law
were applied, the offence had been committed under British territory, and that even if the Firth
were not altogether part of British territory, the British government was fully entitled to
undertake protective measures as regards fishing in the waters. The court held that the statutes
and the by-laws applied to all persons, not only British subjects, within British territory and that
the British states were bound by the statutes even if they contravened rules of international law

With regard to treaties, those treaties that affect the private rights of British subjects or which
involve any codification of the common laws or statute law or which require the vesting of
additional powers in the crown or which impose additional financial obligations on the
government must receive parliamentary assent through an enabling Act of parliament. Treaties
which are made expressly subject to the approval of parliament and those involving cession of
British territory require approval by a given Act of parliament.

However there are two exceptions:

i. Under the provision of the 1957 Treaty of Rome which established the European
Community(now EU), treaties adopted and laws enacted by the EC prevent even the
municipal laws of the member states and bind their courts.Also,decisions of the European
countries of justice(in Brussels) as the final interpreter of the EU law are to be applied by the
national courts of the member states of the EU

ii. The 1950 Convention on Human Rights and The Fundamental Freedoms apply directly to
the UK and the provisions thereof are applied by the UK states

Generally for most states, rules of customary international law are applied as part of the
municipal law by the domestic courts without the need for any specific Act of incorporation,
provided that there is no conflict with the municipal law with regard to treaties, the practice
depends on the peculiarities of each country with regard to the promulgation and publication of
the treaties

Kenya’s position

***Before 27th August 2010

19
Presently:

Article 2(5) of the Constitution: The general rules of international law shall form part of the laws
of Kenya.

Article 2(6) of the Constitution: Any treaty or Convention ratified by Kenya shall form part of
the laws of Kenya under this constitution.

There is no effect of res judicata from the decision of a municipal court so far as an international
law jurisdiction is concerned, because although the subject matter may be the same, parties will
not be and the issues will have a very different aspect

The exception to this general rule exists in the area of international communal law. Under the
Rome statute, the ICC exercises a complimentary jurisdiction to that of the municipal courts.
Under Articles 17(1) (c) of the Rome statute, a case is inadmissible before the ICC where the
person concerned (suspect) has already been tried for conduct which is the subject of the
complaint.

Similarly, a decision of an international tribunal does not of itself; create res judicata for a
municipal court. The exception to this general rule exists in ICL. Article 20(2) of the Rome
Statute provides that no person shall be tried by another court for crimes under the statute for
which that person has already been convicted or acquitted by the ICC.

The Concept of Opposability:

The concept of opposability is now part of contemporary international law, with regard to the
relationship between international law and municipal law. This concept applies to contentious
cases touching on international law, before international tribunals. Under the concept, a state can
invoke a rule, institutions or regime under its own domestic law in order to oppose the other
party’s claim, e.g. if there is a dispute between states X and Y before an international tribunal and
X relies on some ground to support its claim against Y, state Y may seek to invoke, as against
state X some rule, institution or regime under state Y’s domestic law in order to defeat the
ground of claim raised by state X. This however will apply only when the domestic rule or
principle for state is in accordance with international law. If not, it may not be so opposed.

This doctrine may also be applied by a state seeking to rely on the terms of some general or
particular Convention or treaty, or even a rule of customary international law, alleging that this is
to prevail over the principle or institution relied on by the other state, e.g.,in the North Sea
Continental Shelf Cases, Denmark and Netherlands sought to rely on the alleged fact that the
equidistance principle had become to be regarded as a rule of customary international law, so
that it would be obligatory to Germany even though Germany was not a party to the 1958
Geneva Convention on Continental states under whose provisions Germany was not opposable
The Court concluded that the equidistance principle was not opposable to Germany as a rule of
customary international law because it lacked opino juris while the provisions of the 1958
Convention was not opposable to her as she was not a party to the treaty.

❖ The Fisheries Jurisdiction Case (Germany vs. Iceland), (1974) ICJ Rep. 175

In this case Federal Republic of Germany sought to have the ICJ declare that the unilateral
extension by Iceland of its exclusive fisheries jurisdiction from 12 nautical miles to 150 nautical
miles had no basis in international law and therefore could not be opposable to the Federal
Republic of Germany, and to its fishing fleets. Iceland had justified its action on an alleged rule
of customary international law which it asserted was part of its own domestic law as well as
Federal Republic of Germany’s domestic law, that gave a coastal state, particularly dependent on
20
fishing for its economic livelihood preferential rights of access to the fishery resources in the
high seas in waters adjacent to its coast. The court held the unilateral extension based on
Iceland’s domestic laws was not opposable to Federal Republic of Germany, and that in
consequence, the Iceland was not entitled to unilaterally exclude the fishing vessels of Germany
from the areas agreed upon earlier on.

The fact that a domestic law is held to be non-opposable does not however affect the validity of
the rule in domestic law. This is because international law does not have a procedure for
invalidation, within the domestic framework, a rule of municipal law.

4. SUBJECTS OF INTERNATIONAL LAW

To be subjects of any system of law, legal personality has to be vested in the person or body
under the provisions of the legal system. As such, subjects of international law are the persons or
organizations which have been vested with legal personality under the law. Subjects of
international law have the following basic elements applying to them:

i. They have legal duties under the international legal system, and therefore have legal
responsibility for any behavior at variance with that prescribed under the international
law.
21
 ii. They are capable of claiming benefits of rights of international law.
iii. They possess capacity to enter into contractual or other legal relations with other legal
persons (subjects) recognized by international law.
iv. They have the capacity to enjoy some or all of the immunities from the jurisdictions of
the domestic courts of other states.

Traditionally, only state were subjects of international law. However, the scope of international
law has broadened with developments in the international law plane that various other non-state
entities on whom international law has imposed obligations and granted rights are now subjects
of the international law system.

a. States

This is the most important category of the established legal persons. They are the subjects of
international law par excellence. There is no clear definition of a state under international law as
it is quite often difficult to decide whether a particular entity is a state or not Briarly says that a
state is an institution which men and women established among themselves for the purposes of
attaining certain objects, the fundamental one of which is a system of order on the basis of
which other objects may be carried out.

Brownlie says that a state is a type of legal person recognized by international law, although the
possession of legal personality is not in itself a sufficient mark of statehood.

Greig says that a state for the general purposes of international law is a territorial unit containing
a stable population under the authority of its own government and recognized as being capable
of entering into relations with other entities with international law personality.

However, despite the differing views on the definition of a state, there are a certain
characteristics that define a state. These characteristics are contained in Article 1 of the 1933
Montevideo Conventionon the Rights and Duties of States and are now widely accepted as the
characteristics of statehood in international law. A state as a person of international law should
have the following qualifications:

i. Permanent population

This connotes a stable community. The stability here is political. The population may not
necessarily be permanent in a state as these are entities which are states despite the fact that their
populations fluctuate; e.g. the Holy See whose population fluctuates between 750 and 2000
whereby the actual population is about 720. There is no limit to the size of population, and there
is no minimum requirement.

ii. Defined territory

The stable political community must be in control of a certain area. These two characteristics
mark the physical basis for the existence of a state. It is not necessary that the community have
an exactly defined or undisputed territory at the time of its coming with existence or
22
subsequently. What matters is the establishment of a political community over an ascertainable
area which is sufficiently consistent even though the boundaries may not have been clearly
delimited, e.g., Israel was admitted to the community of states and recognized as such even
before its international borders were defined and agreed upon.

The territory need no to exist in one or specific number of geographical units. A state may
consist of territorial areas separated and distant from each other. What matters is unity under a
common political and legal system. There is no need for territorial continuity e.g. French
colonies; Kiribati (consists of 32 tiny islands (atolls) separated by vast distances, as much as
3,300km); Tanzania (Tanganyika and Zanzibar); Alaska as part of the USA.

There is no minimum or maximum size of a territory for it to be a state. Vatican City (Holy See)
has an area of 0.44 square km, Monaco(1.95 sq km), Russia (17,098,242 sq km), Canada
(9,984,670 sq km); USA (9,629,091 sq km)

iii. Government

The existence of an effective and independent government with centralized administrative and
legislative organs is generally the best evidence of a stable political community. However, the
presence of an effective government alone is not enough to support statehood. (Ref. Ian Smith’s
UDI in Rhodesia (1965-1980), Puntland in Somalia.

On the other hand the absence of a government does not necessarily deprive an existing state of
its rights to be considered as a state because states have always survived long periods of non-
government, civil wars and anarchy and even hostile occupation.

However, in order for a territory which has not yet achieved statehood to be considered as a
state, it must have a government of its own and not be subject to the control of another state.
Hence a puppet government cannot found a state.

The form of government and its legality or legitimacy is not a decisive criterion of a state. This
belongs to the domestic affairs of the individual entity. In order to determine the degree of
governmental authority, the question to be considered is in whose interest and for what legal
purpose a government is effective.

iv. Capacity to enter into relations with other states

This is the most decisive criterion of statehood. Even with the effective government and capable
of acting on its own behalf, an entity must be capable of entering into legally binding relations
with states for it to successfully claim statehood. The capacity to interact with other states is
actually determined by the entity’s independence. To achieve this status, the entity has to have its
own executive, legislative and judicial organs, conduct its own foreign relations have its own
nationality laws. However external control through political and economic blackmail directed at
weaker members of the community of states do not in practice affect the status of
statehood.(Ref. Third World countries, Afghanistani and Iraqi governments after US
invasion).The crucial role played by the criterion of being able to enter into relations with other
states is underscored by the fact that any agreement between two entities one of which lacks
international legal personality is not a treaty.

❖ The Island of Palmas Case (Netherlands vs. USA) 1928) RIAA, 829

After the USA defeated Spain in the Spanish-American war, the latter ceded the islands of the
Philippines to USA in 1898 under the Treaty of Paris. In January 1906, the US General Leonard
23
Wood who was the Governor of the area visited the Island of Palmas, which the USA believed
to be part of its territory ceded to it by Spain under the 1898 treaty. To his surprise he found the
Dutch flag flying there (i.e. claiming sovereignty over the island). The two parties engaged in
protracted diplomatic controversy and in 1925 decided to hand over the matter to PCIJ. USA
claimed the island as part of what Spain owned and ceded to it. Netherlands claimed the island
on account of the fact that the Dutch East India Company had negotiated treaties with the local
princes of the island since the 17thcentury and had exercised sovereignty on it. The arbitrator,
Marx Huber, found for Netherlands on other grounds but as far the treaties with the native
princes the island, the court observed that

“As regards contracts between a state or a company such as the Dutch East India Co.
and native princes or chiefs of peoples not recognized as members of the community of
nations, they are not in the international law sense, treaties or Conventions capable of
creating rights and obligations such may in international law arise out of treaties.”

However, units within a federal state may be allowed by the federal constitution some autonomy
including the freedom to conduct their own foreign affairs; e.g. Belarusians and Ukraine under
the former USSR, Zanzibar under the United Republic of Tanzania’s constitution to the extent
that they are allowed to do so. Such units are regarded by international law as international
persons. This however does not make them states under international law. They are international
persons sui generis.

Minorities within the states may receive guarantees of certain levels of treatment under an
international agreement. However it does not follow that such minorities have legal personality;
e.g. the Polish nationals in Danzig (their rights were espoused on their behalf by Poland).

Under the Mandate System of League of Nations and Trusteeship System under the UN, the
non-self governing territories and peoples concerned are given an international status, but
Extraneous Agencies (e.g. the Trusteeship Council) are given the task of supervising the carrying
out of undertakings by the administrative powers. For instance, Puerto Rico is a self governing
territory under the sovereignty of the USA.

b. International Organizations

The term international organization was first introduced into the academic literature by a
Scottish lawyer James Lorimer in 1867. By it he meant public international organizations changed
with specific functions. They are characterized by the Convention of international conferences
for discussion of issues of common interests to all the states concerned. Once an agreement is
reached on the subject matter, a treaty is adopted and the conference evolves into a permanent
international organ or organs that function on a permanent basis and meet periodically. The
drafters of the League of Nations refrained from using the term in the document and it was the
UNCharter and which expressly referred to the UN as an international organization. Since the
creation of the UN there has been a phenomenal growth in the number of international
organizations which have assumed an international role in the progressive development of
international legal order. Their growth has been motivated by the conviction on the part of the
states that institutionalized global cooperation can only be based on law and should include
enforceable rights and obligations. Currently there are more than 5000 international
organizations globally.

The legal personality of international organizations is reflected on their ability to operate on the
international plane in a manner distinct from their member states. However, the extent of legal
personality of a particular legal international organization depends on its constituent instrument.
Nevertheless they have a treaty making capacity, enjoy privileges and immunities in the territories

24
of their member states, have locus standi before international tribunals, have capacity to bring
claims and bear responsibility for legal acts.

The international legal capacity of an international organization was underscored in The

Reparation Case,

❖ The Reparation Case, 1949) ICJ Rep. 174.

In November 1947, the UNGA Resolution 181 (II) petitioned the former British Mandate of
Palestine to create new Jewish and Arab states in the Middle East. Shortly after Israel declared
her statehood in 1948, hostilities began in and around the territory of what is now the state of
Israel. Two weeks later the UNSC adopted a Resolution calling for the cessation of the
hostilities. A Norwegian, Count Bernadotte was appointed as the UN Mediator in Palestine for
the purposes of negotiating a settlement. On the 17th November 1948, Count Bernadotte was
assassinated allegedly by a private gang of terrorists in the new city of Jerusalem which was then
under the Israeli possession. The UNGA passed a Resolution of which among other issues
sought to decide on the action to take with respect to the death of the negotiator. The UNGA
requested the ICJ to advice whether the UN Charter gave the organization the legal capacity as
an international organization to seek reparations from state or states. The ICJ said:

“In the opinion of the court the UN was intended to exercise and to enjoy functions and
rights which can only be explained on the basis of possession of a large measure of
international personality and the legal capacity to operate upon an international plane. It
is at the present the supreme type of international organization and it could not carry out
the intentions of its founders if it was devoid of international personality … Accordingly
the organization is an international person… This is not the same thing as saying that it is
a state or that its legal personality, rights and duties are the same as those of the state.
What it does mean is that it is a subject of international law...”

In the ICJ Advisory Opinion on the Legality of the Threat of Use of Nuclear Weapons (1996)
ICJ Rep 90, the court said:

“International organizations are subjects of international law which do not, unlike states,
possess a general competence. International organizations are governed by the principle
of specialty, that is to say, they are invested by the states which create them with powers,
the limits of which are a function of the common interest whose promotion those states
entrust to them.”

There are global/universal international organizations as well as regional international

organizations. The distinction is based on largely on the membership and competence of the
organization. An organization with a global membership and the general competence will be
referred to as global or universal international organization whereas one with a small group of
state, based on geo-political interests and whose competence is limited will be referred to as
regional international organization.

c. Political settlements

Bilateral and unilateral treaties have in history produced political entities which possess certain
autonomy, a fixed territory, a permanent population and some legal capacities on the
international plane, e.g.The Free City of Danzig was created by the Treaty of Versailles and the
Paris Convention. Politically, such entities are not states but have the legal capacity and power to
enter into relationship with other states and subjects of international law. In the case of The
Treatment of Polish Nationals in the Territory of Danzig, the PCIJ recognized that the Free City
of Danzig had international law personality.
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 d. Condominia

A condominium is created by an agreement between two or more states under which they
exercise sovereignty jointly over a certain territory and its people. Condominia are international
legal persons, without dividing it up into national zones; e.g. the Sudan was a condominium of
Great Britain and Egypt between 1899 and 1953 under an Agreement of 19th January 1899. The
condominium was lifted by the agreement of 12th Feb. 1953. The present day Vanuatu was a
condominium between France and Great Britain based on a Treaty of 20th October 1906 and the
Protocol of 6th August 1914 until it became independent in 1980. The decisive element for a
condominium is the common territorial sovereignty, which distinguishes it from other
associations of states formed to exploit areas in common.

e. Belligerents/Insurgents

In many cases, political and military dissidence within state result in large scale armed conflicts
with rebels controlling a substantial territory and setting up an operation structure capable of
effectively wielding authority over the individuals living there. When this happens, the
insurrectional party normally claims some measure of recognition as international person.

Traditionally, states have been hostile to belligerents in their territories in their bid to sustain the
present government and initially treat belligerents as common criminals. Other states would
normally be reluctant to grant international personality to civil upheaval groups as a principle of
respecting internal affairs of each other and also not to encourage secession, tendencies that may
lead to international anarchy; e.g. Biafra region in Nigeria in 1967. However, at times the civil
upheavals reach such proportions that it cannot be ignored and hence the need to recognize the
emergence of a subject of international law, to which belligerent rights may be accorded. This
normally happens when the following conditions obtain:

i. The rebels occupy and control effectively a substantial portion of the national territory.

ii. The civil strife has reached such intensity and duration that there exists an armed conflict
of a general character.

iii. The rebels conduct hostilities in accordance with the laws and usages of war (jus in bello)
through an organized and responsible authority.

If the state against which the belligerents are fighting grants the rebels recognition i.e. admits that
the conflict underway is a conflict of an international character or if third states so recognize it,
then the rebels are upgraded to international subjects entitled to all rights and obligations
deriving from the jus in bello. Recognition makes the civil strife internationalized; e.g. Ethiopia
and Eritrea, Sudan and South Sudan.

Belligerents posses a limited form of international personality, which is transient in character, as

they may be quelled by the government in power and disappear, or they may seize power and
install themselves in the state of the government or they may successfully secede and join
another state, or become a new state on their own. They therefore cannot claim rights reserved
for the permanent character of international law subjects, e.g. ceding territory.

f. National Liberation Movements

The post World War II period has been characterized by the emergence of organized groups
fighting on behalf of whole peoples against colonial powers, especially in Africa and Asia. These
groups broadened their objectives to include struggles against racial regimes and alien
domination. Most of these groups emerged in the period of 1960’s to 1980’s, and the problem
26
concerning the international legal status of these organizations arose. From the year 1974
onwards, NLM’S such as SWAPO, PLO, ANC, Polisario Front of Western Sahara have been
invited to the regular works of the committees of UNGA in all proceedings relating to their
committees, and admitted to the meetings of Specialized Agencies in similar instances. Observers
from these NLM’’s would be allowed to speak at the meetings but no right to vote. In this way,
there is indicated a wish to establish some relationship with the NLM’s.

The international legal status of NLM’s does rest primarily on the control of territory, but rather
on the international recognition of the principles of self determination. However, there must be
at least future prospects of gaining effective control over population in a given territory in order
the NLM to be granted the status of a subject of international community. The NLM’s therefore
enjoy a limited international personality with several rights and obligations thus:

i. They enjoy the right of authority representing a jural entity i.e. a people who have the
right self determination, a community right that is general in character and which applies
to all member states of the will community.
ii. They enjoy the rights and bear the responsibilities that derive from the general principles
of conduct of hostilities i.e. the GC’s and the Additional Protocols.
iii. They have the right to claim respect for and protection of persons acting in their official
capacity as the organ on representatives of the NLM’s as well as immunity from the
jurisdiction of state counts for acts performed in that capacity.
iv. They enjoy the rights and bear the responsibilities that derive from the general rules for
concluding with agreements e.g. agreements on stationing of troops on territories of
other states, peace accords e.g. The Camp David Accord (Israel & PLO) in 1993, The
Lome Agreement (Sierra Leone & RUF), The Comprehensives Peace Agreement (Sudan
& SPLM)

g. Individuals

Much as individuals are the concern of international law in their corporate entity as a state or
even at a personal level in certain respects, there is no unanimityon whether or not they are
subjects of international law. Those who argue that individuals are not subjects of international
law point out that to the fact they lack locus standi before international tribunals without going
through its state to advance his cause before such tribunals. In this light individuals are seen as
objects, and not subjects of international law. Those who argue that individuals are subjects of
international law posit that the fact that the individual is not able to enjoy this rights under
international law is just but a qualification of his subjectivity because at the end of it all, the state
to which he is a national or international organization which he may be a member or employee
will intervene but only on his behalf. Yet others argue that individuals are secondary subjects of
international law, the primary ones being the states.

The conception of the individual as a subject of international law mainly regards the duties that
he has to observe and respect international law principles and rules. The first time when the
individual was expressly held to account for duties under International Law was in the judgment

27
of the Nuremberg International Military Tribunal.The Tribunal had been established to deal with
the perpetrators of the atrocities against alien groups in the Nazi Germany. The tribunal tried the
German army generals and other government leaders for the act they took in the atrocities.The
tribunal had prosecuted the criminal offences of crimesagainst peace (i.e. planning, preparation,
initiation or waging of a war of aggression or a war in violation of all treaties, agents or
assurances or participation in a common plan or conspiracy), war crimes and crimes against
humanity.These trials founded the formal legal basis of an individual for criminal acts within the
realm of criminal law. The Tribunal justified its position by stating that crimes against
international law are committed by men, not by abstract entities and only by punishing
individuals who commit such crimes can the provisions of international law be enforced. The
provisions of the London Treaty under which the Nuremberg Tribunal was set and operated and
the judgment of the Tribunal are now regarded as part of international law because in 1946, the
UNGA affirmed the principles of the Treaty and judgment vide its Resolution 95 (I). Further, by
Resolution 96 (I), the UNGA stated that genocide was a crime under international law bearing
individual responsibility.

The need to punish crimes under international law has seen the states establish ad hoc
international criminal tribunals live the International Criminal Tribunal for the former Yugoslavia
(ICTY) and the International Criminal Tribunal for Rwanda (ICTR) to deal with the grave
human rights abuses that have been witnessed in the course of the recent history. Ultimately, a
permanent court the International Criminal Court (ICC) was established vide the Rome Statute
of International Criminal Court signed on the 17th July 1998 and which entered into force on the
1st July 2002. The Rome Statute deals with all the crimes that were dealt with by the Nuremberg
Tribunal. They are genocide, crimesagainst humanity, war crimes and yet to be formally incepted
crimes of aggression. The jurisdiction of the ICC is complementary to that of municipal courts
of the states parties to the Rome Statute in prosecuting international crimes. The ICC will
intervene only when the national courts collapse or cease to function, or where the governments
condone or participate in the atrocities or their officials are reluctant to prosecute persons in
positions of influence. There has also emerged the practice of creating hybrid tribunals which
have jurisdictions over crimes committed under both municipal and international law, e.g. the
Special Court for Sierra Leone, and the Extraordinary Chambers in the Courts of Cambodia.

A number of international treaties and Conventions specifically refer to individuals and treat
them as legal personalities for purposes of obligations pelt out therein. Under the 1948
Convection on the Prevention and Punishment of the Crime of Genocide (the Genocide
Convention), commission of the crime of genocide is expressly prohibited. Under the 1982 UN
Convention on the Law of the Sea, the crime of piracy is specifically outlawed. Under Article
105, any state may size a pirate ship or aircraft or a ship taken by piracy and under the control of
pirates and arrest the person and seize the property on board. The courts of the state which has
carried out the seizure may decide upon the penalties to be imposed.

Another important development has been the conferment of rights upon individuals against their
states. The UN systems has progressively removed the entire concept of human rights from the
exclusive domestic jurisdiction of the states to the international plane, thereby affording
international protection to individuals whose fundamentals rights may be infringed by their own
states. Under the provisions of the Additional Protocol 1 to the International Conventionon
Civil and Political Rights, an individual citizen of a member state which has signed the protocol
may make a communication to the Committee on Civil and Political Rights against his state for
contravention of the Covenant with regard to himself. However, the individual may make the
communication only after exhausting the local remedies in his state and left without any or
adequate redress. The communication too has to be made within a period of one year after the
exhaustion of the local remedies. These communications are then considered by the committee

28
during its sessions held thrice a year and the state called upon to respond to the communications.
From the deliberations, the Committee writes a report which is presented to the UNGA.

However, other treaties also provide for redress to individuals whose rights are violated by their
own states but without conferring individuals with the capacity to espouse their claims before the
respective tribunals; e.g., the 1950 European Convention on Human Rights proclaims the rights
and freedoms to which every individual is entitled, and sets up the European Commission of
Human Rights and the European Court of Human Rights in order to ensure the observance of
the commitments made by the states parties to the Convention. However, under Article 44 of
the Convention only states parties to the Convention and the Commission have the right to take
a case before the court. Similarly, the 1981 African Charter on Human andPeople’s Rights deals
with issues concerning human rights issues in Africa, but without conferring on the individuals
the capacity to espouse their individual claims before the African Court on Human Rights.
However, the recent development in which the ACHPR has granted audience to groups of
individuals claiming community rights under the umbrella of ethnic rights vis-a–vis their own
states indicates its willingness to grant audience to individuals, even where they appear as an
informal grouping and to grant orders against their own states to observe their rights and
freedoms.

h. The Holy See

The status of the Holy See as an international legal person is tied to the personality of the Pope,
whose international personality has been recognized since the medieval times. This international
personality of the Pope was based on his position as the spiritual head of the Catholic Church
well as the ruler of the Papal States. In his latter identity, he was a sovereign, just like any
monarch sovereign, over the Papal States. In the former identity, the Pope occupied a distinct
and special position in the international plane. In 1870, Italy conquered and annexed the Papal
States as part of its national unification process. The Pope was thus deprived of his sovereignty
as head of state, but retained his international legal personality as the head of the Catholic
Church. In 1871, the Italian Parliament enacted the Law of Guarantees which granted the Holy
See certain guarantees from the state of Italy. among these Guarantees were that the Pope would
retain a special status as a sovereign person, the Pope had the right to receive ambassadors and
to communicate freely with the Roman Catholic bishops throughout the world. This was enabled
through special Agreements with third states called Concordats. In 1829, the Facist government of
Mussoliniin Italy signed the Lateran Treaty with the Holy See. This treaty recognized the full
sovereignty of the Holy See and created the state of Vatican City as the physical basis for the
legal personality of the Holy See. It also made a Concordat regulating the position of the
Catholic Church and the Catholic religion in the Italian state. It also provided for financial
settlement of the claims of the Holy See for the losses of its territories and property during the
annexation of the Papal States. The Holy See therefore is an international person which
maintains diplomatic relations with third states and concludes as well as enters into several
multilateral treaties.

i. International Non-Governmental Organizations (NGO’s)

There are various NGO’s that are substantially visible in different areas of international concern
i.e. politics, human rights, socio-economics, humanitarian relief, gender and environment. They
play an important role in their respective areas. However the role in the international legal order
is basically informal in that they contribute additional expertise to, and also make international
law making procedures more transparent. They also engage in fact finding, especially in the
29
implementation of international norms in the area of human rights, e.g. before the ICC they play
the important role of intermediaries which enable the court access witnesses and other pieces of
evidence from the grassroots areas of the states from which a situation before the court has
arisen. Many NGO’s have been co-opted by many international organizations as consultative or
observer bodies and their contributions in this area normally give considerable attention. E.g.,
under the 1949 Geneva Conventions the International Committee of the Red Cross is mandated
to assist in carrying out the objectives of the Conventions.Under Article 71 of the UNCharter,
the Economic and Social Council (ECOSOC) is allowed to grant NGO’s consultative or
observer status. However, this does not make the NGO’s subjects of international law. The
relevant legal position of NGO’s is regulated by the municipal laws of the state where the NGO
is based and registered. They thus remain national legal persons.

Multi National Corporations (MNC’s)

Some MNC’s hold more economic and political power than some states. They occasionally
conclude agreements international states, which agreements are fully or partially placed under
international law, general principles of law or only under the provisions of the Agreement itself.
Such internationalized contracts establish a balance between the parties and prevent the state
party from evading its obligations under the contract by changing its own municipal laws. This is
normally done by way of an arbitration clause which refers any dispute under the agreements to
an international body for arbitration. The 1965 Conventionon Settlement of Investment Dispute
between States and Nationals of Other States established the International Center for
Settlements of Investments Disputes (ICSID) as a permanent mechanism under the auspices of
the World Bank, whereby participating states and corporation can settle any differences arising
out of investments agreements by ways of conciliation and arbitration. However, despite the
powers they may enjoy, MNC’s have not been upgraded by states to the status of international
legal persons. States still maintain control over them, however difficult it may be to practically
and efficiently regulate their global activities at the national level. Their international legal status
is defective in that it can only be conferred by the states, which themselves adopt treaties that
give international rights to the MNC’s to make contracts with states governed by international
law.

Some jurists argue that since international legal personality of MNC’s exists only when the
relationships between them and states are governed by international law, this confers upon the
MNC’ only a functional or objective international personality.In recent developments, MNC’s
have been held accountable for human rights issues in the countries where their operations are
based. This accountability, has however been exacted through informal avenues like economic
campaigns and sabotage of products. Theses avenues operate internationally and have borne
pressure on MNC’s to comply with basic international levels of human rights even where the
municipal laws of the countries where their operations are situated do not actively address such
issues. International human rights tribunals have also been ready to uphold liability on MNC’s
where say local residents of an area of their operation sue them locally before the international
tribunals. Nevertheless, the MNC’s still do not enjoy an international legal status outside any area
that states have expressly granted them this privilege.

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 5. RECOGNITION

a. Introduction

This refers to the recognition of states and governments. The term recognition covers a variety
of factual situations that call for acknowledgement by foreign states. Such situations include the
appearance of new states, changes of government outside the constitutional forms, territorial
changes especially those by force and involving the extinction of states and parties to civil wars/
conflicts. Recognition of a state is an act by which one state recognizes the fact that the
recognized state has been so regarded to be accorded international personality with all the
attendant rights and obligations under international law. In other words, recognition of a state is
an acknowledgment that the entity so recognized fulfils the criteria of statehood. On the other
hand, recognition of a government is the acknowledgement of the fact that the regime in
question is in full and effective control of a state.

31
 Recognition is a mixture of politics, international law and municipal law, in that the decision a
state as to whether or not to recognize another is usually influenced by political rather than legal
considerations. However, the act of recognition is not just a political action whereby the
recognizing state indicates a willingness to acknowledge the factual situation, but it is also a legal
act which invites legal consequences.

b. Acts of Recognition

There is no uniform type of acts which constitute recognition. Recognition of a state so

government may either bede jure or de facto. The acts of recognition may involve, e.g., an express
statement by state A that it recognizes state B or the government of state B. Indeed, the term
‘recognition’ may not be included in an act or statement that indicate intention to recognize an
entity, but which may all the same amount to recognition e.g. the establishment of diplomatic
relations or sending of a message of congratulations on attainment of independence or coming
into power of a government. Other acts that may be construed to constitute recognition include
entering into bilateral agreements or the formal exchange of diplomatic envoys.However, some
situation will not, on their own, constitute recognition, e.g. the absence of diplomatic relations or
signing a multilateral agreement by two states independently.Collective recognition however may
be expressed by the admission into the membership of an international organization of states e.g.
UN, AU etc.

c. Recognition of Governments

This is an indication or acknowledgement of the willingness by other members of the

international community to accord the government in question all international rights and
privileges normally accorded to those governments that are recognized. Recognition of a
government may also imply recognition of a state, especially where the state is an emerging one.
However, non-recognition of a government does not ipso facto mean non-recognition of a state.
This is because the state is perpetual and survives changes in the form of its government.

The non-recognition of a government may be due to or may mean a number of situations.

Firstly, it may mean that the government in power is not an independent government and hence
is not effective e.g. puppet governments. Secondly, it may mean that the foreign government
does not approve of the democratic nature of the subject government and as such does not seek
to enter into diplomatic relations with it. Thirdly, it may mean that the entity withholding
recognition holds that the subject government is illegal and unstable.

However, contemporary state practice is that most state recognize states and not the
governments of the states. There are two doctrines that underline this practice:

i. The Estrada Doctrine: This doctrine was first articulated in 1930 by the then Mexican
Foreign Minister Don Genaro Estrada. It implies that the question of whether or not to
grant recognition to government that come to power through unconstitutional means does
not fall within the ambits of the state’s diplomatic practice. Only new states should have
recognition of their governments as a concern of the foreign states. Otherwise, regardless of
how a government of an existing state comes into power, the relations with outside states
should remain unchanged. This doctrine embraces the principle of unfettered national
sovereignty and non-interference with the domestic affairs of state by other state. For
instance, n 1980, the government of the UK declared that henceforth it would not be
granting recognition to governments but rather to the states.

ii. The Tobar or Betancourt Doctrine: This doctrine was enunciated in 1907 by the Foreign
Minister of Ecuador, Carlos R. Tobar, and further emphasized by the Venezuelan President
over the period of 1945 to 1948, Romulo E. Betancourt. It attempts to encourage
32
 democratic and constitutional governments by recommending the refusal to grant
recognition to any government that comes to power through extra constitutional means,
until a free election is held and new leaders elected. This doctrine was informed by the
nature of politics in the Americas, then characterized by violent coups and other extra
constitutional ways of taking power, and was signed by five central American States in 1907
and 1923. The spirit of this doctrine has been incorporated in the Constitutive Act of the
African Union which, under Article 4(p) states that one of the principles in accordance with
which the AU shall function is to condemn and reject unconstitutional changes of
governments.

The decision on whether or not to recognize a state is purely discretionally, and in many cases
political. There is no legal duty under international law imposed on a state to recognize another
state or government of another state. However, from state practice, it is clear that many states
peg recognition on legal factors. This is because recognition follows the establishment of legal
indicia that have to be met upfront. The legal indicia for recognition of a state are the presence
of a permanent independent and effective government that has the capacity to enter into inter-
state relations. For a government the indicia are effectiveness with a possibility of permanence
and durability, so that there is no case of premature recognition in the case of revolutionary
government.

❖ The Tinoco Arbitration (Great Britain – vs. - Costa Rica) (1923) 1 RIAA 379.

In 1917, the government of Costa Rica was overthrown by Frederico Tinoco who assumed
power, established a new constitution and conducted elections. For two years Tinoco and the
Legislative Assembly under his government conducted the affairs of the government of Costa
Rica effectively and peacefully. In 1919, Tinoco was ousted and the old constitution restored.
The new government repudiated certain concessions that Tinoco’s government had made
towards British nationals then resident in Costa Rica. Great Britain brought a claim on behalf of
her citizens on the part of the obligations of the government of Costa Rica under the concession.
The Arbitrator discussed the question of recognition and held that as a question of fact, the
Tinoco government was the government of Costa Rica during the period of its existence and it
did not help that Britain had failed to recognize the government of Tinoco, as this failure was
not the decisive factor in the status of the government of Tinoco. While recognition may be
evidence of the status of the government, it was not a precondition particularly when non-
recognition is determined by inquiry not into defector sovereignty, but into regularities of origin.

Another factor that makes recognition be based on legal grounds recognition is based on legal
considerations. It brings about formal legal relations between the recognizing and the recognized
state or government. Recognition may give rise to diplomatic relations or the conclusion of
bilateral agreements.

However, in some other instances for reasons of strategic or political considerations. For
instance, the decision of the UN not to recognize the regime of Ian Smith in Rhodesia was based
on political considerations, on the ground that the government was repugnant to the purposes
and principles of the UN. For political purposes, recognition plays two important roles. Firstly,
it may be employed for purpose of acknowledging the existence of new subject of International
Law. Secondly, recognition confers on the recognized entity the right to have its territorial
claims recognized, changes the title of its sovereign recognized, and the grant or withdrawal of
nationality respected by other states. Where the recognized entity is a member of an
international organization, it will be bound by recognition granted to it by the organization and
although the non-recognizing states are not under a legal duty to recognize the new entity, they
put themselves at risk legally if they ignore basic obligations of state relations. Recognition may
also be withheld for various political reasons, e.g.:

33
▪ The entity seeking to be recognized is not independent, i.e. it still subject to another
entity e.g. the puppet states in the apartheid South Africa, Manchukuo, East Germany
etc.

▪ The entity seeking recognition is unstable and does not have the prospects of
permanence. However, the mere fact that state is unstable may not be a strong ground
for objection to recognition, as many unstable states have continued to survive as such
e.g. Congo

▪ Recognition of an entity may be withheld where it was not established according to

orderly constitutional arrangement. This position may be justified by the Tobar Doctrine
and also Stinson Doctrine. The latter was advance by the US Secretary of state, Henry
Stinson in 1932, in the wake of the establishment of Manchukuo by the Japanese armed
forces. The doctrine enunciated was that recognition should not be accorded to the
acquisition of territory in general, or to the establishment of a view state where any of
these have been brought about by war of aggression.

d. Legal Significance of Recognition

Two theories underlie the legal significance of recognition.

i. Constitutive Theory:

This theory argues that recognition has a constitutive affect, i.e. that an entity becomes an
international person only and exclusively through recognition. In other words, it is recognition
that will make a state or any other entity acquire personality under international law. This theory
resonates with the extreme positive approach to international law which argues that consent of
international law personalities is what underlies their relations. Therefore, the other personalities
have to consent to another being an international personality so that the latter so becomes a
person under international law. The consent is given in the form of recognition. This theory
may be faulted on the basis that rights and duties of a new state are based on its own will rather
than on the will of other states. Some states e.g. China & Turkey were states long before they
were admitted to the community of states i.e. the UN.

ii. Declaratory Theory:

This theory holds that recognition is merely a declaration act, which is, at the best, a formal
admission of a fact that is already existing (that a new international person has been born in an
entity). Because the status of statehood is conferred by clear guidelines under the international
law, recognition therefore is not decisive of the claim by a new entity for statehood. Under this
theory, once and entity meets the criteria laid down by the international law for statehood, it
becomes entitled to the rights and duties of legal personality under international law whether or
not it is so recognized by other states. This theory is the more acceptable one in international
legal practice and has been endorsed on many occasions by international agreements, arbitral
awards and even the ICJ. However, despite this theory, states are still free to deny or grant
access to their municipal courts any entity it may deem or not, an international legal personality.

❖ The Tinoco Arbitration

❖ Re Al-Fin Corporation’s Patent Case (1970) Ch. 160

34
The English Patents Act allowed a patentee an extension of his patent if he had suffered loss by
reason of hostilities between the United Kingdom and any foreign state. In the present case, the
Applicant sought an extension of its patent for losses suffered during the Korean War in which
the UK had contributed troops to the UN to help fighting off North Korea which had invaded
South Korea. UK had not formally recognized North Korea. The application for extension of
the patent was rejected partly on the ground that North Korea, not having been recognized by
the UK, was not a ‘foreign state’. The Supreme Court ruled that it did not matter that the
foreign office of the UK had not recognized North Korea as a state. If the latter had met the
criteria for statehood (which the court found it had), it was a state and therefore was a foreign
state with respect to which the Korean war was considered hostilities with a foreign state, and
therefore any losses thereunder would qualify for an extension of the patent under the Patents
Act.

e. De jure and de facto Recognition

The importance of whether or not recognition is to be granted de-facto or de-jure concerns

situations where a regime in power is overthrown and a new government brought into existence.
Recognition in this regard would be to a de facto government, or a de jure government. An entity
may hold the government in power in another state is illegal, or that it has reservation as to its
permanence or effectiveness, and hence accord it recognition de facto. Where there are no such
reservations, the facts on the grounds are accepted and regardless of the legitimacy of the origins
of the government, it will be recognized de jure. The distinction between an entity recognized de
facto and that recognized de jure lies in the rights immunities and privileges that may be accorded
to it. De facto entities may not be allowed diplomatic privileges and immunities.

❖ Haile Sellasie vs. Cable & Wireless Limited (1938) L.R. Ch. D. 545

Emperor Haile Selassie had brought an action to recover payments arising out of a contract for
the transmission of wireless messages between Ethiopian and the Great Britain. The only
question that was down for determination was whether the plaintiff could claim the payment,
now that in 1935, Italy invaded Ethiopia and Great Britain had recognized Italy as the de facto
government of Ethiopia. However, Emperor Haile Selassie was still recognized as the de jure
sovereign of Ethiopia. (The contract in question had been made before 1935). The issue for
determination was whether the Plaintiff was entitled to sue in the British courts on behalf of the
state of Ethiopia. The court of the first instance had ruled that as the de jure sovereign, the
plaintiff had the right to bring the claim and recover the moneys due to the state of Ethiopia.

The decision was appealed against and, while the appeal was pending, the British Foreign Office
officially recognized the King of Italy as the de jure sovereign of the state of Ethiopia. The court
was formally made aware of this development. The appellate court held that the King of Italy,
having been officially recognized as the de jure sovereign, was the one entitled by succession to
the property of the state of Ethiopia and therefore was the one who could bring the claim. Haile
Selassie’s claims to such a property was no longer in existence.

However, strictly states are not concerned with the internal situation of another state, although
there is the right to know the persons constituting the government in power so as to be able to
discharge the international law obligations on behalf of the state. Thus, there will be non-
distinction between de factor and de jure recognition as long as there is a government which
organizes the rights and obligations of the peoples, and this is only capable of being done by the
government that is factually in control of the state territory.

Where a state extends a de jure recognition to a government that it previously granted

recognition de factor, the effect is to validate retrospectively what had been done by the de
factor government.
35
In terms of international rights and privileges, there is no distinction between governments
recognized de jure or de facto.

❖ Luther vs. Sagor (1921) 1 KB 456

The plaintiff was a company incorporated in Russia in 1898. It manufactured wood products.
Soon after the Russian Revolution, a decree of confiscation, in pursuance of the government’s
policy of nationalization of private property, was issued under which products manufactured by
the plaintiff were seized by the Government of Russia. At that time, the UK had not granted the
Bolshevik Government de jure recognition. Thereafter, the Government of Russia sold some
goods, which included those belonging to the plaintiff but which had been nationalized, to
another company in England. When the goods arrived in England, the plaintiff claimed the
goods as its property and petitioned the court for an injunction against the defendant (the
English purchaser) restraining it from selling the goods. The defendant further argued that the
decree for nationalization should not be recognized by the English courts because the Soviet
Government had not been granted de jure recognition by the UK. The court held, on the issue
of distinction between de facto and de jure government, that the government of the UK had
recognized the Soviet government as the government really in possession of the powers of
sovereignty in Russia, the courts of the UK would not inquire into the validity of a foreign
government which has been recognized by the UK, and therefore the acts of the Government of
Russia had to be treated with all the respect due to the rights of a duly recognized foreign
sovereign state, and therefore the nationalization of the privately owned property was valid.

f. Recognition of Belligerents/Insurgents

Belligerents/ insurgents enjoy a limited scope of international personality, and may enter into
legal relations and conclude valid agreements with states. However, the states recognizing them
must declare their neutrality.

The belligerents also have to conduct their hostilities in accordance with the laws of war, and, in
return, are to be treated in accordance with the provisions of the laws of war. The recognition of
belligerents will operate to grant them the aforesaid rights and duties whether the conflict is
cross-border, or where it is wholly within the territory of one state.

Third states do not have any obligation to recognize an illegally declared state of war or the acts
of a belligerent which have taken place on the basis of such a state of war. They may therefore
take counter-measures if a party to the conflict illegally exercises belligerent rights against their
nationals.

g. Consequences of Recognition

Under Municipal law

Recognition is just but an expression of intention to treat the new state as such, with attendant
rights and privileges; to accept the new state that it purports to govern, and in the case of
belligerents, that they are entitled to exercise belligerent rights. The legal effects of recognition
are various with regard to municipal law. Firstly, recognition gives the recognized state or
government the right of access to the courts of the recognizing state.

❖ Transportes Aereos de Angola vs. Ronair & 21(5) ILM 1081 (1982)
36
In 1974, the Plaintiff Company entered into a contract with the Defendant, an American
company, for the purchase of an aircraft. Due to failure of delivery on the part of the
Defendant, the plaintiff rescinded the contract and demanded a refund of the purchase price of
USD 7.5 million together with accrued interest. At the time of the contract, the US government
had not recognized the Angolan Government. The question before the District Court in
Delaware, which had been raised by the Defendant, was whether the plaintiff, a state owned
corporation of Angola which was a state yet to be recognized formally by the USA but with
which there were diplomatic relations all the same, was entitled to file the case before the US
courts. While the case was still pending in court, the US Department of Commerce advised the
court of the commercial relations, and that the case could be admitted in line with the America’s
interest in the commercial relations with Angola. The court duly proceeded with the case.

Secondly, recognition has retrospective effect it validated all the prior actions or decisions of the
recognized state or government. Recognition will backdate to the time of the establishment of
the recognized entity, and not when it was accorded to the entity.

Thirdly, a recognized state or government enjoys immunity from legal proceedings before the
courts of the recognizing state and cannot be sued there before without its consent.

Fourthly, the legislative, administrative and judicial acts of the recognized state or government
will be given effect in the recognizing state. This is the Act of State Doctrine. This doctrine
disallows municipal courts from inquiring into the validity of the public acts of a recognized
foreign sovereign power within its territory.

❖ Underhill vs. Fernandez (1899) 168 US 250.

The Defendant led a military campaign which took control of the Bolivar city in Venezuela. He
replaced most of the local officials with his appointees, and was the civil and military chief of the
Bolivar city. Later, he managed to take power over Venezuela generally and his revolution party
was recognized by the USA as the government of Venezuela. The plaintiff had, during the
period when Fernandez was still the chief of the Bolivar city, applied for passport to leave the
city. The Defendant refused him the passport and only granted it after he became overall
Venezuelan ruler. When Underhill reached the US, he filed an action to recover damages for the
detention caused by the refusal by the Defendant to grant him passport to travel out of the
city.The US Supreme Court dismissed the claim on the ground that the acts complained of were
the acts of a military commander representing the authority of the revolutionary party as a
government, which afterwards succeeded and was recognized by the US. The acts of Defendant
were therefore held to be the acts of the government of Venezuela and as such could not be
subject of adjudication in the courts of another government.

Under International Law

The first effect of recognition of a state or government under international law is the
establishment of diplomatic relations and other inter-state or inter-governmental relations with
the recognized state. However, the actual establishment or such relations is not necessary, as the
recognition may remain in force even without the establishment of diplomatic relations.
Secondly, recognition enjoins the recognizing state to grant immunity and privileges to the
recognized entity and its organs.

By recognition too, the recognizing state expresses its readiness to accord the recognized state or
government all the rights and privileges conferred by international law and also to hold
responsible, and to seek redress from the recognized entity for violation of obligations imposed
upon it by international law.

37
 6. TREATIES

a. Introduction

A great deal of international relation and transactions in the contemporary world are based on
agreements. The basic category of these agreements is treaties. Treaties may be either bilateral or
multilateral. Treaties are regulated by the 1969 Vienna Conventionon the Law of Treaties and the
1986 Vienna Conventionon the Law of Treaties. The former governs treaties between states only
while the latter governs treaties between states and the international organizations or between
international organizations themselves.

The 1969 Convention defines a treaty as ‘a written agreement concluded between states in the written form
and governed by international law whether embodied in a single instrument or in two or more related instruments
and whatever its designation.’Agreements between states which are not in written form are not
covered by the 1969 Convention. However, Article 43 of the Convention provides that the fact
that it does not apply to agreements between states and either subjects of IL, or between such
other subjects of international law inter se or international agreements not in a written form does
not affect the legality of such agreements, and does not affect the application of the rules set
forth in the Convention which bind them under international law independently of the
Convention. It also does not affect the application of the Convention to the relations of states as
between themselves under international agreements to which other subjects of international law
are also parties.

Article 5 of the Convention applies it to any treaty which is a constituent instrument of an

organization and also to any treaty adopted with an organization without prejudice to any
relevant rules of the organization.

b. Validity of Treaties

A number of factors affect the validity of treaties;

i. The parties to the treaty must be capable of concluding treaties

Under Article 6 of the Convention, all states have capacity to conclude treaties. Actually, one of
the indicia of statehood is the capacity to conclude treaties. As such therefore, federal units
within a state do not have capacity to conclude treaties unless such capacity is provided for in the
Federal constitution. In the same way, individuals do not have the capacity to make treaties with
states or otherinternational persons with treaty making powers.

❖ The Island of PalmasCase.

❖ Ole Njogo and Others vs. The Attorney General of the East Africa Protectorate;
Civil Case No. 91 of 1912 ( E.A.P. 1914), 5 E.A.L.R. 70

The Laibon Olonana of the Maasai tribe had in 1904 and 1911 signed two separate Agreements
with the British government through which large tracts of Maasai land were ceded to the British
settlers, and in the process displacing many Maasai tribesmen from their more arable territories
to other arid areas. The Agreements declared the Maasai state to be a sovereign power
represented by Olonana.

38
Maasai elders led by Murket Ole Nchoko (Ole Njogo) determined to fight the injustices arising
from the displacements pursuant to the two Agreements. The elders filed suit to challenge the
actions of the British Colony. The elders argued that the move was illegal because the Agreement
of 1911 had not been signed by Maasai who had authority to speak for the whole tribe. The case
was thrown out when the court upheld a preliminary objection that argued that the local courts
had no jurisdiction over the matter given that the pact giving rise to the dispute was not a
contract within the meaning of municipal law, but a treaty between two sovereigns over which
no municipal court had jurisdiction.

❖ The Anglo- IranianOil Company Case (United Kingdom vs. Iran) (1952) ICJ Rep.
103

In the later case, there was a contract between Iran and The Anglo- IranianOil Company, which
was a British Company. The Government of the UK had played a part in the negotiation of the
contract. The court rejected the argument that this contract was a treaty, and stated that at best,
the agreement was a concessionary contract between a government and a foreign corporation.

ii. The person signing the treaty must have the competence to bind the state to the
treaty.

Article 7 of the Convention provides that the following persons are considered to be
representing their states, and therefore competent to express the consent of the state to be
bound by the treaty they sign, on the account of their official positions and functions:

▪ Heads of state, heads of governments and foreign ministers: These have powers to perform
all acts relating to the conclusion of a treaty.
▪ Heads of diplomatic missions: These have powers to adopt the text of treaties between the
accrediting state and the state to which they are accredited.
▪ Representatives of states accredited to an international conference or to an international
organization or any of its organs. These have the power to adopt the text of a treaty in that
conference, organization or organ.

All other persons must produce appropriate Full Powers in order to be accepted as competent to
represent their states for the purposes of negotiating, adopting or authenticating the text of a
treaty, and for purposes of expressing the consent of the state to be found by the treaty.
However, the requirement of Full Power may be disposed with where it appears, from the
practice of the state concerned, or from other circumstances, that the states have intention that
the person be accepted as representing the state for such purposes. This normally applies in cases
of bilateral treaties which are less formal.

❖ The Case Concerning theLegal Status ofEastern Greenland(Denmark vs.

Norway) 26 AJIL (1932) 469

In the conversation between Ihlen, the Norwegian Foreign Affairs Minister and the Danish
ambassador to Norway, the Danish Ambassador on 14/7/1919 suggested that Denmark would
raise no objection to any claim Norway may make over the Island of Spitsbergen at the Paris
Conference, if Norway would similarly not pose the claim that Denmark was to make at the
same conference over the whole of Greenland. In further conversations a week later on 22/7/19
39
with the Danish ambassador, Ihlen declared that the “Norwegian government would not make
any difficulty” concerning the Danish claim. These terms were minuted by Ihlen for purposes of
his government. Denmark had claimed sovereignty over Greenland on the basis of occupation.
It has also argued that Norway had recognized the Danish sovereignty over Greenland by the
‘Ihlen Declaration’ in the course of conversations. When the dispute reached the PCIJ, Denmark
argued that this kind of undertaking made by the Minister for foreign affairs was binding upon
Norway because the minister had the requisite competence. The court ruled on this issue that a
reply of the nature that Ihlen had given to the Danish ambassador during the conversations,
being the Foreign Affairs Minister, on behalf of the 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 on the country to which the minister belongs. Hence, as a result of the undertaking in
the Ihlen Declaration, Norway was under an obligation to refrain from contesting Danish
sovereignty over Greenland as a whole, and consequently to refrain from occupying a part of
Greenland.

Under Article 8 of the 1969 Convention, any act of making a treaty by a person who is not
competent to bind his/her state will be without legal effect unless the state afterward ratifies the
act. Whether or not the treaty concluded in such circumstances will be valid or not may be
considered in the light of tub schools of international law. The internationalist school is
founded on the theory that international law is concerned only with external manifestation of the
expression of the consent of a state to be bound, and that the act the representative who is
competent under international law to bind the state will so bind the state even if some aspect of
the municipal law of the state concerned has not been complied with.

On the other hand is the constitutionalist school. Thisis founded on the theory that
international law leaves it to the municipal laws to determine the organs and procedure by which
the consent of a state to be bound by a treaty is formed and expressed, and that the violation of
any aspect of municipal laws in this regard renders void the expression of the consent of the
state to be bound by the treaty.

Some jurist have taken a middle ground between these two schools and observe that only the
constitutional limitations under municipal law which are notorious need to be taken into account
by the either states. Hence, a state that contests the validity of a treaty on the grounds of
violation of municipal may invoke only the provision of its constitution which is notorious.

Under Article 46 of the Convention, a state may not make the violation of its own municipal
laws to invalidate its consent to be bound by a treaty unless the violation was manifest and
concerned a rule of its domestic laws which is of a fundamental importance. A violation is
manifest if it would beobjectively evident to any state conducting itself in the matter in
accordance with normal practice and in good faith.

Under Article 47, if the state representative mandated to express its consent to be bound by a
particular treaty has his authority subjected to specific restriction or limitation, if he omits to
observe the restriction or limitation, the state may not invoke the failure to observe the limitation
or restriction as invalidating its consent unless the restriction or limitation was notified to the
other negotiating states prior to the expression of such consent.

iii. Treaties must be concluded on the basis of mutual consent of the state parties

Therefore, any treaty that is concluded through threats or duress will be invalid and of no legal
effect (Article 51& 52 of the Convention)

iv. A treaty must not violate a norm of jus cogens and the provisions of the UN
Charter.
40
Accordingly, a treaty that violates these will be illegal, invalid and null and void ab initio. Under
Article 53 of the Convention, a treaty is void if at the time of its conclusion it conflicts with a
peremptory norm of general international law

❖ Aloeboetoe et al vs. Suriname;Inter-Am. Ct. H.R. (Ser. C) No.11 (1994).(The

Aloeboetoe Case)

The Saramakas are a tribe that lives in the territory of Suriname and comprises former African
slaves who settled there after fleeing from their Dutch owners. They enjoy an internal autonomy
under a treaty of 1762 between it and the Netherlands, under which they have permission to be
governed by their own laws. One of the clauses of the treaty gave the Saramaka the duty to
capture slaves that have deserted, take them prisoners and take them to the Governor of
Suriname who would pay between 10-50 florins per slave, depending on the distance where the
slave was apprehended. Another article gave the Saramakas the right to sell any other prisoners
they may take as slaves. The court observed that such treaty may not be invoked before an
international tribunal. It is null and void because it contravened jus cogens principles of
international law.

Under Article 64 of the Convention, if a new peremptory norm of general international law
emerges, any existing treaty which is inconsistent with that norm will become void and shall be
terminated thereby.

v. A treaty may take any form.

There are no substantive requirements of form. An agreement may be recorded in the minutes
of a conference or in the exchange of diplomatic notes. The intention and consent of the parties
will usually direct the manner in which a treaty may be negotiated and brought into force. In
practice, form is determined by the usage between the parties or between the heads of the states
of the government.

c. The making of treaties

Once the representatives of the states have been formally identified and confirmed, the next
stage of treaty making process involves negotiating the adoption or authenticating the text of the
treaty. A state that participates in the drawing up and adoption of the text of the treaty is called
negotiating state. Once the terms of the treaty have been negotiated, they are reduced to a text
which is then adopted by the negotiating parties. Article 9 of the Convention applies a traditional
rule in treaty making by stating that the adoption of the text of a treaty is to take place by the
consent of all the states participating in the drawing, except where the adoption is to take place at
an international conference. In the latter case, the text is adopted by a vote of 2/3 of the states
present and voting. However, the states may make a decision by a 2/3 majority vote to apply a
different rule of adopting the text of a treaty at an international conference.

After the text of a treaty is adopted, the next stage is authentication which is the process by
which the final text of a treaty is determined. This process is provided for under Article 10 of the
Convention which provides that the authentication may be by procedure provided for in the
treaty itself, or agreed or by the negotiating states, or by the appending of signatures or initials by
the representatives of the negotiating states. In cases where the treaty is being signed by an
international organization, the authentication is done in the Final Act. The Final Act is the title
of the instrument and records the winding up of the conference. It also contains the records of
the deliberations and attendance to the conference, and may also contain interpretations of the
provisions in the formal document. The Final Act is not part of the text of the treaty.

41
Article 11 of the Convention provides that the consent of the state to be bound by the treaty is
signified by the signature, exchange of the instruments constituting the treaty ratification,
acceptance, approval or accession or any such means as may be agreed upon by the parties.
Under Article 12, the consent of the state is signified by the signature of the representative where
the treaty provides so or the parties so agree.

Article 14 of the Convention deals with ratification. Where provided for, this comes after the
adoption, signature and authentication of the text of the treaty. Ratification is defined by Article
2 to mean the international act by which a state establishes on the international plane, its consent
to be bound by a treaty. Ratification comes at a later stage because the state may want to make
local legislation to domesticate the treaty, may require parliamentary approval or may have
financial and other implications which the state may need to consider before consenting to be
bound by the treaty. Ratification may either be expressed or be implied.

Article 15 provides for accession, which is the process by which non-negotiating and non-
signatory states subsequently become parties to the treaty. Accession may be provided for by the
treaty itself, or where the negotiating states, or subsequent signatory states agree that consent to
be bound by the treaty be signified by way of accession to the treaty. The instruments of
ratification, acceptance, approval or accession may be exchanged, deposited with the appointed
depositary or may be notified to the contracting parties or the depositary. All these acts are
acceptable as a way of establishing the consent of a state to be bound by the treaty.

The stage between the signing of a treaty and its ratification by a state is very important on the
treaty making process. Article 18, as well as customary international law lay down the rule that a
state is obliged to refrain from the acts that would defeat the objects and purpose of the treaty
over this period of time. However, there is no obligation to ratify a treaty after signature.

Under Article 102 of the UN Charter, every treaty and international agreement entered into by
the members of the UN must be registered with the UN Secretariat and be published by it. A
treaty that has not been registered by the UN cannot be invoked before any organ of the UN,
and such organs will not take cognizance of any treaty or international agreement that has not
been registered with it. Article 80 of the Convention provides for this position in similar terms.
Treaties registered with the UN are published under the UN Treaty Series (UNTS). Under the
provisions of the UN Charter, the terms ‘treaty’ and ‘international agreements’ are defined
broadly to include even unilateral undertakings engagements or declaration of an international
character which have been accepted by the state in whose favorsuch declarations or undertakings
have been made.

❖ The Case Concerning the Legal Status of Eastern Greenland (Ihlen Declaration)

❖ The Nuclear Test Cases (Australia &New Zealand vs. France)(1974) ICJ Rep. 297

Australia and New Zealand brought applications to the ICJ demanding cessation of atmospheric
nuclear tests bring carried out by France in the South Pacific. While the case was still pending,
the French Government announced that it had completed its series of tests and did not plan
more tests. The court dismissed the applications, taking into account the statements made by the
French authorities.

d. Reservation

Reservation is defined at Article 2 of the Convention to mean a unilateral statement, however

phrased or named, made by a state when signing, ratifying, accepting, approving or acceding to a
42
treaty, whereby it purports to exclude or modify the legal effect of certain provisions of the
treaty in their application to that state. The Convention has various provisions relating to
reservation to treaty provisions.

Generally, states may formulate a reservation on the signing or ratification of a treaty unless a
treaty prohibits reservations, or provide that only certain specified reservations may be made.
Where the treaty is silent on reservations, states are entitled to formulate a reservation unless the
reservation is incompatible with the object and purpose of the treaty. This jurisprudence was laid
down by the ICJ in The Advisory Opinion on the Reservation to the Convention on the
Prevention and Punishment of the Crime of Genocide (1951) ICJ Rep. 24. The Genocide
Convention does not have a reservation clause. However, various signatory and acceding states
attached reservations to their signatures and Acts of Accession. Other states raised objection to
this, raising the question whether or not those who had attached reservations should be
considered parties to the Convention, now that some other states had objected to the
reservations. The ICJ was requested by the UN GA to give an advisory opinion on this question.
The court observed that the states that had attached reservation were parties to the Convention
as long as the reservations were compatible with the object and purpose of the Convention. If
not, the reserving state would not be regarded as a party to the Convention. However, this
position was permitted to apply to the Convention only and not to all treaties.

With regards to the effect of a reservation by a state vis a vis another state that has objected to
the reservation, if the basis of the objection was that the reservation is incompatible with the
object and purpose of the treaty, then the objecting party may consider the reserving party as
not a party to the treaty. However, if the objection to the reservation was not based on
incompatibility with the treaty, then the objecting state may consider the reserving state as a party
to the treaty. On a third question as to the effect of the objections to the reservations, where the
objection is made by a state signatory to the treaty but has not yet ratified the same, or by a state
that is yet to sign or accede to the treaty, the court observed that such an objection has no legal
effect but if made by a signatory state, the objection may serve as a notice of the eventual
attitude of that state after it ratifies the treaty. In the case of restricted multilateral treaties,
reservations require acceptance by all parties thereto. With regard to constituent instrument of an
international organization, the competent organ of the organization will have to accept the
reservation, unless the treaty provides otherwise.

In either case, the express or tacit acceptance of a reservation by other states will make the
reserving state a party to the treaty in relation with the other states that expressly or tacitly accept
the reservation. Tacit acceptance of reservation occurs where an objection is not raised within a
specified period (normally 12 months from the date of notification). Where a contracting state
enters a reservation, the treaty will enter into force as between the objecting and reserving states
unless the objecting state expresses a contrary opinion. Where a state signifies its consent to a
treaty but with reservation, the consent to be bound becomes effective as soon as one other
contracting state accepts the reservation.

Under Article 21,the legal effect of a reservation is that it modifies the provisions of the treaty
with respect to both parties to the extent of the reservation only. It does not modify the
provision of the treaty for the other parties to the treaty inter se. A state that objects to reservation
may need to oppose the entry into force of the treaty between itself and the reserving state;
otherwise, both states will not be affected by the provisions adduced by the reservation.

Article 22 of the Convention provides that a state party to a treaty may at any time withdraw its
reservation or objection to a reservation. In such case, the consent of the parties that had
accepted the reservation is not needed unless the treaty itself provides so. A withdrawal is
43
effective if it has been received by the party concerned. Any reservations, express acceptance to a
reservation, and objection or withdrawal must be in writing and be communicated to the
contracting parties and any other state that is entitled to become a party to the party.

e. Legal Effects of Treaties

Treaties create legal rights and obligations under I.L. Any unilateral change or termination of the
provisions of a treaty will amount to a breach of the treaty, giving the aggrieved party the right to
claim legal compensation and reparations.

❖ The Chorzow Factory Case (Germany vs. Poland) (1928) PCIJ, Ser. A, No. 17

In 1915, the German government signed a contract with a private company to construct and
manage a nitrate factory at Chorzow in Upper Silesia that was then a German territory. In 1922,
Germany and Poland concluded a Convention in Geneva concerning Upper Silesia, and under
which Poland’s power to expropriate certain German assets in Upper Silesia was restricted. In
July 1922, Poland took possession of the nitrate factory at Chorzow. Germany instituted a case
before the PCIJ against Poland. The court found that Poland violated the Geneva Convention by
seizing the company. The court observed that it was a principle of international law that a breach
of an engagement involves the obligation to make reparation in an adequate form. Poland was
held to bear obligation to pay reparation to German government, not merely the value of the
property expropriated at the time of their acquisition, but compensation corresponding to the
damage sustained by their owners.

f. Enforcement and Performance of Treaties

The fundamental principle in the law of treaties is that of pacta sunt servanda, which means the
treaty in force is binding upon the parties to it, and it must be performed by them in good faith.
It is understood that a party would enter into an agreement or undertaking with another because
it has intention of carrying out the letter and the spirit of the agreement or undertaking. Article
26 of the 1969 Convention provides that every treaty in force is binding upon the parties to it
and must be performed by them in good faith.

A treaty’s application may be germane in three different respects; with respect to time (ratione
temporis), with respect to territory (ratione loci) and with respect to successive treaties relating to the
same subject matter.

Article 28 of the Convention lays down the basic rule of non-retroactivity of treaties unless a
different intention appears from the treaty or is otherwise established.

❖ The Ambatielos Claim (Greece vs. UK) (1953) ICJ Rep. 25.

A dispute was taken before the ICJ concerning an alleged wrong suffered by a Greek citizen,
Ambatielos. The Greek government had sought a declaration from the court that the arbitral
procedure provided for in the 1886 Anglo-Greek Treaty of Commerce and Navigation, or that
of the 1926 Treaty be applied and nominations of arbitrators be done for purposes of redressing
the alleged wrongs which had taken place in 1922 and 1923. The court rejected the Greek
contention on the ground that it would be giving a retroactive effect to the 1926 Treaty.

With respect to territorial application, it depends on the individual treaty. Some treaties apply to
states as international persons exclusively, e.g. military alliances, constituent instruments of
international organizations etc. Such treaties apply to the states as entities and not in respect of
any particular territory. Other treaties will apply to the nationals of a particular state whether
within the national territory or not, irrespective of their place of residence or domicile. Where
44
 the treaty itself is silent on its territorial application, the rule of international law is that the treaty
applies to the entire territory of the contracting parties, whether metropolitan or provincial.
Article 29 of the Convention codes this rule by providing that unless a different intention
appears from the treaty or is otherwise established, a treaty is binding upon each party in respect
of its entire territory i.e., all the land, territorial waters and air space which constitute the territory
of the state.

With regard to the application of successive treaties relating to the same subject matter, jurists
have different opinions. On the one hand, some jurists have of the view that where the parties to
treaties that are said to be in conflict are the same, the actual issue becomes one of interpretation
rather than of the rule of law. In such a case, the parties are free to modify one treaty by a later
one. E.g., where the earlier treaty is general in nature and the latter one contains special and
detailed rules, the latter one will prevail. On the other hand are the jurists of the view that if the
performance of the latter treaty involves a breach of a treaty obligation previously undertaken by
one or more of the contracting parties, then the latter treaty will be void. Yet other jurists argue
that what should matter is the priority of the conflicting treaty obligations.

Article 30 of the Convention provides that where a treaty itself provides that it is a subject to or
that it is not to be considered incompatible with another treaty, then, the other treaty will prevail.
Where parties to a treaty become parties to a latter inconsistent treaty, then, as between them,
the earlier treaty will apply only where its provisions are not incompatible with the later treaty.
With relation to a party to both treaties and a party to only one of them, the treaty to which both
of them are parties will apply to the mutual concerns of the states.

g. Interpretation of treaties

There are three approaches to the interpretation of treaties:

i. The subjective approach:This looks primarily at the actual intention of the parties to the
treaties. The main concern in this approach is the real will of the state. The text of the treaty
is taken to be merely an expression of the will of the parties. Reference is made to the whole
course of negotiations leading to the conclusion of the treaty and the actual intention of the
parties at the time when the final text of a treaty was adopted will be investigated.

ii. The objective/textual approach:In this approach, the main emphasisis placed on the
words of the treaty. It asks the question, “what did the parties say?” rather than, “what did
the parties mean?” This approach may adapt the usage of the extrinsic sources only if the
text is ambiguous or if the meaning of the words leads to a conclusion which is obviously
absurd or unreasonable. This approach has been variously adopted by the ICJ in a number of
cases.

❖ The ICJ Advisory Opinion on the Competence of the General Assembly for the
Admission of a State to the United Nations (1948) ICJ Rep. 57 (The UN Admissions Case)

A number of applicants for the membership of the UN was vetoed by the USSR for political
reasons. It had also stated that it would not veto the admission of, for instance, Italy if the
other UN SC members would vote for the admission of some applicants supported by her.
This situation gave rise to a stalemate at the UNGA, which sought an advisory opinion as to
whether members of the UNGA or UNSC could attach conditions to the admission of a
new member to the UN beyond the condition contained in Article 4 (i) of the UN Charter.
The court advised that Article 4 (i) of the UNCharter has the text and choice of terms that
clearly demonstrate the intentions of the authors to establish it as a legal rule. It added that
45
 the natural meaning of the words in the clause constitutes the exhaustive conditions and to
which any other unconnected condition should not be added.

❖ The ICJ Advisory Opinion on Certain Expenses of the United Nations (1962) ICJ
Rep. 151(Certain Expenses of the UN Case)

In 1956, the UN GA authorized the creation of the UN Emergency Force to secure the
withdrawal of the British, French and the Israeli Forces that had invaded Egypt, and to serve
as a buffer zone along ade-militarized line on the Sinai Peninsula. In 1960, the UNSC
established the UN Operations in Congo (UNOC) which involved the deployment of
military operations in the troubled country. The expenses of these operations were covered
partly by voluntary contribution, and also by way of any other expenses of the UN, i.e.
apportioning the expenses among the member states as per Article 17 of the UN Charter. A
number of states, particularly the USSR and France objected to this procedure and refused to
pay their proportionate contribution, with the result that there was a serious lack of funds.
The UN GA requested the ICJ for an advisory opinion whether the expenses authorized by
the UN GA for the two missions were expenses of the UN within the meaning of Article 17
(2) of the UN Charter. The court found that under the UN Charter, the organization’s goals
and intentions included maintenance of international peace and security and that the UN GA
and UNSC possessed the power to establish the peace keeping forces to discharge its
obligations. Accordingly, the UNGA was within its mandate to treat the peace keeping
expenses as part of the provisions under Article 17 (2), and therefore those expenses were
expenses of the UN.

iii. Teleological approach: This seeks the interpretation of the treaty in light of its objects and
purposes. This involves a broader enquiry into the objects and purposes of the treaty as a
whole, and the individual provisions of the treaty are construed so as to give effects to these
objects and purposes. This approach combines both the objective and subjective approaches.
In the case of the former, this approach involves considering the text of the treaty, especially
in the preamble and from the reading of the treaty as a whole. In the latter regard, this
approach goes beyond the text and seeks to ascertain the original aims of the parties in
concluding the treaty by reference to the entire course of negotiations and circumstances of
its conclusion.

Article 31 (1) of the Convention provides that a treaty shall be interpreted in good faith in
accordance with ordinary meaning to be given to the terms of the treaty and in light of its objects
and purposes.

Article 31(2) provides that the interpretation of a treaty may, in addition to the text, infer the
context thereof, from any agreement relating to the treaty which were made between all the
parties in connection with the conclusion of the treaty, and any instrument which was made by
one or more parties in connection with the conclusion of the treaty and accepted by the other
parties as an instrument related to the treaty.

Article 31(3) provides other aspects that may be taken together with the context of the treaty in
its interpretation as follows:

▪ Any subsequent agreement between the parties regarding the interpretation of the treaty
or the application of its provisions.
▪ Any subsequent practice in the application of the treaty which establishes the agreement
of the parties regarding its interpretation.
▪ Any relevant rules of international law applicable in relations between the parties.

46
Article 31(4) provides that a special meaning shall be given to a term used in the treaty if it is
established that the parties intended so.

Article 32 provides that where the interpretation of the treaty under Article 31 leaves the
meaning ambiguous or obscure, or leading to an absurd or unreasonable result, recourse may be
hard to other supplementary means, including the travaux preparatoires of the treaty, on the
circumstances of its conclusion.

h. Treaties and third parties

Third states are strangers to any treaty and cannot derive any right conferred there under or bear
any obligations imposed by the treaty. This position is conveyed by the maxim, Pacta tertiis nec
nocent nec prosunt.

Article 34 of the Convention provides that a treaty does not create either rights or obligations for
a third state without its consent. However certain obligations stipulated in a treaty may bind third
states independently, as rules of customary international law. The Convention also has provisions
through which third states may be bound by a treaty. Under Article 35, an obligation may arise
for a third state where parties to a treaty intend the provisions to be a means of establishing the
obligation and the third party expressly accepts that obligation in writing. In this case, the basis
of the obligation on the third state is not the treaty itself, but the collateral agreement whereby
the third party accepts the obligation.

Article 36 provides that a third state may derive a right from a treaty upon meeting two
conditions. Firstly, the parties to the treaty must intend the provisions to confer the right upon
the third state or to a group of states to which it belongs or to all states. Secondly, the third state
must assent to the provisions. A state exercising such a right must however comply with the
conditions for its exercise provided for in the treaty or established in conformity with the
treaty.See Article 35(2) of the UN Charter.

An obligation that has arisen on a third state may be revoked only with the consent of the state
parties. However, a right that has accrued to a third state under a treaty provision may not be
revoked or modified by the parties if it is established that the right was not intended to be
revocable, or subject to modification without the consent of the third state.

Under Article 38 of the Convention, rules contained in a treaty may be binding upon third states
as rules of customary international law which are recognized as such.

i. Invalidity of Treaties

The 1969 Convention lays down five grounds which may be invoked to invalidate the consent of
a party to be bound by a treaty.

i. Violation of internal law

(Refer to the part on validity of treaties with regard to municipal law).

ii. Error

Under customary international law, error of substance may not be invoked to invalidate consent
of a state to be bound by a treaty. They may also not be invoked before judicial proceedings.
Error may also not be invoked where the party seeking to invoke it contributed to it, or if it
47
 could be avoided, or if the circumstances are such that the party seeking to invoke it had notice
of a possible error. This rule is provided for under Article 48 of the Convention.

❖ The Case Concerning the Temple of Preah Vihear(Cambodia vs. Thailand)(1962) ICJ
Rep.

The Temple of Preah Vihear lies on the border of Cambodia and Thailand. It has various
anthropological and historical aspects and its physical location is useful for military purposes. For
some time, both Cambodia and Thailand had laid claim to the territory where the temple stands.
The two states submitted their claims to the ICJ regarding the disputed territory and sovereignty
of the temple. The territory had been subjected to an inquiry by the Mixed Delimitation
Commission which had produced a map, Annex 1 to the Memorial of Cambodia, a treaty that
delimited the border. Cambodia submitted that the temple was located in its territory as had been
decided by the Mixed Delimitation Commission, and hence sought that Thailand withdraws its
troops from the Temple area. Thailand claimed that the map Annex 1 was never officially
approved by the Thai delegation to the Mixed Commission, and that the Cambodian delegation,
represented by the French, had published the map alone. She also claimed the territory where the
temple stood. One of the questions put before the ICJ was whether Cambodia and Thailand had
adopted the Annex 1 map which delineated the border, making the document binding. The court
found that the delimitation by the Mixed Commission was the official border between the two
countries which had been adopted by both the parties. As such, the Annex 1 was binding and
Thailand had to respect the document. The court observed that Thailand had every opportunity
to contest the border established by the map, but did not do so even with the ample knowledge
that the temple would be included within the Cambodian borders.

However, error may only be invoked as aground for invalidation of consent if the error relates to
a fact or situation which was assumed by the state invoking the error to exist at the time when
the treaty was concluded, and secondly, where the assumed fact or situation formed an essential
basis of the state’s consent to be bound by the treaty.

iii. Fraud

Fraud on one party’s part negates the concept of good faith. Article 49 provides that a state
induced to conclude a treaty by the fraudulent conduct of another negotiating party may
invoke fraud as invalidating its consent to be bound by the treaty. Fraudulent conduct
includes any deliberate false statements, misrepresentations or other deceitful proceedings by
which a state is induced to give consent which it would otherwise not give. Fraud may be
invoked with respect to particular clauses only which are separable and not essential to the
treaty. However in state practice, this ground is practically non- existent.

iv. Corruption of the state representative

Under Article 50, a state may invoke the corruption of its representatives by another
negotiating state as invalidating its consent. However, the scope of this ground has been
limited by the International Law Commission to indicate that only acts calculated to exercise
a substantial influence on the disposition of the representative to conclude the treaty may be
invoked, and that a small courtesy or favor shown to a representative cannot be invoked as a
pretext for invalidating the treaty.

v. Coercion of a state representative

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 Article 51 of the Convention provides that the expression of a state’s consent to be bound
by a treaty which has been procured by the coercion of the representative through acts of
threat directed against him shall be of no legal effect. Article 52 provides that a treaty that
has been procured by threat or use of force in violation of the UN Charter shall be void.
However, where the use of force is lawful e.g. where the treaty is entered into pursuant to a
decision of the UNSC, the treaty will be effective. Article 75 further provides that the
provisions of the Convention are without prejudice to any obligation in relation to a treaty
which may arise for an aggressor in consequence of measures taken in conformity with the
UN Charter with reference to the aggression of that state. Where the treaty is multilateral, the
participation of the coerced state only will be void, and not the whole treaty.

Under Article 69, the Convention provides that a treaty whose invalidity is established under the
Convention is void and its provisions have no legal effect. If any acts have been performed in
reliance on a void 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.
However, acts performed in good faith before the nullity was invoked are not rendered unlawful
by reason only of the nullity of the treaty, but they remain so with respect to the party to whom
fraud, corruption or coercion is imputable.

j. Termination and denunciation of treaties.

Denunciation is a unilateral act by which a party seeks to terminate its participation in a treaty.
For bilateral treaties, lawful denunciation terminates the treaty. For a multilateral treaty,
denunciation is usually termed as withdrawal, and will normally not result in the termination of
the treaty. Termination of the treaty may occur in any of the three ways:

i. Pursuant to the provisions of the treaty itself.

ii. Pursuant to a fresh agreement of the parties to the treaty, e.g. charter of the OAU and
Act the AU.
iii. By operation of law: Article 54 of the 1969 Convention provides that the termination of
a treaty or the withdrawal of a party may take place in conformity with the provisions of
the treaty or at any time with the consent of all the parties after consultation with the
other contracting states. Article 55 provides that unless the treaty itself provides so, a
multilateral treaty does not terminate by reason only of the fact that the number of the
parties fall below the number required for its entry into force. Further, a treaty which has
no provision for termination and which does not provide for denunciation or withdrawal
is not subject to denunciation or withdrawal unless it is established that the parties
thereto intended to allow the possibility of denunciation or withdrawal as may be implied
in the nature of the treaty.

A party who intends to denounce or withdraw from a treaty under the above rule must give at
least a 12 months’ notice.

The 1969 Convention gives three grounds for the termination or denunciation of a treaty.

i. Material breach

Article 60 provides that a party to a treaty may unilaterally denounce or terminate it if there has
been material breach of the treaty by another party. A material breach consists of a repudiation
of the treaty in such a way not sanctioned by it, or the violation of a provision essential to the
accomplishment of the object and purpose of the treaty.

A material breach of a bilateral treaty by either of the parties thereto entitles either party to
invoke the breach as a ground for termination or suspension of the treaty in whole or in part. A
49
material breach of multilateral treaty by one of the parties entitles the other parties to
unanimously agree to suspend the operations of the treaty in whole or in part, or to terminate the
treaty either in relations between themselves and the defaulting state generally. A material breach
of a multilateral treaty entitles a party especially affected by the breach to invoke the breach as
aground for suspension of the operation of the treaty as a whole or in part in relations between
itself and the defaulting state. A material breach of a multilateral treaty by one of the parties
entitles any party other than the defaulting state to invoke the breach as a ground for suspending
the operation of the treaty in whole or in part with respect to itself if the treaty is of such a
character that a material breach of its provisions by one party radically changes the position of
every other party with respect to the performance of its obligation under the treaty.

ii. Supervening impossibility

Article 61 provides for termination or withdrawal from a treaty on the ground of supervising
impossibility. The impossibility must result from the permanent disappearance or destruction of
an object indispensable for the performance or the execution of the treaty. A temporary
impossibility may therefore be invoked only for suspension of the treaty. However, if the
impossibility has arisen due to a breach by the party seeking to invoke it of an obligation under
the treaty or any other international law obligation owed to any other party to the treaty, this
ground will not be available for the invoking state to withdraw from or suspend the operations
of the treaty.

iii. Fundamental change of circumstances

Article 62 provides the ground of fundamental change of circumstances as another which may
be invoked by the affected party to seek to be released from the obligations under a treaty. This
is the principle of clausula rebus sic stantibus. This principle is justified by the notion that a
treaty implies a condition that, if by unforeseen change of circumstances an obligation provided
for in the treaty should endanger the existence or the vital development of one of the parties
thereto, the party should have a right to demand to be released from the obligations of the treaty
that are concerned. This is antithesis of the principle of rebus sic stantibus which implies that
treaties are concluded on the presumption that changes won’t occur to the detriment of the
parties to the treaty. However, clausula rebus sic stantibus does not give a state party to a treaty an
automatic right to declare itself free from the obligations of the treaty as soon as the vital change
in circumstances occurs. It only entitles the party to claim to be released from the treaty
obligations by the other party (ies) to the treaty. If the party/ies thus approached refuse to
accede to the request, then the requesting state may be justified to declare that it can no longer
consider itself bound by the treaty.

Under Article 62(1), clausula rebus sic stantibus may only be involved as a ground for the
termination or withdrawal from a treaty only where the existence of the circumstances that have
changed constituted an essential basis of the consent of the parties to be bound by the treaty,
and the effect of the change of the circumstances radically transforms the extent of the
obligations still to be performed under the treaty.

Under Article 63 of the Convention, it is provided that the severance of diplomatic or consular
relations between parties to a treaty does not affect the legal relations established by the treaty
except in so far as the existence of diplomatic or consular relations is indispensable for the
application of the treaty, e.g., a treaty establishing a military alliance. Conversely, Article 74 of the
Convention provides that the absence of consular or diplomatic relations between two or more
states does not prevent the conclusion of treaties between those states and the conclusion of a
treaty does not in itself affect the situation with regard to diplomatic or consular relations.

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 7. TERRITORIAL JURISDICTION

a. The Concept of Territory

Territory is one of the indicia of statehood under international law. It is the physical basis of a
state and all effects of the functions of a state refer to the legal effects of the functions on the
territory. The rights of a state also extend only to its territory, including the right to make,
adjudicate and enforce its municipal laws with respect to persons and activities within its
territory. Sovereignty of the state is founded upon the physical fact of the territory and the
sovereignty underlies the legal identity of the state as a jural person under international law.

The concept of territory includes the land mass, the territorial sea appurtenant to the land and
the sea bed and sub soil thereof as well as the air space above. Islands, islets, rocks and reefs are
also included in the concept of territory.

Territorial waters is defined by the 1982 UN Convention on the Law of the Sea to be the mass
of waters extending up to 12 nautical miles from the baseline , i.e. the mean low water of a
coastal state. Territorial waters also include inland waters e.g. a lake. For coastal states, where the
12 nautical miles overlaps with another state’s territorial waters, the border will be taken to be
the median point between the states baseline. However the states may agree otherwise.A state
may also choose to claim a smaller territorial area than the 12 nautical miles.

The Contiguous Zone: A coastal state may make a public proclamation to the international
community establishing a zone contiguous to the territorial sea (the Contiguous Zone),
extending to a maximum of 24nautical miles from the baseline. In this zone, the state may
exercise prevention rights i.e. police power to prevent infringement of its customs, fiscal,
immigration or sanitary laws in its territory. The state authorities may board and search vessels in
this zone, and may prohibit a foreign vessel from entering its territorial sea. The state may extend

51
its criminal laws to punish any infringement of the control rights that may take place in the
contiguous zone.

The Exclusive Economic Zone: A coastal state may similarly proclaim an Exclusive Economic
Zone (EEZ) which may extend to a maximum of 200 nautical miles from the baseline. If the
sea is not open for this distance, an agreement will be made with the opposite and adjacent
coastal states. In this zone, the state enjoys sovereign rights limited to the resources and
jurisdiction in respect of artificial installations, marine scientific research and protection of the
marine environment.

A territory to which no state has acquired title may either be res nullius or res communis. The former
consists of the subject matter that is legally susceptible for acquisition by states, but not placed
under territorial sovereignty. The latter comprises the high seas and outer space which is not
capable of being placed under territorial sovereignty. Res communis is governed by the concept of
common heritage of mankind.

b. Acquisition of title to Territory

Title to territory may be acquired through any of the following five modes:

i. Occupation:

This entails the establishment of sovereignty over territory which is not under the authority of
any other state, whether newly discovered or abandoned by the state formerly in control. The
classical subject matter of occupation is the terra nullius. (a land belonging to no one). However, a
territory inhabited by the tribes or peoples having a social and political organization cannot be of
the nature of terra nullius.

❖ The ICJ Advisory Opinion on Western Sahara (1975) ICJ Rep. 12

As part of its decolonization policy, Spain pulled out of Western Sahara without preparing the
inhabitants for independence. Immediately it pulled out, Morocco and Mauritania moved into
the territory and occupied it. The ICJ advised that Western Sahara was not terra nullius which
Morocco and Mauritania could claim sovereignty over through occupation.

For occupation to be deemed to have taken place, under international law, there must be
effectiveness. In The Case Concerning the Legal Status of Eastern Greenland, both Norway
and Denmark had claimed sovereignty over Eastern Greenland. Denmark had colonies over
other parts of Greenland and had granted concessions over the uninhabited part of the Eastern
Greenland. It had proclaimed that all treaties and legislation it made covered the whole of
Greenland. Norway on its part only took actions like winter expeditions and erected a wireless
station in Eastern Greenland, and only came to claim the territory in 1931. The PCIJ found for
the Denmark and stated that for occupation to be effective, there has to be an intention or will
to act as sovereign over the territory and also there must be an adequate exercise or display of
sovereignty through concrete evidence of possession or control e.g. taking of executive,
legislative and judicial measures affecting the territory concerned, fixing boundaries or entering
into treaties with other states recognizing the claimant.

❖ The Minquiers and Ecrehos Case; (France vs. United Kingdom) (1953) ICJ Rep.
47

The Minquiers and Ecrehos groups of islets and rocks lie between the UK and France. They
were of value to the fishermen of both France and UK. Both claimed exclusive sovereignty by
ancient or original title which they each claimed was never lost. They submitted the dispute to
52
the ICJ. The court upheld the British claim on ground that there was evidence that the British
authorities had exercised state functions e.g. conducting inquests, imposing rates and registering
sales of land in respect of the islets. These were deemed to involve the manifestation of state
authority in respect of the islets.

ii. Annexation:

This occurs where the territory has been conquered or subjugated by the annexing state, or
where the territory is in a position of virtual subordination to the annexing state at the time when
the intention of the annexation is declared. The conquest of a territory on its own is not
adequate to acquire title. There has to be a formal declaration of the intention to annex the
territory. An annexation which results from gross aggression committed by one state against
another, or which has been effected by force contrary to the provisions of the UN Charter
cannot be recognized as giving title to territory.

iii. Accretion:

This occurs where a territory is added mainly through natural causes to territory already under
the sovereignty of the acquiring state. The natural causes may be through gradual or
imperceptible processes e.g. alluvial deposits or alluvial formation of islands. It may also be
through sudden and abrupt transfer of soil, provided that this has become embedded and was
not in any event identifiable as originating from another location.

iv. Cession

This entails the transfer of part or whole of the territory of the state to another. This is a
sovereign right of a state. Cession may be voluntary or compulsory as a consequence of a war
conducted successfully by the state to which the territory is ceded. However if the cession is
made by treaty, the conclusion of which is secured by threat or use of force, then the cession is
void. For cession to be valid there must be sufficient indication of an intention to transfer
sovereignty from one state to another and the receiving state takes all the sovereign rights and
any limitations pertaining to the territory ceded.

v. Prescription

This is the consequence of a peaceful exercise of defacto sovereignty for a very long period, over
a territory subject to the sovereignty of another state. This may be as a result of immemorial
exercise of sovereignty or as a result of lengthy adverse possession only. There must be effective
control over the territory, and acquiescence on the part of the former of losing sovereign.
Therefore protests or other acts or statements which demonstrate a lack of acquiescence will
disapply prescription to the territory.

New states

New states acquire territory in a sui generis way. These states may be decolonized dependencies or
emancipated trust territories. Their mode of acquiring territory is sui generis in that they are not
legal persons under international law competent to hold title to territory. There are two modes of
such sui generis acquisition of territory. The first one in by constitutional means, by which the
former controlling administration devolves the power in an orderly way. For instance, the
granting of independence according to the constitutional provisions of the former power may be
achieved either through agreements between the former power or by an internal legislation by
the previous sovereign. In such case, there is devolution of sovereignty from one power to
53
another and the title to the territory passes from the previous sovereign to the new
administration in a conscious act of transference. The second mode is through non-
constitutional means usually by the use of force against the former sovereign e.g. through
revolution or secession. In such cases different considerations may arise e.g. the principle of self-
determination.

The Principle of uti possidetis juris

This principle has been employed in settlement of territorial disputes in an area where terra nullius
did not exist. It involves the preservation of colonial demarcation of boundaries corresponding
to each colonial entity that is now constituted as a colonial independent sovereign state. This
principle was originally applied in Latin Americas but has been adopted generally so that it is
now a rule of customary international law. In 1964, the OAU adopted this principle to apply in
resolution of border disputes in the African states. Under this principle, the African states cannot
redraw their boundaries different from as drawn by the colonialists. However, the principle ofuti
possidetis juris does not prohibit the voluntary transfer of title by one state to another over part or
whole of its territory, as this is a function of sovereign right of a state.

c. Principles Of Jurisdiction:

In international law, jurisdiction refers to the legal power or competence to exercise

governmental functions. A state may have administrative or enforcement jurisdiction (authority
to use the resources of the government to induce or compel compliance with its laws),
prescriptive jurisdiction (authority of a state to make and apply its laws to persons and activities),
adjudicative jurisdiction (authority of a state to subject particular persons or activities to its
judicial process) over a subject or subject matter.

As a general rule a state’s prescriptive jurisdiction is unlimited, i.e., a state may legislate for any
matter irrespective of where it occurs or the nationality of the persons involved. The
enforcement jurisdiction of a state is ideally limited to the persons and events actually within its
territory wherein it has a presumptive absolute authority over all matters and persons situated
therein. The only exception to this jurisdiction is with regard to the principles of diplomatic
immunity and state immunity. Due to sovereign equality of states, a state may not exercise its
enforcement jurisdiction in a concrete sense over persons or events situated in the territory of
another state. Adjudicative jurisdiction may be more acceptable where the former state also has
the prescriptive by the reason of its links to the persons, interests, relations or activities involved.

In practice, all this kinds of jurisdictions are often interdependent. However problems of
jurisdiction occur in international relations, and governments have to decide how far to assert
their authority and when to oppose the exercise of jurisdictional authority by other states. This
situation normally arise where there is conflict of jurisdiction.

The prescriptive jurisdiction of a state is derived based on five principles:

i. The Territorial principle:

This is the most essential attribute of state sovereignty. A state must have jurisdiction to
independently govern its own population in its own territory. The laws of the state will apply to
persons, property and activities in its territory over which it has territorial jurisdiction, unless a
contrary intention is shown. Under international law, a state’s territorial jurisdiction covers its
territorial sea, its exclusive economic zone, a ship flying its flag and the port of a state is
assimilated into its territory.

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State practice has also extended the principle of territorial jurisdiction in order to justify action
taken in cases where one or more constituent elements of the actor offence took place outside
the territory of the state. Other states on whose territory the auxiliary acts took place may decline
to prosecute or punish the offenders responsible on the ground that the auxiliary acts were but
accessory to the principal acts committed elsewhere and therefore the territorial jurisdiction
doesn’t apply. This situation has led to the formulation of the subjective territorial principle
which confers jurisdiction over crimes commenced within the state but consummated or
completed abroad. A complimentary principle is the objective territorial principle under which
states have jurisdiction over acts or offences commenced in another state but is completed
within their territory, or produces gravely harmful consequences to the social or economic order
inside their territory. This principle (objective territorial principle) was applied in the S.S Lotus
Case, in which PCIJ accepted the Turkish argument that vessels in the high seas form part of the
territory of the state whose flag they fly, but however, that Turkey had not acted in violation of
international law in exercising penal jurisdiction over the French citizens who were responsible
for the collision of the ships, because the collision had produced effects on the Turkish territory.

ii. Nationality principle

This is the most fundamental principle of extraterritorial jurisdiction. Under this principle, a
state’s laws may be applied extraterritorially to its citizens, individuals or corporations wherever
they may be found. Therefore a person or company located or doing business in a foreign
country may be subject not only to the territorial jurisdiction or host state, but also to jurisdiction
of his or its national state. Nationality principle particularly comes to the force in cases where
offences are committed in places like the high seas or the outer space. In actual state practice,
there is the active nationality principle whereby jurisdiction is assumed by the state of which the
person against whom the proceedings are taken is a national; and passive nationality principle
under which jurisdiction is assumed by the state of which the victim or person suffering injury is
a national. The rationale for passive nationality principle is that each state has a right to protect
its nationals abroad and if the territorial state neglects or is unable to punish the persons causing
the injury, the state of which the victim is a national is entitled to do so if the person responsible
comes within its power. Some aspects of this principle will also fall under the protective and
universality principle.

iii. Protective principle

This is also called the security principle. Under it, a state may exercise jurisdiction over aliens
who have committed an act abroad, and which is deemed to be prejudicial to the security of the
state concerned. This principle is justified on the basis of the vital interest of the state since the
alien might be committing the offence which on its own is not illegal under the law where he is
residing, and where extradition may be refused, particularly in cases where the acts comprise
political offences. This jurisdiction is particularly based on conduct which is generally recognized
as a crime under the law of states. For instance, in the case of U.S vs. Pizzaruso (1968),the
USSupreme Court held that an alien could be indicted and convicted under the municipal law of
the US as well as under the international law for knowingly making false statements under oath
in an application for a US visa. This principle has also been recognized as the basis of the
exercise of jurisdiction over aliens involved in espionage, counterfeiting of the state’s seal or
currency, falsification of official documents and conspiracy to violate immigration or custom
laws.

iv. Universality Principle

Under this principle, each and every state has jurisdiction to try and punish perpetrators of crime
against humanity or the international community as a whole if and when they have custody of

55
such perpetrators. In this regard, the state which prosecutes and punishes, for instance, a pirate
or war criminal acts as an organ or agent of the international community, and punishes the
offender for his breach of the prohibition imposed by the international law

❖ Attorney General of Israel vs. Eichmann, (1968), 36 ILR (District Court)

Adolf Eichmann had played a major role in the execution of Jews during the World WarII. He
was captured in the Argentina and brought to Israel where he was tried under the Israeli law for
war crimes and crimes against the Jewish people. An issue was raised that the exercise of
jurisdiction against Eichmann by the courts of Israel in respect of crimes committed outside
Israel and before Israel became a state it was against international law, and further that it was a
trial consequent to ‘international kidnapping.’ The Supreme Court of Israel held that in
punishing war crimes pursuant to the universality principle, the state was acting in the capacity of
a guardian of international law and an agent of its enforcement.

Universality principle now grants states jurisdiction to define and prescribe punishment for
slavery, attacks on or hijacking of aircrafts and genocide. A number of treaties have been signed
by states to grant universal jurisdiction over such crimes. The governing principle for this
jurisdiction is governed by the maxim aut punire aut dedere, meaning that offenders must be
punished by the state on whose territory they are found and in whose custody they are, or must
be extradited to the state which is competent and desirous of exercising jurisdiction over them.

v. Passive personality principle

This grants a state the basis upon which it may claim jurisdiction to try and punish an individual
for offences committed abroad, which have affected or will affect its nationals.

d. Conflicts of jurisdiction

The various bases of jurisdiction do often conflict and overlap. These overlaps may lead to
complex problems which may be resolved upon the cooperation of the states involved. In a
number of cases, the resolution will also depend on international agreements which limit the
absolute assertion of jurisdiction. A typical case of overlap of jurisdiction is where a merchant
ship enters a port voluntarily, not in the consequence of distress. In this case, temporary
allegiance is owed to the territorial sovereign. The flag state will also have jurisdiction in respect
of conduct that breaches the respective laws of the two states. In criminal matters, local
authorities will usually not intervene and enforce their local jurisdiction unless their assistance
has been invoked by or on behalf of the local representative of the flag state or those in control
of the vessel or unless the peace and good order of the port is or is likely to be affected. This
deferment of jurisdiction to the flag state is based on reciprocity.

❖ The Wildenhus Case;Vol. 120 U.S. Supreme Court Rep. 1887, 1.

Wildenhus, a Belgium national killed another Belgium national below the deck of a Belgian vessel
of which they were both crew members. At the time of the killing, the vessel docked in Jersey
City. The local authorities arrested Wildenhus and charged him with the killing. The police also
had two other crew members as witnesses. The Belgian counsel applied for a writ of habeas corpus
relying on an 1880 treaty between the US and Belgium under which certain officers would have
exclusive charge of the internal order of merchant vessels of their nature, and that the local
authorities will not interfere except when the disorder on the vessel was such as to disturb
tranquility and public order onshore or in the port, or when a person of the country or not
belonging to the crew should be concerned therein. The US Supreme Court held that a killing by
crew of another, both foreigners, committed on board a foreign ship docked in a local port

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disturb the public peace on the shore and therefore justified the exercise of jurisdiction by the
local authority.

Port states are fully entitled to exercise jurisdiction over foreign merchant vessels in their internal
waters. However, they rarely do so, and observe what is commonly known as the French
Modification which provides that host states, based on comity and reciprocity may decline to
exercise their jurisdiction over foreign merchant vessels unless activities on board the vessel
threaten the peace of the port or the public peace.

Under the 1963 Tokyo Conventionon Offences and Certain Other Acts Committed on Board
Aircrafts and the 1970 Hague Conventionfor the Suppression of Unlawful Seizure of Aircrafts,
states signatories thereto have concurrent jurisdiction to deal with the offenders for any act
committed on board the aircraft. Under the 1970 Hague Convention, hijacking is considered as
continuing offences and any state where the aircraft lands is entitled to exercise jurisdiction over
the hijackers on the principle of territoriality.

However, there are some international limits to the jurisdiction of states. Where two states have
prescriptive jurisdiction, and the rules they prescribe require inconsistent conduct on the part of
a person, each state is required by international law to consider, in good faith, moderating the
exercise of its enforcement jurisdiction in light of factors which include:

▪ The vital national interest of each of the states

▪ The extent and nature of the hardship that inconsistent enforcement actions would
impose on the person
▪ The extent to which the required conduct is to take place in the territory of the other
state
▪ The nationality of the person
▪ The extent to which the enforcement action by either state can reasonably be expected to
achieve compliance with the rule prescribed by that state.

❖ Barcelona Traction, Light and Power Company Limited; (Belgium v. Spain) 1970
ICJ Rep. 3

The Belgian government brought a claim against the Spanish government for losses incurred by
the Barcelona Traction Light and Power Company. The company was incorporated in Canada by
Belgian individuals and was carrying out business in Spain. The claim was against some acts of
the Spanish state organs which had caused the company some losses. The Belgian government
had argued that because the bulk of its shareholders were Belgian nationals, the company was
really a Belgian company. The Spanish government raised objections one of which was that the
Belgian claim was inadmissible because the Belgian government lacked the locus standi to
intervene and exercise diplomatic protection over its nationals who are shareholders in a
Canadian and not a Belgian company. The ICJ pointed out that they had a right recognized by
international law that would entitle the Belgian government to exercise jurisdiction and invoke
diplomatic protection to the company. It noted that a state can only exercise diplomatic
protection where the company is its national and that there has to exist certain exceptions to
hold otherwise. In the present case, the court noted that there was no legal impediment on
Canada to exercise diplomatic protection over the company. In the present case, the company
had maintained its offices, shares, accounts, board meetings and tax receipts in Canada for more
than 50 years and had disclosed from the onset that its business would be outside Canada. The
court found no reason to lift the corporate veil of the company accordingly rejected the Belgian
claim on the ground that it had no locus standi before the court.

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A state can only exercise diplomatic protection over its nationals. In the case of a corporation,
the basic test is where the entity was incorporated and has its registered office. Other factors that
would be considered in determining whether or not to pierce the corporate veil include the
nationality of the majority of the Board of Directors, the state in which the corporation is
physically located and the state in which it conducts most of its business. All these factors are
considered in an effort to establish a genuine link between the corporation (and individuals) to a
state.

e. Extradition:

Extradition is the surrender of an individual accused or convicted of a crime by a state within

whose territory he is found to the forum state i.e. the forum for trial. States have no automatic
right or duty to either have individuals extradited to them or by them to other states. State
practice wholly relies on treaty arrangement between the asylum state and the representing state.
Most of these are bilateral treaties and they list down the offences for which a fugitive may be
extradited. Multilateral treaties on the other hand, stipulate that the act for which the extradition
is sought must be a crime under the jurisdiction of both the states punishable by a certain
minimal penalty. This stipulation is referred to as the rule of double criminality. The courts of the
requesting state need not determine whether the fugitive committed the offence. They merely
reveal the evidence to establish a prima facie case for the fugitive is sought to answer at a trial in
the requisitioning state.

A related stipulation to the rule of double criminality is that specialty, under which a person
surrendered by the asylum state to the requisitioning state must be tried and punished only for
the offence for which the extradition has been sought and granted.

Extradition shall not take place if the prosecution of the fugitive is barred by a statute of
limitation in either the asylum state or requisitioning state, or where the fugitive is accused of
political offences. Most extradition treaties also exempt nationals of the asylum state from
extradition on the basis that individuals should not be withdrawn from the jurisdiction of their
own courts. Such persons must be prosecuted by the states of which they are nationals.

8. STATE IMMUNITY

The doctrine of state immunity is also referred to as sovereign immunity. Under it, states and
their governments are granted immunity from territorial jurisdictions of other states. This is
justified on two grounds.The first is the principle of sovereign equality of states, expressed in the
maxim pari parem non habet imperium. Under this principle persons of the same standing cannot
have their dispute settled in the court of one of them. This may only happen if a sovereign state
waives its immunity. The second ground is based on the principle of non-intervention in internal
affairs of the other state. A sovereign state has a complete and exclusive jurisdiction over its
territory as an attribute of statehood. It would therefore offend the dignity of a state as an
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independent sovereign to submit to the jurisdiction of another. However the doctrine of
sovereign immunity applies only with regard to the municipal laws of states and not with regard
to international law.

Until the end of the 19th century absolute immunity applied to states, their agents and property to
shield them from the jurisdiction of other states. However, with time states began to engage in
functions not wholly reserved to the state, and therefore the doctrine of absolute immunity
began to be examined. With the widespread contracting for trade and other commercial activities
by government the doctrine of absolute immunity became inappropriate in the light of the
requirement of the contemporary commercial world, coupled with the notion of fairness and
equality in the market place. There arose the need to separate state action from actions which a
private person could perform. Therefore from the 1950’s onwards, several states began to move
towards the restrictive or qualified doctrine of state immunity. They took after the practice that
Italy and Belgium which had adopted the doctrine of qualified immunity as early as the term of
the 19th century.

The application of the doctrine of qualified immunity had the states emphasize on the nature of
an activity or transactions, rather than the status of it. Hence there as a differentiation between
acta jure imperii that is, acts in public authority in which respect there would still be immunity,
and acta jure gestionis which are private or commercial in nature and in which respect no
immunity would lie. From this differentiation, status remained important only to put a defendant
in the category of persons who potentially could claim immunity, while the actual immunity
would depend upon the activity or transaction in question. Several states have now adopted the
restrictive approach to state immunity in their respective legislation and judicial decisions.

❖ Alfred Dunhill of London vs. Republic of Cuba(1976) 425 US 682, 70

In 1960, the Cuban government confiscated the business and assets of five leading
manufacturers of Havana cigars. The businesses were organized under the Cuban laws and were
owned by Cuban nationals. Of the main importers of the product were three US companies.
Most of the former owners of the confiscated businesses had fled to the US. The interveners of
their businesses on behalf of the Cuban government continued to supply the traditional
importers including the three U.S. companies. The former owners who were now residents in the
U.S. brought various actions against the three American importers for trademark infringement as
well as purchase price for the cigars imported by them from the interveners. In the process of
settling accounts it was established that the petitioners had been paid some money in error and
therefore sought to set off the extra payments for the sum they were seeking from the
respondents, who had been made to include the interveners on behalf of the Cuban government.
The issue before the court was whether the failure of the respondent to return to the petitioners
the balance of the sum due was a sovereign act by the state of Cuba precluding an affirmative
judgment against the respondent. The court held that it was not, as the act was one of acta jure
gestionis. The US Supreme Court applied the restrictive rule theory of state immunity as the basis
of its refusal to recognize the repudiation of commercial obligations as an act of the state.
Immunity was to be granted only with respect to cause of action arising out of a foreign state
public or governmental actions and not with respect to those arising out of its commercial or
proprietary actions because in the later capacities foreign states exercise powers that can also be
exercised by private individuals.

However states have always experienced difficult in the criteria in distinguishing between acta jure
imperii and acta jure gestionis. Generally it is accepted that commercial transactions are acta jure
gestionis. However, where the transaction involves purchase or supply of say, state security
apparatus, questions will arise as to whether the transaction is an actus jure imperii or an actus jure
gestionis. Earlier this question would be resolved by looking at the purpose of the transaction.

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However, lately it has been held that reliance on the purpose of the act is in compatible with the
nature of the transaction as the basis of determining whether or not the transaction is actus jure
imperii.

❖ Trendtex Trading Corporation vs. Central Bank of Nigeria, (1977) QB 529

In 1975, the Central Bank of Nigeria issued a letter of credit in favor of the plaintiff, a Swiss
company for the price of a quantity of cement to be sold by the plaintiff to a British company
which had secured a contact with the government of Nigeria for the supply of cement for the
construction of an army barrack. Under the instruction of the Nigerian government the bank
failed to honor the letter of credit, the plaintiff bought an action against the bank in the English
High Court where at the bank successfully pleaded sovereign immunity. The matter went to the
Court of Appeal where the High Court decision was over ruled. The Court of appeal voted that
“if a government department goes into the market places of the world and buy boots and cement
as a commercial transaction then that government department should be subject to all the rules
of the market place. The seller is not concerned with the purpose to which the purchaser intends
to put the goods.”

States have applied the doctrine of restrictive sovereign immunity in their legislations too. In
1976 the US Congress enacted the Foreign Sovereign Immunity Act in which it provided that the
character of an activity will be determined by its own nature rather than by reference to its
purpose. The Act further provides that a foreign state shall not be immune from the Courts of
the US in any case in which the action is based upon a commercial activity carried out in the US
by foreign states, or upon an act performed in the US in connection with a commercial activity
of the foreign state elsewhere, or upon an act outside the territory of the US in connection with
the commercial activity of a foreign state elsewhere and that causes a direct effect to the US.

In the UK, the parliament enacted in 1978 the State Immunity Act which applies the restrictive
theory of state immunity. It provides that a foreign state is immune from the jurisdiction of the
Court of the UK except under the following circumstances:

a. A commercial transaction entered into by that state, or

b. An obligation of that state which by virtue of a contract, whether a commercial
transaction or not falls to be performed wholly or partially in the UK

The Act defines a Commercial transaction as:

▪ Any contract for the supply of goods and services

▪ Any loan or other transaction for the provision of finances and any guarantee or
indemnity in respect of any such transaction or of any other financial obligation
▪ Any other transaction or activity whether of a commercial, industrial, financial,
professional or other similar character into which a state enters or in which it engages
otherwise than in the exercise of any sovereign authority.

The Kenyan experience:

❖ The Ministry of Defence vs. Joel Ndegwa ((1982-88) 1 KAR 135

***The difference between State Immunity and Act of State Doctrine?

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 9. DIPLOMATIC AND CONSULAR IMMUNITY

a. Introduction

States conduct their foreign relations through state officials or agents through the institution of
diplomatic representation. In the contemporary world, this involves the establishment and
maintenance of permanent missions (embassies or high commissions) in various countries. It
may also involve missions at the headquarters of international organizations e.g. the UN, AU, or
their agencies e.g. WHO, ILO, etc. These agents are sent to the receiving state and organization.

The law relating to international relations is codified in the 1961 Vienna Convention on
Diplomatic Relations. It codifies the pre-existing rules of customary international law that had
been developed through state practice dating way back to the days of the Greek city states. The
preamble to the Convention provides that where it does not cover a particular issue, rules of
customary international law will be resorted to.

State representatives and agents are categorized by the 1961 Convention into 3 groups:

i. Ambassadors or nuncios accredited to the heads of states and other heads of mission
of equivalent rank e.g. High Commissioners in relation to the British Commonwealth
states
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 ii. Envoys, ministers and inter-nuncios accredited to the Heads of state
iii. Charges d’affaires accredited to the ministers for foreign affairs

The establishment of diplomatic relations and missions is based on mutual consent of the states
concerned. (Article 2 of the Convention). The receiving state has the right to reject a particular
representative. This refusal to accept a representative may either be general or in respect to a
particular mission or negotiation or that a particular envoy is not personally acceptable. The state
need not specify or justify its objections to a particular envoy.

The appointment of an envoy is usually announced to the state to which the individual is
accredited, through official papers known as Letters of Credence. These are remitted to the
receiving state and may sometimes be accompanied by documents of Full Powers relating to
particular negotiations that the representative may be involved in. The receiving state then gives
its assent through an agreement whereupon the accrediting state proceeds with the formal
appointment. However under article 9 the receiving state may at any time and without any
obligation to explain its decision declare an envoy a persona non grata. When this happens that
state will usually require that the envoy be recalled or his functions terminated.

The actual essence of diplomatic relations is that a state allows the representative of another state
to carry out functions Article 3 (1) of the Convention in its territory. These functions are:

▪ Representing the sending State in the receiving State;

▪ Protecting in the receiving State the interests of the sending State and of its nationals, within
the limits permitted by international law;
▪ Negotiating with the Government of the receiving State;
▪ Ascertaining by all lawful means conditions and developments in the receiving State, and
reporting thereon to the Government of the sending State;
▪ Promoting friendly relations between the sending State and the receiving State, and
developing their economic, cultural and scientific relations.

It is the carrying out of these functions that are affected by the concept of diplomatic immunity.
The rationale for diplomatic immunity over these functions may be explained in three different
ways:

Firstly, the concept of extraterritoriality, which implies that the diplomatic representatives are
part of the sending state and therefore the doctrine of territorial integrity, will apply to him.

Secondly, the diplomatic agent stands in the shoes of the sending state and hence enjoys
sovereign immunity of his sending state.

Thirdly, the immunity is based on functional theory; in that the diplomatic agent cannot carry
out his official functions and represent his state if he does not enjoy the immunities and
privileges. The immunity affords the representative the convenience he needs in being allowed
such freedoms from the legal process of the receiving state as is necessary to ensure that he will
be undisturbed in his freedom to represent his sovereign and report back to him. The immunity
therefore protects the diplomatic functions and not to put the agent in a personally privileged
position outside the law of the receiving state. The diplomatic agent cannot invoke or waive the
immunity, but rather it is the sending state that can do this.

b. The privileges and immunities

The building occupied by a foreign embassy or high commission and the land on which it stands,
irrespective of the ownership are part of the territory of the receiving state. They are therefore
62
under the jurisdiction of the receiving state. However, the members of the diplomatic mission
and their activities in the embassy or the high commission are primarily under the control and
jurisdiction of the sending state. However, international law has sought to avoid a conflict of the
two jurisdictions by laying down rules to cover the whole field of diplomatic relations.
Accordingly, the premises are inviolable and the local authorities may enter them only with the
consent of the head of the mission. The premises are immune from any form of law
enforcement by the authorities of the receiving state. Additionally, the receiving state is under a
special duty to take all appropriate steps to protect the premises of the mission against any
intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of
its dignity. The premises, their furnishings and other property thereon as well as the means of
transport are immune from any search, requisition, attachment or execution. These provisions
are laid out in Article 22 of the 1961 Convention.

The Case Concerning United States Diplomatic and Consular Staff in Tehran (USA vs.
Iran); (1980) ICJ Rep. 3 (The Hostages Case)

In November 1979, during the Islamic Revolution of Iran, the USA Embassy in Tehran was
invaded and occupied by university students as well as other armed militants who took personnel
of the embassy hostage. The embassy staff as well as the government of the USA requested
assistance from the government of Iran but the latter did not protect or dissuaded the militants
from continuing the occupation. Indeed, Iran made statements that could be construed as
endorsing the occupation and holding the embassy personnel hostage. The US instituted
proceedings against the Iranian government in the ICJ seeking, inter alia, a declaration that Iran
had violated its obligations towards the US under international law, and that Iran was obliged to
release the embassy staff and other US citizens who were being held hostage by the militants.
The ICJ held that Iran had violated its obligations to the US under some treaties and general
international law, among other orders.

However, this immunity does not make the premises foreign territory or take them out of the
reach of the local law in various respects. For instance, a commercial transaction in an embassy
may be governed by the local law, a child born there, unless the parents have diplomatic status,
may acquire local nationality etc.

Further the mission may not abuse the hospitality of the receiving state by using the premises to
breach the local laws. Under Article 41(1) of the Convention, the premises of the mission must
not be used in any manner incompatible with the functions of the mission as laid down in the
Convention or by other rules of general international law and an offence against the local law
committed on the premises is, subject to any immunity of the offender, punishable by the local
courts.

The personal inviolability of the diplomatic agent in the sense that he is immune from any form
of law enforcement action and is supposed to be accorded special protection by the receiving
state does not mean that the agent is exempt from legal liability. He is only exempt from the
court proceedings in the receiving state (Article 29). Thus, when his diplomatic status ceases, he
may be punished or sued in respect of any criminal or civil liability that he has incurred. In cases
of serious offences or misconduct by the diplomatic agent, the sending state may waive
immunity in which case he is exposed to proceedings to which his acts have made him liable, or
the receiving state may declare him a persona non grata and ask for his early departure from the
country. However, with regard to official acts, the diplomatic agent incurs no liability under the
local laws, and his immunity from any proceedings in respect thereof is absolute and permanent.

Under Article 31, immunity of the diplomatic agent from the criminal jurisdiction of the local
courts is absolute and has no exceptions.

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With regard to civil jurisdiction, the immunity is subject to three exceptions: a real action relating
to private immovable property, particularly where the ownership or possession is claimed; an
action relating to succession where the diplomatic agent is involved in his private capacity; and
an action relating to private or commercial activities engaged into by the diplomatic agent.

A diplomatic agent too is not a compellable witness. In a case where the plea of diplomatic
immunity is entered by a party thereto, the court handling the case will contact the Foreign
Office for advice on the status of the party, and the claim for diplomatic immunity. The
Minister’s certificate is conclusive evidence of the status of the party concerned.

c. Beneficiaries of Diplomatic Immunity

Under Article 29 of the Convention, the person of the diplomatic agent is inviolable, and he shall
not be liable to any form of arrest or detention. The receiving state shall treat him with due
respect and take all appropriate steps to prevent any attacks on his person, freedom or dignity.

Under Article 37, the members of the family of a diplomatic agent forming part of his
household, if not nationals of the receiving state, are entitled to diplomatic immunities and
privileges.

Members of the administrative and technical staff of the mission together with members of their
families forming part of their households, if not nationals of the receiving state, enjoy all
immunities and privileges except immunity from civil administrative jurisdiction for acts
performed outside the course of their duties.

All these persons also enjoy exemptions from customs duties under the laws of the receiving
state.

Members of the service staff of the mission who are not nationals or permanent residents of the
receiving state enjoy immunity in respect of acts performed in the course of their duties. They
also enjoy exemption from local dues and taxes on their wages and exemption from the local
social security laws.

Private servants of members of the mission who are not nationals or permanent residents of the
receiving state are exempt from dues and taxes on their wages.

In other respects, all these categories may enjoy immunities and privileges only to the extent
admitted by the receiving state.

Article 32 of the Convention provides for the waiver of immunities and privileges. This is only
done by the sending state and not the diplomatic agent. If a person who enjoys immunity
institutes a suit, he cannot plead diplomatic immunity in any counterclaim directly connected
with the principal claim. A waiver in civil or administrative proceedings does not include waiver
of immunity from execution, the latter which requires a different waiver on its own. Hence,
diplomatic agents will normally seek the consent of the sending state before they sue in the
courts of the receiving state.

Article 39 provides for the commencement and termination of diplomatic immunities and
privileges. The immunities commence from the moment the diplomatic agent enters the territory
of the receiving state on the way to his host, or if he is already present in the receiving state,
from the moment the appropriate ministry of that state is notified of his appointment. When the
appointment is terminated, the immunities and privileges cease to apply when the diplomat
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leaves the receiving state or after a reasonable period in which to do so even in the case of armed
conflict. Reasonable period is not defined by the Convention, and therefore must be understood
with regard to the special circumstances in each case.

Immunity for official acts subsists indefinitely. A reasonable period of continued immunities and
privileges is provided for the members of the family of a diplomatic agent in the case of the
agent’s death while on the post.

A plaintiff barred by immunity may sue a diplomatic agent in his home state, or may lay the
matter before the head of the mission; or, on failure to receive satisfaction, before his own
government.

CONSULAR IMMUNITY

Consuls are agents of a state in a foreign country concerned with the commercial interests of the
sending state rather than diplomatic functions i.e. consuls are concerned with the international
economic relations of states rather than with their political relations. They may also be referred
to as commercial or cultural attaché.

Consular relations are also established by the mutual consent of the states concerned. The
authority of the sending state is called the Commission and the authorization of the receiving
state is known as an Exequatur, which allows him to carry out his functions. Consular relations
are governed by the 1963 Vienna Convention on Consular Relations.

Functions of a consular officer are listed at Article 5 of the Convention to include protecting, in
the receiving state, the interests of the sending state of its nationals, furthering the development
of the commercial, cultural, economic and scientific relations between the sending state and the
receiving state, and otherwise promoting friendly relations between the states. They also issue
passports and travel documents to nationals of the sending state, among many other functions
listed under Article 5.

Under Article 40, consular officers are to be treated by the receiving state with due respect and
their person is inviolable. They may not be arrested or detained for criminal proceedings against
them except for grave crime, and which must be ordered by a court.

They are liable to execution of a court order only where the decision is final. Should a consular
officer be arrested or detained pending trial, the receiving state must inform the head of the
consular post, and where the head of the consular post is the one so arrested or detained, the
receiving state has to notify the sending state through diplomatic channels.

Under Article 43, all consular officers and employees are not amenable to the jurisdiction of the
judicial or administrative authorities of the receiving state in respect of their official functions.
However, this does not apply to civil jurisdiction.

Consular officers are also not compellable as witnesses except in very special circumstances.
With regard to waiver of immunity and privileges, consular officers have the same provision as
for diplomatic agents.

Under Article 46, consular officers are exempt from all obligations under the laws and
regulations of the receiving state with regard to registration of aliens and work permits.

Consular officers are also exempt from the social security provision in force in the receiving
state, as well as from all dues and taxes except those specifically provided for, all custom duties

65
and taxes on articles for the official use of the consular post as well as for the personal use of the
consular officers and the members of their households.

The personal baggage accompanying consular officers shall be exempt from inspection unless
there is a serious reason to believe that the baggage contains articles other than for official or
personal use or articles the import or export of which is prohibited by the laws and regulations
of the receiving state or which are subject to the quarantine laws and regulations of the receiving
state.

The immunities and privileges for the consular officers shall be enjoyed from the moment the
officer enters the territory of the receiving state on proceeding to take up their post or if already
in the territory, then from the moment when they enter on their duties with the consular post.
They shall cease at the moment when the officer concerned leaves the receiving state, or on the
expiry of a reasonable period in which to do so whichever is sooner.

Acts performed by a consular officer or employee shall be immune without limitation of time.

Under usual circumstances, the consent establishing diplomatic relations implies a similar
consent to establish consular relations. However, the severance of diplomatic relations does not,
ipso facto, involve the severance of consular relations.

Immunities of International Organizations

Immunities and privileges for international organizations are usually contained in various
instruments. Firstly, they may be contained in the constitutive instrument which normally
contains the basic principles of international immunities for international organizations. For
instance, under Article 105 (1) of the UN Charter, the organization shall enjoy in the territory of
each of its members such immunities and privileges necessary for the fulfillment of its purpose.
Under Article 105(2), the representatives and officials shall enjoy such immunities and privileges
as are necessary for the independent exercise of their functions.

Secondly, immunities and privileges of international organizations are provided for in general
agreements. The main ones are the 1946 Convention on the Privileges and Immunities of the
UN, the1947 Convention on the Privileges and Immunities of Specialized Agencies, the 1976
Vienna Convention on the Representation of States in Their Relations with International
Organizations of a Universal Character.

Thirdly, there are bilateral agreements e.g. Headquarters Agreements between an international
organization and the host state, Conference Agreements relating to the hosting of international
conferences, Technical Assistance Agreements, Peace keeping Agreements etc.

National legislation may also define the immunities and privileges of international organizations,
and are usually designed to implement locally the international obligations defined in treaty
instruments, supplement treaty provisions or in lieu of treaty provisions.

Immunities and privileges of international organizations have developed on the basis of function;
i.e. the international organizations need them in order to operate effectively and to discharge
their functions properly. In a similar way, the agents and servants of the international
organizations require the immunities and privileges to perform their duties.

The general immunities and privileges of international organization are as follows:

▪ Most international organizations enjoy full immunity from all types of legal process except
where they have waived the immunity.
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▪ Except where specifically provided for, governmental authorities are obliged to respect the
inviolability of the property of an international organization. They may not enter, search,
seize or interfere with any property or archives of the organization.
▪ The international organizations are generally free from restrictions in the holding, transfer or
any conversion of any currency or gold.
▪ They are exempt from all direct taxes and custom duties on their transaction or their
property and also from indirect taxes except for public utility fees.
▪ International organizations are generally free from restriction and prohibitions in imports
and exports for articles for their use, especially for publications.
▪ The official correspondence and communication of international organizations are free from
censorship. They may use codes, diplomatic coaches and couriers.
▪ The status of government representative to international organization is substantially the
same as that of diplomatic envoys in normal, bilateral interstate relations. Indeed, in some
cases, a state may accredit the same person simultaneously to a foreign state and to one or
more international organizations.
▪ Executive heads of the international organizations and for the large ones, their principal
assistants are often granted, in addition to normal immunities of officials, the equivalent of
diplomatic status. Some states grant such status to all such officials at the senior professional
levels.
▪ All officials of international organizations are immune from all national legal process in
respect of their official activities and this immunity subsists even after the end of their
appointment. However, some states do not grant this status to their own nationals but at
least the core immunities are preserved even for the local nationals in order to maintain
equality among staff members.
▪ Officials of international organization generally enjoy absolute or qualified immunity from
military service obligations.
▪ Officials of international organizations are normally exempt from income tax in respect of
emoluments received from the organization. This is meant to preserve the equality of the net
remuneration among the staff members.
▪ On their first entry into the country, the officials may bring in their furniture and personal
effects duty free. In some cases, they may later import duty free goods and vehicles and other
items. This privilege is sometimes implemented by permitting international organizations to
establish commissaries.
▪ Officials of international organizations and their families are exempt from immigration
restrictions and alien registration. Their travel has to be facilitated speedily and during an
international crisis, they are to be granted the same immigration facilities as diplomats.
▪ Officials of the UN and its related organizations may use the UN Laissez-Passer as a substitute
or supplement to their national passports. Some regional agencies also have similar travel
documents.
▪ International organizations may also secure immunities of other persons,e.g. experts on
missions who are neither state representative nor officials of the organization itself.

10. STATE RESPONSIBILITY

a. Introduction

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 Whenever any duty established by international law has been breached, whether by acts of
commission or omission, the international legal person to whom the breach is imputable is under
and obligation to make reparations. Rules of international law that deal with state responsibility
address the origin and nature of state responsibility, the circumstances in which liability can be
imputed to the state and the general defenses to such claims. These rules are customary in nature
and have variously been declared and affirmed in international law judicial proceedings. In the
Chorzow Factory Case, the PCIJ declared that it is a principle of international law and even a
general conception of law that any breach of engagement involves an obligation to make
reparations. The constituent elements of state responsibility are as follows:

i. An act or omission must be established that violates an obligation established by a

rule of international law in force between states responsible for an act or omission
and the state injured thereby.

The responsibility of the state need not be founded on malice, negligence or carelessness on its
part or any of its agents. What is important is the fault even where there is no subjective
intention to create harm.

❖ The Corfu Channel Case(United Kingdom vs. Albania); (1949) ICJ Rep. 4

In October 1946, a squadron of British warships sailed from the port of Corfu northwards
through a channel that had been previously swept of mines in the North Corfu Strait (the
channel had been swept by the British Navy in 1944 and no mines were found, and again in
1945, the channel had been check swept with no mines found). In the October 1946 incident, a
British mine destroyer that was part of the squadron was heavily damaged when it struck a mine
in the channel in a part that was part of the territory of Albania. While towing away the damaged
ship, another British destroyer hit a mine and was even more damaged. In November 1946,
British mine sweepers swept the channel and found 22 mines just at the point where the two
ships had earlier been destroyed by mines. The British government argued that the minefield
which had destroyed the ships had been laid with the connivance of the Albanian Government
in collusion with the Yugoslavian Government. The court found that there was insufficient
evidence to establish connivance and to this the UK argued that whoever the authors of the
minefield were, it could not have been done without the knowledge of the Albanian
Government. The court eventually held that the mere fact that the territory was controlled by
Albania necessarily meant that Albania knew or ought to have known of any unlawful act
perpetrated thereon. This by itself imputed liability on the government of Albania for not
warning the British ships of the dangers they put themselves into when sailing the Corfu channel.

ii. The unlawful act must be imputable to the state as a legal person.

States acquire liability only for acts committed by its officials or organs regardless of whether or
not the officials/organs acted within the limits of their competence. Accordingly, acts of a
person or a group of persons not acting on behalf of the state shall not be considered as acts of
the state in order to attach liability to that state under international law.

Home Missionary Society Claim (USA vs. Great Britain); 1920 6 RIAA 42

During a rebellion in the Protectorate of Sierra Leone, the Home Missionary Society, a US
religious body, had its property destroyed and some of its personnel killed. The US alleged that
in the face of the crisis the British Government had failed to take proper steps to maintain order
and that the loss of life and property was a result of failure of that duty. The claim was dismissed
as the tribunal found no failure of duty on the part of the British Government. The tribunal
stated that it was an established principle of international law that no government should be held
responsible for the acts of rebellious bodies of men committed in violation of its own authority,
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 and where the government itself is in no breach of good faith or negligence in suppressing the
insurrection.

In principle therefore, a state is not responsible under international law for acts of private
individuals unless they were acting on behalf of that state, or exercising elements of government
authority in the absence of government officials, and under circumstances that justified such
assumption of governmental authority.

However, a state may be liable for acts of an individual if such acts are accompanied by some act
or omission on the part of the state. Such acts or omissions may take various forms:

▪ Encouraging private individuals to attack foreigners.

▪ Failing to take reasonable care to prevent the private individuals from attacking foreigners
where the attack is imminent.
▪ Obvious failure on the part of the state to punish the private individuals
▪ Failure to provide the injured foreigner with an opportunity to obtain compensation from
the wrongdoers in the local courts.

▪ Obtaining some benefit from the wrongful acts of private individuals.

▪ Express ratification of the acts of the private individuals.

iii. Loss or damage must have resulted from the unlawful act or omission.

In inter-state relations, the concept of loss or damage is not confined to the material character.
Unlawful action against non-material interests must receive adequate reparation even if they have
not resulted into a pecuniary loss for the victim state.

However, there are certain situations in which acts causing loss or damage to a state may be
justifiable in international law, and hence not invoking international responsibility on the part of
the state or organization responsible.

Firstly, in international law, many violations of rights of a state may be legitimized by consent.
However, the consent must be given before or at the same time as the violation of the right.
Retrospective consent would constitute a waiver of the right to claim reparation on the part of
the victim state. Consent may be vitiated by error, coercion or fraud on the part of the violating
state.

Secondly, the right of self defence may be recognized by international law as to justify certain
acts that would ordinarily be unlawful as legitimate and therefore not give rise to responsibility.
Under Article 51 of the UN Charter, “nothing in the present charter shall impair the inherent
right of individual or collective self defence if an 2armed attack occurs against a member of the
UN, until the Security Council has taken measures to maintain international peace and security.”
Self defence can be resorted to on the violation of the right to political independence, the right
to protection of nationals abroad and some rights of an economic nature.

Thirdly, the application of sanctions authorized by an international organization under

international law is a lawful act which does not give rise to state responsibility for the resulting
loss or damage. Reprisals as a form of action for breach of rules of international law may be
applied by the state injured by the attack.

Fourthly, pre-emptive action in attack may be taken by a state forced by necessity to save itself
from grave and imminent danger which it has not itself induced, and which it cannot in any
other way escape. The state concerned may thus take action that violates the rights of another
state, and such action may not engage state responsibility. However, the danger that is sought to
69
be avoided must be of a nature as to put at risk the existence of the concerned state in question,
its territorial or personal stature, its government or form of government or such as to limit or
even make disappear the state’s independence or international personality.

The responsibility of a state will also arise in connection with the actions of its government, any
of its political subdivisions or units, and any organ, agency, official, employee or other agent of
its government in any subdivision thereof acting within the scope of their employment.
International responsibility will be incurred by a state as a consequence of either the enactment
of legislation incompatible with its international obligation, or of non-enactment of legislation
necessary for the discharge of those obligations. The claimant must however establish that the
loss or damage has resulted from the enactment or omission to enact the legislature in question.

Similarly, any act contrary to international obligations committed by an executive or

administrative agents or officers of the state and in particular the head of government, a minister,
a diplomatic agent or a consular officer or some other state official will engage state
responsibility.

With regard to the judiciary, although normally deemed to be independent of the government,
for purposes of international obligations the judiciary is part of the state and the state will be
responsible for acts of judicial organs that violate international law; just as if is acts for the
executive e.g. judicial decisions that are clearly incompatible with international obligations of
state will give rise to international responsibility for the state. However, a mistaken application of
the domestic law or a mistake of fact under it, even where it results in injury or damage to an
alien will not engage state responsibility. Only a manifest violation of international law by the
judiciary will engage responsibility.

A federal state will be responsible for the acts of federal units to the extent of where the federal
unit’s international personality, where applicable, ceases to exist. Similarly, a state is responsible
for the acts of the self-governing units under its sovereignty where the units act in their public
functions.

Reparations

Giving of reparations for loss or damage suffered is the means by which a state discharges the
international responsibility incumbent upon it for the breach of an international obligation. The
basic rule of reparations was formulated by the PCIJ in the Chorzow Factory Case by stating
that “It is a principle of international law that the breach of an engagement involves an
obligation to make reparation in an adequate form. The essential principle contained in the actual
notion of an illegal act is that reparation must go so far as possible to wipe out the consequences
of the illegal act and re-establish the situation which would, in all probability, have existed if that
act had not been committed.”

Reparations may be made in three forms:

Restitution

This is designed to re-establish the situation that would have existed if the wrongful act or
omission that caused the injury or damage had not taken place, either by performance of the
obligation which the state failed to discharge, revocation of the unlawful act or abstention from
further unlawful act. Restitution is common in proprietary or territorial disputes, and where there
has been an agreement between the parties either generally or for a particular case.

❖ The Norwegian Ship Owners Claim (Norway vs. USA); (1922) RIAA 30.

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In this case, the US Congress had passed an Act by which all ships of specific sizes and
specifications were requisitioned by the US government. Some Norwegians had made contracts
for 15 ships with a US company. At the date of requisition, only two keels had been made and a
third one was on the way. The US had made compensation for these three unfinished ships.
However, the claim was brought for all the 15 ships ordered. The arbitral tribunal, deciding the
claim submitted to it by agreement between US and Norway, pointed out that the requisition
affected the contracts as well as the physical property, and that US was under obligation to
compensate the Norwegian claimants by way of complete restitution of the status quo ante, based
upon the loss of profit of the Norwegian ship owners as compared to other similar property.

Indemnity

This is the most usual form of reparation. In it, compensation is measured by pecuniary
standards corresponding to the value which restitution in kind would bear. Depreciation of
currency as well as delays involved in the justice process may make the value of the confiscated
property higher at the time of decision of the tribunal than at the time of the requisition itself.
The party victimized may claim for profits in appropriate cases. Interest and loss of use of the
sum during the period when the payment is pending may also be recovered. This principle was
applied in the Chorzow Factory Case.

Satisfaction

This is appropriate for non-material damage or moral injury to the personality of the state. It
does not lead to the restoration of the status quo ante, and its purpose is to repair the breaches of
international obligations which breach does not involve, or where monetary compensation
would be either inappropriate or insufficient.

❖ The I’m Alone Case (Canada vs. USA); (1935) 3 RIAA 1609; Vol. 29, AJIL 326 (1935)

I’m Alone, a Canadian vessel was factually owned, controlled and managed by American citizens
who engaged in smuggling liquor into the US. In March 1929, when within 12 miles of the
Louisiana coast, the I’m Alone was hailed by an American coastguard patrol vessel to stop for
boarding and examination in accordance with the American law and a treaty between USA and
the Great Britain under which Britain had agreed that private vessels under her flag even outside
the limits of territorial waters of the US could be boarded and examined by US authorities in a
bid to check the smuggling of liquor. The I’m Alone failed to stop and fled. It had survived
gunfire because the coastguards patrol vessel’s gun jammed. A second US patrol boat joined the
chase and I’m Alone still refused to stop. The second patrol fired at the I’m Alone; sinking it
and killing one of her crew. The claim was brought by Canada for the sinking of the I’m Alone.
The arbitral commission recommended the payment of USD25, 000 as a material amend in
respect of the wrong committed by the US in sinking the I’m Alone. This compensation was
related to the indignity suffered by Canada by the sinking of the ship registered in Montreal and
not related to the value of the ship or its cargo. Additionally, US was directed to formally
acknowledge its illegality and apologise to the Canadian government.

In contemporary law and state practice however, satisfaction is limited to the presentation of
official regrets and apologies, and particularly, the formal acknowledgment or judicial declaration
of the unlawful character of the unlawful act.

b. The Nationality of Claims

Treatment of Foreign Nationals.

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As a general rule, every state is under an international obligation not to mistreat any foreign
nationals present in its territory. Violation of this obligation may lead to the state in question
incurring international responsibility to the state of which the foreigner is a
national.Mistreatment in this regard may comprise many acts or omissions, e.g. the lawful
expropriation of foreign owned property, failure to punish individuals who attack foreign
nationals, denial of justice (e.g. refusing a foreign national a right to be heard, arbitrary or unfair
judicial proceedings in which the foreigner is involved).

Under international law, every state has the right of diplomatic protection of its nationals. Hence
when a national of a state suffers injury or damage at the hands of another state, the state of
nationality is entitled to take up the claim for reparation on his behalf. This exercise of
diplomatic protection solves the problems of locus standi of private persons before international
bodies under the general international law.

Three major principles govern claims by states for violation of the rights of their nationals by
other states.

The first one is the requirement that the state espouses private claims. Usually, states will move
in to protect their nationals where the national have been unable to obtain satisfaction through
the ordinary channels in the offending state. By taking up such claims, the state is in effect
asserting its own right to ensure that the other one respects rules of international law. Once it
takes up such a case before an international tribunal, the state is the sole claimant and the private
claim thereby becomes a public action.

❖ The Mavrommatis Palestine Concessions Case (Greece vs. United Kingdom); (1924)
PCIJ Series A No. 2.

Mavrommatis, a Greek national received concession from the Ottoman authorities to execute
certain public works in Palestine. The Greek government, on behalf of Mavrommatis alleged
before the ICJ that since 1921, the government of Palestine, and thereby the British government
as the administering power over Palestine under the League of Nations Mandate System, had
refused to recognize the rights of Mavrommatis to their full extent. It therefore sought judgment
that the British government was under an obligation to maintain the concessions or redeem them
by paying a reasonable compensation and that having made the execution of the concessions
impossible, it had to pay compensation. The PCIJ observed that although the dispute was
initially between a private person and a state, it entered the domain of international law and
became a dispute between two states when the Greek government took up the case. The Greek
government was asserting its own rights by claiming indemnity on the ground that one of its
subjects had been mistreated by the Palestine British authorities in violation of the international
legal obligations which they were bound to observe.

Secondly, the state espousing the claim must be the state of nationality of the alien or foreign
person. In the case of dual nationality, the court will apply the genuine ‘link’ test.

❖ Barcelona Traction Light & Power Case

Thirdly, the measure of reparation is germane. When a state is exercising the right of diplomatic
protection, the rules of law governing the reparations are the rules of international law in force
between the states concerned, and not the law governing the relations between the state which
had committed the wrongful act and the individual who suffered the damage. The damage
suffered by the individual can only afford a convenient scale for the calculation of the reparation
due to the state. These principles were laid down in the Chorzow Factory Case.

c. The Local Remedies Rule

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This rule provides that the state against whom an international action has been brought by
another state for injury suffered by a private individual has a right to resist that action if the
private individual alleged to have suffered the injury or damage has not first exhausted all the
remedies available to him under the municipal law of the defendant state. That state has the right
to demand that full advantage be taken of all local remedies available under the law. This rule
acts as a defence for the defendant state.

This rule is only invoked when the alien has created or is deemed to have created a voluntary,
conscious and deliberate connection between himself and the defendant/foreign state by
residence, business activities, and ownership of property or by virtue of having made some
contact with the government of that state, e.g. holding bonds of that state. This rule gives the
defendant state the opportunity of doing justice in its own way of having an investigation and
adjudication by its own tribunals of the issues of law and fact which the claim involves, before
being made internationally responsible. Such investigation and adjudication within the state’s
own domestic system act as restraining factors in cases where aliens may otherwise become
privileged to immediately introduce the political influences of their states for any slightest
difficulty arising out of dealings with the host government. This rule also gives respect to the
sovereignty and jurisdiction of the host state by giving priority to its jurisdiction.

For the private individual to have exhausted the local remedies he must adduce all the material
evidence reasonably available to him which might be essential for him to win the case. Where he
fails to do this, the defendant state may object that its local remedies have not been exhausted.
The whole system of legal protection provided for by the municipal law must be put to test
before the claimant state can exercise the right of diplomatic protection of its nationals. However
this rule is not applicable in certain circumstances:

▪ The rule does not apply where there are no local remedies to exhaust. This situation may
arise due to immunities of the sovereign from a suit under domestic law which prohibits
suits against the government in the category of cases to which the alien’s claim belongs.

▪ The rule does not apply where there are obstacles in the domestic law or procedure. This
may arise where the remedies available under the local legal system is incapable of
affording relief, where it’s not possible for a superior court to reverse the finding of the
lower court which has handled the claim, or where the local remedies rule may not afford
appropriate or adequate reparations such as where the local tribunal is merely
investigatory with no power to award compensation.

▪ The rule cannot be applied where there is some defect in the administration of justice,
e.g. complete subservience of the judiciary to the government, or where the local court
has been appointed by a legislation which has annulled the private right issue in the
claim.

The application of the local remedies rule has normally raised two germane questions. Firstly
does the claim being espoused in an international forum have to have been presented in the host
state in an identical way to the way it is now being presented at the international forum? And if
so, how identical should the two claims be?

Secondly, does the doctrine apply where the state seeks to recover for injury to itself as a result
of an action that injured one of its nationals? These questions were considered in the
Electronica Sicula (ELSI) Case.

The Case Concerning Electronica Sicula SPA (ELSI) (USA vs. Italy); (1989) ICJ Rep.15

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A US company, Raytheon subscribed for 14% of the shares in an Italian concern, Electronica
Sicula in the year 1955. By 1967, Raytheon had increased its shareholding in ELSI to 99.16%.
Another US company, Machlett also held shares in ELSI, which was located in Palermo, Sicily,
and where a labour force of about 900 employees worked. [After World War II, the United States
sought to encourage and facilitate private international investment by negotiating Friendship, Commerce and
Navigation ("FCN") Treaties with over two dozen countries.' These FCN treaties include a provision giving
companies from the signatory countries the right to hire the executive personnel "of their choice"("employer choice
provision")] in their operations abroad]. The company was not doing well and in 1968 it dismissed
300 workers. It also began to arrange for liquidation. In March 1968, the company announced
that it had stopped operations and sought to terminate the contracts of employment by the end
of that month. Since ELSI was a large corporation, the government got interested in the
developments and promised aid, and the company insisted that only more capital would keep it
afloat. The government did not inject any capital and hence the plans for liquidation progressed.
Raytheon planned to sell off ELSI’s product line to interested purchasers in order to pay off its
debts. On 1st April 1968, the Mayor of Palermo issued an order requisitioning ELSI’s plant and
related assets for 6 months, because of concerns for public necessity and public order. The
requisition had been justified on Italian laws but ELSI contended that the order was illegal.
Shortly thereafter, ELSI filed for bankruptcy on the ground that the requisitioning order had
made its operations impossible. A court of Palermo issued a decree of bankruptcy in May 1968.
When the creditors appointed to dispose of ELSI’s obligations agreed to auction ELSI’s
premises, plant and equipment, a member of the Committee protested against this action. His
protest appeal case was dismissed by the bankruptcy judge. ELSI also appealed against the
requisition order of 1st April 1968 and in August 1969, the Prefect of Palermo upheld an appeal
that had annulled the requisitioning order. The Mayor of Palermo appealed against the decision
of the Prefect to the Italian Council of State and the President of Italy, both of whom ruled that
the appeal was inadmissible. The Trustee in Bankruptcy brought proceedings in the court of
Palermo against the Minister of Italy and the Mayor of Palermo for damages arising from the
requisition. The court of Palermo ruled that the Mayor was not liable for damages, and the Court
of Appeal of Palermo upheld this decision as far as the alleged decrease in value resulting from
the requisition was concerned, but awarded damages resulting from the term of requisition, in
effect, a “rental” payment. Italy’s Supreme Court upheld this decision in April 1975. In 1974, the
US notified Italy of its diplomatic claim on behalf of Raytheon. US claimed that:

i. Raytheon and Machelett were prevented from exercising management and control of
ELSI.
ii. Italy had failed to provide full protection and security to Raytheon and Machlett as
required by the FCN Treaty and by I.L.
iii. Italy’s action constituted a taking without just compensation and the due process.
iv. Raytheon and Machlett were deprived of their right to dispose of their interests in the
property on terms no less favourbel than those available to Italy entities.
v. Italy’s treatment of Raytheon and Machlett was arbitrary and discriminatory.

The US claimed $ 12,679,000 in damages. Italy submitted that the case was inadmissible because
local remedies had not been exhausted. The US replied that the exhaustion rule could not apply
to a case brought under the FCN Treaty, and that even if the rule applied it had been complied
with. The court ruled on the issues as follows:

▪ Did the FCN Treaty require exhaustion? The courtt said that parties can, if they so choose,
to exclude the exhaustion requirement. However, where it was not expressly excluded, the
court was unable to accept that such an important principle of customary. International law
should be held to have been dispensed with tacitly.

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▪ Did the exhaustion apply to the US claims for declaratory relief? The US had argued that the
rule could not foreclose a claim by the US for injury to its own rights as distinct from the
rights of its nationals. The court found that it could not separate the alleged injury to the US
from the alleged injury to Raytheon and Machlett.

▪ Were local remedies exhausted? The court observed that this requirement was met. The
court found that the provisions of the Italy’s civil code which allowed suits to be brought
under treaties existed, but had never been used in FCN Treaty cases and therefore it was
doubtful that an Italian court would have provided Raytehon and Machlett remedy under the
code. Secondly, the injured parties were not the ELSI’s US shareholders, but ELSI itself,
which had brought proceedings in Italy’s courts.

In effect the court in ELSI case rules that much as there is a distinction between a state’s claim
on its own and a state claiming on behalf of her national under the doctrine of diplomatic
protection, where the initial act of the respondent state is a direct infringement of the rights of
the claimant state under international law, such an immediate breach of international law is
actionable at once, and the rules regarding denial of justice and exhaustion of local remedies do
not come into operation at all. Secondly, where a treaty protects both a state and its nationals,
the same conduct that injures a states national may also injure the state. The line between injury
to a state is often unclear, which makes it difficult to determine the scope of the exhaustion rule.

A state which objects to a claim against it by invoking the local remedies rule bears the burden of
proving the existence of the local remedy.

d. The Calvo Clause

The Calvo Clause is a stipulation in a contract between an alien and a government whereby the
alien agrees not to call upon his state of nationality for protection in any issue arising out of the
contract. This doctrine was named after its first proponent, Carlos Calvo, an Argentine jurist,
and it has been applied across the world. The stipulation of this doctrine may take any form, but
the general provision is that any doubts or controversies that may arise on account of the
contract will be decided by the competent tribunals of the host state in conformity with its laws
and shall not give rise to any foreign diplomatic intervention or international reclamation.

The doctrine is controversial. Some jurists argue against it on the ground that it is not valid, in
the sense that a private person cannot so renounce the right or privilege of his government to
protect its citizens abroad, and to see to it that the dignity of the state does not suffer injury
through violence done to its nationals.

Those jurists who are in favour of it argue that what the alien is waiving is not the right of
diplomatic protection possessed by his state of nationality, but rather his own power to request
the exercise of that power in his favour. This is based on the argument that the presentation of a
claim in the exercise of the right of diplomatic protection is only made at the request of an
individual or corporation complaining of injury in a foreign state. Such protection may therefore
not be exercised in the light of a freely concluded contract that such request will not be made to
the state of nationality by the private individual concerned because, if the individual is required
to exhaust the local remedies, then he must possess a certain discretion in the management of his
case before the domestic organs. This discretion may involve either a compromise or waiver,
therefore, it is normal to require a waiver by the complainant of any further claims against the
host state.

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❖ North American Dredging Company of Texas Case ( USA) vs. United Mexican
States,(1926) 4 RIAA 26

USA had claimed damages for breach of contract between the North America Dredging Co. of
Texas and the Government of Mexico. The contract had a clause which read “The contractor
and all persons engaged in the execution of the work under this contract shall be considered as
Mexicans in all matters concerning the execution of such work and the fulfillment of this
contract. They shall not claim any other right or means to enforce the same than those granted
by the laws of Mexico to Mexicans. They are consequently deprived of any right of aliens and
under no condition shall the intervention of foreign diplomatic agents be permitted in any matter
related to this contract”.

Mexico claimed that a contract containing such a Calvo Clause precluded consideration of the
contract by an international commission or international arbitral tribunal. The Claims
Commission dismissed the claim on the ground that under the relevant clause, it was the duty of
the claimant touse all the remedies existing under the laws of Mexico. It stated that the claim as
presented is not a claim that may be rightfully presented by the claimant to its government for
espousal, and hence it was not cognizable before the Commission.

11. STATE SUCCESSION AND SELF DETERMINATION

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State succession

a. Introduction

State succession refers to the phenomenon that occurs on a factual change of sovereign authority
over a particular territory. It occurs when there is a definitive replacement of the state by another
in respect of sovereignty over a given territory in conformity with international law. States are
legal persons under international law as well as political entities that are subject to change,
whereby new states appear and old ones disappear. The changes may result from political events
including total dismemberment of an existing state (e.g. Yugoslavia), succession from an
established state (e.g. Eritrea from Ethiopia, South Sudan from Sudan), merger of an existing
state (e.g. North Yemen and South Yemen in 1990 and Federal Republic of Germany and the
Democratic of Republic of Germany in 1990), partial cession or annexation of state territory on
the emergence of a new state pursuant to the exercise of the right of self determination by
colonial people and by the non-self governing territory. In the case of replacement of a mandate
or trusteeship of a sovereign state, a special type of competence is replaced rather than
sovereignty. However temporary changes resulting from occupation by belligerent forces or
from grants of treaty do not amount to state succession.

Whenever state succession occurs, the immediate issue that arises is what happens to the rights
and duties that are inherited or that were conferred and incumbent upon the former authority.
Whenever the sovereignty of one state replaces that of another, a number of legal issues also
arises. For example, is the successor state bound by all or any of the treaties of the predecessor
state? Do the inhabitants of the territory concerned become nationals of the succession state? Is
the successor state affected by claims involving the predecessor or between the predecessor and
the predecessor’s national under a system of municipal law taken over?

Issues regarding the succession of states are addressed by the 1978 Vienna Convention on
Succession of States. However, the Convention applies to succession of states that occur in
conformity with international law and in particular with the principles of international law
embodied in the U.N Charter. Further, it applies only is respect of succession of states which
occur after its entry into force except as may be agreed independently of the Convention.

b. Consequences of Succession

Customary international law has a rule that a state is not generally bound by the treaties of a
predecessor state in consequence only of the fact the predecessor state and the successor state
have concluded an agreement providing that the obligations or rights created thereby shall
devolve upon the succession state, neither does a unilateral declaration of a successor state have
such effect. This rule is coded out at Article 8 of the Convention.

Under article 11, a succession of states does not however affect a boundary established by a
treaty or obligations and rights established by a treaty and relating to the regime of a boundary.

Under Article 12, a succession of states does not affect treaties relating to the enforcement or use
of any territory for the benefit of a foreign state or restrictions placed upon the use of any
territory.

A successor state is bound by the rules of treaty which are generally accepted by declaratory of
general international law international law. Article 13 however provides that the Convention does
not affect the principles of international law affirming the permanent sovereignty of every people

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and every state over their natural wealth and resources.

Article 16 provides that a newly independent state is not bound by maintain or enforce or
become a party to any treaty by reason only of the fact that at the date of succession of states the
treaty was in force in respect of the territory to which the succession of states relates. However, a
newly independent state may, by a notification of succession, establish itself as a party to any
multilateral treaty which the succession of state relates. For bilateral treaties, one that was in
force as the date of succession in respect of the territory to which succession of state relates is
considered as being in force between the newly independent state and the other state party when
the states so expressly agree, and when by reason of their conduct they are considered as having
agreed to be so bound.

With respect to state property, it is generally considered that succession to property is a principle
of customary international law because the successor state is free, within the limits of general
international law to change the status of state property as an exercise of its sovereignty.

With regard to monetary or fiscal claims, the successor state has a right to take up fiscal claims
belonging to predecessor or state including the right to levy and collect taxes. However, there is
no established rule or consensus on the fate of the public debts of the predecessor state. But
some jurists, on this score, argue that where there is annexation or dismemberment as opposed
to cession where the ceding state still remains in existence, the succession state is under
obligation to assume public debts of the predecessor state. Actually, the 1983 Vienna
Convention on Succession of States in Respect to State Property, Archives and Debts provides
for the passing of the predecessor state debt to the successor state as a general rule, with an
equitable reduction in cases of transfer of part of a state, cession or dissolution of a state.
However, when the successor state is a newly independent state, no state debts shall pass, except
by an express agreement. This doctrine is referred to as tabula rasa, or the Optional Doctrine of
State Succession which means that a new state starts from a clean slate and inherits nothing from
the predecessor state.

Where a new state is created, whether by an orderly progressive transfer of power to dependent
territories or by secession, the hitherto existing treaties between the colonial power and third
parties are affected. State practice has shown, over time that one of three situations may be
resorted to. Firstly, although most treaties survive independence, almost all of them get rid of the
utilization of the denouncement clauses or by negotiation.

Secondly, the new state may select which treaties it wishes to continue and is entitled to regard
the others as having lapsed.

Thirdly, only as a restricted class of treaties such as boundary and river treaties survive as a
matter of law. This trend of state practice may be justified on two grounds, the first one is
application of the doctrine of clausula rebus sic stantibus. The evolution of the territory from a
subject of a former colony or independent territory to a sovereign state effects such as
fundamental change in the position of parties as to render obsolete any agreement the objects of
which were incompatible with the change in circumstances.

The second is the doctrine of pacta tertiis nec nocent nec prosunt by which a treaty does not create
rights or obligations for a third state without its consent. This principle operates to release the
third party, a new state, from inheritance agreements.

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With regard to membership in international organizations, new states do not succeed their
predecessors in such membership. This position will be determined by the provisions of the
constitutive instrument of the particular organization.In the case of the UN Charter, all newly
independent states are required to apply for membership of the organization.

Self Determination

c. History and practice

The concept of self determination is a fairly new one in the area of law and state relations. It is
not clearly demarcated in the international jurisprudence due to the ambivalent nature of it both
radical and subversive in the realm of political order. In legal terms, the concept is attended with
tensions and contradictions as it attracts criticism from positivists and approval from the natural
law theorists. Jurists also differ on the definition and application of the concept. However, the
right to self determination is a collective rather than an individual right. Oppenheim says that the
self determination is the right of a people to choose a form of government under which they
wish to live or the sovereignty to which they wish to be subject.

Brownlie says that self determination is a right of cohesive natural groups to choose for
themselves a form of political organization and their relation to other groups. This choice may
be made in the form of an independent state, association with other groups in a federal state or
autonomy or classification in a unitary state.

The term self determination was for the first time formally enunciated in the American
Declaration of Independence of 1776 in which emphasis was laid on the right of the people to
severe the bonds which linked them to other peoples and to have their sovereignty. This concept
was also applied in the 1789 French Revolution which ended the notion that individuals and the
peoples were subjects of the King and were objects to be transferred, alienated, ceded or
protected in accordance with the interests of the monarch. The common idea that runs through
the American and French experiences is that the government must be responsible to the people.
Because of the origin of the concept as a political postulate, it has been invoked mainly by
political groupings who want to attain independence and sovereignty.

The principle of self determination was applied in the 1818 Peace Conference to grant
independence to minority groups in Central and Eastern Europe.With the creation of the
Mandate System under the League of Nations, the principle was retained by which the Mandates
undertook to respect the right of the Mandatories to ultimate self rule.

Under the UN system, the right to self determination is expressly referred to in the Charter of
the UN. Article 1(2) sets out the objectives of the UN, one of them being to develop friendly
relations among nations based on respect for the principles of equal rights and self determination
of peoples.

As the basis for peaceful and friendly relation among nations, self determination is anchored in
Article 55 of the Charter even more expressly.

Under Article 73 which deals with the Trusteeship system, there is a legal obligation imposed on
the UN members who have assumed responsibility in the administration of non-self governing
territories to promote, in the utmost, the wellbeing of the inhabitants of the territories.

Various aspects of the UN practice through its relevant organs have also underscored the
principle of self determination. The UN GA has on several occasions called upon state members
of the UN to uphold the right of self determination of all peoples and nations. On December 14,
1960, the UN GA passed the Declaration of the Granting of Independence to Colonial
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Territories and Peoples through which it declared that all peoples have the right to self
determination and further that by that right they freely determine their political status and freely
pursue their economics, social and cultural development.

On October24,1970, the UN GA passed The Declaration of Principles of International Law

Concerning Friendly Relations and Co-operation Among States in Accordance with the Charter
of the UN, in which it reaffirmed that by virtue of the principle of equal rights and self
determination, all the peoples have the right to freely determine without external interference,
their political status and to pursue their political, social and cultural development, and that every
state had the duty to promote the realization of this principle and to render assistance to the UN
in carrying out the responsibility entrusted to it by the UN Charter regarding the implementation
of this principle.

A number of international legal instruments as well as international tribunals have applied the
principle of self determination. The common Article 1 of the 1966 ICCPR and ICESCR
provides that all peoples have the right to self determination. As such, they are free to determine
their political status and to freely pursue economic, social and cultural developments. They may,
for their own ends, freely dispose of their natural wealth and resources without prejudice to any
obligations arising out of international economic co-operation based upon the principles of
mutual benefits under international law. In no case may the people be deprived of their own
means of subsistence.

The ICJ on its part has upheld the principle of self determination in its advisory opinions in the
cases concerning Western Sahara in the year 1975 [The ICJ Advisory Opinion On Western
Sahara(1975) ICJ Rep. 12] and East Timor in 1995[The Case Concerning East
Timor (Portugal vs. Australia)(1974) ICJ Rep. 253].

In theWestern Sahara Case,the Court stated that the principle has particular relevance for the non-
self governing territories. It stated that the principle of self determination was a right of peoples
and should be applied to bring all colonial situations to a speedy end as had been communicated
by the UN GA in the Resolution 1514 leading to the Declaration of 1960. In this case too, the
court stated that in certain cases, there may not be any need to consult the inhabitants of a
particular territory where there are special circumstances. It also noted that self determination
may apply to peoples not ideally entitled to it where circumstances so determine.

In East Timor Case, the Court stated that the principle of self determination has acquired an erga
omnes status and is one of the essential principles of contemporary international law.

Historically, the right to self determination has been invoked during two periods. The first period
was after the end of the First World War when the victims of the war were accorded the right to
choose their political settlements.

In the second period, which was after the Second World War, the right of self determination was
granted to a political entity in the guise of a territory irrespective of their ethnic identity or
economic self reliance. This right was to lead to ultimate political independence. To facilitate
this, the UN GA passed the Resolution 1514 which firmly stated that entities which colonization
had bound together would not be disbanded, but would be allowed to attain their political
independence as autonomous entities. The UN GA had viewed any attempt to change the
colonial boundaries as a threat to international peace. Resolution 1514 also stated that any
attempts aimed at the total or partial disruption of the national unity and the territorial integrity
of the country and incompatible with the principles and purposes of the UN charter.

Indeed, UN GA Resolution 2625 that belay the 1970 Declaration disabused any notion that
would authorize or encourage any action which would dismantle or impair totally or in part the
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territorial integrity or political unity of sovereign and independent states, and added that every
state shall refrain from action aimed at the total or partial disruption of the national unity or
territorial integrity of any other state or country. Therefore, at least within the confines of the
UN system, once the newly created or independent state is in existence, no resort to further self
determination can be tolerated.

d. The Future of Self Determination.

The question that is pertinent in this regard is how far the right of self determination can go.
Seeing that the classical pre-colonial era and the non-self governing situations have virtually been
exhausted. Can the right to self determination be applicable beyond the colonial and non-self
governing situations? Can the right o self determination be claimed by groups that come up
against established political sovereignty i.e. ethnic or religious groups within an already sovereign
and independent state?

Jurists are divided on this issue and state practice not definitive. Some jurists argue that any
distinct ethnic group whether part of a colonial federal or unitary state have a right to self
determination. In this view, the right to self determination exists beyond the colonial situations
and is available to the people of a territory that is a part of an existing federal state, provided that
they can achieve the prerequisites for statehood. They argue for an internal self determination
which enables peoples within a state to exercise their right of choosing their political status, the
extent of their political participation in state affairs and the form of their government.

Other jurists on the other hand argue that the right of self determination, at least in on its
classical sense, does not arise outside the colonial and non-self governing contexts. This is
because of state practice and the principle of territorial integrity limits the application of the right
of self determination to post colonial and non-self governing contexts.

As the principal international organization, the UN does not accept secession movements and
gives priority to the maintenance of territorial integrity of states.

Additionally, the principle of uti possidetis juris has been advanced as a practical limitation to the
right of self determination outside colonial and non-self governing context. The main object of
this principle is to protect territorial integrity and stability of newly independent states, and it is
of particular relevance to Africa where the test of language and culture would lead to re-drawing
of colonial boundaries. Two cases demonstrate the attitude of the UN and state practice
generally with regard to self determination in Africa.

❖ The UN Advisory Opinion on the Continued Presence of South Africa in Namibia

(1971) ICJ Rep. 16

The UN SC had resolved that the South African Mandate over South West Africa (Namibia) was
terminated. The South African regime had ignored this resolution. The UNSC then resolved
that the continued presence of South Africa in Namibia was illegal. It sought an advisory opinion
from the ICJ, asking what were the legal consequences for states of the continued presence of
South Africa in Namibia. The court held that South Africa was under an obligation to withdraw
its administration in Namibia, and that other states were under an obligation not to recognize
any acts by South Africa’s administration in Namibia. The ultimate object of the sacred trust (the
Mandate) was the self determination and independence of the peoples concerned.

❖ The Frontier Dispute Case (Burkina Faso vs. Mali) (1986); ICJ Rep. 554.

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Both these states were former French colonies (Upper Volta & French Sudan). They had failed
to reach an agreement concerning 300km of their common frontier which was thought to be rich
in mineral sources. They submitted the dispute to the ICJ, and urged the Court to resolve the
dispute on the basis of the ‘principle of the intangibility of frontiers inherited from colonization.’
This invited the applicability of the principle of uti possidetis juris. The court held that the
territorial boundaries which have to be respected may derive from colonial administrative
delimitations and international frontiers which previously divided a colony of one state from a
colony of another.

12. SETTLEMENT OF DISPUTES.

a. Introduction.

A general conception is that in a successful legal system, disputes should be avoided or at least be
resolved quickly. However, conflicts from which disputes arise are not wholly undesirable but
have certain valuable characteristics and the proper function of law is to manage or resolve,
rather than suppress conflicts.

In the Mavrommatis Case, the PCIJ stated that a dispute is a disagreement on a point of law or
fact, a conflict of legal views or of interests between two persons. A dispute becomes an
international, one where it involves a state or states and international organizations or between
such organizations themselves or between states and private persons represented by their
national states exercising their power of diplomatic protection.

Whenever international disputes arise, the international community is always confronted with the
problem of which means to employ in order to facilitate the settlement of the disputes for the
purpose of maintaining international, peace and security. The practice of states, international
customary law and Conventional law distinguish two basic means of settlement of disputes, i.e.
pacific means of settlement and non-pacific ways of settlement. However, not all international
disputes are handled through the formal machinery whether that by the UN or by an
international tribunal. Most are adjusted by negation, because not all disputes are suitable for
resolution by the application of law.

b. Pacific settlement of disputes.

Article 2 of the UN Charter gives a general obligation of states to settle disputes peacefully.
Article 2(3) specifically calls upon all members of the UN to settle international disputes by
peaceful means in such a manner that international, peace and security are not endangered. Thus,
they shall, first of all, seek a solution by negotiation, inquiry, mediation, conciliation, arbitration,
judicial settlement, resort to regional agencies or agreements, or other peaceful means of their
own choice.

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The parties have the freedom to choose the means which they consider appropriate and
acceptable to the circumstances and nature of the disputes. If they fail to make any meaningful
attempt to resolve the dispute which threatens international, peace and security, the UN Security
Council will call upon them to settle the disputes without specifying what means to use.
However, the UN SC may specify particular means of settlement and the actual terms of
settlement, and may set up machinery for the settlement.

The obligation for peaceful means of settlement of disputes has been reaffirmed by Declarations
and Resolutions of the UN General Assembly as well as by international judicial decisions.
Resolution 2625(XXV) of 1970 on the Declaration of Principles of International Law proclaims
this principle by stating that states must seek early and just settlement of their international
disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement and resort
to regional agencies and agreements or other peaceful means of their choice. This obligation is
extended to even states non-member of the UN. Additionally, the ICJ in the Nicaragua
Caseheld in its judgment that the principle of peaceful settlement of international disputes had
acquired the status of international customary law.

There are various mechanisms for the pacific settlement of international disputes:

i. Negotiation.

This consists of discussions between the parties to the dispute with the view of reconciling their
divergent opinions or at least understanding their divergent positions. It does not involve any
third party. Negotiation may open up to the parties other peaceful means of settlement especially
after mutual clarification of complicated issues of the dispute. The success of negotiations
however depends on the mutual goodwill, flexibility, accommodation and concession of certain
parties. In some cases, there may be a duty imposed on the parties to a dispute to enter into
negotiations e.g. pursuant to the provision of a bilateral or multilateral treaty.

ii. Inquiry

This involves third party investigation of facts surrounding the dispute. It does not involve the
investigation or application of rules of law as it is a technical character. The object of inquiry is to
facilitate resolution of a dispute by elucidating the facts by means of an impartial and
conscientious investigation. It does not seek to make any specific recommendations for
settlement and hence is not by itself an end to the dispute. Inquiry is often carried out by a
commission of experts or reputable observers to ascertain the precise facts of a dispute for
purposes of a preliminary explanation.

Inquiry is provided for in various international agreements in one form of Permanent

Commissions of Inquiry, fact finding or investigations. International organizations have also
frequently used inquiries or fact finding. UN organs have also used inquiries and fact finding on
numerous occasions e.g. the 1984 investigation by the UN secretary general into the use of
chemical weapons in the Iran-Iraq war, the Commission for the on Sight Inspection of the Iraq
Weapons Programmes at the end of The Gulf War in 1991.

iii. Mediation

Mediation involves the use of a third party (a mediator) whether an individual or a group of
individuals or a state or a group of states, or an international organization, to encourage the
contending parties to come together and work out a mutually satisfactory settlement. Mediation
is closely related to Good Offices. The distinction is that a mediator takes an active step on his
own, while Good Offices consist of actions taken by a third party to bring about, initiate or
continue negotiations without the third party actively participating in the dispute.
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The mediator has the responsibility of reconciling the different claims and improving the
atmosphere pervading the discussions, quite often through coaxing the disputing parties into
accepting what are his own proposals regarding the settlement of the disputes. The success of
mediation depends largely on the impartiality of the mediator and the mutual respect and esteem
of the parties to the disputes towards him. Parties to the dispute must consent to the mediation
thereof.

iv. Conciliation.

It involves a third party(conciliator) whether an individual or commission set up by the parties,

who proceeds to an impartial examination of the dispute, and attempts to define the terms of a
settlement, susceptible of being accepted by them or of affording the parties, with a view to its
settlement, such aid as they may have requested. In effect, therefore, conciliation involves
elements of both mediation and inquiry.

The conciliator must enjoy the mutual confidence of the parties to the dispute, although his
proposals his proposals are not binding. However, they are flexible, and by clarifying the facts in
disputes and discussing proposals for settlement may stimulate negotiations between the parties
for a final settlement of their dispute. The conciliators report is a form of proposal and not a
decision. The proposal can either be accepted or rejected by the parties. If the proposals are
accepted, the conciliator draws up what is called a Process Verbali.e. an agreement recording the
fact of the conciliation and setting out the terms of the settlement. If the proposals are rejected,
then the conciliation has failed and the parties are under no further obligation.

Conciliation is normally provided for under treaty provisions, and this has been the practice from
as early as 1920. Multilateral treaties normally provide for conciliation. For instance, the UN
Conventionon the Law of the Sea provides for conciliation under articles 279 and 284.

v. Arbitration

International arbitration is perhaps the most popular means of pacific settlement of disputes
beside judicial settlement. Unlike negotiation, inquiry, mediation and conciliation, arbitration is
employed when what is wanted is a binding decision, usually on the basis of international law.
However, unlike judicial settlement, arbitration allows the parties to constitute the tribunal as
well as to select the applicable law.

Arbitration may be undertaken by a single arbitrator or a collegiate body consisting of an uneven

number of persons, usually, 3 or 5. The chairman or umpire of the tribunal may be appointed by
the parties or the arbitrators already nominated. Arbitration is usually provided in treaties. The
Hague Conventions of 1899 And 1907 established the Permanent Court of Arbitration (PCA)
consisting of an international bureau which acts as the registry of the court and keeps its records
and a Permanent Administrative Council (PCA) which carries out the administration of the
bureau. The members of the court are appointed by states which are parties to one or both the
Conventions. Each state is entitled to appoint up to four persons with qualifications under
international law and all the persons so appointed constitute a panel of qualified lawyers from
whom arbitrators are appointed as need arises. The members of the Permanent Court of
Arbitration never meet as a tribunal but they are available for service as members of tribunals
which may be created, when invited to undertake such services. State parties to the Conventions
are not obliged to submit disputes for arbitration as the procedure is by consent.

Consent by states to arbitration may be expressed in arbitration treaties in which the contracting
parties agree to submit certain kinds of disputes to arbitration or in specific provisions of general
treaties which provide for disputes of the treaty itself to be submitted to arbitration. Consent
may also be expressed by way of a compromisi.e. a special agreement.
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The jurisdiction of the arbitral tribunal and the law applicable in the proceedings are defined in
relation to the provision of the compromise. Therefore, where the arbitral tribunal exceeds its
powers, its award may be treated as a nullity and therefore not binding on the parties. Otherwise,
arbitrators’ decisions are final, and the decisions are to be based on law.

vi. Judicial Settlement.

Judicial settlement of a dispute is brought about by a properly constituted international tribunal

applying rules of international law. The only general organ for judicial settlement of disputes
currently available to the international community is the International Court of Justice (ICJ),
which is described under article 92 on the UN charter as ‘the principal judicial organ of the
United Nations” to function in accordance with provisions of The Statute of International Court
of Justice, and which forms an integral part of the UN Charter.

The ICJ is composed of 15 judges who are elected regardless of their nationality from among
persons of high moral character who possess the qualifications required in their respective
countries for appointment to the highest judicial offices, or who are juriconsuls of recognized
competence in international law. The judges are elected by the UN General Assembly and UN
Security Council from a list of candidates provided to the Secretary General, appointed by
individual governments. No two judges may be from one state, and the election of the judges is
done in such a way that the ICJ represents the main forms of civilization and the principle legal
systems of the world.

The jurisdiction of the ICJ is provided for under Articles 34-36 of the Statute. Only states may
be parties before the Court. Such states must be members of the Statute of the ICJ. However,
the court may be open to other states than members to its Statute on such conditions as the UN
Security Council may lay down, but such conditions should not place such states in a position of
inequality before the court.

The court has no compulsory jurisdiction. Its jurisdiction comprises cases which the state parties
refer to it and all the matters specifically provided for in the UN Charter, or treaties and
Conventions in force. Under Article 36, state parties to the statute may at any time declare that
they recognize as compulsory, ipso facto, and without any special agreement in relation to any
other state accepting the same obligations, the jurisdictions of the ICJ. Such declaration may be
of a definite duration or for a limited time only, and may be cancelled or withdrawn at any time.
Jurisdiction of the Court accepted by such declaration may relate to all legal principals
concerning:

i. The interpretation of a treaty

ii. Any question of international law
iii. The existence of any fact which if established would constitute a breach of an
international obligation
iv. The nature or extend of reparation to be made of an international obligation

In the event of a dispute as to whether the Court has jurisdiction over a case before it, Article
36(6) provides that the matter shall be determined by the decision of the Court.

The jurisdiction of the ICJ is twofold; to decide contentious cases and to give advisory opinions.

Jurisdiction in contentious cases

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This jurisdiction is exercised by the Court only on the consent of the states parties to contentious
cases before the Court. However the Court may obtain or request relevant information from the
public international organizations relevant to the cases or such organizations may furnish such
information on their own initiative.

Cases before the Court may be referred to it unilaterally by o ne party by filing a Memorial with
the court’s registry; or by the notification of a bilateral agreement known as a Compromis. In the
former case, the respondent state files a Counter Memorial. In the cases of unilateral reference,
the proceedings are consecutive, while where it is a compromis, the proceedings are simultaneous.
The decision of the Court is taken by a majority vote and where there is a tie the President has a
casting or deciding vote.

The decision of the Court has no binding force except between the parties and in respect of that
particular case only (Article 59 of the Statute). The decisions of the court are implemented as
provided for under Article 94 of the UN Charter.

Advisory jurisdiction

The ICJ may give advisory opinions on any legal question at the request of the UN General
Assembly or the UN Security Council. States cannot on their own request an advisory opinion of
the Court. The court may also give advisory opinion to the UN organs or specialized agencies on
legal questions arising within the scope of their activities, but only upon being authorized by the
UN General Assembly to seek the opinion.

Where an advisory opinion of the Court is sought, a written request is laid before the Court
containing the exact statement of the question on which an advisory opinion is sought.
Documents that are likely to throw light on the question are transmitted to the court together
with the written request. The Registrar of the Court then notifies all states entitled to appear
before the Court or any state or international organization likely to furnish information and the
subject with a request on such information. Such states or international organizations may
present written or oral statements, and may also comment on those made by other states or
organizations. The advisory opinion is delivered in open Court.

However, the Court may decline to give an advisory opinion where the main point on which the
opinion is requested is decisive of a dispute between certain states and any one of those states is
not before the Court; as to do so would amount to adjudicating the dispute without the consent
of the absent state. The Court may also decline to give an advisory opinion if the question
submitted to it does not involve any legal issue or is embarrassing.

Article 26 of the Statute allows the ICJ to form, from time to time, one or more chambers
composed of three or more judges as the court may determine for dealing with particular
categories of cases e.g. labour, environment, health etc.

Under Article 26 (2), the Court may also at anytime form a chamber for dealing with a particular
case. Such a chamber shall be constituted by such number of judges as may be determined by the
Court with the approval of the states parties to the case. Under Article 29 the court, may
establish annually chambers of summary procedure for the speedy dispatch of business by five
judges on request by the parties. The establishment of such a chamber is an exception to the
requirement under Article 25 of the statute that the full Court shall sit to hear cases. The quorum
of the court is 9 members. Under Article 27 of the statute, a judgment given by any of the
chambers shall be considered as rendered by the court.

Other international courts and tribunals

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Other institutions that are involved in settlement of the disputes are largely arbitral tribunals,
which are quasi-judicial in nature; e.g. the Permanent Court of Arbitration. Other tribunals are
institutions-based and deal with matters arising out of the affairs of the institutions and are
limited thereto. Nevertheless, they resolve disputes between the parties concerned- state
organizations and individuals; e.g. the UN Administrative Tribunal.

Other judicial institutions are those that deal with disputes arising from their specific areas of
competence e.g. the International Chamber of Commerce, Internal Court of Arbitration,
International Centre for Settlement of Investment Disputes (ICSID), all dealing with commercial
dispute; the GATT/WTO Dispute Settlement Body which deals with international economic
and trade disputes. Other kinds of institutions of judicial nature are treaty bodies which are
created under Conventions to particularly monitor the observance of the provisions of the
Conventions by the state parties.

c. Non-Pacific Settlement of Disputes

Not all disputes get settled by pacific or diplomatic means. When these fail, resort may be had to
forcible means to impose a solution such as forcible means are as follows:

i. War and non-war actions.

The essence of war is to overwhelm the opponent state and to impose terms and conditions
which that state must obey. Armed action which falls short of war may also be resorted to in
order to impose settlement. However, international law sets limits within which force may be
used to overpower the enemy. Article 2(4) of the UN Charter provides that all members of the
UN must 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 UN. Resort to cases of use of war or any other armed means must
comply with the provisions of Chapter VII of the UN Charter which gives the Security Council
the power to employ such means as are stipulated in Articles 41 and 42 in the Charter.

ii. Retorsion

This is the adoption by one state of a non-friendly and harmful act which is nonetheless lawful as
retaliation for injurious, discourteous or inequitable legal activities of another state. It is a
legitimate method of showing displeasure in a way that hurts other states while remaining
legitimate. Retorsion may include severance of diplomatic relations, the revocation of diplomatic
privileges or the withdrawal of fiscal or tariff concessions. Retorsion may also be resorted to in
relation to a prior unlawful activity.

iii. Reprisals

Reprisals are acts which in themselves are illegal and which have been adopted by a state in
retaliation for the commission of an earlier illegal act by another state.

The Naulilaa Case (Portugal vs. Germany); (1928) 1 RIAAI0011

This concerned a German Military raid in the Colony of Angola which destroyed property in
retaliation for mistaken killing of three Germans lawfully in the Portuguese territory. The
incident occurred in the territory of Naulilaa in the Portuguese Angola in 1914. Portugal was still
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a neutral power in the World War I when a German soldier and his party from the German
Colony of South West Africa (Namibia) went to Naulilaa to discuss food importation to the
colony for German Soldiers. They had to use an interpreter in the course of which there was a
misunderstanding leading to a Portuguese officer seizing the bridal of the German Officer and at
the same time drew a pistol. The Portuguese Officer then ordered his man to fire. A German
soldier and two officers were killed and one soldier and the interpreter detained by the
Portuguese. The German authorities did not communicate with the Portuguese to seek redress.
Instead, claiming the right of reprisal, German troops attached Angola in October, November
and December 1914 destroying several ports and forts. After the war, the Portuguese claims
were submitted to an arbitral tribunal; whichfound against Germany. The tribunal emphasized
that before reprisal could be undertaken, there had to be sufficient justification in the form of a
previous act contrary tointernational law. If this was established reprisal had to be preceded by
an unsatisfied demand for reparation and accompanied by a sense of proportion between the
offence and the reprisal. Germany was found to have contravened all the three conditions. The
tribunal also stressed that reprisals should be governed by good faith and humanity both of
which Germany lacked. These rules still apply in reprisals.

Additionally, the provisions of Article 2(4) of the U.N. Charter have to be complied with.
Therefore reprisals which do not involve force may be undertaken legitimately while those
involving armed force may be lawful only if resorted to in conformity with the right of self
defence. Reprisals may also take the form of a boycott of the goods of a particular state, an
embargo, a naval demonstration or bombardment.

iv. Pacific blockades

These are measures taken in the time of peace and are designed to coerce the state whose ports
are blockaded into complying with a request for satisfaction of the blockading state; e.g. U.S.
blockaded Cuba for receiving missiles from USSR which were then taken back. Pacific
blockades may be instituted by the UN SC under Article 42 of the UN Charter. However, they
are presently obsolete and their unilateral application may go against the provisions of the UN
Charter. A blockading state has no right to seize ships of third states which endeavor to break
the blockade, i.e. third states are not duty bound to respect such blockades. A blockading state
can only operate against ships of third states where it has declared a belligerent blockade i.e.
during war between the blockading and the blockaded states.

v. Intervention

Article 2 of the UN Charter places a duty on states not to intervene in the affairs of another state
in a manner that violates territorial sovereignty, endangers international peace and security and
also to refrain from the threat or use force. Also prohibited are interventions that serve by
design or implication to impair the political independence of the state whose territory has been
intervened in. intervention may be internal as when a state intervenes between the disputing
sections of another state; external as where a state intervenes in the relations of other state or
punitive as where a state takes reprisals for injuries suffered at the hands of another state or
impose a pacific blockade in retaliation for gross violations of treaty provisions. However,
subject to the UN Charter, a state has the legitimate right of intervention at international level in
specific instances, i.e.

▪ Collection intervention by enforcement action under the authority of the UN SC

▪ Intervention to protect the rights and interests and personal safety of nationals abroad
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▪ Individual or collective self defence if intervention is necessary to meet a danger of
armed attack
▪ Intervention in the affairs of a protectorate by the protecting power in the exercise of its
dominion over the protectorate.
▪ If a state subject of intervention has been guilty of a gross breach of international law
with regard to the intervening state e.g. if it has itself unlawfully intervened.

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