IR 303 FINAL NOTES

-TERRITORY-

• International law is based on STATE.

• State is based on SOVEREIGNTY.

• By the hand of sovereignty, state can exercise the supremacy of governmental institutions.

• Moreover, by sovereignty, supremacy of state as a LEGAL PERSON can be recognized.

• A state is deemed to exercise exclusive power over its own territory.

• In international law, territory means any area of the earth’s surface, which is the subject of
sovereign rights and interests.

• It is a definite part of the surface of the earth, where the state normally exercises jurisdiction
over persons or things to the exclusion of another state.

According to international law, state can neither be a state nor a legal person without TERRITORY. This
is mentioned in:

1. The Montevideo Convention on the Rights and Duties of States 1933

2. Arbitration Commission of the Conference on Yugoslavia 1991

Therefore, TERRITORY is the basic characteristic of a state.

The Montevideo Convention on Rights and Duties of States (1933)

ARTICLE 1

The state as a person of international law should possess the following qualifications:

a) a permanent population;

b) a defined territory;

c) government; and

d) capacity to enter into relations with the other states.

Arbitration Commission of the Peace Conference on Yugoslavia (1991)

• The Commission considers: (Opinion #1):

«the existence or disappearance of the state is a question of fact; … that the state is commonly
defined as a community which consists of a territory and a population, subject to an organized
political authority; that such a state is characterized by sovereignty»
Territory is a key element of statehood. To become a state, a consistent band of territory is
necessary. There is no need for defined borders.

A state can be recognized, with border disputes (like Israel) but it cannot be recognized without a
certain territory band (like Palestine)

Why to Determine Territory?

• Territory is one of the most fundamental attributes of a state.

• The exercise of sovereignty is predicated upon territory.

• With territory, the state could perform acts & be subject to duties which it could not perform
and to which it would not be subject if it lacked territory.

The Domain of a State: (National territory)

• Terrestrial

• Fluvial / maritime

• Aerial

Most nations developed through a close relationship with the land they inhabited.

States develop rights to protect their land.

Territorial integrity is a major field. = Territorial integrity is the principle under international law that
prohibits states from the use of force against the "territorial integrity or political independence" of
another state.

A number of factors decreased the territorial exclusivity of the state in international law 
technological and economic advancements

Interdependence= the dependence of two or more people or things on each other.

Territorial Sovereignty

Sovereignty of a certain portion of surface of the globe.

Positive and negative aspects:

Positive: The exclusivity of the competence of the state regarding its own territory.

Negative: The obligation to protect the rights of other states.

Relates to both factual and legal conditions under which territory is deemed to belong to one
particular authority or another.

(existence of facts required under international law)

(evidence that may establish the existence of a right and the actual source of that rights)
How are borders determined?

• They can be determined by treaties

• They can be determined by judicial decisions. This judicial authority can be the ICJ or an
arbitrator.

i.e. Tr. ICJ gave an advisory opinion and Tr. lost Mosul.

Borders are drawn by factual data. They can be natural or artificial.

Artificial facts are latitudes & longitudes.

i.e. The border among the USA and Canada is brawn based upon latitudes & longitudes.

Rivers  A river may be included in one country or by Thalweg Doctrine. (middle of the primary
navigable channel of a waterway)

• Aras River noted the border btw Tr. and the USSR.

Mountains: Their summits are taken to share.

If two states agree the border can be defined through the foothills. (dağ eteği)

Lakes: Quite problematic. No established rules about how to share lakes. Only 1982 UN Convention
on the Law of Sea.

CASPIAN SEA ISSUE: Bakü Tiflis Ceyhan Pipeline – Caspian Oil

• Russia claims it is a lake and should be ruled under a condominium

• (Because no oil on Russian side)

• Azerbaijan is against condominium (Has own oil wells ) (Tr. Azerbaijan TANAP agreement
Şahdeniz Natural Gal transfer to EU)

Territory Disputes:

• The dispute may be over the status of the country itself (Taiwan, Cyprus, Israel-Palestine)

• Border disputes (Somali - Kenya - Ethiopia)

• Self-determination (Scotland, Catalonia, Kurdistan)

• Geographical/Historical demands

• In municipal law, territory is relative.

• In international law, territory is absolute.

(Ownership, possession.)
 • International law recognizes territory under sovereignty = state

• International law recognizes territory without sovereignty = (no sovereign) = terra nullius

• Terra communis = res communis (in contrast to terra nullius)

that territory cannot be reduced to sovereign control. Belongs to no one, can be used by all.

E.g. High seas, outer space, common heritage of mankind

New States and Title to territory

How a state acquires its own territory? Difficult to answer for international law.

Can be explained by legal – political terms.

• Long-established states OK.

• New states pose a problem.

• WWII & 1990s Balkans

2 methods to gain independence as a new state:

1. Constitutional means. Devolution of power. (Agreement by the former controlling

government/admin)

2. By force. Against the will of the previous sovereign.

Conquest – Use of force

• No ones state

• State of a sovereign

• Act of defeating an opponent

• Occupying – partially or wholly

• Acquisition through an armed conflict

• Iraq invaded Kuwait and annexed (1990) UNSC called it invalid unanimously by a resolution
(662 1990)

• Refrained recognition

Accretion

• Geographical process

• Islands

• Rivers

• New land comes into being

Cession (Devir)

• Can also involve peaceful transfer of territory from one to another.

• Agreement from a colonial power, e.g.

• Austria ceded Venice to France in 1866.

The exercise of effective control

• Acquisition of territory  effective control of it

• Occupation  by a state not individuals/groups - must be effective - must be intended to

claim sovereignty inhabited lands - habited lands

• Reasonable period of possession (imprecise)

• Like band of territory

Sovereign Activities (Effectivités)

The actual continuous and peaceful display of state functions is natural criterion of territorial
sovereignty.

Criterion:

• The exercise of effective authority

• Peaceful display of state functions

• Continuous
-LAW OF SEA-

SEA

1. Medium of communication

2. A vast reservoir of resources, both living and non-living.

- Both of these functions have stimulated the development of legal rules.

- National and especially international waters are protected against unlawful activity.

The law of sea can be analyzed under two titles:

1. Maritime Commercial Law

2. Sea Public Law

• The law of sea corresponds to the sea public law.

Seas are not studied under one single status. They are divided into various zones, which are governed
by different regimes. Those zones are known as sea zones. Sea zones are areas like internal waters,
continental shelf, high seas.

• The most important distinction is between:

i. Zones under the sovereignty of states;

ii. Sea zones, where states can exercise sovereign authority

iii. Zones that are open for all states.

Ships

• The type of the ship determines the content of the authority, which can be exercised by a
state on that ship.

• Though, international law does not define «ship».

• Ships are classified into two according to international law & they are bound by different
regimes :

1. Merchant ships (fishing vessels, cargo vessels, watercraft carrying people like passenger ships,
cruise liners, etc.)

2. Official ships (warships, navy battle cruisers, submarines, etc.)

i. Battle ships (always under the control and authority of their flag)

ii. Non-combatant public service ships

iii. Commercial ships

Legal Sources:

1958 - UN Conference on the Law of Sea

4 Conventions

 1958 Geneva Convention on the Territorial Sea and Contiguous Zone,

 1958 Geneva Convention on the Continental Shelf,

 1958 Geneva Convention on the High Seas,

 1958 Geneva Convention on Fishing and Conservation of Living Resources of the

High Seas.

1982 - UN Convention on the Law of the Sea

Maritime Zones:

• Internal Waters

• Territorial Waters

• Contiguous Zone

• Exclusive Economic Zone

• Continental Shelf

Baselines: Outermost points of the sea.

The seaward limits of the sea.

Internal limit of the territorial sea

The width of the territorial sea is defined from the low-water mark around the coasts of the state.

This is the traditional principle under customary international law and was reiterated in § 3 of the
Geneva Convention on the Territorial Sea and the Contiguous Zone in 1958 and § 5 of the 1982
Convention.

The low-water line along the coast is defined ‘as marked on large-scale charts officially recognized by
the coastal state.’

Internal Waters: Appertaining to the land territory.

Covers all water and waterways on the landward side of the baseline.

The coastal state is free to set laws, regulate use, and use any resource. Foreign vessels have no right
of passage within internal waters. (Harbours / lakes / rivers / bays)

There does not exist any right of innocent passage from which the shipping of other states may
benefit.
The host country has absolute sovereignty.

A merchant ship in a foreign port or in foreign internal waters is automatically subject to the local
jurisdiction (unless there is an express agreement to the contrary)

The general contemporary tendency is granting access to internal waters. Mainly for free trade.

Exceptions:

i. Military ports (permanent),

ii. during epidemics, ports are closed,

iii. during threats.

When foreign ships remain in a harbour for a certain period of time, they have to obey the local laws
and regulations.

When the foreign vessel involved is a warship, the authorization of the captain or of the flag state is
necessary before the coastal state may exercise its jurisdiction over the ship and its crew. – Respect to
sovereignty.

• Precedent case to sovereignty exercise over internal waters: Buenos Aires Harbour vs. UK

Argentina closed its harbours. UK complained. Chile president was the only arbitrator.

Decided: Coastal states have right to close their harbours. 1870

Territorial Waters: Defined by the 1982 UN Convention on the Law of the Sea (§3)

It is a belt of coastal waters extending at most 12 nautical miles (22.2 km) from the baseline.

(Baseline = low-water mark)

Foreign vessels (civilian) are allowed innocent passage through it.

This sovereignty also extends to the airspace over and seabed below.

Exclusive fishery zone.

The juridical nature of the territorial sea: The territorial sea appertains to the territorial sovereignty
of the coastal state and thus belongs to it automatically.

All newly independent states (with a coast) come to independence with an entitlement to a territorial
sea.

It cannot be disputed that the coastal state enjoys sovereign rights over its maritime belt and
extensive jurisdictional control, having regard to the relevant rules of international law.
The fundamental restriction upon the sovereignty of the coastal state is the right of other nations to
innocent passage through the territorial sea, and this distinguishes the territorial sea from the
internal waters of the state, which are fully within the unrestricted jurisdiction of the coastal nation.

The right of innocent passage: Innocent passage is a concept in the law of the sea that allows for a
vessel to pass through the territorial waters of another state, subject to certain restrictions.

Nations can also temporarily suspend innocent passage in specific areas of their territorial seas, if
doing so is essential for the protection of its security.

Meaning of innocent passage - (UNCLOS 1982)

1. Passage is innocent so long as it is not prejudicial to the peace, good order or security of the
coastal State. Such passage shall take place in conformity with this Convention and with other rules of
international law.

2. Passage of a foreign ship shall be considered to be prejudicial to the peace, good order or security
of the coastal State if in the territorial sea it engages in any of the following activities:

(a) any threat or use of force against the sovereignty, territorial integrity or political independence of
the coastal State, or in any other manner in violation of the principles of international law embodied
in the Charter of the United Nations;

(b) any exercise or practice with weapons of any kind;

(c) any act aimed at collecting information to the prejudice of the defense or security of the coastal
State;

(d) any act of propaganda aimed at affecting the defense or security of the coastal State;

(e) the launching, landing or taking on board of any aircraft;

(f) the launching, landing or taking on board of any military device;

(g) the loading or unloading of any commodity, currency or person contrary to the customs, fiscal,
immigration or sanitary laws and regulations of the coastal State;

(h) any act of willful and serious pollution contrary to this Convention;

(i) any fishing activities;

(j) the carrying out of research or survey activities;

(k) any act aimed at interfering with any systems of communication or any other facilities or
installations of the coastal State;

(l) any other activity not having a direct bearing on passage.

Jurisdiction over foreign ships

Where foreign ships are in passage through the territorial sea, the coastal state may only exercise its
criminal jurisdiction as regards the arrest of any person or the investigation of any matter connected
with a crime committed on board ship in defined situations.
These are enumerated in article 27(1) of the 1982 Convention, reaffirming article 19(1) of the 1958
Convention on the Territorial Sea, as follows:

(a) if the consequences of the crime extend to the coastal state; or

(b) if the crime is of a kind likely to disturb the peace of the country or the good order of the
territorial sea; or

(c) if the assistance of the local authorities has been requested by the master of the ship or by a
diplomatic agent or consular officer of the country of the flag state; or

(d) if such measures are necessary for the suppression of illicit traffic in narcotic drugs or psychotropic
substances.

• If the ship is passing through the territorial sea having left the internal waters of the coastal
state, then the coastal state may act in any manner prescribed by its laws as regards arrest or
investigation on board ship and is not restricted by the terms of article 27(1).

• Within territorial borders, nations have full sovereignty.

• Both above and below the surface.

• Subject to the territorial jurisdiction of the coastal state.

Contiguous zone: Coastal states exercise particular jurisdictional functions in the contiguous zone.

Contiguous Zone does not exist automatically.

Must be claimed -unlike territorial seas.-

Beyond the 12-nautical-miles (22 km) limit, there is a further 12 nautical miles (22 km) from the
territorial sea baseline limit, the contiguous zone. (3-3/6-6/12-12)

Allows coastal states to exercise the control necessary to prevent and punish infringements of i)
customs, ii) sanitary, iii)fiscal, and iv)immigration regulations within and beyond its territory or
territorial sea.

The coastal state has the right to punish, too.

Function: Prevention.

The idea of a contiguous zone was formulated as a doctrine in the 1930s. It appeared in the
Convention on the Territorial Sea. §24 declared that:

In a zone of the high seas contiguous to its territorial sea, the coastal state may exercise the control
necessary to: (a) Prevent infringement of its customs, fiscal, immigration or sanitary regulations
within its territory or territorial sea; (b) Punish infringement of the above regulations committed
within its territory or territorial sea.

• Thus, such contiguous zones were clearly differentiated from claims to full sovereignty as
parts of the territorial sea, by being referred to as part of the high seas over which the coastal
state may exercise particular rights.
Exclusive Economic Zone: That is also an exclusive economic zone: 200 nautical miles (ca. 370km)
from the baseline.

Within this area, the coastal nation has sole exploitation rights over all natural resources.

Must be claimed.

exclusive economic zone only applies for sovereign rights to sources:

1. what lies on and below the surface: Oil, Minerals, currents.

2. Living natural sources.

including energy production from water & wind.

Foreign states may also lay submarine pipes and cables within EEC of another state.

In this zone the coastal state retains exclusive sovereignty over exploring, exploiting and conserving
all natural resources.

The coastal state therefore can take action to prevent infringement by third parties of its economic
assets in this area including, inter alia, fishing, bio-prospecting and wind-farming.

Continental shelf: The continental shelf is defined as the natural prolongation of the land territory to
the continental margin’s outer edge, or 200 nautical miles (370 km) from the coastal state's baseline,
whichever is greater. A state's continental shelf may exceed 200 nautical miles (370 km) until the
natural prolongation ends. However, it may never exceed 350 nautical miles (650 kilometers; 400
miles) from the baseline; or it may never exceed 100 nautical miles (190 kilometers; 120 miles)
beyond the 2,500 meter isobaths (the line connecting the depth of 2,500 meters).

Coastal states have the right to harvest mineral and non-living material in the subsoil of its
continental shelf, to the exclusion of others.

• It is possible to have continental shelf on a sea zone where there is no EEZ.

• However, it is impossible to have an EEZ on a sea zone where there is no continental shelf.

Coastal states also have exclusive control over living resources "attached" to the continental shelf, but
not to creatures living in the water column beyond the exclusive economic zone.

Aside from its provisions defining ocean boundaries, the convention establishes general obligations
for safeguarding the marine environment and protecting freedom of scientific research on the high
seas, and also creates an innovative legal regime for controlling mineral resource exploitation in deep
seabed areas beyond national jurisdiction, through an International Seabed Authority and the
Common heritage of mankind principle.

Landlocked states are given a right of access to and from the sea, without taxation of traffic through
transit states.

International Straits: No general definition in international law.

A geographical formation.

National straight: Only one state is coastal, i.e. Menai Strait of England, the Minch Strait of England.

International strait  Straits used in international navigation.

Article 16(4) of the 1958 Convention on the Territorial Sea declares that:

there shall be no suspension of the innocent passage of foreign ships through straits which are used
for international navigation between one part of the high seas and another part of the high seas or
the territorial sea of a foreign state.

Corfu Channel Case: (ICJ)

British warships passing through the straits were fired upon by Albanian guns

Several months later, an augmented force of cruisers and destroyers sailed through the North Corfu
Channel and two of them were badly damaged after striking mines.

This impelled the British authorities to sweep the Channel three weeks later

and to clear it of some twenty mines of German manufacture. The Court, in a much-quoted passage,
emphasized that:

states in time of peace have a right to send their warships through straits used for international
navigation between two parts of the high seas without the previous authorization of a coastal state,
provided that the passage is innocent.

It was also noted that the minesweeping operation was in no way ‘innocent’ and was indeed a
violation of Albania’s sovereignty, although the earlier passages by British naval vessels were legal.

Certain straits are taken under special regulations.

Turkish Straits

Gibraltar Strait

Strait of Magellan

Malacca Strait

1936 Montreux Treaty regulates Turkish Straits All merchant ships have innocent passage right. (In
peace and war) (Art.2-4)

Only health controls can be done, nothing else.

Ordering a guide rests upon request.

If Tr. feels under threat then merchant ships can only pass during day time. (Art.6)

If Tr. is in war then enemy cannot pass through and others are allowed unless they carry good for the
enemy (enemies)

Warships : Classified Military tankers pass (Art.9)

Passing day time -- Prior notification

Montreaux Treaty is done for 20 years (Art.28). Right to innocent passage is endless by the treaty. 2
years prior to deadline one party was supposed notify the ending thus a new conf could have started.
Not done. Can also be changed partially (Art.29).
 • If a state does not a have coast to the Black Sea, then their aircraft carriers, submarines and
warships cannot pass.

International Waters: Although it may seem like you can just take a boat 12 mile off and do whatever
you want...

In October 2015, Russian ships and Submarines operated undersea data cables. That was sparking
fears that Russia may intentionally cut international internet wires, the world’s communication lines.

Data cables are protected by international law.

What happens in the high seas is a legally complicated jurisdiction.

International waters are bodies of water that are outsides countries’ territorial waters, which extends
to 12 nautical miles (ca. 22 km) off its coast.

Do not belong to any state.

Most basic principle is freedom.

Open to equal utility of all states.

International waters have no sovereignty, ergo is "Terra nullius" = no state controls it.

All states have the freedom of: fishing, navigation, overflight, laying cables and pipelines, and
research.

Freedoms guaranteed by the UN Convention on the Laws of the Sea.

All countries are allowed to fly over, sail, lay cables, fish and perform scientific research in
international waters.

That does not mean «you can do anything» in international waters.

Whatever is being done in the high seas falls under the jurisdiction of the country that the ship is
registered in.

Universal Jurisdiction: Then it is a question of universal jurisdiction.

Universal jurisdiction allows for any country to prosecute a criminal regardless of their nationality or
where the crime was committed.

Although usually this concept is used for crimes against humanity (like genocide) it is used for int’l
waters, because otherwise nobody could claim jurisdiction.

Recent efforts against Somalian piracy have been primarily led by the U.S. But, also
involved China, Russia, France and the UK as well as the EU and NATO.

What constitutes int’l waters is not always clear cut.

The nautical area surrounding the Arctic as well as Antarctica is disputed as multiple countries have
claimed sovereignty over the land itself.

Russia lays claim to vast areas of Arctic.

Russia was the first to submit a claim in 2002, but the UN sent it back for lack of evidence.
Russia, the US, Canada, Denmark and Norway have all been trying to assert jurisdiction over parts of
the Arctic, which is believed to hold up to a quarter of the planet’s undiscovered oil and gas.

Rivalry for resources has intensified as shrinking polar ice is opening up new exploration
opportunities.

• Meanwhile, international countries like the United States maintain that a large portion of the
South China Sea constitutes int’l waters.

• The U.S. has even sent ships into what China claims as its own territory.

• This dispute is considered one of the most volatile in the Asian region.

Who are IOs?: They operate internationally.

They are non-state actors.

They are established by states.

They are not NGOs.

They are not MNCs.

-THE LAW OF AIR AND SPACE-
Air and space law are new subjects of international law.

Law of Air: Deals with the status of the airspace above states.

Air space can be studied in two diverse zones:

National Air Space

International Air Space

Both of them are used for communication and transportation reasons.

They are bound by different legal regimes.

2 Legal sources:

1919 Paris Convention for the Regulation of Aerial Navigation, which recognised the full sovereignty
of states over the airspace above their land and territorial sea.

1944 Chicago Convention on International Civil Aviation

This treaty also establishes one IGO: The International Civil Aviation Organization (ICAO)

The principles governed by the 1919 Paris Convention:

Each nation has absolute sovereignty over the airspace overlying its territories and waters. A nation,
therefore, has the right to deny entry and regulate flights (both foreign and domestic) into and
through its airspace.

Each nation should apply its airspace rules equally to its own and foreign aircraft operating within
that airspace, and make rules such that its sovereignty and security are respected while affording as
much freedom of passage as possible to its own and other signatories' aircraft.

Aircraft of contracting states are to be treated equally in the eyes of each nation's law.

Aircraft must be registered to a state, and they possess the nationality of the state in which they are
registered.

The principles governed by the 1944 Chicago Convention:

The Convention establishes rules of airspace, aircraft registration and safety, and details the rights of
the signatories in relation to air travel; it also exempts air fuels from tax. The Convention was signed
by 52 states on 7 December 1944 in Chicago, Illinois, U.S., and came into effect on 4 April 1947.

Each nation has absolute sovereignty over the airspace overlying its territories and waters.

For scheduled flights or charter flights, the permission of the sovereign state is necessary.
No-fly zones can be declared by the sovereign state.

Rules are defined to determine the nationality of the aircraft. An aircraft carries the nationality of the
state, where it is registered.

ICAO is the most important IO in its issue are.

Its headquarters is in Canada.

It works in connection with the UN.

It is a specialization organization.

The Chicago Convention on sets rules of civil aviation, the military planes are out of this treaty.

National air space:

The aerial zone above the entire terrestrial and fluvial territories of a state.

Its limit with the space is legally unclear.

Absolute sovereignty of the state.

The national airspace is completely closed to the flights of warplanes of other states.

Without the permission of a state, a foreign fighter aircraft can never enter into the airspace of
another space.

International air space:

The aerial zone above the sea zones out of territorial waters of states’.

Freedom of flight/passage.

Planes are allowed to fly over EEC and continental shelves of other states without prior authorization.

It is open for the benefit and usage of everybody.

Planes are assessed under two categories in the law of air:Commercial Planes

War planes / fighter aircraft

1944 Chicago Convention assesses «Commercial Planes» under two categories:

Scheduled flights (tarifeli)

non-scheduled flights (tarifesiz)

Scheduled flight is a plane service that leaves at a regular time each day or week. We know from
where it takes off, where it heads. They carry cargo or passengers.

Because both Turkey and Germany are parties to Chicago Conv.’44, a German passenger plane can
load or unload passengers to/from an airport in Turkey.

Scheduled flights are autorized by sovereign states. (Can pass through after a permission.)
If no permission = threat.

Air Corridors:

States meet to decide upon air corridors.

It is a designated region of airspace that an aircraft must remain in during its transit through a given
region.

They are imposed by military or diplomatic requirements.

Ensure a safe operating environment.

Flight Information Region (uçuş bilgi bölgesi):

Pilots exchange info. about bird coveys, storms, etc

Planes go into air corridors within FIR right after they leave national air spaces.

Technical responsibility of FIRs is assumed by states but it does not entail sovereignty.

Outer Space beneficial usage + under state responsibility

The regime of outer space

• Beyond the point separating air from space, states have agreed to apply the international law
principles of res communis*, so that no portion of outer space may be appropriated to the
sovereignty of individual states.

• * Res communis = Common heritage of mankind.

Border? Where planes cannot fly anymore.The line where the atmosphere ends.The point where the
gravity ends.The extent to which the given state has control.The border set by the closest satellite to
the earth.The point where the state’s security needs end

Satellites perceived as borders.

The Legal Regime of People and Devices Sent to Space

The devices sent to space are under the state’s authority. They must be registered by the UN(GA).

2 important terms:

1. Launching state (Etat de lancement/fırlatan devlet)

2. State of registry (Etat d’enregistrement/tescil devleti)

What is registered?

i. Name(s) of the launching state(s).

ii. Number/code of the device.

 iii. Launching date/place.

iv. Basic data about the orbit.

v. Main duty of the device.

UN Office for Outher Space Affairs (UNOOSA)

UNOOSA works to promote international cooperation in the peaceful use and exploration of space,
and in the utilisation of space science and technology for sustainable economic and social
development.

The Office assists any United Nations Member States to establish legal and regulatory frameworks to
govern space activities and strengthens the capacity of developing countries to use space science
technology and applications for development by helping to integrate space capabilities into national
development programmes.

The legal regime of outer space was clarified by the signature in 1967 of the Treaty on Principles
Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and
Other Celestial Bodies.

This reiterates that outer space, including the moon and other celestial bodies, is not subject to
national appropriation by any means and emphasizes that (§1) the exploration and use of outer space
must be carried out for the benefit of all countries.

This was made clear in a number of the UN General Assembly resolutions following the advent of the
satellite era in the late 1950s.

i.e. the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of
Outer Space, lays down a series of applicable legal principles which include the provisions that outer
space and celestial bodies were free for exploration and use by all states on a basis of equality and in
accordance with international law, and that outer space and celestial bodies were not subject to
national appropriation by any means.

The Treaty does not establish as such a precise boundary between airspace and outer space but it
provides the framework for the international law of outer space. §4 provides that states parties to the
Treaty agree:

not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of
weapons of mass destruction, install such weapons on celestial bodies, or station such weapons in
outer space in any other manner

The article bans only nuclear weapons and weapons of mass destruction from outer space, the
celestial bodies and from orbit around the earth, but article 1 does emphasise that the exploration
and use of outer space ‘shall be carried out for the benefit and in the interests of all countries’ and it
has been argued that this can be interpreted to mean that any military activity in space contravenes
the Treaty.

Under article 4, only the moon and other celestial bodies must be used exclusively for peaceful
purposes, although the use of military personnel for scientific and other peaceful purposes is not
prohibited
Under §8, states retain jurisdiction and control over personnel and vehicles launched by them into
space and under §7 they remain responsible for any damage caused to other parties to the Treaty by
their space objects.

The Convention on International Liability for Damage Caused by Space Objects – 1972

Article XII of which provides for the payment of compensation in accordance with international law
and the principles of justice and equity for any damage caused by space objects. Article II provides for
absolute liability to pay such compensation for damage caused by a space object on the surface of
the earth or to aircraft in flight, whereas article III provides for fault liability for damage caused
elsewhere or to persons or property on board a space object

This Convention was invoked by Canada in 1979 following the damage allegedly caused by Soviet
Cosmos 954.
-SETTLEMENT OF DISPUTES BY PEACEFUL MEANS-

Conflict Resolution refers to an interdisciplinary academic field aiming to analyze the causes and
developments of social conflict with a propensity to violence. (how conflicts resolved and future
prediction)

Against the historical backdrop of the Cold War rivalry and nuclear threat, conflict resolution as a
distinct field of study emerged in the 1950s and 1960s, aiming to develop strategies for a regulated
and peaceful settlement of social conflicts in general and international conflicts.

This might include preventive activities or direct influence, such as attempts of mediation or
arbitration.

Definition of Dispute

Disagreement over a point of law or fact, a conflict of legal views or of interests btw two parties
constitute an authoritative indication. (Turkey-Greece)

The main aim of int’l law: To ensure maintenance and protection of global peace and order.

The techniques of conflict management fall into 2 categories:

Diplomatic procedures

Adjudication

Increasing interdependence + globalism

= conflicts are unavoidable conflicts are unavoidable but can be managed (liberal view)

= conflicts can be managed

SOURCE: 1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-
operation among States

The role of political influences and considerations in inter-state disputes is obviously a vital one.

Many settlements can only be properly understood within the wider international political context.

How a state proceeds in a dispute will be conditioned by political factors.

If the dispute is perceived to be one affecting vital interests, for example, the state would be less
willing to submit the matter to binding third party settlement than if it were a more technical issue,
while the existence of regional mechanisms will often be of political significance.

All methods are available for all states.

Implementation of which methods depend upon the consent of the states.

The mechanisms dealing with the peaceful settlement of disputes require in the first instance the
existence of a dispute.
Diplomatic Methods of dispute settlement: (4 diplomatic 2 adjudication)

1. Negotiation (Tr.: Müzakere)

2. Mediation (Tr.: Arabuluculuk)

3. Inquiry (Tr.: Tahkikat)

4. Conciliation (Tr.: Uzlaşma)

***They are non-binding methods of dispute settlement.***

Negotiation: The simplest and most utilized method.

It consists basically of discussions btw the parties.

Aim is to reconcile divergent opinions, or at least understanding the different positions maintained.

No 3rd parties are involved.

The most satisfactory means to resolve disputes. Because parties are directly engaged.

They do not always succeed.

They depend on a certain degree of mutual goodwill, flexibility and sensitivity.

Sometimes it is a duty to enter into negotiations. This duty arises out of particular bilateral or
multilateral agreements/treaties.

EXAMPLE: According to the Convention on the Law of Sea 1982, §283(1) when a dispute arises btw
the parties concerning the interpretation or application of the Convention, «the parties to the dispute
shall proceed expeditiously (=immediately) to an Exchange of views regarding its settlement by
negotiation or other peaceful means.»

Mediation: Good offices and mediation.

The employment of mediation involves the use of a third party.

That 3rd party may be an individual, individuals, a state, a group of states or an international organization.

The 3rd party encourages the parties for the settlement of the dispute.

Mediation & good offices requires active participation of the 3rd party to the negotiation process.

The initiative of the mediator or the demand of the parties.

Reduces the tensions between the parties of a dispute.

Prepares an appropriate floor for diplomacy.

Especially useful when negotiations are halted due to tensions.

The mediator at all times maintains own neutrality and impartiality. They provide advise

They help determining the elements of the dispute.

They produce solution offers.

They evaluate the alternatives.

They make efforts for a settlement.

They CANNOT make any binding resolutions.

Inquiry: The parties have diverse opinions on a factual matter. Therefore a dispute emerges. Such
disputes can be solved by an inquiry.

A commission is set to carry out the inquiry.

The commission is composed of reputable observers.

The rules of an inquiry are first laid down by 1899 Hague Conference.

Inquiry is brought up as an alternative to arbitration.

Rare

For example: the Dogger Bank incident.

Conciliation: It also involves a 3rd party investigation.

The 3rd party prepares a report that consists of suggestions for the settlement of the dispute.

The report is only a solution proposal.

Conciliation tries to individualize the optimal solution and direct parties towards a satisfactory
common agreement.

Conciliation is used almost preventively as soon as a dispute or misunderstanding surfaces: a

conciliator pushes to stop a substantial conflict from developing.

Conciliation processes are extremely flexible, and they clarify the facts and they discuss solution
proposals.

Several treaties provide for conciliation as a means of resolving disputes. i.e. The 1969 Vienna
Convention on the Law of Treaties.

Binding Methods of Dispute Settlement

Common features of legal methods Binding Parties – Should show consent

Should the non-binding methods of dispute settlement remain fruitless, some treaties provide for
arbitration and/or judicial means of settlement.

1- Judicial settlement/Adjudication (courts and tribunals)

2- International Arbitration
Common features of legal methods:

3rd party settlement.

Legally Binding.

Both parties of the dispute shall show consent for referring their case to a legal settlement option

1. Int’l arbitration  Built in an ad hoc manner. For a certain period

Adjudication/Courts permanent

2. Int’l arbitration  The members of the commission are picked among the parties of the
dispute

Adjudication/Courts  Judges are determined by an IO by employing predetermined

methods.

3. Int’l arbitration  Rules of procedure of intl. arb. are determined by the parties of the
dispute. The parties can also change them.

Adjudication/Courts Rules of procedure are predetermined and cannot be changed by the

parties of the dispute.

• Adjudication  Among the few standing international courts and tribunals, the International
Court of Justice (ICJ) is certainly the most important one!

• Such courts and tribunals may be purely inter-state or permit individuals to appear as
applicants or respondents

Arbitration: Arbitration is much more flexible than adjudication and gives the parties more choices as
regards the seat of the tribunal, the appointment and selection of arbitrators and their qualifications,
the procedure to be applied and regulating the power of the tribunal through formulating its terms of
reference. Arbitration has been used for a long time by states to settle their disputes and it may be
considered the most effective method.

-is ad hoc / members picked from dispute parties / you can say what the sources are

What happens to disputes which states are unwilling to refer to international courts? Most of them
are eventually settled by some political means of settlement, such as negotiation or mediation;
indeed, the creation of international organizations like the United Nations has increased the chances
of political settlement, by adding to the number of available means of political settlement. Very often
the settlement takes the form of a compromise, or of a ‘package deal’, in which one state makes
concessions in one dispute in return for concessions by the other state in another, more or less
unrelated, dispute.

• Alternatively, the dispute can simply result in a stalemate; states are practically immortal and
can afford to wait until a change in the law or in the balance of power enables them to
negotiate a settlement on more favourable terms

World Bank --- ICSID International Centre for Settlement of Investment Disputes

WTO ---- Arbitrations (under Article 21.3(c)) of the DSU

UNCITRAL ---- United Nations Commission on International Trade Law - The core legal body of the
United Nations system in the field of international trade law.

Criticisms: Marxist - Not judicial – Exploitable

State responsibility is a fundamental principle of IL.

A cardinal institution of IL.

• Arises from:

i. The nature of the international legal system,

ii. The doctrines of state responsibility,

iii. Equality of states.

-ICJ-
International Court Of Justice ( 1 of 6 main organs of the UN + in Netherlands+ judiciary is not
affected by un politics)

2 ROLES: Settle Disputes contentious cases (çekişmeli dava)

Advisory Proceedings (not legally binding)

Only States can go to ICJ but IO’s can ask for advisory.

ICJ decisions do not constitute precedent for the future cases. (legal judgements of who is right, who
is wrong)

Binding on dispute parties + Consent is important

Judges don’t serve for their countries.

THE UN CHARTER

foundational treaty of the UN:

* Binding provisions *

Purpose of UN: HR & Peace & Security (Non-interventionist: diplomacy – avoid war)

solving international problems of an economic, social, cultural, or humanitarian character,

References to human rights: Dignity, Equality, Freedoms

Main Organs of the UN:

General Assembly

SC

Economic and Social Council

Trusteeship Council
International Court of Justice

Secretariat

International Court of Justice (ICJ)

• The principal judicial organ of the UN

• Not located in New York

• Peace Palace in the Hague (Netherlands)

• Role: to settle legal disputes and provides advisory opinions - in accordance with
international law,

• Legal disputes submitted by States & IOs and to give advisory opinions on legal questions
referred to it by authorized United Nations organs and specialized agencies.

ICJ: Established in 1946,

by the UN Charter and the Statute of the ICJ. (The Statute is an annex to the UN Charter.)

Also called the World Court.

ICJ MANDATE: Carries out inter-state dispute settlement.

2 types of cases:

contentious cases: legal disputes between States submitted to it by them;

advisory proceedings: requests for advisory opinions on legal questions referred to it by United
Nations organs and specialized agencies. Its jurisdiction is carefully defined to preserve the
sovereignty of the states involved in cases.

• It has 2 important functions in international politics:

1. Its decisions constitute formal and explicit legal judgements regarding who is right & wrong in
a given dispute;

2. These decisions enter into the political discourse of states, despite the absence of precedent,
and may have substantial influence beyond their legal terms.

Interaction with International Politics

It has 2 important functions in international politics:

Its decisions constitute formal and explicit legal judgements regarding who is right & wrong in a given
dispute;

These decisions enter into the political discourse of states, despite the absence of precedent, and
may have substantial influence beyond their legal terms.

ICJ Decisons: The decisions of this court are final and binding.
Without appeal!

The decisions are only binding on the parties of the dispute.

The decisions do not constitute precedent for the future cases.

ICJ Structure: 15 Judges. Assigned in the Court full time.

The Statute describes them (in§2) as «independent judges, eşected regardless of their nationality
from among persons of high moral character, who possess the qualifications required in their
respectivecountries for appointment to the highest judicial offices, or are jurists of recognized
competence in international law.»

States are represented by their lawyers.

According to §9, the judges are meant to represent the «main forms of civilization and of the
principle legal systems of the world.»

Civilizational diversity is required. There is no similar rule to require an equitable representation of

women and men among the judges.

Judges are international civil cervants.

They are not diplomats. They do not represent the interests of their own countries.

They enjoy immunities and priviledges.

Obligations of States and Powers of the Court

The necessary elements for an international dispute to come within hte jurisdiction of the ICJ, the
case must involve:

A legal dispute (not a military, economic, or political one;)

It must be btw states.

Consent of the states.

ICJ Statute art.60 the key legal obligation of UN members is to comply with the rulings of the court

Compliance with the Court

The court does not possess any king of coercive tool.

Though, the compliance is very high.

Because of the consent given in beforehand.

Enforcement of the ICJ

ICJ Statute art.94(2): «If any party fails to perform the obligations incumbent upon it under a
judgement rendered by the court, the other party may have recourse to the UNSC, which may, if it
deems necessity, make recommendations or decide upon measures to be taken to give effect to the
judgement. »
-USE OF FORCE-

STATE A attacks STATE B cause they HR violation. However, State A unacceptable political goals + use
of force is forbidden+ uniliteral military action+ HR violation is not defined.

PREEMPTION: not self defense / eye washing (preemptive strikes)

Domestic systems --- have

International law --- reliance = consent, consensus, reciprocity, good faith.

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

The UN Charter prohibits both the USE of force as well as THREATs of use of force.

SOURCE: 1970 Declaration on Principles of Intl’l Law

Act of aggression = crime against peace

States must not threaten or use force to violate existing int’l lines or to solve probs.

States must avoid acts of reprisal (=misilleme) involving use of force.

States must not use force to deprive right to self-determination and independence.

Refrain from organizing, assisting, instigating, or participating acts of terror in other states.

According to Declaration: it is a duty of states to refrain from military, political, economic or any other
form of coercion aimed against the political independence or territorial integrity of any state.

The self-defense right can be used.

Proportionality is an important element.

In relate to the damage that is or might be caused.

FORCE: The FORCE mentioned in the §2(4) is not only armed force.

It can be, for instance political or economic force. Boycotts, Embargoes against states.

Armed force can be used to deal with the right to self-defense.

CATEGORIES OF FORCE

Retorsion: (Misilleme, karşılık): reactions which do not interfere with the target state’s rights under
international law.

unfriendly, harmful but legal and legitimate.

Method of showing displeasure.

a State retaliates by using its natural freedom of international action persisting in the absence of a
provable prohibition in international law

Severing diplomatic ties, restrictive control of aliens.

Repraisals (Kısas) :

Military raid during peacetime.

Violation of international law to punish another sovereign state that has already broken them.

The act of punishing another for some injury the latter caused.

illegal

The right of self-defense:

Victim.

a necessity, immediate, overwhelming, leaving no choice.

Protected by the un-Charter §51 (nothing in the charter shall impair the inherent right of individuall
or collective self-defense.)

UN Charter Article 51

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

UNSC

Deals with grave human rights violations, often in conflict areas.

the UN Charter gives the Security Council the authority to investigate and mediate, dispatch a
mission, appoint special envoys, or request the Secretary-General to use his good offices.

Security Council may issue a ceasefire directive, dispatch military observers or a peacekeeping force.

If this does not work, the Security Council can opt for enforcement measures, such as economic
sanctions, arms embargos, financial penalties and restrictions, travel bans, the severance of
diplomatic relations, a blockade, or even collective military action.

International peace and security

Prohibited involvement in matters essentially within the domestic jurisdiction of the states.

In the absence of a threat to int’l peace and security the SC has no authority at all.

Interpretation of «threats against int’l peace and security»: By each SC resolution.

9/11 changed a lot. Terror – terrorists – errors and unfairness – harmed individuals
TERROR

No internationally agreed definition.

Only terrorist activities are defined.

Reason  political approach (One man’s freedom fighter is another’s terrorist.)

The lack of definition = lack of int’l law to deal with the terror problem.

There is no world court of terrorists etc.

HUMANITARIAN INTERVENTION

Definition: a state's use of military force against another state, with publicly stating its goal is to
end human rights violations in that state.

Unilateral.

Without the authorization of the UNSC.

Refers only to military force.

Can shelter unacceptable geopolitical goals.

Legally not structures.

Its legality & legitimacy are questionable.

RESPONSIBILITY TO PROTECT

Legally structured.

Addresses 4 HR violations: i) genocide, ii)ethnic cleansing, iii)war crimes, iv) crimes against humanity.

Endorsed by the UNSC.

Military intervention --- as a last remedy. Before that diplomatic, political, economic sanctions are
implemented.

Still legitimacy questions.

The protection of nationals abroad = meaning the state is under attack, not the individuals
-DIPLOMATIC LAW-

Diplomatic Law

Diplomatic Relations

Officials at home

Diplomatic Agents and Employees

Appointing the chief of the mission & initiation of the duty

Termination of the duty

Ad Hoc Diplomatie

Immunities and Privileges

Diplomatic immunities – personal

Diplomatic immunities – property

Diplomatic Bag

Consular Relations and Activities

Diplomatic Law = Rules regulating the various aspects of diplomatic relations.

One of the earliest expressions of international law.

Co-existing independent states developed special customs on how the ambassadors and other special
representatives of other states should be treated.

Interstate relations are carried out by mainly the ministry of foreign affairs.

-Ministries only represent their area.

Diplomacy: an ancient institution

a method of communication between various parties

including negotiations between recognized agents, is an ancient institution and international legal
provisions governing its manifestations are the result of centuries of state practice.

Diplomacy is carried out either by diplomats or by natural representors of the state (head of the
state, president, prime minister, MFA etc.)

International legal provisions governing diplomatic manifestations are the result of centuries of state
practice.

The special privileges and immunities related to diplomatic personnel of various kinds grew up partly
because of sovereign immunity and the independence and equality of states, and partly as an
essential requirement of an international system.

Diplomats + natural representatives cannot be detained or cannot be tried/judged.

States/IOs must negotiate and consult with each other via diplomatic staffs.

These persons represent their states in various ways. They thus benefit from the legal principle of
state sovereignty.

This is also an issue of practical convenience.

Diplomatic relations have traditionally been conducted through the medium of ambassadors and
their staffs.

With the growth of trade and commercial intercourse the office of consul was established and
expanded.

The development of speedy communications stimulated the creation of special missions designed to
be sent to areas for specific purposes, often with the head of state or government in charge.

To some extent, however, the establishment of telephone, telegraph, telex, and fax services has
lessened the importance of the traditional diplomatic personnel by strengthening the centralizing
process.

Nevertheless, diplomats and consuls do retain some useful functions in the collection of information
and pursuit of friendly relations, as well as providing a permanent presence in foreign states, with all
that that implies for commercial and economic activities.

DIPLOMATIC RELATIONS: States run their diplomatic relations through the persons, who are liable for
representing them in their international relations.

Representatives are Officials at home /Diplomacy representatives

OFFICIALS AT HOME

Head of State: International law does not differentiate btw president, queen, king, emperor or any
other leader with a different title. The highest office in a state system can represent the state. This
person is a natural representative until they behave against the IL. According to CIL, they enjoy
immunities (judicial) and privileges (taxes and customs) during foreign visits. The exceptions for
immunities are mentioned in the Nürnberg Principles.

Head of Government: If the state is governed by a parliamentary regime, then the domestic and
foreign policies are determined by the government. Then the representation of the state by the head
of government is natural.

Minister of Foreign Affairs:

Other Ministers and Public Institutions’ Officials: They can represent their countries regarding the
issues that fall under their specialization area. (Minister of Agriculture, Minister of Industry, Minister of Trade,
Minister of Family and Social Policies, Minister of Tourism, Minister of Labor and Social Security…)
Diplomatic Agents and Employees:

Permanent Diplomatic Agents: Permanent relations & permanent duty to represent at diverse levels.
National representatives. Classification: i) ambassador; ii) ministers and other representatives;
iii)chargé d’affaire.

Diplomats may have one of the following titles:Ambassador in the Ministry; Minister Counsellor;First
Counsellor; Counsellor; First Secretary; Second Secretary; Third Secretary and Attaché.

SOURCE: The Vienna Convention on Diplomatic Relations (1961)

Came into force in 1964.

Emphasizes the functional necessity of diplomatic privileges and immunities for the efficient conduct
of international relations.

Ambassadors is higher representative appointed by country taking consent of receiving country.

Points to the character of the diplomatic mission as representing its state.

The International Court has recently emphasized that the Convention continues to apply
notwithstanding the existence of a state of armed conflict between the states concerned.

There is no right as such under international law to diplomatic relations.

They exist by virtue of mutual consent.

If one state does not wish to enter diplomatic relations, it is not legally compelled so to do.

Accordingly, the Convention specifies in §4 that the sending state must ensure that the consent (or
agrément) of the receiving state has been given for the proposed head of its mission & reasons for
any refusal of consent do not have to be given.

AGREMENT: consent of the receiving state is received.

Charged d’affaires: in the absence of ambassador, state may appoint

§13 provides that the head of the mission is deemed to have taken up her functions in the receiving
state upon presentation of credentials.

Heads of mission are divided into three classes by §14

1-viz. ambassadors or nuncios accredited to heads of state and other heads of mission of equivalent
rank.

2-envoys, ministers and internuncios accredited to heads of state.

3-charges d’affaires accredited to ministers of foreign affairs.

The main functions of a diplomatic mission are specified in §3:

= representation and protection of the interests and nationals of the sending state, as well as the
promotion of information and friendly relations.
 Under §41 and § 42 of the Vienna Convention, diplomats are bound to respect national laws and
regulations. They emphasize that the duty of all persons enjoying privileges and immunities to
respect the laws and regulations of the receiving state and the duty not to interfere in the internal
affairs of that state.

Breaches of these articles can lead to a persona non grata.

§9 the receiving state may at any time declare any member of the diplomatic mission persona non
grata without having to explain its decision, and thus obtain the removal of that person.

Meaning: Unacceptable person. An unwelcome person. Person not appreciated. A symbolic

indication of displeasure.

the principle of consent as the basis of diplomatic relations may be affected by other rules of
international law.

For ex.: The UNSC Res.748 (1992) imposed sanctions upon Libya, decided that ‘all states shall: (a)
significantly reduce the number and level of the staff at Libyan diplomatic missions and consular
posts and restrict or control the movement within their territory of all such staff who remain . . .’

CASE: On 8 May 1999, during the Kosovo campaign, the Chinese Embassy in Belgrade was bombed by
the US. The US declared that it had been a mistake and apologized. In December 1999, the US and
China signed an Agreement providing for compensation to be paid by the former to the latter of
$28m. At the same time, China agreed to pay $2.87m to the US to settle claims arising out of rioting
and attacks on the US Embassy in Beijing, the residence of the US consulate in Chengdu and the
consulate in Guangzhou.

CASE: On 17 April 1984, a peaceful demonstration took place outside the Libyan Embassy in London.
Shots from the Embassy were fired that resulted in the death of a policewoman. After a siege, the
Libyans inside left and the building was searched in the presence of a Saudi Arabian diplomat.
Weapons and other relevant forensic evidence were found. The issue raised here, in the light of
article 45(a) which provides that after a break in diplomatic relations, ‘the receiving state must . . .
respect and protect the premises of the mission’, is whether that search was permissible. The UK
view is that article 45(a) does not mean that the premises continue to be inviolable, and this would
clearly appear to be correct. There is a distinction between inviolability under article 22 and respect
and protection under article 45(a).

The suggestion has also been raised that the right of self-defense may also be applicable in this
context. It was used to justify the search of personnel leaving the Libyan Embassy

Whether a right of diplomatic asylum exists within general international law is doubtful and in
principle refugees are to be returned to the authorities of the receiving state in the absence of treaty
or customary rules to the contrary.

CASE: The murder of nine Iranian diplomats in Afghanistan – 1999

UN General Assembly strongly condemned acts of violence against diplomatic and consular missions
and representatives.
The Security Council issued a presidential statement, condemning the murder of nine Iranian
diplomats in Afghanistan.

As far as criminal jurisdiction is concerned, diplomatic agents enjoy complete immunity from the legal
system of the receiving state.

There is no immunity from the jurisdiction of the sending state.

§31(1) also specifies that diplomats are immune from the civil and administrative jurisdiction of the
state in which they are serving, except in three cases:

i) where the action relates to private immovable property situated within the host state.

ii) in litigation relating to succession matters in which the diplomat is involved as a private person (as
heir etc.)

iii) with respect to unofficial professional or commercial activity engaged in by the agent.

§37 provides that the members of the family of a diplomatic agent forming part of his household.

Members of the administrative and technical staff (and their households), if not nationals or
permanent residents of the receiving state, may similarly benefit from §29–35.

Immunities and privileges start from the moment the person enters the territory of the receiving
state on proceeding to take up his post or, if already in the territory, from the moment of official
notification under §39.

The duties of the diplomatic agents acc to Vienna Convention ’61 (art.3):

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.

Appointing the chief of the mission & initiation of the duty:

The representor of the head of the state.

The identity of the diplomat is communicated.

Agrément: The consent of the receiving state is received.

In the absence of an ambassador, the sending state may appoint an. chargéd’d'affaires ad interim.

After arrival the ambassador present their credentials to the head of the state.
Termination of the duty / Vienna Convention ’61 (art.43):

The function of a diplomatic agent comes to an end, inter alia: (a) On notification by the sending State
to the receiving State that the function of the diplomatic agent has come to an end; (b) On
notification by the receiving State to the sending State that, in accordance with paragraph 2 of article
9, it refuses to recognize the diplomatic agent as a member of the mission.

Ad Hoc Diplomatie:

To solve certain problems.

Attending in diplomatic conferences (temporarily).

Attending in IO conferences/meetings (temporarily).

Negotiating with other states.

Attending in ceremonies (temporarily).

The inviolability of the premises of the mission – Immunities and Privileges

§22 of the Convention declares that the premises of the mission are inviolable and that agents of the
receiving state are not to enter them without the consent of the mission.

An absolute rule.

The receiving state is under a special duty to protect the mission premises from intrusion or damage
or ‘impairment of its dignity’.

The embassy and their vehicles.

The archieves of the embassy.

The freedom of communication of the embassy.

The taxation privilege of the embassy.

The customs privilege of the embassy.

Diplomatic immunities – personal

The person of a diplomatic agent is inviolable under article 29 of the Vienna Convention.

They cannot be detained or arrested.

The most fundamental rule of diplomatic law.

The oldest established rule of diplomatic law.

Diplomatic immunities – property

§22 of the Vienna Convention: the premises of the mission are inviolable.
Together with their furnishings and other property thereon and the means of transport, are immune
from search, requisition, attachment, or execution.

§23: a general exception from taxation

The diplomatic bag

Article 27 provides that the receiving state shall permit and protect free communication on behalf of
the mission for all official purposes. Such official communication is inviolable and may include the use
of diplomatic couriers and messages in code and in cipher, although the consent of the receiving state
is required for a wireless transmitter.

Article 27(3) & (4) deals with the diplomatic bag: it shall not be opened or detained.

packages constituting the diplomatic bag ‘must bear visible external marks of their character and may
contain only diplomatic documents or articles intended for official use.’

Consular Relations and Activities

SOURCE: The Vienna Convention on Consular Relations of 1963

Consular Functions:

Consular functions consist in: (i) protecting in the receiving State the interests of the sending State
and of its nationals, both individuals and bodies corporate, within the limits permitted by
international law; (ii) furthering the development of commercial, economic, cultural and scientific
relations between the sending State and the receiving State and otherwise promoting friendly
relations between them in accordance with the provisions of the present Convention; (iii) issuing
passports and travel documents to nationals of the sending State, and visas or appropriate
documents to persons wishing to travel to the sending State; (iv) helping and assisting nationals; (v)
notary;

AMBASSY: Political Representation

COUNSULATE: Bureaucratic work of citizens of their receiving country. (Pasaport etc.)

POLICE CAN SEIZE CONSULATE (difference between sources)

Grave Crimes: Counsular offices shall not be liable to arrest.

Members of the Consular Post

1-Consular Officers

Career Consular Officers

Honorary Consular Officers

2-Consular employees

3-Members of the service staff

Chief of the Consular Post

1-Consuls-general

2-Consuls

3-Vice-consuls

4-Consular agents

CASE: Iran Hostage Crisis

As the ICJ noted in the US Diplomatic and Consular Staff in Tehran case:

the rules of diplomatic law, in short, constitute a self-contained regime, which on the one hand, lays
down the receiving state’s obligations regarding the facilities, privileges and immunities to be
accorded to diplomatic missions and, on the other, foresees their possible abuse by members of the
mission and specifies the means at the disposal of the receiving state to counter any such abuse

Immunity from execution

Immunity from execution is to be distinguished from immunity from jurisdiction, particularly since it
involves the question of the actual seizure of assets appertaining to a foreign state.

It poses a considerable challenge to relations between states and accordingly states have proved
unwilling to restrict immunity from enforcement judgment in contradistinction to the situation
concerning jurisdictional immunity. Consent to the exercise of jurisdiction does not imply consent to
the execution or enforcement of any judgment obtained

Article 23 of the European Convention on State Immunity, 1972 prohibits any measures of execution
or preventive measures against the property of a contracting state in the absence of written consent
in any case.
-INTERNATIONAL REFUGEE PROTECTION-

State --- Primary protector of HR.

Own governments of the home country can no longer protect the basic rights.

Not able or not willing.

Individuals are forced to leave to seek safety in another country.

Purpose of refugee law: to ensure that refugees who are outside their countries of origin or
nationality receive protection of their basic rights, which they no longer enjoy from their own
governments.

Int’l refugee law is made up of treaties and CIL.

SOURCE: 1951 Refugee Convention (Convention relating to the Status of Refugees.)

1967 Protocol relating to the Status of Refugees

Int’l law defines who is a refugee and who is not.

Int’l law specifies the range of rights they are entitled.

They have a legal, political, and ethical significance:

Legal --- they provide the basic standards on which principled action can be based;

Political --- they provide a truly universal framework within which States can co-operate and share the
responsibility resulting from forced displacement.

Ethical --- creates commitment (to 141 party states) to uphold and protect the rights of some of the
most vulnerable and disadvantaged people.

The Refugee Convention of 1951 and Protocol of 1967 cover three main subjects:

The basic refugee definition.

The legal status of refugees in their country of asylum, their rights and obligations, including
the right to be protected against forcible return, or against refoulement, to a territory where
their lives or freedom would be threatened.

States’ obligations, including cooperating with UNHCR in the exercise of its functions and
facilitating its duty of supervising the application of the Convention.

Who is a migrant?

The IOM defines a migrant as any person who is moving or has moved across an international border
or within a State away from his/her habitual place of residence, regardless of (1) the person’s legal
status; (2) whether the movement is voluntary or involuntary; (3) what the causes for the movement
are; or (4) what the length of the stay is.
The migrant still enjoys the protection of own state.

Can go back to own state whenever she/he wants.

Migrants are not refugees.

Who is an asylum seeker?

A person who has left their country of origin and formally applied for asylum in another country but
whose application has not yet been concluded.

An asylum seeker is a person who has sought protection as a refugee, but whose claim for refugee
status has not yet been assessed.

An asylum seeker is a type of migrant and may be a refugee, a displaced person.

Who is a refugee?

According to 1951 Refugee Convention: someone who is unable or unwilling to return to their
country of origin owing to a well-founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group, or political opinion.

A refugee is a displaced person who has been forced to cross national boundaries and who cannot
return home safely. Such a person may be called an asylum seeker until granted refugee status by the
contracting state or the UNHCR if they formally make a claim for asylum.

 There is no obligation on states to grant the ‘refugee’ status.

 Because convention does not contain such an explicit obligation.
 The legal infrastructure sets the principle of non-discrimination ---- protected individuals
should enjoy the same rights regardless of immigration or other status.
 The refugee law requires that all refugees enjoy Convention rights regardless of their race,
religion, or country of origin.

Principle of non-refoulement

Protects refugees from return to threats to life or freedom.

is a fundamental principle of international law that forbids a country receiving asylum seekers from
returning them to a country in which they would be in likely danger of persecution based on "race,
religion, nationality, membership of a particular social group or political opinion".

An asylum seekers/ a refugee’s right to be protected against forcible return.

It should not be assumed that merely because a person has not been, formally recognized as a
refugee she/he does not possess refugee status and is therefore not protected by the principle of
non-refoulement.

It became a customary law, that binds all states globally.

Exceptions to the principle of non-refoulement: Criminals are returned to their own states for
jurisdiction. / if there are no reasonable grounds for regarding as a danger of persecution /
It is accepted that the prohibition of refoulement is part of customary international law. This means
that even States that are not party to the Refugee Convention must respect the principle of non-
refoulement.

States have an obligation under the Refugee Convention and under customary international law to
respect the principle of non-refoulement.

When this principle is violated or threatens to be, UNHCR respond by intervening with relevant
authorities, and if it deems necessary, will inform the public.

Guarantee of non-penalization of asylum seekers and refugees

who show ‘good cause’ for illegal entry or stay?

Its aim is to prevent the situation where a claimant may be caught between two sovereign orders
where he or she is forced to leave their country of origin but is refused entry in another.

The purpose is not only preventing punishing the claimant for illegal presence, but also protecting the
claimant from the situation of being rejected on both ends.

Although State practice recognizes the power to detain in the immigration context, human rights
treaties affirm that no one shall be subject to arbitrary arrest or detention.89 The first line of
protection thus requires that all detention must be in accordance with and authorized by law; the
second, that detention should be reviewed as to its legality and necessity, according to the standard
of what is reasonable and necessary in a democratic society. ‘Arbitrary’ embraces not only what is
illegal, but also what is unjust.

It does not apply on persons that have committed crimes as: war crimes, crimes against humanity, or
serious ordinary crimes.

Important Rights of Refugees:

Non-refoulement

Identity

Freedom of movement

Right to family

Important Rights of Refugees:

1. NON-REFOULEMENT:

Obligation of States not to refoule, or return, a refugee to “the frontiers of territories where his life or
freedom would be threatened on account of his race, religion, nationality, membership of a particular
social group or political opinion.” ‘51 Convention §33. + The rights to life and freedom from torture to
include a prohibition against refoulement. *The principle of non-refoulement prohibits not only the
removal of individuals but also the mass expulsion of refugees.
2. IDENTITY

Registration of births and deaths, contracting marriage, obtaining employment, housing, hospital care
or rations, qualifying for social benefits, entering educational institutions, or requesting the issuance
of official documents and permits.

1951 Convention: “The Contracting States shall issue identity papers to any refugee in their territory
who does not possess a valid travel document.” Every refugee is thus to be provided by contracting
States with a means of identifying himself: either a valid travel document or identity papers.

(Identity papers which show only the name, the date and place of birth, and the current address of
the refugee would satisfy the requirements)

Mandate certificates: UNHCR (has no legal force) - in certain countries the authorities have agreed
that refugees holding such certificates will be granted a residence permit

Various problems exist regarding refugee documentation in certain States which continue to classify
refugees and asylum-seekers as “illegal entrants” who have no lawful basis for their presence in the
country.

3. FREEDOM OF MOVEMENT: a key right for refugees within their host country.

1951 Convention provides that States shall afford refugees the right to choose their place of
residence within the territory and to move freely within the State.

Article 28 obliges States parties to issue refugees travel documents permitting them to travel outside
the State “unless compelling reasons of national security or public order otherwise require.”

4.RIGHT TO FAMILY LIFE

where an individual is granted asylum, his or her dependent relatives will also receive protection
through him or her.

domestic laws do not preclude dependent relatives from making their own asylum claims

The definition of a dependent relative, however, varies.

E.g: * In U.K. dependents = spouse, civil partner, unmarried or same-sex partner, or minor child
accompanying [the applicant]

In Kenya dependents = relatives include the brother or sister of an applicant under the age of
eighteen, or any dependent grandparent, parent, grandchild, or ward living in the same household as
the refugee.

According to both 1951 Convention and 1967 Protocol, states’ obligations are:

Cooperation with UNHCR

Information on National Legislation

Exemption from Reciprocity

Rights crucial to refugee protection

o Right to life, liberty and security of person

o Right to seek and enjoy asylum
o Freedom from torture, or cruel, inhuman or degrading treatment or punishment
o Freedom from slavery or servitude
o Recognition as a person before the law
o Freedom of thought, conscience, and religion
o Freedom from arbitrary arrest and detention
o Freedom from arbitrary interference in privacy, home and family
o Freedom of opinion and expression
o Right to be educated
o Right to participate in the cultural life of a community

United Nations High Commissioner for Refugees (UNHCR)

o 1950
o IO
o IGO
o Non-political org.
o Humanitarian org.
o Established to protect and support refugees.
o UNHCR is governed by the UNGA and ECOSOC.
o Staff over 4,000 staff members with offices in nearly 120 countries and an annual budget of
US$1 billion.

At the international level: contacts with the government)

1-promotes international refugee agreements

2-monitors government compliance with international refugee law.

At the field level: work to protect refugees:

a wide variety of activities, including responding to emergencies, relocating refugee camps away from
border areas to improve safety; ensuring that refugee women have a say in food distribution and
social services; reuniting separated families; providing information to refugees on conditions in their
home country so they can make informed decisions about return; documenting a refugee’s need for
resettlement to a second country of asylum; visiting detention centers; and giving advice to
governments on draft refugee laws, policies and practices.

Mandate refugees are persons considered by UNHCR to be refugees according to its Statute or under
the broader mandate given by the General Assembly. UNHCR’s determination of refugee status is not
dependent upon the country of asylum being party to the Refugee Convention or Protocol.

Convention refugees are persons recognized as refugees by the authorities of States that have
acceded to the Convention and/or Protocol. As such, they are entitled to claim the rights and benefits
that those States have agreed to accord to refugees.
Persons of concern to UNHCR

All persons whose protection and assistance needs are of interest to UNHCR.

Refugees under the Refugee Convention

Persons fleeing conflict or serious disturbances of the public order (i.e., refugees under the
OAU Convention and Cartagena Declaration definitions)

Returnees (i.e., former refugees)

Stateless persons

Internally displaced persons (in some situations)

Recognizing Refugees

Refugees and migrants: What are the difference?

Migrants -- choose to leave their countries.

Refugees -- forced to leave their countries.

Economic migrants are persons who leave their countries of origin purely for economic reasons, to
seek material improvements in their lives.

Economic migrants enjoy the protection of their home countries.

Refugees do not.

Economic migrants do not fall within the criteria for refugee status.

A general rule -- no country is obliged to allow foreigners onto its territory.

One of the elements of state sovereignty.

The exception to this general rule:

Non-refoulement

States may not return a refugee to the frontiers of territories where his/her life or freedom would be
threatened because of his/her race, religion, nationality, membership of a particular social group or
political opinion (the principle of nonrefoulement).

This is true even if the refugee entered the host country illegally.

A refugee who poses a danger to the security of the country or to the community, cannot claim this
protection.

Special refugee cases:

A refugee is a civilian. A person who continues to pursue armed action against his or her country of
origin from the country of asylum cannot be considered a refugee.

Criminal – common crime – prosecution

War criminal
Can a woman facing attack because she refuses to comply with social constraints be a refugee?

Homosexuals? Genital mutilation? Stowaways? People rescued at sea?

UNHCR Resettlement Process

Resettlement: The transfer of refugees from the country in which they have sought asylum to another
State that has agreed to admit them as refugees and to grant them permanent settlement and the
opportunity for eventual citizenship. Steps:

1. Registration and identification of the asylum seeker

2. Legal advice and representation
3. Interview
4. Decision
5. Appeal
6. Resettlement

Resettlement serves three equally important functions:

1. It is a tool to provide international protection and meet the specific needs of individual refugees whose
life, liberty, safety, health or other fundamental rights are at risk in the country where they have sought
refuge.
2. It is a durable solution for larger numbers or groups of refugees, alongside the other durable solutions
of voluntary repatriation and local integration.
3. It can be a tangible expression of international solidarity and a responsibility sharing mechanism,
allowing States to help share responsibility for refugee protection, and reduce problems impacting the
country of asylum

Refugees arriving in large numbers:

Temporary protection

minimum standards adopted:

Admission to safety without discrimination

Protection from refoulement

Provision of adequate reception facilities, including prompt registration

Temporary right of residence in the country of asylum

Treatment in accordance with the minimum humanitarian standards (as set forth by UNHCR’s
Executive Committee, which include: - Provision of shelter - Provision of assistance, or access to
employment - Access to basic health care - Access to education for children q Respect for
fundamental human rights, including access to justice and freedom of movement)

Possibility of joining separated family members in other countries of asylum and arrangements for
tracing missing family members
A refugee emergency

i.e. Fleeing war

Ensure that borders are kept open to allow access to safety

Adopt the expanded refugee definition

Provide temporary protection when needed

Adhere to standards of treatment applicable in refugee emergencies

Provide protection to victims of war who do not meet the Refugee Convention definition

CASE: The special case of Palestinians – UNRWA

The United Nations Relief Works Agency for Palestine Refugees in the Near East (UNRWA) was
created in 1948

The UNRWA has a much broader definition of <refugee> than the UNHCR, including not only refugees
themselves but their descendants in perpetuity; however, it only covers refugees stemming from the
1948 and 1967 Arab-Israeli wars.

To assist those Palestinians who had been displaced when the state of Israel.

UNRWA is the only agency dedicated to helping refugees from a specific region or conflict and is
separate from UNHCR.

UNRWA allows refugee status to be inherited by descendants.

Operates in Jordan, Lebanon, Syria, Gaza and the West Bank.

3 million Palestinians are registered with UNRWA.

Stateless persons

Statelessness is a problem that states should resolve.

Governments must take steps to ensure they do not withdraw or withhold the benefits of citizenship
from whole sections of the population

 Displacement can cause statelessness (when, for example, a person’s displacement is

followed or accompanied by a redrawing of territorial boundaries).
 Displacement can be a consequence of statelessness (when stateless and denationalized
populations are forced to leave their usual place of residence).
 Statelessness can be an obstacle to the resolution of refugee problems (when, for example,
countries refuse to readmit former refugees on grounds of statelessness).
Internally Displaced Persons

«Internally displaced persons are persons or groups of persons who have been forced or obliged to
flee or to leave their homes or places of habitual residence, in particular as a result of or in order to
avoid the effects of armed conflict, situations of generalized violence, violations of human rights or
natural or humanmade disasters, and who have not crossed an internationally recognized State
border.»

(United Nations Guiding Principles on Internal Displacement, Introduction, para. 2)

They are also helped by the Red Crescent or the Red Cross

Finding durable solutions for internally displaced persons focuses on restoring their rights, thereby
ensuring that they no longer have any specific assistance and protection needs that are directly linked
to their displacement and can enjoy their human rights without discrimination

A durable solution to internal displacement:

sustainable reintegration at the place of origin (return)

sustainable local integration in the area where IDPs have taken refuge

sustainable settlement elsewhere in the countrytion on account of their displacement.

Returnees
Voluntary

particularly in a post-conflict situation

Where there are indications or evidence that the freedom or security of returnees is at risk, UNHCR, as part of
its returnee monitoring activities, should do whatever it can to remedy the situation and relieve the plight of
the returnees.

UNHCR must intervene where severe discrimination or human rights abuses come to light.

Where problems and abuses are not isolated and there appears to be a risk of future occurrences, UNHCR does
not promote further repatriation until the problems are rectified

Refugee Rights

Human rights particularly relevant to refugees include:  the right to life, liberty and security of
person;  the right to freedom from torture or cruel or inhumane or degrading treatment or
punishment;  the right to freedom of movement and residence within the borders of each state; 
the right to freedom of thought, conscience and religion;  the right to freedom of opinion and
expression;  the right to a standard of living adequate for the health and wellbeing of the person and
their family, including food, clothing, housing, medical care and necessary social services;  the right
to education  freedom from discrimination; and  respect for the unity of the family. These rights are
set out in the International Covenant of Civil and Political Rights (ICCPR), International Covenant of
Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC) and
other treaties to which the United States government is a party.

1951 Refugee Convention and its Protocol do not ensure refugees’ enjoyment of their fundamental
human rights in their host countries.

By ensuring refugees’ basic rights, they are more likely to succeed in rebuilding their lives, supporting
their families, and integrating into their host communities.

The Refugees’ Convention gives refugees additional specific rights, including:  the right not to be
returned to their country of origin if their safety cannot be assured  the right to be accorded in many
respects the same treatment as the citizens of the country in which they are given refuge; and the
right not to be penalized for illegally entering a country if they request asylum.

Right to safe asylum.

International protection comprises more than physical safety.

Refugees should receive at least the same rights and basic help as any other foreigner who is a legal
resident

i.e. freedom of thought, of movement, and freedom from torture and degrading treatment.

Economic and social rights  access to medical care, schooling and the right to work.

In certain circumstances when adequate government resources are not immediately available.

i.e. the sudden arrival of large numbers of uprooted persons

International organizations (as UNHCR) provide assistance.

Financial grants, food, tools and shelter and basic infrastructure such as schools and clinics.
-DIPLOMATIC LAW CASES-

The Khashoggi Case: Consular Law

Source: the Vienna Convention on Consular Relations (VCCR - 1963)

Consular functions §5 VCCR 1963

a) protecting in the receiving State the interests of the sending State and of its nationals, both
individuals and bodies corporate, within the limits permitted by international law; (b) furthering the
development of commercial, economic, cultural and scientific relations between the sending State
and the receiving State and otherwise promoting friendly relations between them in accordance with
the provisions of the present Convention; (c) ascertaining by all lawful means conditions and
developments in the commercial, economic, cultural and scientific life of the receiving State,
reporting thereon to the Government of the sending State and giving information to persons
interested; (d) issuing passports and travel documents to nationals of the sending State, and visas or
appropriate documents to persons wishing to travel to the sending State; (e) helping and assisting
nationals, both individuals and bodies corporate, of the sending State;

§31 Inviolability of the consular premises

The Saudi Consulate-General in Istanbul: (Myth: Sovereign territory)

Preamble: the purpose of such privileges and immunities is not to benefit individuals but to ensure
the efficient performance of functions by consular posts on behalf of their respective States

1.Consular premises shall be inviolable to the extent provided in this article. 2.The authorities of the
receiving State shall not enter that part of the consular premises which is used exclusively for the
purpose of the work of the consular post except with the consent of the head of the consular post or
of his designee or of the head of the diplomatic mission of the sending State. The consent of the head
of the consular post may, however, be assumed in case of fire or other disaster requiring prompt
protective action.

3.Subject to the provisions of paragraph 2 of this article, the receiving State is under a special duty to
take all appropriate steps to protect the consular premises against any intrusion or damage and to
prevent any disturbance of the peace of the consular post or impairment of its dignity.

4.The consular premises, their furnishings, the property of the consular post and its means of
transport shall be immune from any form of requisition for purposes of national defence or public
utility. If expropriation is necessary for such purposes, all possible steps shall be taken to avoid
impeding the performance of consular functions, and prompt, adequate and effective compensation
shall be paid to the sending State.
Article 41 Personal inviolability of consular officers
1.Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave crime and pursuant to
a decision by the competent judicial authority.

2.Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to prison or be liable to
any other form of restriction on their personal freedom save in execution of a judicial decision of final effect.

3.If criminal proceedings are instituted against a consular officer, he must appear before the competent authorities.
Nevertheless, the proceedings shall be conducted with the respect due to him by reason of his official position and, except
in the case specified in paragraph 1 of this article, in a manner which will hamper the exercise of consular functions as little
as possible. When, in the circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a
consular officer, the proceedings against him shall be instituted with the minimum of delay.

The residence of the chief of a consular mission has no inviolability according to the VCCR 1963 (in
contrast to the chief of a diplomatic mission)

WIKILEAKS CASE

SOURCE: Vienna Convention on Diplomatic Relations (1961)

Ecuador granted Assange its nationality.

By the hand of the nationality Ecuador appointed Julian Assange as one of its diplomats to the UK 
Rejected and declared him persona non grata.

Article 7 of the VCCR  “the sending state may freely appoint the members of the staff of the
mission” without requiring the agreement of the receiving state.

Under Art. 4 the agrément of the receiving state is required for accreditation of a head of mission;
approval is also required for the approval of military attaches (Art. 7); and, significantly for Assange,
receiving states may, under Art. 8(3), reserve the right to approve the appointment of “nationals of a
third state who are not also nationals of the sending state.”