Alexander Orakhelashvili (LLM Leiden, PhD Cantab), Professor at the University of Birmingham, UK, has

taught and researched public international law at four British universities over the past twenty years. He is a
frequent speaker at international conferences and seminars on developments in public international law, and has
given invited papers at the events and conferences held in the UK, the USA, France, Italy, the Netherlands,
Spain, and Japan. He has provided legal advice regarding public international law issues in litigation before
English and American courts. His publications include Peremptory Norms in International Law (2006), The
Interpretation of Acts and Rules in Public International Law (2008), Collective Security (2011), Domesticating
Kelsen: Towards the Pure Theory of English Law (2019), and International Law and International Politics:
Foundations of Interdisciplinary Analysis (2020), as well as three edited collections and more than eighty articles
and book chapters in leading journals and edited collections.

SUMMARY OF AKEHURST PUBLIC INTERNATIONAL LAW

International law is the body of rules binding on States in their relations with one another, and determining their
mutual rights and obligations. The law governing relations between States is international law properly so-called,
while aspects of a national legal system dealing with private law relations involving a foreign element are
denoted as ‘conflicts of laws’. Hugo Grotius is often regarded as the founder of the modern doctrine of
international law. Natural law was originally regarded as having a divine origin, but Grotius considered that the
existence of natural law was the automatic consequence of the fact that men lived together in society and were
capable of understanding that certain rules were necessary for the preservation of society. International law is law
created by States through their consent and agreement, as opposed to domestic law, which is created by the State
authorities binding individuals without their consent.

Historically, international law is as old as States and their mutual relations. European State practice in the Middle
Ages was also familiar with treaty and diplomatic practice, with alliances and extradition. The essence of the
equilibrium was that no European State should be allowed territory or power such as to endanger the
independence of other European States. The French Revolution of 1789 profoundly challenged the basis of the
existing system by advocating ideas of freedom and self-determination of peoples which were meant to be
implemented beyond the boundaries of France, and proposed to deny the rights of monarchs to dispose of State
territory and population according to their own discretion. European States were also confronted with new
problems in the wake of the American rebellion against Britain. From 1919 onwards, a fundamental
transformation of the international system took place with the attempt to organise the international community
and to ban the use of force

The term ‘source of law’ refers to the medium through which the rules of international law are created and
accepted as valid and binding. Treaties lead the list of sources of international law. Terms used as synonyms of
treaties are agreement, pact, convention, understanding, protocol, charter, statute, act, covenant, declaration,
engagement, arrangement, accord, regulation and provision. Treaties are the major instruments of cooperation in
international relations and, therefore, are often instruments of change. Treaties are the maids-of-all-work in
international law. In contrast to treaties that embody rules consented to by States-parties to a dispute before the
International Court, customary law is “evidence of a general practice accepted as law”. State practice can consist
not just of doing, or abstention from doing, certain things, but of views and positions that react to such conduct
and form a view of it.

The law produced by the State is ordinarily described as municipal, national, domestic or internal law. The
relationship between international law and municipal law can give rise to many practical problems, especially if
there is a conflict between the two, or if a rule produced within one legal system is claimed to have relevance in
another. The general rule of international law is that a State cannot plead a rule of, or a gap in, its own municipal
law as a defence to a claim based on international law. States are required to perform their international
obligations in good faith, but they are at liberty to decide on the modalities of such performance within their
domestic legal systems. Rules for the recognition of customary international law in the internal sphere are either
laid down in advance in the constitution or are gradually formulated by the national courts

States form the principal category of international legal persons. Internal organisation and socio-political
orientation do not pertain to the essence of statehood. Territory is the physical or geographical area, separated by
borders from other areas, over which a State has sovereignty, i.e. the competence to exercise its exclusive
authority within that territory and prohibit foreign governments from exercising their authority there. Permanent
population refers to the State permanently having population, not necessarily to that population consisting of
those who reside permanently within that State’s territory. A State cannot come into existence or exist for long,
unless it has a government. The existence of a government implies the capacity to autonomously establish and
maintain a legal order. Statehood begins with its creation and ends with its extinction. Independence of a State
may be restricted, alienated or compromised unless there is a treaty prohibition against doing so.

An entity is a legal person, or a subject of the law, when it has capacity to enter into legal relations and to have
legal rights and duties. In modern systems of municipal law, all individuals and companies have legal
personality. Legal personality can be unlimited, in the sense that, in principle, all international rights and
obligations can be accorded to a subject. Legal personality of international organisations is established, and
limited, by the treaty which States have concluded to constitute them and to accord them rights and duties to
achieve their specific tasks. As international legal persons, international organisations are bound by customary
international law, along with treaties whereby member-States have established them. Most international
organisations are of the traditional type, meaning that they are in essence based on intergovernmental cooperation
of States which retain control of the decision-making and finance of the organisation.

Acquisition of territory refers to acquisition of sovereignty over territory. Sovereignty need not necessarily be
exclusive. On rare occasions, two States may agree to exercise sovereignty jointly over a certain territory.
Detachment of territory from one State in favour of another is a wholesale operation that “connotes the entire
disappearance of any political link”. Territorial sovereignty begins with acquisition of title over territory and ends
with its loss. Territory is not necessarily alienated, and sovereignty over it is not replaced, in the range of
situations in which the State is prevented from exercising in that territory the functions of a State to the exclusion
of any other State. Territorial acquisition methods, capable of conveying territorial title to States, operate within
the framework of certain regulatory principles, relating to what is legally capable of being acquired in the first
place.

THE LAW OF THE SEA

The development of the law of the sea has been driven by ever-persisting competition and contestation in relation
to maritime areas, and attitudes of States have been evolving accordingly. A fundamental difference between
land territory and sea spaces is that the ownership of the former depends on the acquisition of territorial title,
while title to the latter is derived from the entitlement that the law of the sea, notably United Nations Conference
on the Law of the Sea, confers on all States upon the demonstration of territorial title to land whose coast
generates the relevant maritime space claim. The relationship between land and maritime areas is liable to arise
in multiple areas. A coastal State is entitled to prohibit entry into its ports by foreign ships, except for ships in
distress and in certain cases in which previously a right of innocent passage had existed.

AIR SPACE AND OUTER SPACE

The status of airspace has undergone significant evolution over the past century. The 1919 Paris Convention was
the first multilateral treaty on the use of air space. The general legal and institutional framework for international
civil aviation is nowadays laid down in the 1944 Chicago Convention and the rules adopted by the International
Civil Aviation Organization which now has practically universal membership. The relationship between
territorial sovereignty and air space access rights has been put to the test in the Kibris case before the Court of
Appeal of England and Wales. The basic substantive framework of the present law on outer space is contained in
the Outer Space Treaty of 1967. In terms of the law-making process, since 1958, in practice this has primarily
relied upon the work of a special international body, the United Nations Committee on the Peaceful Uses of
Outer Space with its two subcommittees, the Scientific and Technical Subcommittee and the Legal
Subcommittee.

STATE JURISDICTION
The mainstream meaning of jurisdiction is the entitlement of a State to assert State authority in relation to persons
and things. State jurisdiction includes powers to legislate in respect of the persons, property, or events, the
powers of a State’s courts to hear cases concerning the persons, property or events in question, or the powers of
physical interference exercised by the executive, such as the arrest of persons, or seizure of property. The State-
sponsored abduction of individuals violates two sets of international norms: the international law of sovereignty
and international human rights. The jurisdiction of municipal courts is asserted through municipal law, and
international law confines itself to placing a few limitations on the discretion of States. International law
determines the ultimate legality, and permissible scope of the assertion of State jurisdiction. It is comparatively
rare for international law to require a municipal court to hear a case or prohibit it from doing so.

IMMUNITY FROM JURISDICTION

Entities granted immunity encompass foreign States and their officials, diplomatic and consular agents of foreign
States; and international organisations and their officials. State immunity deals with the conditions under which a
foreign State may claim exemption from the jurisdiction of the forum State. The transition from the absolute to
the restrictive doctrine has been a lengthy process. From the 1950s onwards, Austrian and German higher courts
suggested that immunity should be available to a foreign State only for its uniquely sovereign activities. The
distinction between governmental and non-sovereign activities is not prima facie based on the propriety of State
acts, nor on their substantive legality, but on the relation between the act and conduct of a State with that State’s
sovereign authority. Criteria for distinguishing sovereign from non-sovereign acts draw on the relationship of
State conduct to its sovereign authority.

LAW OF TREATIES

The legal framework regulating international treaties is contained in the 1969 Vienna Convention on the Law of
Treaties which came into force on 27 January 1980. The preliminary research and drafting were carried out by
the International Law Commission, whose commentary is a useful guide to the interpretation of the Convention.
The relevance of the concept and definition of a treaty is to clarify which instruments have binding force and
have to be implemented in good faith. The issue of Memorandums of Understanding has given rise to some
controversies, though there are few things more inherent to the nature of an international treaty than to embody a
mutual understanding of positions of parties — that which in the absence of that treaty would be characterised by
divergence and disagreement. Treaties usually state expressly whether or not ratification is necessary, and this
makes it difficult to know what rule to apply if the treaty is silent.

STATE RESPONSIBILITY

The International Law Commission Articles have no binding force, but some of their provisions reflect pre-
existing customary law. The law of State responsibility is concerned with the determination of whether there is a
wrongful act for which the wrongdoing State is to be held responsible, what the legal consequences are, and how
such international responsibility may be implemented. Civil liability can be formulated in treaties as a primary
rule creating substantive rights and obligations for States. The key issue is not whether the relevant act is lawful
or wrongful, but who is responsible for it under, or in the absence of, the treaty regime that discretely regulates
particular types of activity. A ‘self-contained’ nature may be expressive precisely of the lex specialis nature of
arrangements undertaken with regard to secondary norms governing responsibility relations as such

STATE SUCCESSION

State succession’ refers to the process of the transmission of the rights and obligations of the ‘predecessor State’
to the ‘successor State’ when the latter replaces the former’s sovereignty over a particular territory, including the
cases where a State that is being succeeded continues to exist. State practice, by the time these conventions were
adopted, had by no means endorsed a general rule of State succession in any of the pertinent areas. Codified rules
do not always accurately reflect the intricacy of the above individual situations and, thus, hard and detailed rules
they propose may not always be suitable for such contexts. State succession is conditional upon the legality and
validity of territorial change. The notions of the notification and date of succession matter only on the premise
that State succession is not automatic. There is a difficulty with emergence and operation of general rules in the
area of State succession

PROTECTED PERSONS AND ENTITIES: NATIONALITY AND INDIVIDUAL RIGHTS

This chapter focuses on standards protecting non-State entities as particular States’ nationals or as aliens in
foreign States. Individual rights operate to the benefit of individuals. Individual rights thus depend, for their
operation, on the invocation by the State of the nationality that owns those rights under international law. The
individual’s ability to benefit from and be protected under its particular nationality is not always commensurate
with the State’s ability to extend to that individual the protection under international law, especially in dispute
settlement matters. Article 1 1997 European Convention on Nationality defines nationality as “the legal bond
between a person and a State”. The initial freedom of States in this area is, thus, not free of international legal
limitations. A treaty may oblige the State to extend its nationality to certain persons. General international law
does not contain a rule endorsing or prohibiting dual or multiple nationality as such.

PROTECTED PERSONS AND ENTITIES: HUMAN RIGHTS, GROUP RIGHTS AND SELF-
DETERMINATION

The substantive distinction between human rights and individual rights, emphasising the sole normative meaning
of a right being characterised as a human right, focuses on who owns the relevant right, who can dispose of it,
and who is entitled to raise a claim in the case of a violation. Human rights operate to the benefit of individuals as
such, regardless of their nationality. The distinction between individual rights and human rights is essentially one
of substance, not one of implementation procedure. The goals of the United Nations (UN) listed in Article 1 of
the UN Charter include the promotion and encouragement of respect for human rights and fundamental freedoms
for all without distinction as to race, sex, language or religion. The Universal Declaration of Human Rights is a
resolution which was passed by the UN General Assembly on 10 December 1948, by forty-eight votes to nil,
with eight abstentions.

PROTECTION OF THE ENVIRONMENT

The United Nations Conference on the Human Environment, held in Stockholm in 1972, was the first truly
international conference to broach environment concerns. Initially, concerns the human environment within the
international legal system were raised in the context of bilateral State-to-State relations, in conjunction with
issues such as the territorial sovereignty of States, or injury caused to the State, rather than discretely with regard
to the environment. The bulk of international environmental regulation presumably follows the pattern of
bilateralism. Treaty instruments regulate a broad variety of environmental areas. The 1982 Law of the Sea
Convention provides for general principles in this area and allocates legislative and enforcement powers between
coastal states and flag states. The Framework Convention on Climate Change has 197 States-parties. The Kyoto
Protocol to the Framework Convention formulates quantitative restrictions on carbon emissions from
industrialised countries.

INTERNATIONAL ECONOMIC RELATIONS

The term ‘international economic law’ has come into use over several decades, and it has been queried whether
there are legal principles that apply across different areas of economic life. International law regulates the
establishment of foreign businesses on the territory of other States, on the one hand, and of transactions between
State territories concerning goods, services and capital, on the other. International trade law is based upon
international reflecting the commercial principle of reciprocal exchange of benefits and advantages. General
international law does not contain any obligation on States to open up for trade, transit or traffic. There is no
definition of free trade under general international law. Freedom of trade certainly includes access to market,
goods and merchandise. Freedom of trade, so broadly conceived, has far-reaching implications, for Any act
which would impede that “freedom” is thereby prohibited.

INTERNATIONAL CRIMINAL JUSTICE

Article 1 provides that “Any person who commits an act which constitutes a crime under international law is
responsible therefore and liable to punishment.” There is no incompatibility between individuals being
responsible for a particular crime and the State being internationally responsible for the same activities. In
relation to individual perpetrators, individual criminal responsibility is not about whether the relevant individual
is bound by particular rules of international law but whether those rules were applicable whenever and wherever
the relevant crimes were committed. International criminal justice is a multi-level arrangement consisting of
national and international courts that have jurisdiction to prosecute individuals for core international crimes, such
as genocide, war crimes, and crimes against humanity. National prosecution remains the principal means through
which States ought to fulfil their obligations in this area. The accusation about retroactive legislation is closer to
the truth as regards crimes against humanity.

USE OF FORCE

The first general treaty prohibition of the use of force was introduced when Latin American States persuaded
several other States to sign the second Hague Convention of 1907 Concerning Respecting the Limitation of
Employment of Force for Recovery of Contract Debts, which prohibited the use of force to recover contract
debts, unless the debtor State refused to go to arbitration or refused to carry out the arbitral award. The reference
to “territorial integrity or political independence” has given rise to an argument that force used for a wide variety
of purposes is legal because it is not aimed “against the territorial integrity or political independence of any
State”. In the case of Grenada, one of the reasons presented by the United States to justify the invasion of the
island was the alleged danger to American nationals. The words “if an armed attack occurs” imply that the armed
attack must have already occurred before force can be used in self-defence.

LAWS APPLICABLE TO WAR AND ARMED CONFLICT

This chapter deals with the rules governing the conduct of war, known as jus in bello.Jus in bello consists of the
rules of international humanitarian law (IHL) dealing with protection of civilians and combatants during an
armed conflict, and of other rules that determine the legality of State action in relation to another belligerent or
third States. The codification of the laws of war in treaties has not diminished the continuing role of customary
law in this area. The fundamental principles of international humanitarian law are generally regarded as part of
customary law. States often engage in hostilities while denying that they are in a state of war, mainly for political
and public opinion reasons. The applicability of IHL does not depend on the state of war being officially declared
or recognised. Writers have long engaged the question whether the state of war can exist while the waging of war
on a State is illegal.

THE UNITED NATIONS AND PEACE AND SECURITY

The principle of effectiveness has received a striking application in the Reparation for Injuries case, where the
International Court of Justice advised that the United Nations possessed not only powers expressly conferred by
the Charter, but also such implied powers as were necessary to enable it to achieve the purposes for which it was
set up. The founding members of the United Nations were the States which were on the Allied side in the Second
World War. In January 1965, Indonesia purported to withdraw in protest against the election of Malaysia as a
nonpermanent member of the Security Council. The distinction between substantive and procedural questions is
pertinent. In the case of a manifest unreasonableness of a permanent member’s position, the President of the
Council could react to an attempted abuse of the double veto, by ruling that the preliminary question is itself
procedural.

SETTLEMENT OF DISPUTES

The United Nations (UN) Charter requires all member-States to “settle their international disputes by peaceful
means”. General rules of procedure for the mediation of disputes between States do not exist. A mediator can
also provide financial support and other valuable assistance in the performance of the solution agreed upon. In
the dispute between India and Pakistan between 1951 and 1961 on the waters of the Indus basin, the World Bank
mediated successfully by granting financial aid. ‘Fact-finding’ and ‘inquiry’ as methods for establishing facts in
international law can be used for a variety of purposes, including the practice of decision-making of international
organisations. The task of establishing the facts may also be combined with their legal evaluation and that of
making recommendations for the settlement of disputes, which then makes a clear distinction between fact-
finding/inquiry and conciliation and mediation not always possible, as in the case of the Dogger Bank incident.

KIBRIS CASE (Annexation Of Northern Cyprus) Turkish Republic of Northern Cyprus

Whether allowing direct flights between the United Kingdom and Northern Cyprus put the United Kingdom in
breach of its obligations to respect the rights of the Republic of Cyprus under the Chicago Convention on
International Civil Aviation.
Whether allowing direct flights between the United Kingdom and Northern Cyprus constituted an act implying
recognition of the ‘Turkish Republic of Northern Cyprus’ and thus put the United Kingdom in breach of its
obligation not to recognize the Turkish Republic of Northern Cyprus or its government as legal or lawful.

International society is basically, although not solely, made up of states. Besides the objective elements required
for the formation of a new entity – i.e. territory, population and sovereign authority – the question of under which
procedures this legal and political entity has gained the qualification of being a “state” in international society, is
referred as the “recognition of states” in international law.
The Turkish Republic of Northern Cyprus – TRNC, which declared its independence in 1983 after a sad and
complex sequence of events possesses all the criteria of statehood – a clearly defined territory with a population
and a government with full internal autonomy and independence in its external relations – but it has not been
accorded recognition, except by one state, Turkey, on the grounds that recognition of a state created as a result of
illegal use of force is incompatible with the principles of international law.

In the case of Cyprus v. Turkey, the ECHR, by referring to the legal status of the TRNC, reiterated this statement
with the following words: “Life goes on in the territory concerned for its inhabitants. That life must be made
tolerable and be protected by the de facto authorities, including their courts; and, in the very interest of the
inhabitants, the act of these authorities related thereto cannot be simply ignored by third states or by international
institutions, especially courts, including this one (…)”

Non-recognition of this entity as an independent sovereign state precludes intergovernmental cooperation as well
as the cooperation that requires the existence of diplomatic relations.55 This lack of international acceptance of
the TRNC limits its ability to participate in international affairs. It thus cannot turn to the UN or any other
international organization for verbal or material assistance in the case of crisis. Opposition to the TRNC as a state
in the international community through the use of embargoes and sanctions has hurt its economy since no
country other than Turkey participates in its markets. Although recognition in international law is deemed to be
of a declaratory effect, an unrecognized state is not considered competent to act in international relations and
does not have the same status as the recognized states in international community. Thus, recognition itself is not
only the acknowledgement of the existence of the legal criteria in a present case, but also there is an external
factor, which forms part of the criteria. As Crawford states, “ (…) where an entity is widely recognized as a state,
where such recognition has been accorded on non-political grounds, that is strong evidence of the statehood of
that entity.” 56 On the other hand, the fact that recognition is a voluntary act instead of an obligation for states to
recognize an entity as a state as they take into account purely political considerations, cannot overshadow the
general rules and principles of international law. In this respect, when the emergence of the new entity
contravenes the general principles of international law, states shall refuse to recognize this entity
with the aim of applying sanctions and preventing the consolidation of an illegal situation under the “theory of
non-recognition.” The prohibition of threats or use of the force in international relations is one of the most
fundamental rules of international law under Article 2(4) of the UN Charter which also constitutes the reason
why the TRNC has not been recognized. On this point, arguments of the Turkish authorities and the Turkish
Cypriots are partially right, in the sense that the Turkish Cypriot enclaves had been occupied and they were
subject to human rights abuses by Greek Cypriots in the 1960s and the Turkish Cypriots wanted to exercise their
right to self determination – as historical sources point out – however, the use of force and occupation by the
Turkish army is an unacceptable solution even in these conditions. As a result, there is no international
recognition for Northern Cyprus. Despite this non-recognition, the TRNC as a de facto state still exists with its
population living on its territory which is governed by its own democratic government. Two different
administrations exist on the island, one de jure and one de facto, and the two communities are living on the island
together but uncomfortably. Therefore the problem of Cyprus needs more attention from foreign governments
and from international organizations while the island waits for a permanent solution at long last.

The “Namibia Exception”

On 27 October 1966, the General Assembly decided that the Mandate for South West Africa was terminated and
that South Africa had no other right to administer the Territory. In 1969 the Security Council called upon South
Africa to withdraw its administration from the Territory, and on 30 January 1970 it declared that the continued
presence of the South African authorities in Namibia was illegal and that all acts taken by the South African
Government on behalf of or concerning Namibia after the termination of the Mandate were illegal and invalid; it
further called upon all States to refrain from any dealings with the South African Government that were
incompatible with that declaration. On 29 July 1970, the Security Council decided to request of the Court an
advisory opinion on the legal consequences for States of the continued presence of South Africa in Namibia. In
its Advisory Opinion of 21 June 1971, the Court found that the continued presence of South Africa in Namibia
was illegal and that South Africa was under an obligation to withdraw its administration immediately. It found
that States Members of the United Nations were under an obligation to recognize the illegality of South Africa’s
presence in Namibia and the invalidity of its acts on behalf of or concerning Namibia, and to refrain from any
acts implying recognition of the legality of, or lending support or assistance to, such presence and administration.
Finally, it stated that it was incumbent upon States which were not Members of the United Nations to give
assistance in the action which had been taken by the United Nations with regard to Namibia
Recalling from Article 41(2) of the ILC Articles on the Responsibility of States for Internationally Wrongful
Acts, states parties to the Convention are “obliged to withhold the recognition of the annexation”. Secondly,
these states have a “duty not to render aid or assistance in maintaining that situation”. This phenomenon is
termed as “duty of collective non-recognition”. A UK Court’s landmark judgment on Kibris Turk Hava Yollari
(KTHY) (Turkish Cypriot Airlines), in which the Court held that the prohibition of flights between Northern
Cyprus and the UK is legitimate under Article 41, demonstrated that the UK judiciary still follows the lead of the
executive, and eventually, the duty of collective non-recognition is still robust in the UK case-law.
The duty of non-recognition, meanwhile, is not absolute in some jurisdictions. In its Namibia judgment, the ICJ
determined that there might be some exceptions to the duty of non-recognition, such as the registration of births,
deaths and marriages of the people of Namibia granted by the unrecognized “South West African” government.
In 1966, the UN General Assembly (UNGA) terminated the mandate of South Africa in modern-day Namibia.
However, until its independence from South Africa in 1990, the de facto South African rule in Namibia
(formerly named “South West Africa”) continued. The UN, until Namibia’s peaceful transition, defined the
government of South West Africa as a “de facto but illegal occupying power”. Although its independence was
officially recognized by the international community, the ICJ’s Advisory Opinion of Namibia (1971) still
illuminates the developing jurisprudences of the international courts. In fact, Namibia is one of recent examples
in which the ICJ strived for keeping the interests of people in Namibia superior because in fact, Article 41 does
not have a purpose of “punishing” the inhabitants in an internationally unrecognized territory.

The International Court of Justice (ICJ) understood that citizens of the territory could not be considered to have
rights under the illegal government.
"the principle ex injuria jus non oritur which dictates that acts that are contrary to international law cannot have
legal jurisdiction by the wrongdoer… To grant recognition of illegal acts will allow them to perpetuate and then
only benefit the state which has acted illegally"

ROME STATUTE INTERNATIONAL CRIMINAL COURT

1. The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international
community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following
crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression